Landmark Decision by the Grand Chamber of the Court of Justice of the European Union

On December 21st, the Grand Chamber of the Court of Justice of the European Union ruled that it would not respond to a question posed by the Chamber of Extraordinary Control and Public Affairs at the Supreme Court of Poland. This decision was based on the assertion that the said chamber does not qualify as a court under EU law. Notably, this chamber is comprised solely of so-called “neo-judges,” individuals appointed through a process involving the National Council of the Judiciary, reformed by the Law and Justice Party (PiS) in 2017 under politicized principles. Consequently, it lacks the independence and impartiality expected of a court.

Professor Marek Safjan, a judge of the CJEU and a retired judge of the Constitutional Tribunal, highlighted the significance of the CJEU’s ruling in understanding the situation within the Supreme Court and, more broadly, the judiciary. He pointed out that the ruling underscores the profound distortion within the system, where unauthorized individuals are issuing judgments as part of the Supreme Court.

According to Safjan, following the CJEU’s ruling, the judges of the Chamber of Extraordinary Control and Public Affairs should refrain from further adjudication, as it would disrupt the legal system.

Minister of Justice Adam Bodnar described the CJEU’s verdict as fundamental, reaffirming the urgent need to restore the rule of law and enact legislative reforms.

The Chamber of Extraordinary Control and Public Affairs was added to the Supreme Court in 2018, alongside the Disciplinary Chamber, which operated until mid-2022. Both chambers consisted exclusively of neo-judges.

After over five years of operation and issuing numerous rulings on pivotal issues, including those concerning electoral protests and the validity of elections, the CJEU unequivocally criticized the chamber.

The Chamber of Extraordinary Control and Public Affairs also has jurisdiction over cases involving the loss of parliamentary mandates due to final convictions. Professor Safjan noted that the matter of the parliamentary mandates of the convicted Mariusz Kamiński and Maciej Wąsik should be handled by a judicial panel from a different chamber of the Supreme Court. The appointment should be made by the First President of the Supreme Court, Małgorzata Manowska, who herself was appointed to the Supreme Court through a process involving neo-NJC members.

CJEU Seizes the Opportunity

The recent ruling by the CJEU marks a pivotal moment, particularly in light of its response in March 2022 to a question posed by Kamil Zaradkiewicz in his capacity as a sole member of the Civil Chamber. The previous verdict had faced criticism for its ambiguity regarding neo-judges.

This ruling is especially significant as it follows the resolution of three combined chambers of the Supreme Court on January 23, 2020, and the judgments of the European Court of Human Rights regarding neo-judges in the Disciplinary Chamber, Chamber of Extraordinary Control and Public Affairs, and the Civil Chamber of the Supreme Court. Furthermore, it comes after the CJEU’s judgment in the case of W.Ż., in which the CJEU instructed a Polish court to declare nullity of a decision issued by a neo-judge, who was appointed in violation of EU law.

Dr. Paweł Filipek from the Institute of Legal Sciences of the Polish Academy of Sciences explained that “the conclusion regarding the lack of characteristics of a ‘court’ in the case of the Chamber of Extraordinary Control and Public Affairs was already included in an earlier preliminary ruling by the CJEU in the case of Judge Żurek (C-487/19 W.Ż.). However, due to the nature of the preliminary ruling procedure, in the W.Ż. judgment, the CJEU left the final assessment on this matter to the referring court (Civil Chamber of the Supreme Court), which has not yet expressed such an assessment. On the other hand, in the judgment in the case of the ‘muzzle law’ issued in the counter-infringement procedure (C-204/21), the CJEU avoided providing such an answer on the judicial attributes of the Chamber, stating that the European Commission raised the objection of non-compliance with these requirements by the Chamber too late.”

The CJEU’s proactive stance underscores its commitment to upholding the principles of the rule of law within the European Union, setting a precedent for future legal proceedings concerning the independence and impartiality of judiciaries across member states.

CJEU’s Latest Ruling on the Chamber of Extraordinary Control and Public Affairs and its Reference to ECHR Judgments

In its recent judgment regarding the Chamber of Extraordinary Control and Public Affairs, the CJEU extensively cited judgments of the European Court of Human Rights (ECHR) concerning Article 6.1 of the European Convention on Human Rights. The CJEU clarified that this provision aims “in particular, to protect the judiciary from any unlawful external influences, particularly from the executive branch, but also from the legislative branch or influences within the judiciary itself. It encompasses respect for national provisions regarding the appointment of judges, which should be formulated unambiguously.”

By drawing on ECHR jurisprudence, the CJEU emphasizes the importance of safeguarding judicial independence and impartiality from external pressures, ensuring the integrity of the judiciary within the framework of the rule of law. This comprehensive approach underscores the CJEU’s commitment to upholding fundamental rights and legal principles within the European Union.

The Approach of the PiS Government to CJEU Rulings

In July 2021, the CJEU ruled that due to the appointment procedure to the Disciplinary Chamber, it does not meet the criteria of an independent court under EU law.

The PiS government was reluctant to comply with this ruling and portrayed a false conflict between the Polish constitution and EU law. They utilized the Constitutional Tribunal, which deemed the interpretation of EU law presented by the CJEU as incompatible with the constitution. This was used to justify Poland’s non-compliance with the CJEU ruling. The Morawiecki government exacerbated the conflict with the EU over the rule of law and adherence to EU law.

However, due to the economic situation following Russia’s attack on Ukraine, Poland was keen on obtaining funds from the EU National Reconstruction Plan, which the European Commission linked to meeting milestones, including conditions regarding the disciplinary system for judges.

In mid-2022, a presidential bill amending the Supreme Court was passed, abolishing the Disciplinary Chamber and replacing it with the Chamber of Professional Responsibility. However, disciplinary cases of judges could still be handled by neo-judges, leading the European Commission to assess that Poland had not fulfilled the milestones. Another attempt to unlock funds from the National Reconstruction Plan was made in early 2023 with the passage of another amendment to the Supreme Court Act, not consulted with President Andrzej Duda. President Duda did not sign the law and referred it to the Constitutional Tribunal, which on December 11 ruled that key contested provisions were unconstitutional and discontinued the proceedings in other respects.

On December 11, the Constitutional Tribunal ruled in another case that periodic fines imposed as interim measures by the CJEU against Poland are unconstitutional. However, four judges of the Constitutional Tribunal refused to sign this judgment.

Judgments from Strasbourg

Since May 2021, the European Court of Human Rights (ECHR) has been progressively ruling on various aspects of the rule of law crisis in Poland, including the status of chambers within the Supreme Court and the composition of adjudicating panels featuring neo-judges.

On July 30, 2021, in the case of Reczkowicz v. Poland, the ECHR ruled that judgments by the Disciplinary Chamber violate the complainant’s right to a fair trial, protected under Article 6(1) of the European Convention on Human Rights.

On November 8, 2021, in the case of Dolinska-Ficek and Ozimek v. Poland, the ECHR ruled that judgments by the Chamber of Extraordinary Control and Public Affairs also violate Article 6(1) of the Convention. The Court of Justice of the European Union, in its latest ruling refusing to respond to a question posed by the Chamber of Extraordinary Control and Public Affairs, referred to the arguments from this groundbreaking judgment. The ECHR consistently assessed that judgments by the Supreme Court, composed of individuals appointed at the recommendation of the National Council of the Judiciary following the 2017 changes, violate the Convention. This also applies to neo-judges sitting in the “old” chambers of the Supreme Court, a fact confirmed in the ruling of February 3, 2022, in the case of Advance Pharma sp. z o.o. v. Poland.

Attorney General Zbigniew Ziobro appealed to the Constitutional Tribunal against the interpretation of Article 6(1) of the Convention presented by the ECHR in these judgments, effectively challenging these rulings. The Constitutional Tribunal sided with the applicant’s arguments. The judgments of the Constitutional Tribunal were used to justify Poland’s non-compliance with these judgments.

On November 23, 2023, in the case of Wałęsa v. Poland, the ECHR ruled that Poland has a systemic problem with the appointment of judges and reiterated that the Chamber of Extraordinary Control and Public Affairs does not meet the requirements of an independent and impartial court established by law.

New Government and European Law

The new government is clearly signaling to both the Polish and global public opinion, as well as to EU institutions and the Council of Europe, that it will abide by the rulings of the CJEU and the ECHR. Moreover, in conjunction with judgments from independent bodies like the Supreme Court and the Supreme Administrative Court, they will set the framework for rebuilding structural guarantees of judicial independence in Poland.

Draft laws on the judiciary are being prepared by civil society organizations, as well as judges’ associations like Iustitia and Themis. The Minister of Justice and deputy ministers have expressed interest in these drafts. Ministerial draft laws concerning the judiciary are expected to be presented in January.

Meanwhile, the Sejm adopted a resolution on the National Council of the Judiciary, aligning it with European legal standards.

Minister of Justice Bodnar publicly expressed hope that President Duda would not veto all laws passed by the Sejm and expressed a willingness to consult proposed solutions with the President. The lack of consultation on the latest amendment to the Supreme Court Act prepared by the Morawiecki government was perceived by Duda as a personal affront.

Minister of Foreign Affairs Radosław Sikorski sent letters to the President of the ECHR and members of the Committee of Ministers of the Council of Europe, expressing Poland’s willingness and determination to implement judgments of the Strasbourg Tribunal.

Poland also intends to present new positions in cases pending before the CJEU and the ECHR. Proceedings are ongoing in the CJEU regarding a complaint by the European Commission concerning the Constitutional Tribunal. Nearly 400 complaints concerning various aspects of the rule of law crisis are pending before the ECHR.

Poland has also joined the group of “Friends of the Rule of Law” in the European Union, and the Minister of Justice has submitted a proposal to the Prime Minister for Poland’s accession to the European Public Prosecutor’s Office. Following a meeting with Vice-President of the European Commission Věra Jourová on December 20, Minister Bodnar appreciated its symbolic dimension due to the genuine willingness of the Ministry of Justice to cooperate with the Commission in the spirit of the same values. He emphasized that these values, expressed in the Polish constitution, are also reflected in EU law.

New judgments of the Constitutional Tribunal have been published in the Official Gazette, noting that: “in accordance with the judgments of the European Court of Human Rights in the cases: Xero Flor in Poland Sp. z o.o. v. Poland of May 7, 2021, complaint no. 4907/18; Wałęsa v. Poland of November 23, 2023, complaint no. 50849/21; M.L. v. Poland of December 14, 2023, complaint no. 40119/21, the Constitutional Tribunal lacks the characteristics of a tribunal established by law when a person not entitled to sit on it is included in its composition. In accordance with these judgments, the published judgment was issued with a composition established in violation of the fundamental principle applicable to the selection of judges of the Constitutional Tribunal, and consequently violating the essence of the right to a court established by law.”

On December 14, the Minister of Justice submitted changes to the regulations governing the operation of common courts for consultation. These changes, among other things, remind judges of their obligation to give precedence and directly apply EU and international law when preparing judgments and judicial reasoning.

President Andrzej Duda assessed that Bodnar “wants to issue guidelines to Polish judges on how to adjudicate in courts,” which reminded him of “Stalinist times.” Historian Adam Leszczyński clarified in OKO.press that this comparison is offensive and nonsensical.

The Minister of Justice, in his regulation, does not introduce any new standards and confirms the obvious, namely that public authorities, including courts, are bound by EU and international law, to which Poland has committed to comply. Under the PiS government, it was a pathology to persecute and intimidate judges for referring to CJEU and ECHR judgments that were not to the government’s liking.

In her statement, Chief Justice of the Supreme Court, Małgorzata Manowska, overlooks the practices of recent years. She assessed that “judges are aware of the regulations in force in the Republic of Poland. This also applies to international agreements and European law, which are applied by the courts based on the principles defined in the Constitution. Instructing judges in this area by the Minister not only violates judicial independence but also demonstrates recklessness and lack of tact.”

Manowska added that judges are not bound by “instructions from the Minister of Justice, who simultaneously serves as the Attorney General, if they are inconsistent with the Constitution.”

The proposed changes to the regulations governing the operation of common courts were criticized in a separate statement by Kamil Zaradkiewicz, appointed to the Supreme Court with the involvement of the neo-NCJ.

Consulting on changes before their adoption or implementation is a novelty after years of PiS rule, when criticism could only be exercised after the fact.

Change of course

Based on the initial declarations and actions, it can be assessed that the new government – at least in the realm of judiciary – sees an opportunity rather than a threat in European legal standards.

It accepts the reality of contemporary legal systems, which – at least in European democracies – are based on the coexistence of national, regional (such as the European Convention on Human Rights), supranational organizations (such as the European Union), and international law (such as the Universal Declaration of Human Rights or human rights treaties). It promises to execute judgments of the CJEU and ECtHR.

This marks a return to the pro-European roots of Polish democracy after 1989.

Milestones include joining the international and European human rights protection system, followed by accession to the European Union.

The PiS government approached international standards selectively, praising supranational institutions only sporadically when it saw (often wrongly) support for its own positions in their stances. However, it usually accused EU and Council of Europe institutions of bias. It manipulated, claiming that laws introduced in Poland were in force in other countries, and Poland was unfairly criticized for them. It did not acknowledge that the effects of these regulations and their impact on, for example, judicial independence also depended on a broader institutional context and differences in political culture, primarily on government actions.

It rejected interpretations of EU treaties and the European Convention on Human Rights by the CJEU and ECtHR when they were not to its liking, using the Constitutional Tribunal for this purpose. It did not execute judgments of the CJEU and ECtHR and opposed periodic financial penalties imposed by the Vice-President of the CJEU (which were deducted from EU funds for Poland anyway).

It criticized the idea of “differentiated integration” within the EU, especially when proposed by experts from Germany and France, and at the same time, following the example of Viktor Orbán, whenever possible, it did not join new EU mechanisms, such as the European Public Prosecutor’s Office. It demonized international legal instruments, such as the anti-violence convention, warning against “gender ideology”.

After taking control of most national “checks and balances” institutions (except part of the Supreme Court and the Supreme Administrative Court and the Ombudsman), at the beginning, it seemed to not appreciate and then zealously fought against – rhetorically, politically, and legally – European institutions and mechanisms for protecting human rights of the EU and the Council of Europe, including the CJEU and ECtHR, which had legal effects only domestically.

Instead of dialogue, the PiS government chose provocations.

This was the case when in November 2021, Minister of Justice Zbigniew Ziobro handed over a photo of war-torn Warsaw from the Second World War to EU Commissioner Didier Reynders, or when in January 2020, the Ministry of Justice dismissed a delegation of the Venice Commission, recommending it to visit the Museum of the Cursed Soldiers.

Democratic Transition 2.0

Breaking with these practices by the new government and adopting legislative solutions based on international standards would be primarily beneficial for citizens, as these standards specify what governments in rule of law democracies cannot do.

In many areas, compared to the current legal situation, they recommend expanding the rights and freedoms of individuals – for example, in terms of the right to a fair trial, freedom of speech, assembly, protection against surveillance, or the introduction of legal forms of protection for minority rights.

After a period of spectacular and often brutal lowering of already achieved democratic standards, Poland has the chance for a democratic transformation 2.0. This does not mean a return to the state of 2015, but better designing institutions and mechanisms of democracy, as well as ensuring their protection against politicization and takeover by the authorities after subsequent elections.

Poland has the opportunity to become a model for other countries undergoing democracy erosion. The proposed solutions must at least adhere to the international minimum. But they can also go beyond it and provide even better protection for our rights and institutions.

The article was published in Polish in OKO.press on 24 December 2023.