Such important conclusions and consequences arise from five precedent-setting judgments of the Supreme Administrative Court of 6 May 2021. Their justifications are now available in the database of judgements.

Moreover, there are no legal grounds for the claims that the defects in the appointments are eliminated at the time of signature of the nominations by President Duda. In the light of the Supreme Administrative Court’s judgments, these nominations are invalid. The Supreme Court will now be able to declare that the new Supreme Court judges are not judges. A detailed justification of this conclusion is presented at the end of this article.

In these judgments, the Supreme Administrative Court revoked two resolutions of the new National Council of the Judiciary (NCJ) of August 2018 as being illegal.

The resolutions apply to the nominations of the new Supreme Court judges to the Civil and Criminal Chambers. The new NCJ, which was appointed by PiS (the Law and Justice Party), gave 8 nominations at that time, including for Małgorzata Manowska, the former deputy of the Minister of Justice, Zbigniew Ziobro – currently the first president of the Supreme Court – and for Kamil Zaradkiewicz, who had previously worked at the old Constitutional Tribunal but decided to cooperate with the current government.

The Supreme Administrative Court overruled these resolutions, as the Supreme Court deemed the procedure for selecting these new judges invalid from the outset. This is because the announcement of the recruitment by the president did not have the prime minister’s countersignature. It also questioned the legality of the new NCJ.

The court issued these important judgments in a three-member bench: Małgorzata Korycińska, Cezary Pryca and Wojciech Kręcisz. 

‘This means that the acts of appointment of these Supreme Court judges [by the president – ed.] are illegal and have no legal effect. They were issued as a consequence of an invalid recruitment, which was a breach of the law from the outset,’ the head of Iustitia, the largest association of independent judges, Krystian Markiewicz, tells us.

Markiewcz adds:

‘The Supreme Administrative Court’s judgments now allow the judges of the Labour and Social Insurance Chamber of the Supreme Court to rule that the new Supreme Court judges are not judges.’

Lawyers emphasise that the Supreme Administrative Court’s judgments also give grounds for other judges and citizens to contest Supreme Court judgments made with the participation of the new judges.

The Supreme Administrative Court is to issue further judgments on the 2018 appointments to the new Supreme Court Chambers appointed by PiS. This applies to the illegal Disciplinary Chamber of the Supreme Court and the Chamber of Extraordinary Control and Public Affairs. 

How the new NCJ nominated to the Supreme Court

These five precedent-setting judgments of the Supreme Administrative Court were brought about by so-called kamikaze candidates; that is, judges and lawyers who ran for election to the Supreme Court in 2018 only to test the procedure and intentions of the new NCJ.

This is because independent lawyers and judges boycotted the recruitment for judicial promotions because the new NCJ replaced the old, legal NCJ, which was dissolved in breach of the Polish Constitution.

Furthermore, PiS politicised the selection of the judge-members of the NCJ. They were elected for the first time by the Sejm with the votes of PiS and Kukiz 15 parties. The vast majority of the members of the new NCJ were people related to Ziobro’s Justice Ministry.

The kamikaze candidates were not wrong. They did not stand a chance. Different candidates, including those associated with the current government, were recommended for appointment by President Andrzej Duda.

In addition to Małgorzata Manowska and Kamil Zaradkiewicz, nominations to the Civil Chamber in August 2018 were received by:

• Jacek Grela (former president of the Court of Appeal in Gdańsk appointed by Ziobro’s ministry),
• Beata Janiszewska (formerly a judge from Warsaw),
• Marcin Krajewski (professor of the University of Warsaw),
• Joanna Misztal-Konecka (professor from the Catholic University of Lublin, formerly a judge from Lublin)
• and Tomasz Szanciło (formerly a judge of the Court of Appeal in Warsaw).

Kamil Zaradkiewicz’s election to the Supreme Court was then ensured by the Minister of Justice, Zbigniew Ziobro himself, who came to the meeting of the new NCJ because Krystyna Pawłowicz was blocking Zaradkiewicz.

In turn, the new NCJ gave a nomination to Wojciech Sych, a judge from Poznań, to the Criminal Chamber in August 2018. And this resolution was also just overruled by the Supreme Administrative Court.

The CJEU stated how to assess promotions to the Supreme Court

The resolutions of the new NCJ of August 2018 with appointments to the Supreme Court were contested before the Supreme Administrative Court – in accordance with the regulations at the time – by the so-called kamikazes.

A total of 20 such complaints were filed against four resolutions of the new NCJ – regarding appointments to four Chambers. The Supreme Administrative Court submitted requests for preliminary rulings to the CJEU on the basis of these cases.

It asked the CJEU whether it was in line with EU law that judges who apply for positions in the Supreme Court in Poland are unable to appeal against a resolution of the new NCJ refusing to nominate them. Such a possibility was taken away from Polish judges by successive amendments to the Act on the NCJ adopted by PiS. 

By asking the question, the Supreme Administrative Court suspended the enforceability of the NCJ’s resolutions on nominations until a ruling was issued, but President Andrzej Duda disregarded the judgment and appointed the people specified in the resolutions to the Supreme Court.

The matter of the appointment in 2018 has been pending before the CJEU for more than two years. At the beginning of March 2021, the CJEU ruled that successive versions of the Acts on the National Council of the Judiciary pushed through by the ruling camp could be in breach of EU law.

The CJEU also ruled that it is up to the national courts themselves to assess whether a given provision is in conflict with EU law – the Court gave guidelines on how to do this. 

But primarily, the CJEU ruled that if a national court finds that the changes introduced by the authorities removing judicial review from the decisions of the NCJ are incompatible with EU law, it is obliged not to apply those provisions.

Supreme Administrative Court: the President announced the recruitment to the Supreme Court without the Prime Minister’s countersignature

And Supreme Administrative Court judges, Małgorzata Korycińska, Cezary Pryca and Wojciech Kręcisz implemented this CJEU judgment on Thursday 6 May.

In the five judgments issued, because there were five complaints, they overruled the resolutions of the new NCJ on appointments to the Criminal and Civil Chambers of the Supreme Court of August 2018 in the point that applies to the appointments for new judges and in the second point regarding the lack of nomination for the remaining candidates (but only to the extent that encompasses the person who filed the complaint with the Supreme Administrative Court). 

The Supreme Administrative Court assessed the whole of the nomination process before the new NCJ, from the moment of its announcement by the President to the resolution with the nominations on the basis of which the President handed out the acts of appointment in the justifications to the judgments. 

The Supreme Administrative Court ruled that the president’s announcement of the recruitment to the vacant positions in the Supreme Court in May 2018, without the countersignature of the prime minister, ‘was affected for this reason by a kind of defect that could not trigger a non-defective procedure intended to fill judicial positions in the Supreme Court’.

Lawyers and independent judges were raising such an allegation from the moment this recruitment was announced and the Supreme Administrative Court has now agreed with them. Article 144 of the Constitution provides that the president’s announcement must be countersigned. Paragraph 3 of this provision lists the decisions for which the president does not need a countersignature, and this list does not include – as the Supreme Administrative Court held – the announcement of recruitments for judicial positions in the Supreme Court. Previously, such recruitments were announced by the First President of the Supreme Court. 

Supreme Administrative Court: The new NCJ is not independent

When assessing the nomination procedure before the new NCJ and whether it is independent, the Supreme Administrative Court took into account the fact that:

•  the authorities appointed the new NCJ after the old, legal NCJ was dissolved during its term of office;
• 15 of its members were elected by the Sejm for the first time, whereas the judges had previously done so; 
•  the process of electing some members of the new NCJ may have been affected by irregularities (this mainly applies to the election of Maciej Nawacki, who did not have the legally required signatures of support). 

Furthermore, the Supreme Administrative Court assessed how the new NCJ operates in practice and whether it actually protects the independence of the courts. And it is known from experience that it does not defend this independence, whereas it gives promotions mainly to ‘its own’ judges. 

The Supreme Administrative Court concluded that the new NCJ ‘does not provide sufficient guarantees of independence from the legislative and executive authorities in the procedure for appointing judges’.

It held that its current membership does not satisfy the requirements of the Constitution, because as many as 14 judges who are its members represent only the ordinary courts.

The Council currently does not include judges of the Supreme Court and judges of the administrative courts, whereas such an absolute requirement is provided for in Article 187 of the Constitution.

In the justification for the judgment, the Supreme Administrative Court emphasised that the judge-members of the new NCJ were or still are presidents and vice-presidents of courts appointed by the authorities (in place of the presidents dismissed earlier as part of a nationwide purge by Ziobro’s ministry).

‘This leads to the conclusion that these members of the Council are functionally subordinated to the executive authority, which is represented in the Council by the Minister of Justice [the minister is a member of the NCJ by law – ed.], and therefore this subordination is also of an institutional nature,’ the Supreme Administrative Court wrote in its justification of the judgment.

It also notes that the Minister of Justice has an influence over the members of the new NCJ (presidents and vice-presidents of courts nominated by him), as he can dismiss them from their positions at any time.

Supreme Administrative Court: The new NCJ does not defend the independence of judges

Furthermore, the Supreme Administrative Court also assessed the choice of members of the new NCJ. It held that the way the candidates were put forward was not representative of the judicial environment. Because it was enough for the candidate to have 25 signatures of support from judges – whereby the candidates could give support to themselves and to each other.

‘The principles and procedure of creating the membership of the NCJ were therefore clearly motivated by the intention to subject it to a kind of curatorship of the executive authority, and therefore of the parliamentary majority, which, in the context of the procedure of electing members of the NCJ and the majority required to do so, as well as in relation to the said functional and institutional subordination of the Council, also emphasises the importance of the factor of (political) loyalty of the candidates to the entity making the choice,’ the Supreme Administrative Court summed up in the justification to the judgment.

And added: ‘The membership of the NCJ, formed in this way, therefore nullifies the possibility of it effectively performing its basic function, namely safeguarding the independence of the courts and the impartiality of judges.’

The Supreme Administrative Court also held that the new NCJ does not speak up on matters regarding the independence of judges.

Nor does it object to the failure to implement CJEU rulings in Poland.

‘The circumstance that the National Council of the Judiciary was suspended from membership of the European Network of Councils for the Judiciary in September 2018 is also undoubtedly proof of its abdication in this respect – this is because the attitude of the Council is in clear opposition to the duties and functions entrusted to it by the legislator [the Sejm – ed.]’.

That is why the Supreme Administrative Court concluded that the new NCJ ‘does not provide sufficient guarantees of independence from the legislative and executive authorities in the procedure for appointing judges’.

The Supreme Administrative Court writes in the judgment that ‘the degree of its dependence on the legislative and executive authorities in performing the tasks entrusted to it’ is high, which is important for assessing whether the judges nominated by it satisfy the requirements of ‘independence and impartiality’.

The Supreme Administrative Court goes on to write in the judgment about the thwarting of ‘the possibility of the NCJ effectively performing its function of guarding the independence of the courts and the impartiality of judges’ and ‘the high risk – even certainty – of settling recruitment proceedings in a manner that does not correspond to the need to take into account the good of the judiciary and the criteria of objectivity and fairness, the preservation of which was also not fostered by the pace [express – ed.] of the work related to the assessment of the candidatures [in the 2018 recruitment – ed.].’

How the authorities and the new NCJ wanted to block the Supreme Administrative Court’s examination of the case

Most of the justification of the Supreme Administrative Court’s judgment is devoted to how the authorities, but also the new NCJ, tried to block the assessment of the appointments of new judges to the Supreme Court. This is because PiS has repeatedly been amending the provisions of the acts on the courts, including the Act on the Supreme Court and the NCJ.

Their aim was to block the possibility of appealing against the NCJ’s resolutions on nominations to the Supreme Court and to deprive the Supreme Administrative Court of its cognition to examine them. It follows from these provisions that the cases from the complaints filed by the kamikaze candidates should be discontinued. Which was supposed to block the Supreme Administrative Court’s requests for preliminary rulings from the CJEU.

However, the Supreme Administrative Court disregarded the new regulations passed by PiS. This was permitted by the CJEU in its judgment of March 2021, saying that they can be disregarded if they breach European regulations. And this is what happened. The Supreme Administrative Court ruled that candidates who did not receive nominations were deprived of the right to appeal and to have the decision of the NCJ examined by a court.

The Supreme Administrative Court even stated in its judgment that PiS’s enactment of regulations preventing complaints about nominations to the Supreme Court was intentional so that the personnel changes that PiS planned in the Supreme Court could not be contested.

‘The conclusion that the reason for these changes [to the regulations – ed.] was to make it impossible to conduct any judicial examination of the appointments made in the Supreme Court after the new membership of the NCJ was constituted is fully justified,’ wrote the Supreme Administrative Court in the justification of its judgment. 

It added that such a system of selecting judges can give rise to ‘doubts of a systemic nature among citizens as to the independence and impartiality of judges appointed as a result of a procedure that is not subject to any control.’

In the justification of the judgment, the Supreme Administrative Court emphasised that even the new NCJ obstructed the judicial review of its resolutions of August 2018. In the case of the nominations to the Civil Chamber, it was served to the complainant kamikaze candidates in the middle of September 2018. However, it did not forward the appeal against the resolution of the new NCJ to the Supreme Administrative Court until November of that year.

It simultaneously sent the resolutions to the President, who handed out the acts of appointment without waiting for the judgment of the Supreme Administrative Court and despite the Supreme Administrative Court issuing a so-called interim measure suspending the execution of the NCJ’s resolutions.

‘Therefore, the conclusion that the said activity – constituting the Council’s permanent practice with respect to resolutions adopted on the presentation (lack of presentation) of applications for appointment to serve as a judge of the Supreme Court – was of an intentional nature and was directly intended to prevent the Supreme Administrative Court from examining the legality of the said resolutions to the extent necessary for this purpose must be deemed justified,’ wrote the bench in the judgment.

In its extensive justification of these precedent-setting judgments, the Supreme Administrative Court also addressed the argument often repeated by the PiS government, especially the people in Zbigniew Ziobro’s ministry, that a member state has the right to form its justice system independently.

The Supreme Administrative Court confirms this right, but immediately adds that the justice system must satisfy EU standards. It has to guarantee citizens the right to an independent and impartial court, while judges must be independent, because they are EU judges.

Furthermore, the Supreme Administrative Court emphasises that the ‘reforms’ in the judiciary cannot be assessed piecemeal, but how the changes affect the functioning of the entire justice administration must be assessed.

These five judgments and their justifications are already in the Supreme Administrative Court’s database of judgments: http://orzeczenia.nsa.gov.pl/cbo/query. It is sufficient to type in the references: II GOK 2/18, II GOK 3/18, II GOK 5/18, II GOK 6/18 and II GOK 7/18.

What next with the new Supreme Court judges

In repealing the resolutions of the new NCJ, the Supreme Administrative Court simultaneously discontinued the proceedings in these cases. Which means that the new NCJ can no longer return to these appointments to the Supreme Court.

Information appeared in the media on Thursday 6 May 2021, just after these judgments were issued, stating that although the resolutions on the nominations do not exist, they were valid because the Supreme Administrative Court cannot examine the president’s decision on the appointment of judges.

This information was based on a PAP headline and a statement by the press officer of the Supreme Administrative Court, Judge Sylwester Marciniak, who is also head of the National Electoral Commission. 

But such a conclusion is false. Of course, the president’s decisions formally remain in circulation. And the Supreme Administrative Court confirmed in its judgment that they are inviolable, because they cannot be subjected to judicial control. But according to many lawyers, these decisions of the president do not incite legal effects.

‘The Supreme Administrative Court repealed the resolutions of the neo-NCJ to the extent to which it requested the president to appoint judges of the Supreme Court. This means that the legal basis for such an appointment has been cancelled and therefore the judicial nominations are invalid, while the people selected by the neo-NCJ are not judges of the Supreme Court. Because two elements together are needed for a valid nomination: a correct motion of the NCJ, which was not there and a presidential nomination,’ believes Attorney-at-Law Michał Gajdus, attorney for Judge Jacek Sadomski of the Court of Appeal in Warsaw, who entered the recruitment.

Sadomski contested the resolution of the new NCJ with the nominations to the Civil Chamber. And the Supreme Administrative Court has already issued a judgment in his case. Counsellor Gajdus emphasises that, since the new NCJ is not an independent body and does not guarantee a fair process of selecting judges, this ‘means that it is a body which cannot conduct recruitment proceedings for judicial offices’.

Dr Tomasz Zalasiński, attorney of Arkadiusz Tomczak, a judge at the Voivodship Administrative Court in Warsaw, who also contested the resolution of the new NCJ (this case is to be heard by the Supreme Administrative Court on 13 May), believes similarly.

‘These are very good judgments. The Supreme Administrative Court ruled that the NCJ does not satisfy the constitutional requirements regarding guaranteeing the independence and impartiality of the appointed judges. It also does not comply with EU standards in this respect,’ Dr Zalasiński tells us.

He adds: ‘In the judgment, the Supreme Administrative Court draws attention to a number of legal defects in the whole of the procedure before the NCJ. It is of fundamental importance that the recruitment was conducted in a defective manner from the very beginning. This is because the president’s announcement about vacancies in the judicial offices in the Supreme Court is not countersigned by the prime minister, so this act is – by virtue of the Constitution – invalid. In this situation, proceedings before the NCJ should be discontinued because of the inability to adopt a resolution. However, the NCJ selected the judges in a highly non-transparent procedure, and the president hastily appointed them.’

Zalasiński emphasises that, in the situation where resolutions are overruled by the Supreme Administrative Court, the nominations handed out by the president are invalid.

The head of Iustitia: The Supreme Court has an open door for declaring that new Supreme Court judges are not judges

Such effects of the Supreme Administrative Court judgments are confirmed by the head of the largest association of independent judges Iustitia, Judge Krystian Markiewicz. ‘These judgments fully confirm the legitimacy of the appeals of the kamikaze judges. The President’s breach of the law in announcing the recruitment to the Supreme Court without the Prime Minister’s countersignature has been confirmed. This means that the actions of the new NCJ and the whole of the recruitment are invalid,’ Krystian Markiewicz tells us.

He emphasises: ‘It has been prejudged that the current NCJ is not the Council referred to in the Constitution. It has also been prejudged that effective judicial protection and control of the NCJ’s actions are required in the recruitment for a judicial office. This applies to all nomination proceedings’.

What next?

What do the judgments of the Supreme Administrative Court mean in practice, since the President’s acts of appointment cannot be invalidated? ‘In the near future, the Labour and Social Insurance Chamber of the Supreme Court will be able to state that the people nominated by the new NCJ to the Supreme Court and appointed by the president are not judges and their appointment is invalid. The Chamber is only waiting for the next ruling of the CJEU, which is expected before the summer holidays this year,’ explains Krystian Markiewicz.

At issue is a judgment on whether the Supreme Court itself can assess the legality of the new Supreme Court judges. In this case, requests for preliminary rulings were submitted to the CJEU on the basis of precedent-setting actions by independent judges, mainly from Iustitia. They sued the new Supreme Court judges for not being judges. These actions are in the Chamber of Labour and are waiting for the CJEU’s ruling.

What if Supreme Court President Małgorzata Manowska and the new Supreme Court judges block the implementation of the CJEU judgment? All the more so that there have already been attempts to take these lawsuits from the Chamber of Labour?

‘It is theoretically possible to take these lawsuits away from the judges. But the Chamber of Labour has coped so far. Furthermore, after the CJEU judgment is issued, the case must continue with the bench that submitted the request for the preliminary ruling,’ says Krystian Markiewicz.

He adds that if there are attempts to block the consideration of these actions in the Supreme Court – including by the president – this will be considered a failure to respect the EU treaties.

‘Blocking these actions will be a failure to implement the CJEU judgment. Will the government want to lose EU money because of this?’ warns Krystian Markiewicz.

Tribunal of State for President Duda?

According to Attorney-at-Law Michał Gajdus, the president is risking being held liable before the Tribunal of State in the future for appointing people selected in a defective procedure as judges of the Supreme Court and despite the suspension of their appointment by the Supreme Administrative Court.

Lawyers also believe that his nomination decisions now have no legal significance and are ineffective. Even though the PiS authorities argue that the act of appointment as a judge by the president sanctions any possible irregularities, and that the president is not bound by the resolutions of the NCJ.

‘The concept that the president’s decision is sacrosanct is false. Because the president is equal before the law and his decisions also either have effects or they do not. He cannot appoint a horse to the office of a judge and say that his decision is unquestionable [Emperor Caligula’s horse was made a senator in the Roman Empire – ed.],’ says Krystian Markiewicz.

He emphasises that, if the Chamber of Labour holds that the new Supreme Court judges are not judges, they should vacate the offices of the Supreme Court. And if they do not vacate them? ‘If they do not vacate them, their actions will be illegal and this will be a failure to respect the CJEU rulings, for which there will be EU sanctions,’ says Markiewicz.

Dr Tomasz Zalasiński believes the same. ‘What next? It was certainly a mistake to appoint the Supreme Court judges before examining the legality of the NCJ’s resolutions, which constitute the basis for the president’s prerogative. The Supreme Administrative Court ordered interim measures because it wanted to protect us from the situation in which we have currently found ourselves. This is because it transpires that the judges were appointed despite the lack of motion of the NCJ on this, which is in conflict with both the Constitution and EU law,’ Dr Zalasiński tells us.

There is another aspect of the Supreme Administrative Court’s judgments. The judges cannot apply the judgments of the Supreme Court issued with the new judges, while citizens can challenge them. ‘I will not refer to such judgments at work,’ announces Krystian Markiewicz.

The text was published in Polish at OKO.press on 8 May 2021