The Chamber of Extraordinary Verification, one of two new judicial chambers established by the PiS government, handed down a judgement on 2 June concerning the competition procedure for the National Council of the Judiciary. The IKNiSP repealed the KRS’s resolution, and referred the case back to the Council for reconsideration.

This is not the first time this has happened. In May, the Chamber of Extraordinary Verification issued a judgement on a resolution by the National Council of the Judiciary promoting Maciej Nawacki to the District Court. Nawacki himself is a member of the National Council of the Judiciary, and is well known for the fact that he did not collect the required number of signatures during the competition procedure to join the National Council of the Judiciary. Now the Supreme Court has discovered while examining his promotion that the KRS made mistakes in assessing his work, and has withdrawn the resolution.

The IKNiSP’s latest judgement is even more interesting. The Chamber has not only questioned the promotion of the candidate into the circles of power, but by issuing its verdict, it has bypassed Polish law in favour of European regulations, a practice which the PiS government strongly contests.

The KRS recommends a ‘colleague’

In autumn 2019, eleven judges participated in the competition procedure for the post of Supreme Court judge in the Civil Chamber. These included the judges Waldemar Żurek and Dariusz Pawłyszcze.

Żurek is a former spokesman for the National Council of the Judiciary, and currently one of the faces of judicial resistance against PiS’s reforms of the system. Pawłyszcze is one of the group of judges which has been cooperating with the government. He has been working at the Ministry of Justice for three years, and acted as the representative of the committee supporting Dagmara Pawełczyk-Woicka, who is a member of the ‘neo-KRS’. They are also in a relationship together. Pawłyszcze has also signed letters to the KRS supporting Dariusz Drajewicz and Maciej Miter.

The law on the KRS is incompatible with EU law

The Chamber of Extraordinary Verification has decided that the verification of the KRN’s resolutions by the Supreme Court must be shaped in such a way as to ensure the full effectiveness of EU law. It was considered that Art. 44 of the Act on the National Council of the Judiciary, which blocks any appeals against the KRN’s resolutions in the case of applications for appointment to the post of Supreme Court judge, is incompatible with Art. 47 of the Charter of Fundamental Rights, which guarantees the right to an effective legal remedy and a fair court. Also, based on Art. 91, section 2 of the Constitution, the Polish provisions were incompatible with EU law were omitted, and the application of judge Żurek was examined.

The Chamber of Extraordinary Verification highlights a number of errors

The Supreme Court rejected Żurek’s arguments regarding the need to countersign the President’s announcement of the competition. Arguments that the National Council of the Judiciary was improperly staffed were also rejected, citing a verdict directed by Julia Przyłębska of the Constitutional Tribunal, which the Council ‘legalised’. But Żurek’s arguments questioning the assessment of his achievements were accepted.

The judges on the IKNiSP calculated that the KRS had wrongly compared how long both judges had been working. It was stated that Pawłyszcze had sat as a judge for 28 years and Żurek 22, which was supposed to be a significant disproportion. In fact, Pawłyszcze had included three years of his work at the Ministry of Justice and three years of his work as an assessor, which means that his time in jurisprudence is the same as Żurek’s.

The Council has also made a series of quite arbitrary statements. Pawłyszcze is the author of a number of professional articles, and Żurek is the author of a textbook on inheritance law. In the KRS’s opinion, the professional achievements of Pawłyszcze are more valuable because it directly translates into its jurisprudence, but the Supreme Court stated that this was not argued in any meaningful way.

The ‘favourable opinion of the minister’

The Supreme Court also pointed to other controversial arguments for Pawłyszcze’s candidacy which were put forward by the KRS.

The IKNiSP considered that the favourable opinion of the Minister of Justice and the performance of administrative tasks in the Ministry of Justice cannot be a factor in favour of a given candidate.

“In its justification, the Council attached too much importance to the opinion of the Ministry of Justice and the candidate’s knowledge of the organisation of common courts. Organisational and administrative supervision cannot be confused with judicial supervision. Supervising the process of ensuring the uniformity of case-law is different from the organisation of the judiciary. True, the opinion and its content are positive, but it cannot be decisive and considered the most important factor.”

The Chamber of Extraordinary Verification finally found that “the position expressed in the [KRS’s] resolution violates the law, because the Council derived logically incorrect conclusions from the facts known to it, and also omitted important circumstances that it should have considered. Accordingly, the complaint that the Council failed to consider the case comprehensively is well founded.”

Doubts about independence

But the IKNiSP did not only highlight the KRS’s incorrect reasoning; it was also stated that it is doubtful whether Pawłyszcze, due to his connections with the Ministry of Justice, is a good candidate to become a judge on the Supreme Court. In this connection, it mentioned the judgement of the CJEU from 19 November 2019.

“The Supreme Court stated that the independent basis for the Supreme Court to revoke a KRS resolution is the situation indicated by the CJEU in paragraph 125 of the judgement. It should be considered as disqualifying a candidate who takes office immediately after carrying out organisational and administrative tasks as part of a delegation to the Ministry of Justice. This would have a negative impact on the perception of his independence, and would thus indicate his real, or only potential, and on this occasion informal subordination to the body of executive power.”

The IKNiSP stated explicitly that it must take all circumstances into account, namely:

• the fact that the judge making the appeal, Waldemar Żurek, is known for his public activities criticising the executive (i.e. the Ministry of Justice);
• the judge appointed by the National Council of the Judiciary is directly linked to the executive branch, and is currently reporting to the minister;
• there are allegations that the National Council of the Judiciary is subordinate to the Ministry of Justice.

All this means that “in relation to the recommended candidate, doubts may be raised as to his independence.”

In the last paragraphs, however, the IKNiSP takes aim at both candidates:

“The Council will have to consider in greater detail whether the persons who have been dealing with the organisation of the judiciary for a long time have also issued relatively few judgements, whether they have devoted themselves to broadly understood public activities, and can guarantee they will properly perform the duties of a Supreme Court judge.”

A position not in line with the government’s doctrine

It is not difficult to notice that the judgement by the IKNiSP is unlikely to please PiS. According to the government’s doctrine, the European Union has no competence to speak on the subject of the member states’ judicial systems.

Krystyna Pawłowicz, a former PiS MP and recently a judge on the Constitutional Tribunal, has articulated this emphatically. Reporting on a fictitious dispute over competences between the Sejm and the Supreme Court, she loosed off a tirade against the courts’ reference to EU law bypassing national law:

“The Supreme Court defined as its first duty the duty [sic.] of loyalty to EU law and the CJEU’s rulings, and has stated that this duty of loyalty cannot be released by the decisions of the Polish legislative and executive authority.”

Pawłowicz also directly stated that the CJEU judgements are not EU law within the meaning of the Treaty. She added that the CJEU has the right to adjudicate on matters of EU law arising from the Treaties, but since they do not confer jurisdiction on matters of the judiciary, it means that the CJEU has exceeded its powers, and thus its judgement of 19 November is not binding on Poland. Pawłowicz stated explicitly: “The judgement of 19 November 2019 bypasses the Polish constitutional order and is contrary to Polish law. Such a judgement cannot be the basis for the action of the interrogative court.”

From the KRS to the KRS

We thus find ourselves in an interesting situation, in which in some cases the IKNiSP recognises the authority of the Constitutional Tribunal dominated by PiS nominees (the judgement of the CT ‘settling’ the legality of the KRS), but in others it (rightly) ignores the Tribunal’s arguments aimed at ‘delegalising’ the judgement of the CJEU.

It is also hard not to notice the absurdity that, by repealing a resolution of the National Council of the Judiciary, whose unlawfulness derives directly from its own lack of independence, the Chamber of Extraordinary Verification has passed it on to the very same National Council of the Judiciary.

And finally, the fact that the Chamber of Extraordinary Verification has spoken about this procedure at all is due to the fact that President Andrzej Duda has not appointed Dariusz Pawłyszcze as a Supreme Court judge in the meantime. If he had done so, the path to reconsidering the KRS’s resolution would, according to the IKNiSP itself, have been permanently closed.

Translated from Polish by Jim Todd