On Tuesday7 November, the Council of Ministers approved Dr Hab. Dobrochna Bach-Golecka, professor of the University of Warsaw, as the candidate recommended for the position of judge of the Court of Justice of the European Union. 

The Court has 27 judges, one from each EU country. They are appointed with the consent of the governments of the Member States after consulting an expert advisory panel, which is required by Article 255 of the Treaty on the Functioning of the EU. 

Article 253 of the Treaty on the Functioning of the EU and Article 19 of the Treaty on European Union state that the judges of the CJEU should have the qualifications required for the highest judicial office in their respective countries or be recognized legal experts. There must be no doubt as to their independence.

The government also approved Aleksandra Rutkowska, Judge of the Regional Court in Warsaw, to which she was promoted in 2021, and Dr hab. Arkadiusz Radwan, professor of the Vytautas Magnus University in Kaunas to judicial positions in the General Court of the European Union.

PiS has been trying to select a candidate for two years

The CJEU judge from Poland is currently Professor Marek Safjan, whose 6-year term of office ended in October 2021. The procedure introduced by the government in which applications of lawyers are assessed by the Inter-Ministerial Group for selecting candidates to the office of judge and attorneys general of the CJEU, as well as judges of the General Court of the EU started to apply in that same year. The group is chaired by a member of the government, the European Union minister, and includes a representative of the EU minister, two representatives of the justice minister and a representative of the head of the prime minister’s chancellery.

The competition was held for the first time in 2021. The winner selected by the group then was Dr Hab. Rafał Wojciechowski, a judge of Julia Przyłębska’s Constitutional Tribunal, who was selected for the position by the PiS majority in the Sejm. Wojciechowski took part in issuing the ruling of 7 October 2021, which undermined the key principle of functioning of the EU – the primacy of EU law over national law. This decision, referred to as the ‘legal Polexit’, was one of the reasons for the inclusion of the milestone regarding the judiciary in Poland’s NRRP and became one of the grounds for the European Commission’s action against Poland in connection with the functioning of the Constitutional Tribunal.

In March 2022, Ewa Siedlecka, Polityka magazine legal columnist, disclosed that the panel of experts at the Court of Justice of the European Union had rejected Wojciechowski’s candidacy. In accordance with the procedure, the Member States vote after the opinion is issued. However, this did not happen, which meant that the government or the interested party himself had to withdraw at some stage.

Manage before the change of government

All was quiet about the competition for many months. The announcement of the recruitment appeared as late as in June 2023. The deadline for application was 3 July. However, matters really accelerated after PiS lost the elections.

The list of candidates who satisfied the formal requirements was published on 3 November. This was the day on which the inter-ministerial group planned to hold interviews. The selected six were:

• Dr Hab. Dobrochna Bach-Golecka, Professor of the University of Warsaw, 
• Dr Hab. Agnieszka Frąckowiak-Adamska, professor of the University of Wrocław, 
• Dr Hab. Tomasz Tadeusz Koncewicz, professor of the University of Gdańsk, attorney-at-law, 
• Dr Hab. Arkadiusz Radwan, professor Vytautas Magnus University in Kaunas, attorney-at-law; 
• Dr Hab. Joanna Wegner, professor of the University of Łódź, judge of the Supreme Administrative Court; 
• Mariusz Witkowski, judge of the Regional Court in Katowice. 

The interviews lasted approximately 20–30 minutes. They started with a brief presentation of the reasons for applying, after which the committee asked three questions. What interested it? Among other things, the relationship between national and international law and matters of priority of EU law.

Who is the candidate?

Dr Hab. Dobrochna Bach-Golecka, who was recommended by the outgoing Council of Ministers, graduated in law from the University of Gdańsk, as well as in theology from the John Paul II Catholic University of Lublin. She has been lecturing at the University of Warsaw for years, where she has been a university professor since 2020 and has worked in the European Law Department since 2005. She has been the head of the Centre for Canon Law since 2019.

She has worked with Ordo Iuris on various occasions over the past decade – she has taken part in conferences organized by the institute (e.g. on abortion) and in its publications. She was one of the experts preparing a report on the Convention of the Council of Europe on preventing and combating violence against women and domestic violence in 2014. Its conclusions boiled down to the fact that its ratification by Poland is ‘inadvisable’ because it ‘may serve to exert pressure to legalize abortion’, ‘it introduces discrimination against men’ and ‘it opens the door to questioning the constitutionally protected model of the family’.

She was appointed by the Ministry of Foreign Affairs to the post of ad hoc judge of the European Court of Human Rights in Strasbourg in 2016–2018. In the following years, she held advisory positions at the Chancellery of the Polish Senate (but only the Senate of the ninth term of office), the Ministry of Science and Higher Education and the Ministry of Health.

What next?

The selection of the candidate by the ministerial group does not yet mean that she will become a judge of the CJEU. The person nominated by the government must receive a positive opinion of a panel of experts appointed under the Treaty on European Union, after which the governments of the Member States of the EU, including the (new) Polish government have to agree. But this is not the only obstacle to taking up office.

This is because a so-called Competence Act entered into force in August 2023, which requires the government to present candidacies for the top positions in the EU, including the position of judge of the CJEU, to the president. It can be expected that Dr Hab. Bach-Golecka will be accepted by Andrzej Duda – she was one of two lawyers who the president invited to the presidential palace in June 2022 to discuss the reform of the Polish judiciary, which is a distinction.

However, if the lawyer does not receive a recommendation from the panel of experts, the next candidate or candidates will have to be selected by the new government in consultation with the president.

Judges of the General Court of the EU 

The Council of Ministers also approved two candidates to judicial positions in the General Court of the European Union (the part of the CJEU in which complaints of private individuals against EU institutions are considered) on Tuesday.

They are Aleksandra Rutkowska, Judge of the Regional Court in Warsaw, to which she was promoted in 2021, and Dr hab. Arkadiusz Radwan, professor of the Vytautas Magnus University in Kaunas.

The candidates to the positions of Judges of the General Court of the EU are also ultimately nominated with the joint agreement of the governments of the Member States after the committee gives its opinion.

The article was originally published in Polish in OKO.press. Translated by Roman Wojtasz.

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