Professor Marek Safjan’s 6-year term of office as judge of the Court of Justice of the European Union ends in October. The government announced the recruitment on 5 July, in which it will choose Poland’s nominee for the position of judge of the CJEU. This will be handled by the newly established Inter-Ministerial Group for selecting candidates for the office of judge and Advocates General of the CJEU, as well as judges of the General Court of the EU, chaired by the Minister for European Union Affairs, Konrad Szymański.

An announcement by the Minister for EU Affairs about the opportunity to ‘apply for nomination by the Republic of Poland for the office of judge of the Court of Justice of the European Union’ was published in Poland’s national dailies on 5 July. Applications may be submitted up to 19 July to the Chancellery of the Prime Minister.

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.

Ombudsman Adam Bodnar appealed to Prime Minister Mateusz Morawiecki to select a person nominated by the Polish government to be a CJEU judge.

Two-stage procedure

The CJEU judge nominee will be selected in accordance with the procedure specified in Order No. 84 of the Prime Minister of 24 June 2021 on the Inter-Ministerial Group for the selection of candidates for the office of judge and the office of Advocate-General of the Court of Justice of the European Union, as well as the office of judge of the General Court of the European Union, published on 29 June 2021 in Monitor Polski (item 592).

The Inter-Ministerial Group is chaired by the Minister for EU Affairs, Konrad Szymański. The team will also include:

• a representative of the Minister for EU Affairs,
• two representatives of the Minister of Justice (Zbigniew Ziobro),
• and a representative of the Head of the Chancellery of the Prime Minister (Michał Dworczyk).

‘A person of unquestionable authority in legal studies or in the application of the law’ may also be appointed to the group. The first committee meeting must be held before 10 August. Participation in the group’s work is unpaid.

The qualification procedure includes a formal assessment of the applications and an interview.

The formal requirements include Polish citizenship, full public rights, impeccable character, a Master’s degree in law, obtained in Poland or abroad and recognized in Poland, at least 10 years of experience as an attorney-at-law, legal counsel or notary public, or as a president, vice-president, senior counsel or counsel at the General Counsel to the Republic of Poland.

This last requirement does not apply to people holding the academic title of professor or a post-doctorate degree in legal studies. In addition, knowledge of Polish, French and a third or more official EU languages is required.

The substantive qualifications of the candidates are to be assessed in the second stage, during the interview, including:

• whether they satisfy the conditions of Article 253(1) of the Treaty on the Functioning of the EU (they are persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in Poland or who are jurisconsults of recognised competence);
  
• whether they have extensive legal knowledge of EU law and experience regarding its implementation into the Polish legal order and its application;
• their familiarity with the case law of the CJEU;
• their familiarity with Polish law and experience related to its application;
• their academic achievements. 

After holding the interviews, the Inter-Ministerial Group will select no more than 3 candidates, from among whom the Council of Ministers will choose a person nominated by Poland for the position of a judge of the CJEU.

The expert panel established in accordance with Article 255 of the Treaty on European Union will give its opinion on the nominated person. If the person receives a positive opinion, the EU governments will have to agree to his appointment to the office of judge of the CJEU. If the experts reject the nomination, the procedure will start from the beginning.

Who will be appointed to the CJEU?

According to our findings, it is said among specialists in EU law that the ruling party would be happy to see applications from Professor Dr Hab. Marek Szydło, Professor Dr Hab. Leszek Bosek or Dr Hab. Waldemar Gontarski. 

Professor Gontarski told us in e-mail that he is not planning to take part in the recruitment. Professor Szydło and Professor Bosek have not yet answered our questions. Both of them have extensive academic and expert achievements and professional experience, which the current government has already valued.

Dr Hab. Leszek Bosek, professor of the University of Warsaw, has been a judge of the Supreme Court since 2018. He was nominated by President Andrzej Duda in a procedure with the involvement of the new National Council of the Judiciary. He adjudicates in the Chamber of Extraordinary Control and Public Affairs. Previously, under the PiS government, he was president of the office of the General Counsel to the Republic of Poland. He wrote his doctoral thesis under the supervision of CJEU judge, Professor Marek Safjan. He heads the Department of Medical Law and Biotechnology at the University of Warsaw. In 2002-2006, he worked as a case law counselor in the Office of the Constitutional Tribunal, and in 2006-2011 he was a counselor at the General Counsel to the Republic of Poland.  Until 2016, he was head of the Legislative Analyses Department at the Sejm’s Bureau of Research.

While he was President of the General Counsel to the Republic of Poland, he co-wrote the 2016 Act on the Office of the General Counsel. He is the author of more than 100 academic publications and co-editor of the six-volume medical law system series, System Prawa Medycznego. He was an expert for the Association of Large Families. In the Supreme Court, he was in the panels that overruled the resolutions of the new NCJ on judicial appointments. But he himself abstained from ruling when three chambers of the Supreme Court passed resolutions on the status of judges nominated by the new NCJ.

Dr Hab. Marek Szydło, professor at the University of Wrocław, manages the Competition Law and Sector Regulation Unit of the Faculty of Law, Administration, and Economics at the University of Wrocław. He is a legal counsel. He also works as an expert on legislation in the Sejm’s Bureau of Research at the Chancellery of the Sejm of the Republic of Poland. He chairs the Legislative Council.

He is the author of numerous academic publications, including 14 monographs; he managed projects at the National Science Centre. He received a scholarship from the Foundation for Polish Science for young scientists (2003-2004), an award of the ‘Polityka’ magazine for the best young scientists (2007), a distinction in the competition of the magazine ‘Państwo i Prawo’ for the best habilitation thesis (2008) and a scholarship of the Minister of Science and Higher Education for outstanding young scientists (2012).

As Professor Szydło states on his website, he prepared legal opinions and expert opinions for public institutions (the Sejm, the Supreme Audit Office, ministries, central offices and local government units) as well as for enterprises (including PKN Orlen, PGNiG, KGHM Polska Miedź S.A., the former Telekomunikacja Polska S.A.), and expert legislative opinions on draft laws being processed in the Sejm, draft positions of the Sejm for the Marshal of the Sejm, as well as positions for proceedings before the Constitutional Tribunal. Professor Szydło represented the Polish government before the Constitutional Tribunal on an alleged competence dispute between the Supreme Court and the President.

In 2017, he gave a negative opinion on the draft law on civil partnerships filed by the opposition parties. This was the first such radical expert opinion submitted to the Sejm in the history of work on bills on civil partnerships.

Professor Szydło did not answer our question as to whether he was the author of the justification of the Prime Minister’s motion to the Constitutional Tribunal on the constitutionality of the provisions of the EU treaty.

In addition to choosing a nominee for the office of judge of the CJEU, the Polish government also needs to re-submit three candidates for the office of judge of the European Court of Human Rights. The Council of Europe has rejected three candidates submitted to date.