By Anna Wójcik
Since coming to power in 2015, the Law and Justice (PiS) government has introduced a series of changes to the judicial system that have ignited nationwide street protests, put Poland at loggerheads with the European Commission over breaches of EU law, and been met with remarkable resistance from a number of judges in Poland. Their judicial activity included referring questions about elements of the “reforms” to the top court of the European Union.
On Tuesday, the Court of Justice of the EU (CJEU) issued a long-awaited judgement related to some of the key elements of Poland’s judicial reform: the new National Council of the Judiciary (NCJ) and the new Disciplinary Chamber of the Supreme Court.
The judgement was not a straightforward one, as was indicated by the fact that both sides – supporters and opponents of the Polish government – claimed it as a victory. It is important to understand what it means and its implications for the future of PiS’s judicial “reforms”.
More than meets the eye
In its judgement, the Grand Chamber of the CJEU responded to a question referred to it by the Supreme Court’s Labour Law Chamber. The CJEU ruled that the Labour Law Chamber must itself decide whether the Supreme Court’s Disciplinary Chamber is independent under EU law.
The Disciplinary Chamber was created in 2018 as part of the government’s overhaul of Supreme Court, and it is filled only with judges recommended by the new National Council of the Judiciary (NCJ), another new PiS creation.
The NCJ has a key role in appointing judges of the Supreme Court and common courts. In 2018, the new Act on the NCJ entered into force, dismissing the former council before the end of its constitutional, four-year term. The new NCJ is composed of 25 members, including 15 members elected among judges.
However, it is parliament, where PiS has a majority, that under PiS’s “reforms” is now responsible for confirming the choice of NCJ members – not, as the constitution demands, fellow judges. The “illegitimate birth” of the new NCJ and its operating model were the reasons why its membership in the European Network of Councils of Judiciary was suspended in 2018.
The CJEU’s latest judgement includes 172 paragraphs, with a lot more meaningful content than most media reported after just skimming the press release. Crucially, the CJEU provided a comprehensive, broad and very detailed list of criteria that must be taken into account when deciding on the independence of a court under EU law. This list is the first innovative element of its judgement. As a result, the Supreme Court has a checklist to verify its chambers.
Justice minister’s premature enthusiasm
Some observers had expectations – unreasonably high ones, as it turned out – that the CJEU would rule that the creation of the Disciplinary Chamber and the NCJ was against EU law. Instead, the CJEU provided the criteria for the Polish Supreme Court to evaluate that.
In an interview for TVN24, Ziobro said:
“The CJEU ruled as I had expected. That it is not competent to rule in matters of organisation of the Polish justice system.” He added that: “The Court of Justice of the EU has put the ball in Poland’s court”.
In actual fact, the CJEU did not say that this at all. Quite the contrary. A closer reading of the judgement shows that the CJEU reconfirmed at length that the EU law applies to matters of the independence of the judiciary, which therefore is not only an internal matter for each EU member state. It also provided all necessary elements for it to crush the key elements of judiciary “reforms” in the future.
The relevant paragraph 75 reads:
“The Court has previously held that, although the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 52 and the case-law cited).”
Marek Safjan, one of the CJEU judges, explained that while EU states may themselves choose how to organise their justice systems, the cumulative effect must be a guarantee of the independence of judges, as understood under the EU treaties and the Fundamental Rights Charter. The independence of the judiciary falls under EU law, and therefore the CJEU is competent to pronounce on it.
Ziobro’s enthusiasm is therefore premature, and his metaphor incomplete. The ball is indeed in Poland’s court, but the referee has clearly said that the game is being played by EU rules – and has elaborated on those rules at length.
This means that the Labour Law Chamber will now consider the status of judges who sit in the Disciplinary Chamber following the checklist provided by the European Court. And to do so, it must also consider the role of the National Council of the Judiciary in appointing judges to this chamber.
Court of Justice provided detailed criteria
The CJEU judgement reconfirmed that EU law applies to matters of independence of the judiciary, which therefore is not only an internal matter for each EU member state.
Of course, all EU states may themselves choose how to organise their justice systems. However, the CJEU emphasised that the cumulative effect must be a guarantee of the independence of judges, as understood under the EU treaties and the Fundamental Rights Charter.
This also means that the Court of Justice confirmed that it is competent to issue judgements on the independence of the judiciary, including organisation of the justice systems or bodies that are responsible for appointing judges.
In the judgement, the CJEU included a comprehensive, broad and very detailed list of criteria that must be taken into account when deciding on the independence of a court under the EU law. This checklist in itself is the first innovative element of the ruling.
The Grand Chamber explained that the requirement that courts be independent has two aspects to it. The first one
“requires that the court concerned exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions” (as stated by paragraph 121 of the judgement).
The second aspect “seeks to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings.”
Secondly, the CJEU determined that there is a link between judicial independence and composition and functioning of bodies that are responsible for appointing judges. This is a key element that can be used to assess the National Council of the Judiciary.
The relevant paragraph 123 reads:
“Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it.”
Furthermore, the CJEU elaborated on criteria that should be considered by the Labour Law Chamber of the Supreme Court when assessing the Disciplinary Chamber (paragraph 131 and following) and the NCJ (paragraph 136 and following, especially paragraphs from 143 to 151).
In particular, the CJEU stated that a body appointing judges might assure independence of the judiciary only when “that body is itself sufficiently independent of the legislature and executive and of the authority to which it is required to deliver such an appointment proposal” (paragraph 138). Moreover, the CJEU determined that to evaluate the NCJ, “the way in which that body actually exercises its role” must also be considered (paragraph 140).
The First President of the Supreme Court, Małgorzata Gersdorf, summarised the CJEU’s judgement:
“The Court of Justice has recognised the judicial control of compliance of legal provisions regarding the court system with the law of the European Union. The Court has acknowledged this issue as going beyond Polish internal affairs. The Court has shared the Supreme Court’s reservations and decided that the question of independence of the Disciplinary Chamber, raised in the request for preliminary ruling, as well as the question of the National Council of Judiciary’s impartiality, should be considered by the referring court, i.e. the Polish Supreme Court.”
Gersdorf also announced that the Supreme Court will pass relevant decisions “without unnecessary delay, but it certainly needs to take some time”.
The CJEU will rule on the Disciplinary Chamber in another case
Finally, what has been missing from most media reports on the most recent judgement is that the Grand Chamber of the Court of Justice of the EU will, eventually, determine whether the Disciplinary Chamber of the Supreme Court is an independent court under EU law.
In 2020, the CJEU will answer this question in an EU-law infringement case recently brought by the European Commission. The court used the question posed by the Polish Supreme Court to spell out the detailed criteria it is likely to use to evaluate elements of PiS’s judicial “reforms” in the future. This makes Ziobro’s enthusiasm all the more premature.
In addition to the aforementioned EU Commission infringement case, it will also answer 11 more questions that Polish courts have referred to it so far. In the coming months, step by step and case by case, the Court of Justice of the EU will evaluate numerous elements of the PiS judicial “reforms”.