The newly established Disciplinary Chamber of the Polish Supreme Court is incompatible with the requirements of judicial independence established by EU law, said Advocate General Evgeni Tanchev of the Court of Justice of the European Union (CJEU) in his conclusions delivered on Thursday 27 June (Joined Cases C-585/18, C-624/18 and C-625/18).
Reasons given: the role of legislative authorities in the election of members of the National Council of the Judiciary (NCJ) and the role of the NCJ in the selection of judges for appointment to the Disciplinary Chamber of the Supreme Court.
In 2017, Poland implemented a reform of its judicial system. Among the measures, the retirement age of Supreme Court judges has been lowered to 65 years, unless they submit an explicit request submitted to the President of the Republic for approval after consulting the National Council of the Judiciary, the body responsible for preserving the independence of judges.
Judges affected by the measures to lower the retirement age have brought appeals before the Chamber of Labour Law and Social Security of the Supreme Court for violations of Union law. And the Disciplinary Chamber of the Supreme Court must deal with these cases.
The Supreme Court then referred the matter to the CJEU for a preliminary ruling in order to clarify the compatibility of the Disciplinary Chamber with the guarantees of the independence of the judiciary under Union law. This is taking into account the fact that the judges who may be appointed to the Disciplinary Chamber by the President of the Republic are selected by the NCJ. And the composition of the latter is mainly defined by the legislative and executive authorities.
Mr Tanchev, first of all, acknowledges the jurisdiction of the Polish Supreme Court in this case.
Secondly, he notes that measures concerning the appointment and disciplinary regime of judges are important aspects of the guarantees of the independence of the judiciary under Union law. Thus, the existence of an independent body in the context of the disciplinary system is one of these guarantees. And if the NCJ does not have a jurisdictional function, the rules relating to its composition and functioning have consequences for jurisdictional functions. Therefore, these rules can be taken into account to ensure that a national court offers guarantees of independence in light of Union law.
The Advocate General also considers that the judicial councils have common attributes in the EU in order to safeguard the independence of judges and ensure their functioning, in particular in order to respect the rule of law and fundamental rights. Thus, their mission is to safeguard the independence of judges and the courts. Secondly, their composition must guarantee their independence, and the terms of office of the judges sitting on them should not be replaced or renewed following parliamentary elections. Finally, the selection, appointment and/or promotion of judges is the responsibility of the judges, independent of legislative and executive authorities.
In this case, the composition of the NCJ is, for Mr Tanchev, likely to compromise his independence from the legislative and executive authorities. Therefore, there are legitimate reasons to objectively question the independence of the Disciplinary Chamber.
The Advocate General also notes a number of considerations in support of his conclusions, including the fact that until all the posts in the Disciplinary Chamber are filled for the first time, the judges sitting on it are appointed by the President of the Republic.
This is the third case relating to the reforms of the Polish judicial system that has been brought to the attention of the Court in a few days. Indeed, the CJEU ruled on Monday 24 June that national legislation on lowering the retirement age of Supreme Court judges was contrary to EU law (see EUROPE 12281/2). And Mr Tanchev has already considered, in his conclusions of Thursday 20 June (Case C-192/18), that the Polish law lowering the retirement age of judges violates EU law (see EUROPE 12279/13).
See conclusions: http://bit.ly/2J8C1v7 (Original version in French by Lucas Tripoteau)