Advocate-General Evgeni Tanchev recommended that the Court of Justice of the EU declare the references for a preliminary ruling from the District Courts of Łódź and Warsaw concerning the new disciplinary procedure for judges in Poland as inadmissible, in his opinion delivered on Tuesday 24 September (Joined Cases C-558/18 and C-563/18).
Since 2017, Poland has introduced a new disciplinary regime for judges. The Minister of Justice has gained more influence over the initiation of disciplinary proceedings and the legislative authorities have also gained more influence over the composition of the National Council of the Judiciary.
The referring courts fear that this regime may constitute an instrument for eviction of judges pronouncing decisions which the authorities disapprove of and that it may have a deterrent effect on their activity, thus creating a threat to the independence of the Polish courts.
Case C-558/18 concerns an action brought by the city of Łowicz concerning financial allocations received from the Treasury which it considers insufficient to perform its tasks. Considering that the judgment is expected to be unfavourable to the Treasury, the referring court fears that disciplinary proceedings will be instituted against the judges responsible for ruling on the case.
Case C-563/18 concerns criminal proceedings against three members of a criminal organisation involved in murder and kidnapping. Having acknowledged the alleged offences, these individuals request the status of a repentant witness. The referring court, which would then have to apply the extraordinary penalty reduction provided for in the Polish Criminal Code, fears that legal proceedings will be initiated.
In his opinion, Mr Tanchev takes the view that the situation in the main proceedings falls within the material scope of EU law. The structural violations of the guarantees of the independence of judges provided for in the EU Treaty (Article 19) inevitably affect the preliminary ruling mechanism and, consequently, the ability of the courts of the Member States to intervene as EU courts, he emphasises.
The Advocate-General considers that references for a preliminary ruling remain nonetheless inadmissible. In particular, the referring courts do not clearly establish a link between the relevant provisions of EU law, for which an interpretation is requested, and the national legislation at issue. On this basis, responding to a preliminary question would therefore lead to an advisory opinion on an offence that remains hypothetical in nature.
See the opinion: https://bit.ly/2lpm7ok (Original version in French by Mathieu Bion)