Unlike the Advocate General (see EUROPE 12284/22), the Court of Justice of the European Union did not consider that the disciplinary chamber of the Polish Supreme Court was incompatible with EU law in a judgment delivered on Tuesday 19 November under an accelerated procedure (Cases C-585/18, C-624/18 and C-652/18).
The European judge sets out the specific elements that the referring court will have to take into consideration in order to determine whether this disciplinary chamber is sufficiently independent to hear a dispute concerning the early retirement of three Polish judges from the National Supreme Court, in accordance with a Polish law of December 2017 (recently amended).
Considering that, in this case, the Charter of Fundamental Rights (Article 47) and the Treaty on European Union (Article 19) are applicable, the Court points out that the right to an effective remedy precludes disputes concerning the application of Union law from falling within the exclusive jurisdiction of a body which does not constitute an independent and impartial court.
In accordance with the principle of the separation of powers that characterises the functioning of the rule of law, the independence of the courts must be guaranteed with regard to the legislative and executive powers, it added.
The mere fact that the judges of the disciplinary chamber are appointed by the President of the Republic does not create a dependence on the political power or raise doubts about the impartiality of the judges, if they are not subjected to any pressure and do not receive instructions in the exercise of their functions, the Court notes. Moreover, the intervention, in advance, of the Polish National Council of the Judiciary (NCJ), which is responsible for drawing up the closed list of candidates for the post of judge with a view to their appointment, is likely to provide an objective framework for the President of the Republic's room for manoeuvre, provided that this body is itself sufficiently independent of the legislative and executive powers and of the President of the Republic.
The Court then clarifies that it is important to take into account both factual and legal elements relating both to the conditions under which the members of the new Polish NCJ were appointed and to the way in which it actually fulfils its role as guardian of the independence of the judicial system. It is also necessary to verify the scope of judicial review of the proposals of the Council of the Judiciary, as decisions to appoint the President of the Republic are not subject to such review.
Secondly, the Court highlights other elements directly characterising the disciplinary chamber. In particular, it notes that the exclusive competence of the disciplinary chamber in disputes relating to the retirement of Supreme Court judges derives from the Polish Supreme Court Act, which has been declared contrary to EU law (Case C-619/18, see EUROPE 12281/2).
It is also relevant to note that the disciplinary chamber should be composed only of newly appointed judges or that it seems to enjoy a high degree of autonomy within the Polish Supreme Court.
In the end, the judge considers that each of the elements examined, taken in isolation, is not necessarily sufficient to cast doubt on the independence of the disciplinary chamber. However, the situation could be viewed differently when these elements are considered together.
Amnesty International considered that the ruling gave the green light for Polish courts to further investigate the independence of key bodies responsible for disciplining and nominating judges.
For the President of the Polish Republic, Andrzej Duda, the European Court is of the opinion that “the Supreme Court must itself decide” the questions referred for a preliminary ruling. “This then relates to political issues, which should be resolved internally in our country and the (European) Court will not get involved in Polish domestic political issues, particularly with regard to the functioning of justice”, he added, according to AFP.
See the Court's decision: http://bit.ly/35aCPsK (Original version in French by Mathieu Bion)