The Polish law introduced to exclude the right of the National Council of the Judiciary exercise judicial review of the assessment of candidates for the post of Supreme Court judge violates EU law, Advocate General of the EU Court of Justice Evgeni Tanchev suggested on Thursday 17 December.
His conclusions (case C-824/18) concern a Polish law of 26 April 2019 which introduced a prohibition on lodging an appeal in individual cases relating to the appointment to the post of judge of the Supreme Court.
The law also provides that “appeals challenging resolutions of the National Council of the Judiciary in individual cases relating to the appointment of Supreme Court judges not tried before the date of entry into force of this law shall be dismissed as of right”, explains a statement.
In his opinion, Advocate General Tanchev examined whether Union law precludes a provision which automatically precludes national proceedings from being discontinued without the possibility of continuing or reopening them before a different court.
He also examines whether Union law precludes the consequences which may flow from that national provision, namely that the Court should declare that it has no jurisdiction in cases which have already given rise to a pending request for a preliminary ruling.
He points out that the cornerstone of the Union’s judicial system is the reference for a preliminary ruling provided for in Article 267 of the TFEU, which, by establishing a dialogue between the Court of Justice and the courts of the Member States, aims to ensure unity of interpretation of Union law and full effect of the Treaties. “It follows clearly from the Court’s case-law that, in accordance with Article 267 of the TFEU, national courts must remain free to decide whether to refer preliminary questions to the Court or not”.
European Union law therefore precludes a national law which has decreed that the proceedings in question should be dismissed as of right, excluding any form of referral.
The Advocate General ruled that the abolition of the (right to) judicial remedy which had hitherto been available and the application of that abolition to parties who had already brought such a remedy constitutes “a measure of a nature which contributes to—indeed reinforces—the absence of the appearance of independence and impartiality on the part of the judges effectively appointed within the court concerned as well as the court itself”. This lack of an appearance of independence and impartiality violates Article 19 of the Treaty.
“Due to the specific circumstances arising in Poland, judicial review of appointment procedures by a court whose independence is beyond doubt is indispensable under the second subparagraph of Article 19(1) TEU in order to maintain the appearance of the independence of the judges appointed in those procedures”.
See the conclusions: http://bit.ly/3gUgyGE (Original version in French by Solenn Paulic)