On Tuesday 2 March, the Commission “took note”of the new judgment by the Court of Justice of the European Union on judicial reforms in Poland, this time concerning the successive amendments to the Polish Law on the National Council of the Judiciary which have the effect of removing effective judicial review of that council’s decisions proposing to the President of the Republic candidates for the office of judge at the Supreme Court (case C‑824/18) (see EUROPE 12077/12).
The Court of Justice, in its answer to a preliminary question, held that this accumulation of legislative changes was liable to infringe EU law. In the event of a proven infringement, the principle of the primacy of EU law also requires the national court to leave such amendments unimplemented, it points out.
The Commission now intends to discuss the “next steps” regarding this new decision.
In this specific case, the Court of Justice recalls that, by resolutions adopted in August 2018, the Krajowa Rada Sądownictwa (National Council of the Judiciary or the “KRS”) decided not to present to the President of the Republic of Poland proposals for the appointment of five persons (the ‘appellants’) to positions as judges at Poland’s Supreme Court and to propose other candidates for those positions.
The appellants lodged appeals against these resolutions before the Supreme Administrative Court, the referring court. Such appeals were governed at that time by the Law on the National Council of the Judiciary, as amended by a law of July 2018.
In its initial request for a preliminary ruling, the referring court, taking the view that such rules preclude in practice any effectiveness of the appeal lodged by a participant who has not been proposed for appointment, decided to refer questions to the Court on whether those rules comply with EU law. But after this initial referral, the KRS law was amended again in 2019.
And, pursuant to that reform, it became impossible to lodge appeals against decisions of the KRS concerning the proposal or non-proposal of candidates for appointment to judicial positions of the Supreme Court. Moreover, that reform declared such still pending appeals to be discontinued by operation of law.
In its supplementary reference for a preliminary ruling, the referring court therefore asked the Court of Justice whether these new rules were compatible with EU law.
The Court first held that both the system of cooperation between the national courts and the Court of Justice and the principle of loyal cooperation preclude legislative amendments such as those concerned where it appears that they have had the specific effect of preventing the Court of Justice from giving preliminary rulings on questions such as those referred by the referring court and of precluding any possibility of resubmitting those questions in the future.
The Court states that it is for the referring court to take this decision. Next, the Court considers that “the Member States’ obligation to provide remedies sufficient to ensure effective legal protection for individuals in the fields covered by EU law, may also preclude that same type of legislative amendments”.
This is the case where it appears - and it is for the referring court to assess this - “that those amendments are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the judges appointed on the basis of the KRS resolution to external factors, in particular, to the direct or indirect influence of the legislature and the executive, and as to their neutrality with respect to the interests before them”.
“Such amendments would then be liable to lead to those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the Rule of law must inspire in subjects of the law”.
The Court also points out that the guarantees of independence and impartiality required under EU law presuppose “the existence of rules governing the appointment of judges. And draws attention to the decisive role of the KRS in the process of appointment to a position as judge of the Supreme Court”.
If the referring court were to conclude that the KRS does not offer sufficient guarantees of independence, the existence of a judicial remedy available to unsuccessful candidates would therefore be necessary.
See the judgment of the Court: http://bit.ly/3bSj5PI (Original version in French by Solenn Paulic)