The Polish Chamber of Control and Disciplinary Chamber, two new chambers of the country's Supreme Court, may be in breach of EU law, as some judges were appointed in “flagrant breach” of Polish law on this matter, says the Advocate General of the Court of Justice of the European Union (CJEU), in findings issued on 15 April.
These findings follow a request for a preliminary ruling by the Civil Chamber and the Labour and Social Insurance Chamber of the Polish Supreme Court in two cases: a challenge to the independence of judges of the Polish Chamber of Control (case C-487/19) and a challenge to a disciplinary procedure (case C-508/19).
Case C-487/19
A member and spokesperson for the Polish National Council of the Judiciary, Judge W.Ż. had publicly criticised the judicial reforms carried out in Poland by the ruling party (Law and Justice or PiS). In 2018, he was dismissed.
After an appeal against this decision was lodged, which was to be examined by the Chamber of Control of the Supreme Court, W.Ż. requested the recusal of all judges sitting in the Chamber of Control.
According to him, this chamber could not decide on his appeal in an impartial and independent manner because of its composition and the way its members were selected by the Council of the Judiciary, in violation of the Polish Constitution.
W.Ż. states that the judges sitting in the Chamber of Control were appointed by a resolution of the Council of the Judiciary, which was appealed to the Polish Supreme Administrative Court and is still pending.
Despite the ongoing proceedings, the Polish President, Andrzej Duda, appointed A.S. as a judge in the Chamber of Control on 20 February. The latter rejected W.Ż’s appeal.
In today’s findings, the Advocate General of the CJEU points out that President Duda’s act of appointing A.S. before the Supreme Administrative Court had given a final ruling on the appeal against the resolution of the Council of the Judiciary “is indicative of a flagrant breach of the rules of national law governing the appointment procedure for judges to the Polish Supreme Court” under EU law.
Case C-508/19
In the second case, M.F., a Polish judge, challenged a disciplinary procedure initiated against her on the grounds that the judge in charge of the case (J.M.) had been appointed in an irregular manner.
In its findings, the Advocate General points out that there were “numerous potentially flagrant breaches of the law applicable to judicial appointments in the appointment procedure in respect of J.M.”.
In particular, it criticises the fact that the procedure was initiated on the basis of a communication from President Duda without the ministerial countersignature required by the Polish Constitution, and involved the new Council of the Judiciary, “whose members were appointed under a new legislative process, which is unconstitutional and does not guarantee independence”.
Read the conclusions: https://bit.ly/2QpP0A2 and https://bit.ly/32jReDu (Original version in French by Damien Genicot)