On Thursday 17 June, Advocate General Michal Bobek delivered his opinion on the independence of the judiciary in Poland (Case C-55/20).
This time he had to rule on a request for disciplinary proceedings launched in 2017 against the lawyer of the former president of the European Council, Donald Tusk of Poland, a lawyer who had made statements justifying disciplinary proceedings, according to the Polish national prosecutor and the Ministry of Justice. The Disciplinary Board of the Warsaw Office had twice refused to open this procedure and had buried it before a new appeal by the national prosecutor reopened the case.
In this third ‘round’, the court which referred the case, namely the Disciplinary Court of the Bar Association in Warsaw (the “Disciplinary Court’), therefore questioned the details of the 2006 Services Directive and Article 47 of the Charter of Fundamental Rights of the European Union, questioning whether they apply to the disciplinary proceedings currently pending before it.
The court which referred the case also wanted to know how to “ensure compliance with Union law”.
For the Advocate General, however, it seems that “the heart of the problem facing the referring court lies elsewhere” namely what consequences the referring court can draw from certain national court decisions that have called into question the independence of the Supreme Court’s disciplinary chamber, which is eventually called upon to rule. In December 2019, the Labour and Social Insurance Chamber of the Polish Supreme Court ruled that the Disciplinary Chamber of the Supreme Court was not an independent and impartial tribunal within the meaning of Article 47 of the Charter.
In his conclusions, the Advocate General thus establishes that the Warsaw Disciplinary Court is a court within the meaning of the Directive, which provides legal services and does not present problems of independence or impartiality, as argued by the Polish government. The Services Directive, with its references to the Charter, therefore applies “to disciplinary proceedings against lawyers, the outcome of which is likely to affect their ability to provide legal services”.
The conclusions thus state that the national court “is obliged to exclude the application of provisions of national law which reserve jurisdiction to decide cases to a court which is not independent and impartial, so that these cases can be examined by a court which meets the requirements of independence and impartiality”.
The national court must also, where appropriate, set aside assessments made by a higher court if it considers that they are incompatible with Union law and result from a lack of independence and impartiality.
Finally, the Advocate General refers more broadly to the problem in Poland of applying the preliminary ruling mechanism if several authorities refuse to follow the Court's decisions. The Advocate General considers that the most appropriate solution here is the intervention of a third party, in this case the Commission, with infringement proceedings.
Link to the conclusions: https://bit.ly/3vAL2TK (Original version in French by Solenn Paulic)