The Advocate General of the European Court of Justice on Thursday 8 July challenged the Polish Supreme Court’s arguments on the alleged lack of independence of judges at the Wrocław court.
The Polish Supreme Court believes that judges of the Wrocław court, who ruled in 2019 on abusive contracts and credit terms, may not be entirely independent. The reason given by the Polish court is that the judges of this court were appointed before the accession to the EU, and even under the communist regime.
In particular, the Supreme Court asked whether “the circumstances surrounding the first appointment of a judge in a Member State, at a time when that State was still under an undemocratic regime and had not yet joined the Union, and his continuance in the judiciary of that State after the fall of the Communist regime” were “likely to give rise to doubts as to the independence and impartiality of that judge within the meaning of Article 19 of the Treaty and Article 47 of the Charter of Fundamental Rights”.
Three of these judges in Wrocław were appointed, respectively, in 1998, 2015 and 2012 via procedures that were subsequently ruled unconstitutional in 2018. And one of them was appointed as a judge for the first time during the communist regime.
In his Opinion, the Advocate General notes, firstly, that the request of the court which referred the case to review this 2019 decision may amount to a practice of systematic lustration or review of all appointments prior to 2018.
The Advocate General also raises the question of the admissibility of this request, brought by the Polish Ombudsman, as “the referral decision was presented by a judge whose recent appointment to this position is itself strongly contested”, the referring judge being suspected of being very close to the Minister of Justice.
This judge, who sits as a single judge in the Supreme Court and examines the admissibility of appeals before it, “is he a court?”, wonders the Advocate General.
On admissibility, he considers that “the defects that could vitiate the procedure for appointing the referring judge and/or his personal and professional links with the Minister of Justice/Attorney General could lead to the conclusion that Article 19 of the Treaty and Article 47 of the Charter have been violated”.
But the Advocate General is of the opinion that this does not necessarily call into question the “jurisdictional” character of the referring body; therefore, inadmissibility cannot automatically be concluded.
On the principle of judicial independence, he recalls that, whatever the constitutional model chosen for the appointment, “it remains necessary to ensure that the substantive conditions and procedural methods presiding over the adoption of appointment decisions are such that they cannot give rise, in the minds of individuals, to legitimate doubts as to the imperviousness of the judges concerned to external elements and their neutrality with regard to the interests that are in conflict”.
In assessing whether the principle of judicial independence has been respected, a national court must take into account all relevant elements by assessing them against the wider legal and institutional landscape.
Advocate General Michal Bobek then examines whether the circumstances of the first appointment of one of the judges concerned, which took place under the communist regime, have an impact on his independence in the current exercise of his functions.
He states that the referral order “provides little concrete explanation as to who, what institution or body, is currently in a position to exert undue pressure on this judge, and why this judge might be inclined to yield to such pressure”.
“There is no indication that the national rules which the referring court made reference to are, in spite of no longer being in force for several decades, still capable of producing some effect today”.
Any judicial intervention that would invalidate decisions made by a national judge, such as this judge, solely because he was appointed for the first time in the Polish People’s Republic would amount to a further measure of “lustration”, the Advocate General believes.
And such a decision would not be compatible with EU law. The mere fact that some judges were first appointed during the period of the Polish People’s Republic cannot, in itself, call into question their independence today.
Link to the conclusions: https://bit.ly/3dZyEXD (Original version in French by Solenn Paulic)