On Tuesday 22 March, the Court of Justice of the European Union had to declare inadmissible the request for a preliminary ruling from a Polish court (Case C-508/19) as to whether it has the power under EU law, which it does not have under Polish law, to find that a judge’s employment relationship is non-existent due to defects in their appointment.
In doing so, it dismissed the court’s application concerning a Polish judge who was subject to disciplinary proceedings and who challenged the appointment of the judge responsible for their case.
The Court of Justice of the European Union first considered that the request of the court before which the case was brought concerns an area of civil law in which it has declared itself not competent and that the civil action brought by the complainant was, in fact, to challenge the decision by which a judge has designated the disciplinary court competent for their case.
The questions referred to the Court of Justice are therefore intrinsically related to a dispute other than the main proceedings, it argued.
In January 2019, disciplinary proceedings had been initiated against a judge of the Sąd Rejonowy w P. for alleged delays in processing cases. Acting as President of the Sąd Najwyższy (Supreme Court, Poland) and directing the work of this court’s disciplinary chamber, Judge J.M. had designated a disciplinary court to deal with the proceedings.
The complainant then argued that J.M.’s appointment to this disciplinary chamber was vitiated by a number of irregularities and brought a civil action before the Supreme Court seeking a declaration that there was no employment relationship between J.M. and this court and requesting a suspension of the disciplinary proceedings against them.
However, the court which referred the case first found that the judicial mandate was a matter of public law and not civil law, and that the main action did not fall within the scope of the Code of Civil Procedure, thus giving it no jurisdiction under Polish law. However, the Court questioned whether the principle of effective judicial protection enshrined in EU law and the obligation of Member States to ensure that courts meet the requirements of independence or impartiality could establish that the judge in question did not have a valid employment relationship.
However, the Court of Justice of the European Union could not act on its request. It recalled that the questions referred by a national court must meet an objective need for resolving the dispute before it and that cooperation between the Court and the national courts presupposes in principle that the court which referred the case has jurisdiction to rule on the main proceedings.
The civil action brought by the complainant also aims, in reality, to challenge the decision by which J.M. designated the disciplinary court competent to rule on their case and their proceedings, the suspension of which they are requesting. “Thus, the questions addressed to the Court are intrinsically related to a dispute other than the one in the main proceedings”, the Luxembourg court ruled.
In the absence of a direct right of action against J.M’s appointment or against J.M.’s act designating the disciplinary court in charge of the dispute, M.F. could have asserted their right to have the dispute judged by an independent and impartial court, especially since the Court has repeatedly recognised the problems caused by the Polish courts’ lack of independence.
Link to the judgment: https://aeur.eu/f/w3 (Original version in French by Solenn Paulic)