The mere fact that a Polish judge was appointed under the communist regime does not in principle call into question their independence or impartiality, the Court of Justice of the European Union ruled on Tuesday 29 March (C-132/20).
In the context of a dispute concerning a loan agreement on which it must rule in the final instance, the Polish Supreme Court asked the Court of Justice of the EU whether the three Polish judges who previously heard the dispute met the requirements of independence and impartiality laid down by EU law.
One judge started his career under the communist regime and reportedly did not swear a new judicial oath after the fall of that regime. The other two were appointed as appellate judges between 2000 and 2018, at a time when, according to the Polish Supreme Court, the National Council for the Judiciary (the KRS), which was involved in their appointment, did not operate transparently and its composition was unconstitutional (see EUROPE 12699/24 and 12372/28).
After ruling that the questions referred for a preliminary ruling are admissible, the Court of Justice of the EU applied the analytical framework derived from its case-law of recent years relating to the guarantee of independence and impartiality of courts under EU law (cases C-487/19, C-748/19 to C-754/19). It considers that the mere fact of having started his career under the communist regime does not call into question the independence and impartiality of the judge concerned in the exercise of his subsequent judicial functions.
By joining the EU, Poland has adopted fundamental European values, including the principle of the rule of law, without any difficulty caused by the fact that Polish judges were appointed at a time when Poland was not yet a democratic state. The court which referred the case did not, moreover, put forward any evidence capable of raising doubts in that regard, the European Court found.
With regard to the other two appellate judges, the Court notes that the Polish Supreme Court did not rule on the independence of the KRS when it declared, in 2017, that the composition of the KRS, as it stood at the time of the appointment of the two judges in question, was contrary to the Constitution.
That unconstitutionality as such is therefore not sufficient to call into question the independence and impartiality of the KRS as it was composed at the time and, consequently, of the judges in whose appointment the Polish Council for the Judiciary participated.
Furthermore, the same conclusion is reached, in the Court’s view, where a judge has been selected by the KRS as a candidate for a judicial post following a procedure that was neither transparent, public nor open to judicial review, if there is no evidence of a lack of independence on the part of the KRS. The court which referred the case did not put forward any concrete evidence raising doubts in this regard.
See the judgment (in French): https://aeur.eu/f/10p (Original version in French by Mathieu Bion)