By depriving its national ordinary courts of the possibility to ensure that EU law is applied by an independent and impartial tribunal in all cases and by conferring jurisdiction over issues relating to the status of judges on the disciplinary chamber of the Supreme Court, the Polish government has violated EU law, Advocate General Anthony Michael Collins ruled in his opinion to the Court of Justice of the EU on Thursday 15 December (case C-204/21).
More specifically, the Advocate General commented on the action for failure to fulfil obligations brought by the European Commission following Poland’s adoption on 20 December 2019 (see EUROPE 12410/7) of a law amending, inter alia, the national rules relating to the organisation of ordinary courts and the Supreme Court.
The Commission considered that the law limits or even excludes the possibility for a national court to guarantee Polish litigants access to an independent and impartial tribunal.
“Insomuch as the Amending Law conferred on the Disciplinary Chamber of the Supreme Court, whose independence and impartiality are not guaranteed, jurisdiction over matters relating to the status of judges, that law affects the independence of judges whose status is subject to review by the Disciplinary Chamber”, the Commission had argued. The Commission also claimed that by requiring judges to disclose information about their public and social activities or political party membership, the law would violate respect for private life and personal data.
The Advocate General first rejects a complaint by the Commission, holding that the fact that the Polish law confers exclusive jurisdiction on the Supreme Court’s Extraordinary Chamber to rule on complaints about the lack of independence of a judge or court “does not in itself prevent national courts from examining whether a judge or a court satisfy the requirement of independence”.
However, “the Amending Law prevents all Polish courts from raising or addressing the question as to whether a judge has been legally appointed or can exercise judicial functions”. This, according to Mr Collins, “prevents Polish courts from examining questions as to the independence of the composition of a court”.
The law also provides that a judge’s review of compliance with the requirements regarding an independent and impartial tribunal, including a decision to refer a matter to the Court for a preliminary ruling, may constitute a disciplinary offence.
Given that the Disciplinary Chamber does not meet the requirements of independence and impartiality according to various judgments of the Court of Justice of the EU, there is therefore an increased risk that the provisions of the law “will be so interpreted as to facilitate the use of the disciplinary regime to influence judicial decisions”, concludes the Advocate General.
Poland should also, according to the conclusions, indicate the measures taken to protect the right of judges to data protection and respect for their private life, otherwise it would again be in violation of EU law.
Link to the conclusions: https://aeur.eu/f/4oo (Original version in French by Solenn Paulic)