The Advocate General Anthony Michael Collins, responding to two Polish regional courts, has found that the requirement of prior establishment by law applies without distinction to all Member State courts and tribunals, in his opinion to the Court of Justice of the EU on Thursday 15 December in joined cases C-181/21 and C-269/21 concerning the appointment of judges to ordinary courts in Poland.
The European Court had been consulted by the regional courts in Krakow and Katowice, which had doubts about the conformity with EU law of the procedure for appointing judges to ordinary courts in their countries. The two courts’ questions were based on the fact that they considered that these procedures had excluded the participation of judicial self-governing bodies, had been based on a resolution of the Polish National Council of the Judiciary - which is mainly composed of members chosen by the legislator - and had not provided unsuccessful candidates with a right of appeal.
A reference for a preliminary ruling was made by the Regional Court in Katowice in April 2021 (case C-181/21), following the appointment - despite the abstention of the Assembly of Judges’ Representatives, concerned about the status and functioning of the Polish National Council of the Judiciary (KRS) - of a judge to sit on a formation of three judges.
A similar request was made by the Krakow court in July 2021 (case C-269/21). In this case, the College of this Regional Court, half of whose members had been appointed by the Minister of Justice, had supported the candidature of a judge.
In his opinion, the Advocate General first of all considers that “the lack of participation of a judicial self-governing body in the appointment procedure will not, on its own, suffice to call into question the legality of judicial appointments”, as the KRS is the guardian of the independence of the courts and judges under the Polish Constitution.
Furthermore, the Advocate General, relying on case law (C-132/20), finds that the involvement of a body such as the KRS in the procedure for appointing judges does not, in itself, give rise to doubts as to the independence of the judges under that procedure.
Finally, on the issue of appeals, the Advocate General considers that the jurisdiction conferred upon the Extraordinary Review and Public Affairs Chamber of the Supreme Court to review KRS resolutions in that respect has been “extensively and unlawfully restricted”.
Based on the reasoning of the CJEU in another case (C-824/19), the Advocate General considers, however, that effective judicial review is necessary where all the factors together give rise to systemic doubts as to the independence and impartiality of the judges appointed.
In the absence of evidence deemed sufficient, the Advocate General concludes that this evidence alone is insufficient to conclude that the procedures leading to the appointment of the two judges are incompatible with the requirements of EU law.
See the conclusions: https://aeur.eu/f/4on (Original version in French by Thomas Mangin)