An irregularity committed during the appointment of a judge is not in itself sufficient to conclude that the judge is not independent, ruled the Court of Justice of the European Union (CJEU) in a judgment handed down on Tuesday 24 March (case C-521/21).
In Poland, a party to a civil lawsuit applied to have the judge in charge of the case disqualified, arguing that the judge’s appointment was not valid because she had been recommended by the National Council of the Judiciary (KRS).
The result of a contested reform of the Polish judicial system, the composition of the National Council did not offer sufficient guarantees of independence from the executive and legislative powers. The CJEU ruled that this body had been established in breach of the fundamental constitutional principles of Polish law and without guaranteeing the independence and impartiality required, in particular, by EU law (case C-791/19 - see EUROPE 12763/7).
Having received a reference for a preliminary ruling, the CJEU emphasises that national courts must be able to review the legality of the procedure for appointing a judge and verify whether the judge satisfies the requirement of an independent and impartial tribunal established in advance by law. In June 2023, it ruled that Poland had failed to fulfil its obligations under EU law (Case C-204/21).
However, the European Court of Justice states that only irregularities which, by their nature and seriousness, are likely, when taken as a whole, to create a real risk of interference from other branches of the State in the appointment procedure and of giving rise to reasonable doubt in the minds of individuals as to the independence and impartiality of the judge concerned can call into question the requirement of a tribunal previously established by law.
Consequently, the national court to which the application for disqualification is made must assess all the circumstances surrounding the appointment in order to determine whether they could give rise to such doubts. The Court considers that neither the involvement of the KRS in the appointment procedure nor the absence of an effective judicial remedy for the unsuccessful candidates are sufficient, either individually or taken together, to disqualify the judge concerned.
Lastly, it is Poland’s responsibility to put in place a regulatory framework to assess the possibilities for people who have been unlawfully appointed to judicial posts to continue to carry out their duties. More than 3,000 Polish judges (around 30% of the judiciary) were appointed on the proposal of the KRS in its new composition.
To see the judgment of the Court of Justice: https://aeur.eu/f/lbk (Original version in French by Mathieu Bion)