Judges applying to join Poland’s Supreme Court should have the right to appeal against the opinions of a body which reviews candidates, the EU’s top court said on Tuesday (2 March), underlining a rift over the rule of law between Warsaw and Brussels.
While Tuesday’s verdict by the Court of Justice of the EU (CJEU) said the final decision in such cases rested with a Polish court, the judgement touches on a public body that critics say has become a tool to politicise the judiciary.
Poland is caught in a long-running row with the EU over reforms that the bloc says hurt court independence by increasing political control over judges. The conservative ruling Law and Justice (PiS) party says the reforms are necessary to make courts more efficient and purge the judiciary system of relics of the country’s Communist era.
The case concerned the appeal launched by five candidates to Poland’s Supreme Court, whose chances of being on the country’s top legal body were crushed in August 2018 by the National Council of the Judiciary (KRS), which is responsible for nominating judges and reviewing ethical complaints.
Under the legislation introduced by the Polish parliament in July 2018, just a month before the KRS’s decision to axe the appointment of the five candidates to the Supreme Court, every candidate, including the successful ones, had to join the appeal, otherwise the KRS’s decision became final.
In 2019 the Polish parliament then amended the law to disallow appeals against decisions of the KRS concerning proposed appointments to the Supreme Court. The amendments also halted all ongoing appeals, including the one pending in front of the CJEU.
The EU’s top court said the “possible absence of any legal remedy” when it comes to appointments can be problematic and “may give rise to systemic doubts in the minds of individuals as to the independence and impartiality of the judges.”
EU judges found the ability to appeal KRS decisions would be necessary to safeguard the appointment process from outside influence if domestic courts found the body itself lacked independence.
The CJEU left it to Polish courts to judge for themselves whether the changed appointment law ran counter to the bloc’s rules. However, if they did, EU law would require them “to disapply those amendments,” judges in Luxembourg said.
The ECJ said the system of cooperation between the national and EU courts as well as the “principle of sincere cooperation” precluded amendments to laws that would prevent EU judges from ruling on questions referred already before them, or referring similar questions in the future.
The Court also said that EU countries’ responsibility to provide legal protection in areas covered by Union law would make illegal any amendments that could give “rise to legitimate doubts, in the minds of subjects of the law,” about the neutrality and “imperviousness” of judges to the “influence of the legislature and the executive.”
The Court of Justice ruled that successive amendments to a Law on the National Council of the Judiciary which in effect remove judicial review of its decisions could infringe EU law. The Council evaluates judicial appointments.
“Where an infringement has been proved, the principle of the primacy of EU law requires the national court to disapply such amendments,” the court said.
Critics said this has led to the Council being politicised.
The court said that EU law prohibits amendments that could lead to judges not being seen to be independent or impartial.
“It is ultimately for the referring court to rule on whether that is the case here,” it said.
The judgement comes as European Commissioner for values and transparency, Vera Jourova, and Justice Commissioner Didier Reynders sent a response letter to previous communication by Krystian Markiewicz, the head of Iustitia, of the association of Polish judges.
5,231 judges and prosecutors, mainly from Europe, but also from the US, had signed the document.
The Commissioners declared they “understand the very difficult situation of many judges in Poland” and recalled that the ECJ had ordered the ruling of the Disciplinary Chamber to be temporarily suspended.
“Polish judges are European judges. They should perform their functions with a guarantee of independence and without causing a ‘freezing effect’ against them and their activity”, Jourova and Reynders wrote.
In the letter, the Commissioners also pointed out that the changes in the Polish judiciary “violate the independence of Polish judges and are inconsistent with the principle of the supremacy of EU law”.
[Edited by Josie Le Blond]