What real-world changes have followed from the judgments of the Court of Justice of the EU relating to a Member State’s rule of law crisis

The Supreme Court of Poland issuing a resolution implementing the CJEU's A.K. and others judgment (Source: onet.pl)

By Jakub Karczewski [1]

In the previous blog post, we looked at the judgments of the Court of Justice of the European Union (CJEU) regarding a rule of law crisis in an EU Member State.[2] However, judgments of any court will not matter very much if they are not applied in practice and do not produce any real-world changes. One could ask, then, what real-world changes have followed from the judgments of the CJEU relating to a Member State’s rule of law crisis. Here is an overview of some of their main consequences.

The lowering of the retirement age of judges

The two Commission v Poland judgments (available here and here) of the CJEU concerned the lowering of the retirement age of judges. Both cases were brought before the Court by the European Commission, which claimed that Poland had violated its obligations arising from EU law (a so-called infringement procedure). In its judgments, the CJEU found, among other things, that the lowering of the retirement age of judges, accompanied by the discretionary power of the executive (the President of the Republic or the Minister for Justice) to consent to a judge continuing in his or her office beyond the newly set retirement age, did indeed violate Article 19 paragraph 1 of the Treaty on European Union (TEU). This provision obliges the EU Member States to provide effective legal protection in the fields covered by EU law. This includes the requirement that national courts which may adjudicate upon questions concerning the application or interpretation of EU law must be independent and impartial.

In both cases, after the infringement procedures had been brought by the European Commission but before the CJEU issued its rulings, Poland changed the relevant legislation. The CJEU still adjudicated on the two cases, because it is obliged to assess the situation in a Member State as it was at the pre-trial stage. Nevertheless, the legislative changes adopted by Poland seem to have addressed at least some of the Article 19 paragraph 1 TEU violations found by the CJEU.

The Supreme Court of Poland judges affected by the lowering of the retirement age from 70 to 65 years were either retained or reinstated, and the performance of their duties was deemed to have continued without interruption. The discretionary power of the President of the Republic to consent to a Supreme Court judge continuing in his or her office beyond the newly set retirement age was repealed. Finally, the new, lowered retirement age has been set to apply only to new Supreme Court judges, appointed to this court as of the beginning of 2019.[3]

The situation is less clear as regards the ordinary courts judges affected by the lowering of the retirement age from 67 to 65 years for male judges and 60 years for female judges. On the one hand, the retirement age was fixed at 65 years for both sexes and the discretionary power of the Minister for Justice to consent to an ordinary court judge continuing in his or her office beyond the newly set retirement age was repealed. On the other hand, however, this power was vested in the National Council of the Judiciary, i.e. a Polish constitutional body which is responsible for nominating judges to be appointed by the President of the Republic. For two reasons, this does not seem to have resolved the problem indicated by the CJEU. Firstly, the independence of this body from the legislature and the executive has been undermined (see below). Secondly, in deciding whether to consent to an ordinary court judge continuing in his or her office beyond the newly set retirement age, the National Council of the Judiciary applies the same criteria that the CJEU has found to be too vague and unverifiable, such as “the needs resulting from the workload of individual courts”. Although it also applies new criteria, they are equally discretionary (for instance, “important public interest”).[4]

The independence of the Disciplinary Chamber of the Supreme Court and the new mechanism of the appointment of judges

The CJEU’s judgment in case A.K. v. Krajowa Rada Sądownictwa (the National Council of the Judiciary), and CP and DO v Sąd Najwyższy (the Supreme Court) (A.K. and others) dealt with, among other things, the interpretation of Article 47 of the Charter of Fundamental Rights of the European Union (the Charter). This provision establishes the right to an effective remedy before an independent and impartial court, for any person whose rights or freedoms guaranteed by EU law are violated. The case was referred to the CJEU by an adjudicating bench of the Labour and Social Insurance Chamber of the Supreme Court of Poland in a so-called preliminary reference procedure. In its judgment, the CJEU explained that Article 47 of the Charter does not allow a court which is not independent and impartial to adjudicate on cases which involve the application of EU law. It also gave guidance on how to assess whether a court is independent and impartial, and added that if a court turns out not to be independent and impartial, EU law requires that a case involving the application of EU law be heard by another court which meets these criteria.

In response to this judgment, the adjudicating bench of the Labour and Social Insurance Chamber of the Supreme Court found the Disciplinary Chamber of the same court not to meet the criteria of independence and impartiality indicated by the CJEU. As a result, the adjudicating bench of the former chamber stated that the latter is not a court from the viewpoint of Article 47 of the Charter. Amongst many arguments, it indicated that the judges of the Disciplinary Chamber had been appointed on the application of the National Council of the Judiciary which, after the reforms introduced by Polish Parliament in 2017, is no longer independent from the legislature (Parliament) and the executive (the Minister for Justice). In consequence, contrary to what the Polish national law required, the adjudicating bench of the Labour and Social Insurance Chamber did not refer the case to the Disciplinary Chamber, but followed EU law (Article 47 of the Charter), disapplied the national law and ruled on the case itself. In doing so, it invoked one of the basic principles of EU law: when national law is not compliant with EU law, the latter takes precedence and the former must be disapplied.

However, not every adjudicating bench of the Supreme Court of Poland was equally sensitive to the problem of the appointment of judges on the application of the reformed National Council of the Judiciary, nor to the practical consequences of these appointments. Moreover, many ordinary courts requested guidance on these issues from the Supreme Court. As a result, the Supreme Court issued a resolution in which it implemented the above-mentioned judgment of the CJEU in case A.K. and others. A resolution is a type of a Supreme Court ruling which legally binds all the adjudicating benches of the Supreme Court and is followed in practice by the ordinary courts. It is issued to explain certain provisions of law in order to unify the divergent practice of their application.

In its resolution, issued by an adjudicating bench of 59 Supreme Court judges (all of the Supreme Court judges except for those appointed on the application of the reformed National Council of the Judiciary), the Supreme Court confirmed that the National Council of the Judiciary, after reforms, has become “a body subordinated directly to political authorities” (para 42 of the resolution). It pointed out, among other things, that the terms of office of the previous members of this body had been ended before they had expired, and that the new members were mainly chosen by a current parliamentary majority (21 out of 25 members were chosen by Parliament) in a non-transparent procedure. Moreover, as the Supreme Court stated, because the reformed National Council of the Judiciary “has been politicised, competitions for judicial positions are very likely to be decided not based on substantive criteria but depending on political loyalties or support for the reform of the judiciary pursued by the parliamentary majority in conflict with the Constitution of the Republic of Poland” (para 38 of the resolution). It also underlined that “courts which are no longer impartial and independent turn into adjudicating institutions which enforce the will of the governing group and the current parliamentary majority. Courts which are no longer impartial and independent cannot determine the truth and administer justice in the case of conflicts and disputes (…)” (para 14 of the resolution).

As a result, the Supreme Court ruled, among other things, that if a Supreme Court judge, appointed on the application of the reformed National Council of the Judiciary, sits on an adjudicating bench, this bench is always unduly appointed or unlawful. This applies in a similar manner to equally affected adjudicating benches of the ordinary courts, with one major difference: it must be examined, on a case by case basis, whether the deficiencies in the appointment procedure of a judge result in the violation of the right to an independent and impartial court. This opens the possibility to quash at least certain judgments of the ordinary courts in cases where a judge appointed on the application of the reformed National Council of the Judiciary sat on the adjudicating bench.

Neither the CJEU’s judgment in case A.K. and others, nor the two above-mentioned national rulings implementing this judgment were welcomed by the Polish political authorities. At the end of 2019, Polish Parliament enacted a statute which, among other things, prohibits courts from verifying whether the appointment of a judge was lawful and from questioning a judge’s power, derived from his or her appointment, to adjudicate. It also made it possible to punish judges, in disciplinary proceedings, for questioning the legitimacy of other judges’ appointments.[5] These legislative changes were widely seen as aiming to deprive the CJEU’s judgment in case A.K. and others and national judgments which implement it of any practical importance (to that effect see, for instance, the opinion of the Venice Commission).

Moreover, the Polish political authorities initiated proceedings before the Constitutional Court of Poland in order to eliminate the practical meaning of the above-mentioned resolution of the Supreme Court implementing the CJEU’s judgment in case A.K. and others. It should not be a surprise that the political authorities turned to the Constitutional Court – its independence from them had already been effectively undermined (to that effect see, for instance, the European Commission’s proposal for the Council’s decision under the Article 7 TEU procedure). The Constitutional Court issued three rulings regarding the resolution of the Supreme Court. Two of them aimed to forbid the application of the resolution (see here and here) and the third one found it to violate the Constitution of Poland, the European Convention on Human Rights and, interestingly, the Treaty on European Union. It is worth mentioning that in all these cases, former MPs (until November 2019) of the governing political party, who had actively taken part in the legislative process reforming the National Council of the Judiciary, served as judges rapporteurs of the Constitutional Court. Moreover, persons who had been appointed as judges of the Constitutional Court unconstitutionally (to that effect see the rulings of the Constitutional Court issued before its independence was undermined: here, here and here), sat on the adjudicating bench of the Constitutional Court in all three cases. In addition, in the third of these cases, the Constitutional Court acted beyond the scope of its powers, since it has no power to adjudicate on other courts’ rulings (see Article 188 of the Constitution of Poland).

It is still not entirely clear whether the actions undertaken by the Polish political authorities and supported by the rulings of the Constitutional Court of Poland, will effectively prevent the application of the CJEU’s judgment in case A.K. and others or the Supreme Court’s resolution which implements it. However, current practice is not very promising. For example, the Supreme Court judges who were appointed on the application of the reformed National Council of the Judiciary keep on adjudicating despite the resolution; an adjudicating bench composed of only such judges ruled on the validity of the presidential election held in Poland in 2020 and an equally composed adjudicating bench of the Disciplinary Chamber, in its very recent ruling, stated the CJEU’s judgment in case A.K. and others is not legally binding in the Polish legal order.

Judicial cooperation in criminal matters – European arrest warrant

Finally, the CJEU’s judgment in case Minister for Justice and Equality v LM concerned the impact of the rule of law deficiencies in an EU Member State on the functioning of the European arrest warrant (EAW) mechanism (on this mechanism, see the first blog post). The case was referred to the CJEU in a preliminary reference procedure by the Irish High Court, which had to decide on the execution of an EAW issued by a Polish court. In its judgment, the CJEU explained that a judicial authority of a Member State cannot execute an EAW and surrender the requested person (for example, a suspect) to another Member State, if there is a real risk that in the latter Member State the right of this person to an independent and impartial court, protected by Article 47 of the Charter, would be violated in his or her particular case. This is an exception to the principle of mutual recognition of decisions of public authorities (in the case of EAW – judicial authorities) between the EU Member States.

In response to this judgment, the Irish High Court ruled that in the particular case of the suspect, the rule of law deficiencies in Poland would not result in violating his right to an independent and impartial court. In this regard, the High Court pointed out that the conditions to be met in order to refuse the execution of an EAW, as indicated by the CJEU, are not easy to be satisfied. This decision of the Irish High Court was later upheld by the Supreme Court of Ireland. Nevertheless, as the rule of law crisis in Poland is getting worse, this year some national courts of the EU Member States have refused to execute EAWs issued by Poland or have suspended their execution (for instance, the courts from Germany and the Netherlands). It remains to be seen in how many other cases national courts will find the criteria indicated by the CJEU in case Minister for Justice and Equality v LM to be met, and will refuse to surrender the requested person to a Member State with an ongoing rule of law crisis.

Conclusion

The judgments of the Court of Justice of the EU relating to a Member State’s rule of law crisis have produced some important real-world changes. In the case of Poland, the infringement procedures have “encouraged” its authorities to amend the relevant legislation concerning the retirement age of judges in a way that seems to have limited the extent of the rule of law deficiencies. Moreover, the answers provided by the CJEU to the questions of national courts have led the latter to undertake actions to protect the right of everyone to an independent and impartial court. However, the success of these actions may depend on who is asking – a national court of a Member State with an ongoing rule of law crisis or of a Member State which is free from such a crisis. The example of Poland shows that it may be very difficult for the former, even for the Supreme Court, to effectively protect the EU’s rule of law standards according to the CJEU’s judgments. This is because the political authorities of a Member State with an ongoing rule of law crisis, as well as the institutions influenced by these authorities, may attempt to prevent the effective application of the EU’s rule of law standards by national courts. As Poland has proved, this may go as far as attempting to deprive the CJEU’s judgments of any practical meaning and openly questioning their legally binding force.

References

[1] I would like to thank Robin Leick, Julia Prummer, and a person who preferred to stay anonymous for their helpful comments on earlier drafts of this blog post, as well as to Muhammad Saad Siddiqui for the linguistic revision of the text. The links provided in this blog post were last accessed on 29.9.2020. Most of them refer to the texts in English, but some of the texts are available only in Polish.

[2] If you would like to learn more about the content of the judgments, but you do not feel ready yet to read the judgments in their entirety (all are linked in the main text), you may wish to read the press releases issued by the Court of Justice of the EU first (the order as the judgements appear in the main text): Commission v Poland (the retirement age of the Supreme Court judges); Commission v Poland (among other things, the retirement age of the ordinary courts judges); A.K. v Krajowa Rada Sądownictwa (the National Council of the Judiciary), and CP and DO v Sąd Najwyższy (the Supreme Court); Minister for Justice and Equality v LM.

[3] See Article 1 points 4–6 and Article 2 para 1 of the Act of 21 November 2018 amending the Supreme Court Act (Journal of Laws of 2018, item 2507): https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20180002507/O/D20182507.pdf.

[4] See Article 1 point 4 subsection a) and b) of the Act of 12 April 2018 amending the Law on the ordinary courts, the National Council of the Judiciary Act, and the Supreme Court Act (Journal of Laws 2018, item 848): https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20180000848/O/D20180848.pdf.

[5] See, for instance, Article 1 points 19 and 32 of the Act of 20 December 2019 amending the Law on the ordinary courts, the Supreme Court Act, and certain other acts (Journal of Laws 2020, item 190): https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20200000190/O/D20200190.pdf.