All Eyes on Warsaw – Locked in a Legal Battle with the EU over the Legitimacy of Judicial and Constitutional Reforms
Poland has got its last seven days in court – with a bouquet of rulings in Warsaw and at the European Court of Justice (ECJ) in Luxembourg that could have far-reaching implications for the European Union’s (EU’s) legal order. We will unpack what these rulings are about and how they fit into Poland’s clash with the EU.
I. ’Forever Tainted’? – the Opinion of Advocate General Bobek in Getin Noble Bank
An Important Milestone in a Long-standing Dispute
The Opinion of Advocate General (AG) Michal Bobek in Getin Noble Bank (C-132/20) is another important milestone in the long-standing dispute between Poland and the EU over the Member State’s judicial reform intended to rid the Polish judiciary of its communist legacy. AG Bobek delivered his Opinion on 8 July 2021, advising the ECJ to rule that the circumstances of appointment of judges during Poland’s communist regime are not an element capable, in and of itself, of casting doubts on their current independence and impartiality under Article 19 (1) of the Treaty on European Union (TEU) and Article 47 of the Charter of Fundamental Rights of the European Union (Charter).
The Advocate General’s opinion came in response to an unnamed Supreme Court (Sąd Najwyższy) judge’s request for a preliminary ruling from the ECJ relating to the status of a judge originally appointed by a political body within the executive branch of the People’s Republic of Poland before the fall of communism in 1989. The case comes in the context of a ruling by a court (Court of Appeal, Sąd Apelacyjny we Wrocławiu), where such a ’communist-era’ judge sits – identified by the initials ’FO’ in the Opinion – and where that court had carried out an ex officio assessment of contractual terms under Article 7 (1) and (2) of the Unfair Terms Directive, in a case related to a mortgage payment dispute involving the Polish Getin Noble Bank.
The Examination of Admissibility
In his Opinion, AG Bobek first examines the arguments, raised by the Rzecznik Praw Obywatelskich (Ombudsman, Poland), concerning the alleged inadmissibility of the request for a preliminary ruling. The Ombudsman argued that the order for reference was submitted by a judge whose own recent appointment to judicial office has been made under such circumstances as to cast doubts on his independence – as he/she has been accused of being illegally appointed by the Law and Justice (PiS) party –, therefore he/she does not meet the independence criteria for the purposes of Article 267 of the Treaty on the Functioning of the European Union (TFEU). Although AG Bobek also notes that ’his judicial office is heavily contested’ and allegedly ’irregular and vitiated by a flagrant breach of national law’, he advised that the reference should be declared admissible. He pointed out that, within Article 267 TFEU, the concept of ‘court or tribunal’ has a functional nature: it requires looking at ‘the body itself, and not in relation to the individuals who sit in the body which made the request’. Such functional holistic assessment of the body itself is present in Banco de Santander (C-274/14), wherein the bonds of the Spanish administrative tribunals with the Spanish Ministry of Finance jeopardise independence and impartiality.
Acknowledging that the Ombudsman did raise serious concerns, however, AG Bobek notes that his view held as long as the appointment in question ‘did not have repercussions on the overall functioning of the national body to which the judges belong’; and as long as the entire judicial institution has not been ‘hijacked’ and can therefore no longer be considered a court, with the result that requests for preliminary rulings by a supreme court of a Member State should not result in automatic inadmissibility. It should be noted that AG Bobek’s decision concerning access to the preliminary reference procedure was itself criticised. Laurent Pech, a law professor and expert on Poland’s rule of law disputes at the Middlesex University London, called the aforementioned reasoning ’seriously flawed’, as the request ’is just part of an attempt by fake judges to legitimize themselves while trying to further justify a purge’ of judges appointed during the communist regime.
Turning to the Analysis of Independence
On the merits, the Opinion of AG Bobek seems quite convincing; AG Bobek examines the questions as covering generally the assessment of compliance with the principle of judicial independence, flowing from Article 19 (1) TEU, read in conjunction with Article 2 TEU and Article 47 of the Charter. He recalls that it is ‘still necessary to ensure that the substantive conditions and detailed procedural rules governing the adoption of appointment decisions are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them, once appointed as judges.’ Therefore, a national court must consider all relevant elements, and in that context, both formal, institutional, and case-specific elements may be relevant, depending on the characteristics of the case in question and the EU provision(s) that is/are applicable.
He reasons that, concerning the circumstances relating to the first appointment of the judge concerned under Poland’s communist regime, there is scarce evidence as to who would be currently capable of exerting undue pressure over him and the reasons for him to be inclined to yield to that pressure. AG Bobek also said he was ’puzzled’ by both the starting point and conclusions of the reference, which provided no information as to the identity, motive, or even influence of the persons or institutions capable of influencing the judge in question. More generally, AG Bobek also casts doubts on the applicability of rules and standards under Article 19 (1) TEU and/or Article 47 of the Charter to judicial appointments in Poland before 1989.
As a consequence, he reasons that, although the appointment of the judge during the Communist era in Poland did not meet the standard of judicial independence, today there is no evidence that this judge cannot perform his duties independently without bowing to external pressure. In connection with this, AG Bobek underlines that ’The referring court appears to be laboring under the assumption that judges appointed during the Communist era are by definition ‘forever tainted’, simply by virtue of association with the previous regime.’ He also notes that Poland, like other former communist European countries, chose to keep in place its judges even though they had been appointed under the communist regime for the sake of continuity. ’Subsequently, judges appointed under the previous regime in Poland have benefited from a double layer of acceptance, at both national and EU level,’ AG Bobek said.
Similarly, according to his Opinion, the fact that some members of the composition of the court which delivered the contested judgment were appointed to that court basis on resolutions adopted by the National Council of the Judiciary (Krajowa Rada Sądownictwa) in a composition resulting from legislation subsequently declared unconstitutional by the Constitutional Court (Trybunał Konstytucyjny), is also not such as to cast doubts on the independence and impartiality of any national judges.
Concerning this, Ricardo García Antón, Assistant Professor of Tax Economics at Tilburg University notes that AG Bobek put the focus on the functioning of the body, regardless of the specific circumstances related to the appointment of its members. Consequently, in case there are doubts of independence regarding the appointment of a judge, they cannot be removed ipso facto. Judicial bodies cannot be subject to any hierarchical constraint or subordinated to any other body in performing its duties. In this regard, Antón remarks that putting the stress on how the judicial functions are performed, and not on how judges were appointed may yield some inconsistencies with recent jurisprudence of the European Court of Human Rights (ECtHR). In the landmark case Xero Flor w Polsce sp. z o.o. v Poland (application no. 4907/18), the ECtHR found that the appointment of judges by the Polish National Council of Judiciary caused a violation of Article 6 (1) of the ECHR.
Finally, AG Bobek notes that the principle of irremovability of judges does not preclude national courts from verifying that an irregularity vitiating a procedure for the appointment of a judge could lead to an infringement of rights conferred by EU law, about ‘the ongoing retention of judges that are subject to political, personal, or other forms of pressure strikes’ taking place in Poland.
It should also be highlighted that AG Bobek’s opinion is not binding on the ECJ, but serves as legal guidance to the Court, as these opinions often function as the legal basis for the Court's judgments.
II. What Comes after the ’First Step over the Rubicon’
The Ruling of the ECJ in Commission v Poland
The ECJ ruled in Commission v Poland (C-791/19) that Poland’s controversial disciplinary procedure for judges violates European Union law – in other words, according to the ECJ, the Member State had failed to fulfill its obligations and upheld complaints about the judicial reforms by the European Commission – on 15 July 2021, a week after AG Bobek had delivered his Opinion under review.
As indicated above, the ruling PiS party has brought in sweeping changes to the judiciary over the past six years, in particular, in February 2020, Poland created a ’disciplinary chamber’. The ECJ concluded that this chamber lacks guarantees of ’independence and impartiality’; moreover, disciplining Polish judges for referring to the ECJ in preliminary rulings undermines the EU’s system of judicial cooperation. ’The disciplinary system allows that the content of the judicial decisions adopted by the judges of the ordinary courts can be qualified as a disciplinary offense’, the Court said. The Court also ruled that the system in question’... could thus be used for the purposes of political control of judicial decisions or of pressure on judges in order to influence their decisions and undermine the independence of the courts concerned’. In this regard, Jakob Jaraczewski, a researcher coordinator at Democracy Reporting International, sharing the view of the ECJ, noted that ’as the disciplinary proceedings against judges, in particular, the disciplinary proceedings against judges over the content of their decisions could lead to a chilling effect’. Whatever Poland’s response to the ruling may be, the Member State is bound to comply with the judgment and may face financial penalties if it does not.
The Ruling of the Polish Constitutional Tribunal
The ruling comes a day after the ECJ issued a separate order directing Poland to ’immediately suspend the application of national provisions relating (…) to the powers of the disciplinary chamber of the Supreme Court’ , following a similar interim measure issued in April. Hours later, on 14 July 2021, the Polish Constitutional Tribunal declared that applying ECJ interim measures about Poland’s judicial changes is unconstitutional, the Member State does not have to obey orders from the EU’s top court relating to its contested judicial overhaul. The Tribunal was asked to rule on whether such orders were compatible with Poland’s constitution by the aforementioned disciplinary chamber.
The dispute comes as the Polish Constitutional Tribunal is separately considering a motion from Polish Prime Minister (PM) Mateusz Morawiecki to review the constitutionality of parts of the EU Treaties, but a scheduled court session of 15 July to continue an ongoing examination of the issue has been postponed to 3 August. Last month, EU Justice Commissioner Didier Reynders asked the Polish authorities in a letter to withdraw Morawiecki’s motion, as it ’appears to contest fundamental principles of EU law, in particular the principle that EU law has primacy over national law’ and ’contests the authority of the Court of Justice when interpreting the EU Treaties,’ as well as it ’goes against the duty of loyal cooperation in that it actively seeks a declaration of the Constitutional Tribunal to deny the authority of the interpretation of the key principles of EU law.’ The letter described the Commission as ’concerned about the consequences of such action also for the respect of the rule of law,’ while the Commission is deeply concerned by the aforementioned decision of the Polish Constitutional Tribunal as well, as a spokesperson said that ’the EU has primacy over national law and all decisions by the European Court of Justice – including orders for interim measures – are binding on member states’ authorities and national courts.’
Nothing New Under the Sun?
It should be highlighted that Poland is not unique in challenging the ECJ. The abovementioned letter came hours after the Commission launched the first step of legal proceedings against Germany over a 2020 ruling by the Member State’s constitutional court, which delayed the government’s approval of a European Central Bank (ECB) bond-buying program, even though it had already been approved by the ECJ, nevertheless, argued that the ECJ had acted beyond its remit in a case relating to European Central Bank bond-buying; therefore some officials interpreted the gesture as an effort to dissuade governments in countries such as Poland from challenging the ECJ’s authority. The Commission said Germany’s decision to declare the ECJ as going beyond its powers (ultra vires) had ’deprived a judgment of the European Court of Justice of its legal effect in Germany, breaching the principle of the primacy of EU law’.
About the possible threats, Didier Reynders concluded that:’What is the risk if we don’t take care of this? It is that we will destroy the Union itself.’ The EU was based on rules being applied consistently across its Member States, so if this ceased to be the case the bloc could be undermined. ’When we have a problem in one Member State, the risk is a spillover effect, that you will have in all the member states, or in some member states, a tendency to challenge the primacy of EU law and the exclusive competence of the Court of Justice,” he said. ’If you don’t stop that, you will have more and more possibilities for different member states to challenge the primacy of EU law and the competence of the ECJ,’ Reynders added.
However, it should be noted that, as Kim Lane Scheppele, a professor of law at Princeton argued, there was a fundamental difference between the Polish challenges and the one launched in Germany. The Karlsruhe Court challenged the way the ECJ had done its job in assessing the validity of bond-buying by the ECB; the Polish cases questioned whether EU law applied to Poland. ’The German Court just said we need the EU to apply its law. That is not an anti-rule of law argument. For Poland, the argument is, we have our own rules and we are going to do things our own way’, she summarised the main aspects. It is also noteworthy that, in France, the government appealed to the Conseil d’État (France’s highest administrative court), to strike down an October 2020 ECJ ruling that collection of data by the security services breached privacy rules. Subsequently, Paris was partly rebuffed by the French court’s ruling in April 2021.
Too Little, Too Late? – the Chances of the ’Legal Polexit’
It is widely expected that the Commission will launch infringement proceedings against Poland, however, it is unclear how Warsaw would respond to such a situation, as over the past five years, the Commission has challenged multiple aspects of Poland’s judicial system. Even so, some legal scholars have strongly criticised the Commission for not acting swiftly and robustly in connection with Poland, moreover, critics say it was also too slow to take action to force Warsaw to comply with previous ECJ rulings. Reynders answered the criticism very catchy: ’We don’t have the same timelines as Twitter.’
The competing court decisions already examined, have accelerated concerns about whether Warsaw will remain part of the European legal order, prompting fears of a ’legal Polexit’. In connection with this question, Jaraczewski noted that even if certain actions give the impression that the Member State is gradually moving away from the EU, that is not what the Polish people want. ’There is no broader will in Polish society to quit the European Union, and I believe that many people who support the Law and Justice party over its economic and social policies, at the same time are very keen to stay in the EU to enjoy freedom of movement, to enjoy the common market and so on,’ he said.
What is more, despite deepening tensions over the independence of Poland’s judiciary and the country’s willingness to apply European law, Poland is still relying on the ECJ to safeguard some of its interests. The ECJ ruled that the Commission violated the principle of energy solidarity by issuing a decision on the OPAL gas pipeline and sided with Poland in the dispute on 15 July 2021. The verdict strengthens Poland’s energy security and may be important for the further fate of the Nord Stream 2 project.
Having examined our chapter in this thrilling EU law series, in times of growing frustration in Brussels about the bloc’s struggle to address concerns of rule-of-law backsliding in some Member States, the pending cases to be solved will surely add more food for thought and challenges for judicial dialogue in Europe.
For a list of references, click HERE.
Author: dr. Petra Ágnes Kanyuk
Ph.D. Student at the Géza Marton Doctoral School of Legal Studies of the University of Debrecen
Source of the picture:
Poland Escalates Fight With Europe Over the Rule of Law. 15th July 2021. Nytimes.com. https://www.nytimes.com/2021/07/15/world/europe/poland-hungary-europe.html (15 July 2021)