European Court of Justice: Advocate General voices criticism of Polish judicial reform
In a recently published opinion, Advocate General Tanchev of the European Court of Justice expressed concerns regarding the appointment of judges to the newly established Disciplinary Chamber of the Polish Supreme Court. According to the opinion – published in Joined Cases C‑585/18, C‑624/18 and C‑625/18, all of which concern the ongoing reform of the Polish justice system – the Disciplinary Chamber does not satisfy the requirements of judicial independence under EU law due to national legislative authorities playing a key role in the election of the 15 judicial members of the National Council of the Judiciary (NCJ), the body playing a primary role in the appointment of judges to the Disciplinary Chamber.
In 2017, Poland introduced a comprehensive reform of its justice system. A particularly controversial measure of the reform saw the retirement age for judges of the Supreme Court lowered to 65, unless the President of the Republic granted his consent (based on the opinion of the NCJ) to the judges continuing in their posts. The measure in question was held by the ECJ to be incompatible with EU law in a recent ruling: it is worth mentioning here that the ECJ had already addressed the issue of systemic retirement of judges in previous rulings, – in particular, a decision given in 2012 in a Commission v. Hungary case concerning a proposed national scheme requiring the compulsory retirement of judges on reaching the age of 62 – however, this earlier case law was based exclusively on the national practice being seen as discriminatory on the grounds of age, and as such, considered a failure of the Member State to conform to the obligations set out in Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. On the contrary, the Polish case saw the ECJ rule that a measure consisting in lowering the retirement age of Supreme Court judges that is to apply to judges appointed to the court before the date on which said measure entered into force constitutes an infringement on the obligations set out in the second subparagraph of Article 19(1) TEU, which states that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law” and which the ECJ appears to interpret as establishing an obligation of judicial independence for every Member State court that has the power to apply EU law.
The Chamber of Labour Law and Social Security decided to stay its proceedings, and asked the European Court of Justice for a preliminary ruling. The questions referred to the ECJ involve two main issues. First, whether a court of last instance in a Member State, before which an appeal is brought, must refuse to apply national provisions which confer jurisdiction in the case on an organisational unit of that court which is not operational due to a failure to appoint judges. The second, and more important issue concerns whether – even if its members are finally appointed – the Disciplinary Chamber offers sufficient guarantees of independence under EU law to hear such claims. This is in view of the fact that the group of judges eligible for appointment by the President of the Republic to the Disciplinary Chamber are selected by the NCJ which is the national body charged with safeguarding judicial independence in Poland. However, the independence of the NCJ has, in turn, been put in doubt by Polish legislation modifying the manner in which its fifteen judicial members are appointed. Its composition is now primarily determined by the legislative and executive authorities.
The recently published opinion of Advocate General Tanchev considers the first question devoid of purpose: in his analysis, the Advocate General agrees with the procedural objections raised by Poland and the European Commission arguing that since judges have now been appointed to the Disciplinary Chamber and that chamber is now exercising judicial functions, it is unnecessary for the Court to answer the question. However, in case the ECJ decides not to adopt the standpoint that this question has become devoid of purpose, the Advocate General suggests the Court should answer the question in the affirmative, arguing that the Member States are obliged only to create new legal remedies under national law for individuals to enforce EU law rights when none exist. This was the situation in the main proceedings, given that the Disciplinary Chamber was not functioning on account of the fact that judges had not yet been appointed to that chamber. Further, Article 47 of the Charter of Fundamental Rights of the European Union guarantees the right of access to a court. By hearing the actions brought by the applicants, the referring court is guaranteeing this access.
Regarding the second issue, the Advocate General considers that measures relating to the appointment of judges and the disciplinary regime governing judges are important aspects of the guarantees of judicial independence under EU law, and the existence of an independent body in the context of the disciplinary regime is part of those guarantees. Thus, even if a national body tasked with selecting judges, such as a judicial council, does not itself carry out the role of a court, the rules regarding its composition and functioning may be taken into account for assessing whether a national court offers sufficient guarantees of independence under EU law. The Advocate General observes that judicial councils and similar bodies play an essential role in guaranteeing the independence and autonomy of the judiciary in many, though not all, Member States. Although there is no uniform model for judicial councils, they are considered to have some common attributes relating to their mission to safeguard judicial independence and their operation within the judicial systems of their respective jurisdictions to maintain respect for the rule of law and fundamental rights:
- the mission of judicial councils is to safeguard the independence of courts and judges, which means that they must be free from any influence from the legislative and executive authorities,
- there is no single model that a jurisdiction is bound to follow in setting up a judicial council so long as its composition guarantees its independence and enables it to function effectively. In particular, judicial councils should in principle be composed of at least a majority of judges elected by their peers to prevent manipulation or undue pressure. The selection procedure should be carried out in an objective and transparent manner, in which a wide representation of the judiciary at all levels is guaranteed, and the involvement of legislative and executive authorities in the selection process is discouraged,
- in order to guarantee the continuity of functions, the mandates of the members of judicial councils should not be replaced at the same time or renewed following parliamentary elections,
- the selection, appointment and/or promotion of judges are among the most widely recognized functions of judicial councils, and the procedures must be carried out by judicial councils which are independent of the legislative and executive authorities.
According to the Advocate General, the Disciplinary Chamber of the Polish Supreme Court does not satisfy the requirements of judicial independence under EU law, due to the manner of appointment of the members of the NCJ disclosing deficiencies that appear likely to compromise its independence from the legislative and executive authorities. The manner of appointment of the NCJ members entails influence of the legislative authorities over the NCJ, and it cannot be discounted that the Sejm (the lower house of the Polish parliament) may choose candidates with little or no support from judges, with the result that the judicial community’s opinion may have insufficient weight in the process of the election of the NCJ members, an arrangement that is apt to adversely affect the independence of the NCJ.
The Advocate General has also voiced concerns about the fact that the changes to the manner of appointment of the judicial members of the NCJ were accompanied by the early termination of the mandates of the current members of the NCJ. Notwithstanding the purported aim to unify the terms of office of the NCJ membership, the immediate replacement of the members of the NCJ alongside the introduction of the new regime for appointment of the NCJ may be considered to further impair the NCJ’s independence from the legislative and executive authorities.
In conclusion, taking into account the crucial role judicial councils play in guaranteeing the independence of the judiciary in the jurisdictions where they are established, and the importance of their independence and freedom from interference from the legislative and executive authorities in carrying out their tasks, the Advocate General holds that there are legitimate reasons to objectively doubt the independence of the Disciplinary Chamber in light of the role of the legislative authorities in electing the 15 judicial members of the NCJ and the role of that body in selecting judges eligible for appointment by the President of the Republic.
Author: Daniel Szilágyi, PhD student, University of Debrecen, Faculty of Law