With the Commission finally coming to the realisation in July 2017Footnote 132 that dialogue with Polish authorities was leading nowhere and the welcome but belated combined use of the infringement procedure and interim relief procedure in September 2018,Footnote 133 the Court was at last finally able to step in. Its two infringement judgments and three orders to date have helped limiting the amount of irreparable damage done to judicial independence in Poland.Footnote 134 The same cannot be said, however, of the Court’s judgments in preliminary ruling cases. Indeed, in this context, the Court appears to date reluctant to take full account of the structural reality its own infringement judgments and orders have accurately depicted seemingly to save the principle of mutual trust. One cannot however save mutual trust when judicial independence has been structurally disabled. This approach may also seem unwise as it seriously increases the risk of inciting bottom-up resistance from national courtsFootnote 135 by forcing them to continue to apply EU mutual trust based mechanisms regardless of Poland’s authoritarian reality.
The Court’s Strong Record in Infringement Cases
With the Commission progressively emerging from its unproductive dialogue phase when it launched in first infringement action regarding a new Polish law on the organisation of ordinary courts, the ECJ was finally able to adopt two decisive interim orders and two seminal judgments on the merits.
In a context of repeated threats of non-compliance made by Polish elected officials, compliance with these orders and judgments has however inexorably decreased with the point of no return reached at the end of 2019 when the “muzzle law” was adopted. This entry into force of this law, which legalised the systemic violation of ECJ’s rule of law case law, was followed by the de facto and de jure nullification in 2020 of the ECJ preliminary judgment in AK by the unlawfully composed CT and the unlawful DC.Footnote 136
First ever suspension of arbitrary retirement rules targeting Supreme Court judges: Case C-619/18 R, Commission v. Poland (Independence of the Supreme Court).Footnote 137
On 2 July 2018, the Commission launched an infringement procedure against Poland in respect of the new law on the Supreme Court which, inter alia, retroactively lowered the retirement age of Supreme Court judges, including the First President of the Supreme Court notwithstanding the fact that her 6-year mandate was explicitly guaranteed in the Constitution. Rather than emphasising non-discrimination based on age as it did previously in a broadly similar previous instance when a purge of senior Hungarian judges took place in 2012,Footnote 138 the Commission rightly submitted at last that the law in dispute was not compatible with Article 19(1) TEU read in connection with Article 47 CFR. In the absence of any satisfactory answers from Polish authorities, the Commission referred Poland to the Court and requested it to order interim measures pending the delivery of a judgment on the merits.
The most noteworthy and welcome aspect of the Commission’s application for interim measures was the request that the Court orders measures which would restore Poland’s Supreme Court to its situation before 3 April 2018 when the contested measures were adopted. The Court obliged and ordered the immediate suspension of the application of relevant measures. The Court’s reasoning in its final order of 17 December 2018 is particularly rich and instructive. The reasoning’s most striking element is arguably the unprecedented emphasis on the imperative need to protect the general interest of the EU in the proper functioning of its legal order and the link made between the preservation of the independence of Poland’s Supreme Court and the preservation of the proper functioning of the EU legal order.
In the present instance, the practical consequences of the ECJ order were as welcome as they were decisive: A number of judges previously forcibly retired immediately returned to work while those who had previously refused to stop working, including the First President of the Supreme Court, were vindicated in their (brave) decisions to previously disregard the (blatantly unconstitutional) law now suspended by the ECJ (as a matter of EU law) in a context where they had been subject to an unprecedented state-sponsored smear and intimidation campaign.
First ever violations of the second subparagraph of Article 19(1) TEU: Case C-192/18, Commission v Poland (Independence of the ordinary courts)Footnote 139 and Case C-619/18, European Commission v Poland (Independence of the Supreme Court).Footnote 140
In 2019, the Court issued its first two judgements on the merits regarding the two infringement cases launched by the Commission on 29 July 2017 (C-192/18) and 2 July 2018 (C-619/18). The Court found against Polish authorities in these two instances, which was not in the slightest surprising considering the obvious arbitrary nature of the changes made in relation to the retirement regime of Supreme Court judges, ordinary court judges and public prosecutors.
In Case C-619/18, which the Court decided before Case C-192/18, the Court, for the very first time, reviewed the compatibility of a set of national measures targeting the judiciary, misleadingly sold to the public as “judicial reforms”, with the principle of judicial independence in the context of an infringement action. This is also the Court’s first judgment which unambiguously rejected the validity of the claim, repeated ad nauseam by Polish and Hungarian authorities, that the ECJ would allegedly lack the jurisdiction to review national “reforms” of the national justice systems. To the best of our knowledge, this was also the first time the ECJ described the principle of the irremovability of judges as being of “cardinal importance”.Footnote 141
As these infringement rulings having been comprehensively analysed elsewhere,Footnote 142 let us only highlight one additional aspect: Not only do these judgments demonstrate the ludicrous nature of the justifications put forward by Polish authorities—to give a single example, the lowering of the retirement age of female ordinary court judges was justified “on account of their particular social role connected with motherhood and child raising”—they also show their total disregard for the EU principle of loyal cooperation.
Indeed, the Court comes close to publicly stating that the Polish government sought to deliberately mislead it. One may for instance refer to paragraph 82 of the ruling where the Court expresses its “serious doubts as to whether the reform of the retirement age of serving judges” of the Supreme Court was made in pursuance of the objectives rather than “with the aim of side-lining a certain group of judges of that court”. The Court subsequently invokes the doubts that “surround the true aims of the reform being challenged”.Footnote 143 The blunt nature of the Court’s judgment and the unambiguous rejection of the legitimacy of the objectives officially put forward by the Polish government make quite a welcome contrast with the approach of the Court in Case C-286/12, Commission v Hungary. Considering the lack of serious and deliberately misleading nature of the claims made by the Polish government, the Court had no choice but to find that Poland had violated the second subparagraph of Article 19(1) TEU.
The Court deplored—albeit implicitly—a similar lack of good faith from Polish authorities in in its judgment in Case C-192/18. Unsurprisingly, therefore, the Court held that the Polish rules adopted in 2017 relating to the retirement age of prosecutors and judges of the ordinary courts, coupled with the new rules governing a possible extension to the period of active services of those judges, are not compatible with the requirements relating to the independence of judges and in particular the principle of irremovability of judges.Footnote 144 The Commission’s additional submission that Poland had also infringed Article 157 TFEU and Directive 2006/54 due to the fact that the rules in dispute fixed different retirement ages directly on the basis of sex, was also upheld by the Court.
First ever suspension of a disciplinary body masquerading as a court: Case C-791/19 R, Commission v. Poland (Lack of independence of the DC).Footnote 145
On 8 April 2020, the Court’s Grand Chamber granted the Commission’s request to order the suspension of the application of the national provisions relating to the powers of Poland’s “Star Chamber” regarding disciplinary cases concerning judges. As noted by one of the present authors, this order is both significant and unprecedented: “It is significant, because it makes clear that EU law prohibits Member States from setting up national disciplinary bodies which, themselves, fail to satisfy the guarantees inherent in effective judicial protection. It is unprecedented, to the extent that the ECJ has demanded the immediate suspension […] of the processing of all disciplinary cases regarding judges pending before a body which views itself as a court notwithstanding multiple judgments to the contrary by three chambers of Poland’s Supreme Court.”Footnote 146
The Court’s order however suffers from one key weakness which derives from the Commission’s incomprehensible failure to pre-empt an arbitrary use of the procedure to waive judicial immunity under the auspices of the DC acting hand in hand with Poland’s National Prosecution Office. In this respect, it is important to recall that in 2016 the office of Public Prosecutor General was merged with that of the Minister of Justice on the basis of a law described by the Venice Commission as “unacceptable in a State governed by the rule of law as it could open the door to arbitrariness”.Footnote 147 The ECJ could also have prevented this entirely predictable abusive lifting of judicial immunity by tighter language regarding how the notion of disciplinary proceeding must be understood; by better emphasising that measures which may lead to “any dismissal of those who have the task of adjudicating”Footnote 148 form part of the disciplinary regime; and holding that the processing of all cases pending before the DC must be suspended as it appears, prima facie, to be a body not established by law.Footnote 149
That said, it has always been ludicrous to pretend that the waiving of judicial immunity by the DC does not amount to a violation of the ECJ order as this would allegedly amount to a procedure of a criminal nature. Suffice it to point out in this respect that the DC has continued to impose disciplinary sanctions when lifting the judicial immunity of judges who happened—pure coincidence no doubt—to be the most vocal defenders of judicial independence. It was good but still exasperating to see the Commission waking up about six months too late when it finally issued an additional letter of formal notice on 3 December 2020 making clear that Poland is violating EU law by allowing the DC to decide matters such as cases for the lifting of immunity. Meanwhile, the number of victims of Poland’s rule of law breakdown continues to increase. Had the Commission applied for interim measures at the time it referred Poland’s new disciplinary regime for judges to the ECJ on 25 October 2019 (instead of doing so on 23 January 2020) and requested the suspension of all proceedings regarding judges before the (unconstitutional) DC, we could have avoided continuing irreparable damage being done to the rule of law in Poland, not to mention prevented many judges from being persecuted and unlawfully sanctioned by the DC which, to this day, continues to unlawfully function.
The Court’s Weaker Record in Preliminary Ruling Cases
As of 1 March 2021, no more than two judgments on the merits have been issued by the Court of Justice in answer to a total of thirty five requests received from Polish courts in the period 2016–2020: (i) Joined Cases C-585/18, C-624/18 et C-625/18, A.K. e.a. (Independence of the disciplinary chamber of the Supreme Court)Footnote 150; (ii) Joined Cases C-558/18 and C-563/18 Miasto Łowicz and Prokurator Generalny.Footnote 151 When one compares the number of national requests for a preliminary ruling raising the most serious violations of EU judicial independence requirements to the number of infringement actions launched by the Commission, it is difficult not to interpret the quantitative difference as further evidence of the Commission’s reluctance to fulfil its duties as Guardian of the Treaties. Be that as it may, if one adds the national requests for a preliminary ruling received from judges from other EU countries in relation to EAW requests received from Poland, two additional preliminary rulings must be mentioned, the last one of which will be analysed below: Case C-216/18 PPU, LMFootnote 152 and Joined Cases C-354/20 PPU and C-412/20 PPU, Openbaar Ministerie.Footnote 153
As the diagram below shows, one can however expect a significant additional number of preliminary rulings to be issued by the ECJ considering the unprecedented number of Article 267 TFEU requests the Court has received from Polish judges.
These numerous national requests will offer the ECJ additional opportunities to fine-tune its case law and hopefully, decisively address unaddressed issues such as the lack of independence of the Poland’s new ECPAC and the status of the individuals (unlawfully) appointed to the Supreme Court.
Joined Cases C-585/18, C-624/18 and C-625/18 AK e.a. (Independence of the Disciplinary Chamber of the Supreme Court).Footnote 154
In a seminal (preliminary) ruling comprehensively analysed elsewhere,Footnote 155 the Grand Chamber of the ECJ meticulously explained how the referring chamber of Poland’s Supreme Court can ascertain whether the DC is sufficiently independent to constitute a court within the meaning of EU law. In the same preliminary ruling, the ECJ also explains how to ascertain the independence (or lack thereof) of the neo-NCJ—another body which has been highlighted as problematic by the European Commission and many other organisations.Footnote 156 Overall, the ECJ’s interpretation makes it implicitly obvious that neither the DC nor the NCJ satisfy the basic requirements of independence established by EU law, as previously made explicitly clear by Advocate General Tanchev.Footnote 157
Unsurprisingly, the referring court (the Labour and Social Security Chamber of the Supreme Court) subsequently established on 5 December 2019Footnote 158 that the neo-NCJ does not offer a sufficient guarantee of independence from the legislative and executive authorities before ruling that the DC does not constitute a “court” within the meaning of EU law and therefore not a court within the meaning of Polish law as well. Polish authorities have however refused to obey this judgment and subsequent judgments, including a solemn resolution adopted on 23 January 2020 by the (then still independent) chambers of Poland’s Supreme Court. As previously outlined, this deliberate policy of violating any judgment which would force them to respect the principle of judicial independence culminated in the de facto followed by the de jure nullification of the ECJ judgment in AK respectively in April and September 2020 by two captured bodies masquerading as courts.
Considering the pattern of non-compliance with ECJ/national judgments Polish authorities do not approve of, not to forget the systemic harassment of judges who seek to uphold Polish and EU judicial independence requirements, one may argue that the ECJ should have answered the questions it received from the (under siege) referring judges more explicitly. Indeed, while judicial self-restraint can be a virtue in fair weather conditions, it is not one when the mere action of asking question to the ECJ and/or applying EU law can quickly result in a judge being the subject of (unlawful) disciplinary investigations and proceedings following by (unlawful) sanctions such as a pay cut and an indefinite suspension. By not directly and more explicitly addressing the questions raised by the referring court, the ECJ offered Polish authorities a pretext to disregard national judgments seeking to apply AK by claiming that they were not doing so correctly while offering captured bodies such as the ECPAC the opportunity to apply AK in bad faith and holding that the DC satisfies EU judicial independence requirements.Footnote 159 In the end, as previously noted, the DC decided to formally neutralise the application of AK in Poland in September 2020 on the basis of ludicrous procedural arguments leading it to absurdly conclude that the referring court acted unlawfully when it referred questions to the ECJ.
While one must indeed accept that the jurisdiction of the ECJ in preliminary ruling cases is “narrower” than its jurisdiction within the framework of infringement actions as the Court cannot, in principle, directly apply rules of EU law to a particular case, the Court could have been more explicit to avoid any abusive bad faith interpretation by Polish authorities and their captured bodies. One could for instance think of what the ECJ did in the Sunday trading saga when in the face of conflicting applications by national judges “in an area which touched at the heart of a national tradition”,Footnote 160 the Court essentially put an end to these conflicting applications by answering the proportionality question itself to put an end to national judges reaching different conclusions. That said, the main culprit remains in our view the Commission which, in its capacity as Guardian of the Treaties, ought to have launched an infringement action targeting the DC two years before actually doing so in December 2020. As for the neo-NCJ, we are still waiting for the Commission to do so notwithstanding the Parliament reminded the Commission of the urgency of doing so yet again in 2020.
Joined Cases C-558/18 and C-563/18 Miasto Łowicz and Prokurator Generalny.
This Grand Chamber judgment originates from two requests for a preliminary ruling submitted by two Polish judges. Possibly for the first time ever, these two requests were, in part, motivated by the referring judges’ “fear of retribution if they do not adjudicate in favour of the State.”Footnote 161 And indeed, in yet another unprecedented and sinister development, the two judges “were called to account for their decisions to submit the present requests for a preliminary ruling by way of investigation procedures.”Footnote 162 Subsequent to the ECJ judgment in the present case, Judge Tuleya, one of the two referring judges, was unlawfully suspended and his judicial immunity unlawfully waived by a panel of the DC,Footnote 163 which included a presumed member of the Ministry of Justice’s “troll farm” denounced by the Parliamentary Assembly of the Council of Europe.Footnote 164 In one last brave move before he was denied access to the courtroom and his case files, Judge Tuleya was able to submit a request for a preliminary ruling to the ECJ.Footnote 165
While the ECJ ultimately found both requests inadmissible in Joined Cases C-558/18 and C-563/18, the Court’s reasoning is particularly instructive, with the ruling itself containing the strongest warning to date that Polish authorities must cease to threaten or expose national judges to disciplinary proceedings for submitting references for a preliminary ruling. Indeed, “the mere prospect … of being the subject of disciplinary proceedings as a result of making such a reference or deciding to maintain that reference” violates EU law.Footnote 166
As shown in Section 2 of this article, this warning has remained unheeded. Furthermore, notwithstanding the new and welcome emphasis on the chilling effect of disciplinary proceedings, the Court’s ruling in Miasto Łowicz suffers from three main shortcomings. First, it may be understood as abandoning national referring judges to their fates by deciding that “not every judge in every procedure is in the position to remedy potential violations of judicial independence with a reference to Luxembourg”.Footnote 167 Second, it fails to adequately make clear that disciplinary investigations also violate EU law when they aim to dissuade judges from applying EU law, which has led authoritarian-minded authorities to deliberately leave targeted judges in limbo by delaying the formal initiation of disciplinary proceedings. Third, it fails to draw the logical conclusion from the Court’s own observation, to support its finding of inadmissibility, that the investigation proceedings concerning the referring judges have since been closed. But “in taking note of this, the Court contradicts its own insistence on the fact that the mere prospect of being disciplined is enough to deter judges from discharging their judicial duty in a truly independent manner”.Footnote 168
Joined Cases C-354/20 PPU and C-412/20 PPU, Openbaar Ministerie.
On 17 December 2020, the Court’s Grand Chamber held that the existence of evidence of systemic or generalised deficiencies concerning judicial independence in Poland (or indeed, even evidence of an increase in those deficiencies) cannot in itself suffice to justify a refusal to execute European arrest warrants (EAWs) issued by Polish courts. Instead, each national court (when acting as an executing judicial authority) must continue to assess in each case whether there is a specific risk of a breach of the right to a fair trial of the person concerned should he/she be surrendered.
Notwithstanding some minor improvements such as the new emphasis on the need to “exercise vigilance” in a situation where rule of law deficiencies have increased, this ruling mostly reiterates the flawed logic of the Celmer ruling.Footnote 170 What’s more, to save mutual trust, the ECJ omitted from its reasoning inconvenient facts such as the legalisation of the systemic violation of EU judicial independence requirements organised by the muzzle law, and the DC’s decision of 23 September 2020 which formally voided its own ruling in AK.Footnote 171
By requiring national courts to implement a two-pronged case-by-case assessment before refusing any surrender, the ECJ refused to accept that “in a situation of systemic attacks targeting the whole judicial system, there is, by definition, already a “real risk” of a breach of the fundamental rights to an independent tribunal and to a fair trial in every single case.”Footnote 172 As the Irish Supreme Court diplomatically put it in a 2019 judgment, one may question whether “there is then room or need for further inquiry”Footnote 173 once systemic deficiencies have been found. Indeed, the Court’s reasoning means that even if Poland were to become a formal dictatorship and no unanimous agreement was found to sanction Poland under Article 7(2) and (3) TEU, national courts from other EU countries would still need to assess each EAW on a case-by-case basis. EU primary law does not warrant this misguided interpretation which derives from a flawed interpretation of a non-binding recital of the EAW Framework Decision which was adopted prior the insertion of Article 7(1) TEU into the Treaties. Holding that the EU law “requirement that courts be independent precludes the possibility that they may be subject to a hierarchical constraint or subordinated to any other body” is also of no help when Polish courts are already subject to systemic interferences from the executive. The compliance of the Celmer two-step test with Article 6(1) ECHR requirements may also be questioned due inter alia to the disproportionate and unworkable burden it imposes on those subjects to EAWs.Footnote 174
In our opinion, the right to a fair trial in Poland can be said to be systematically violated following the adoption of the muzzle law in a situation where the ECJ order of 8 April 2020 is furthermore openly violated and the ECJ judgment of 19 November 2019 formally recognised as lacking legal effect in Poland, and where disciplinary proceedings are initiated against all judges who try to execute this judgment, as a result of which one of the judges (Paweł Juszczyszyn) has already been removed from adjudicating.Footnote 175
At the very least, the burden of proof should be on the Polish judicial issuing authority.Footnote 176 The pragmatic concern of ensuring the proper working of the judicial cooperation system embodied by the preliminary mechanism cannot justify disregarding the structural violation of the principle of judicial independence, which the ECJ itself described as essential to guarantee the effective judicial protection of individual’s rights under EU law. The ECJ ought instead to establish a rebuttable presumption that Polish courts are no longer independent. This would acknowledge reality without cutting off access to the ECJ and violating Article 6(1) ECHR requirements.
One may further consider that Polish courts can no longer be considered “judicial authorities” notwithstanding the continuing bravery of so many individual judges. We cannot however leave the right to a fair trial at the mercy of individual judges’ bravery in a situation where each Polish judge may be subject to arbitrary disciplinary sanctions for applying EU judicial independence requirements or refusing to obey ministerial instructions which compel them not to directly answer Celmer-related questions.Footnote 177 In practice, the intention of these instructions is to prohibit Polish judges from directly emailing their EU counterparts and force them to correspond via the government. One may also mention additional instructions issued in 2020—only made public in January 2021Footnote 178—which require presidents of common courts to report to the Ministry of Justice any application of the ECJ AK judgment and connected rulings issued by Poland’s Supreme Court. The underlying aim of this reporting system is obvious: to facilitate the initiation of disciplinary investigations should an ordinary court judge dare assessing the independence of the “judges” appointed on the back of Poland’s so-called reforms from the standpoint of EU law and/or ECHR law.Footnote 179 Justice cannot however be done in such a situation regardless of whether the executive directly or does not directly interfere in any specific case.