Laurent Pech, Professor of Law, University of Middlesex
On March 2, 2021, the European Court of Justice (ECJ) delivered its third judgment in a preliminary ruling case from a Polish court. This case pertained to the deterioration of the rule of law in Poland, an ongoing issue for over five years. Notably, there have been 35 requests for preliminary rulings from Polish courts compared to only three infringement actions brought by the Commission.
This judgment, referred to as AB and others, clarifies that the referring court must conclude that Polish authorities violated EU law. This violation occurred when Poland altered its laws to prevent judicial review of judicial appointments. These appointments were made by the new National Council of the Judiciary (KRS), a body established in violation of the Polish Constitution. The KRS has since been suspended from the European Network of Councils for the Judiciary due to concerns about its independence.
However, the ECJ’s judgment in AB may face a similar fate to its judgment in AK. Polish authorities disregarded the AK judgment, which held that the KRS lacked independence and the “Disciplinary Chamber” did not constitute a court. In response to the Polish Supreme Court’s application of the AK judgment, Polish authorities passed a law that, in essence, legitimized the violation of the ECJ’s ruling. Adding to this, the unlawfully composed “Constitutional Tribunal” and the unconstitutional “Disciplinary Chamber” have since annulled the AK judgment. Despite these actions, the Commission remained passive. This inaction continued with the blatant disregard for the ECJ order of April 8, 2020, concerning the “Disciplinary Chamber.” While the Commission did initiate an infringement action against the law in late April 2020, there has been no referral to the ECJ. This delay has allowed for continued damage to the rule of law, with the Commission’s only apparent response being a weak attempt to explain the situation to those experiencing it firsthand.
Polish authorities have perceived the Commission’s inaction as weakness, leading them to prepare for the systemic violation of the Court’s judgment in AB. Furthermore, the Commission signaled its reluctance to fulfill its role as Guardian of the Treaties in a case involving one of the many individuals illegitimately appointed to Polish courts. This case, Case C-132/20, marks the first preliminary ruling request submitted by a judge appointed through questionable means. The hearing for this case coincided with the ECJ’s judgment in Case C-824/18.
1. Fulfilling the Duty: The Court of Justice
The ECJ’s judgment in AB holds both depth and significance, making a concise summary difficult. However, its most crucial contribution to upholding the rule of law within the EU is the affirmation that EU Member States must adhere to EU standards of judicial independence when amending laws related to judicial appointments and their review.
Therefore, national authorities, including those in Poland who continue to disregard their constitution, cannot use national law as justification for arbitrary conditions or procedures for judicial appointments. This includes attempts to remove a national court’s jurisdiction, halt ongoing appeals, or prevent national courts from referring questions on judicial appointments to the ECJ.
Another key aspect of the judgment is the finding that the Polish legislature’s amendments were a deliberate attempt to prevent the ECJ from ruling on questions referred by Poland’s Supreme Administrative Court. This constitutes a clear breach of the EU principle of sincere cooperation. Furthermore, the ECJ criticizes, albeit diplomatically, the Polish authorities’ bad faith and unlawful actions in curbing preliminary ruling requests and hindering judicial review of the new KRS’s illegitimate judicial appointments.
For the first time, the ECJ condemned the detrimental effects of the contested legislative changes and the Polish President’s disregard for a freezing order from Poland’s Supreme Administrative Court. This disregard allowed for the unlawful appointment of eight individuals to Poland’s Supreme Court. AB also highlights the referring court’s ability to consider potential connections between KRS members and the Polish executive when assessing the independence of those appointed to the Supreme Court in violation of the freezing order. The existence of these connections has already been firmly established.
The unavoidable conclusion, pending confirmation from the referring court (provided it remains able to do so), is that Polish authorities have orchestrated a systematic violation of EU law, including the unlawful appointment of individuals to the Supreme Court.
Two main weaknesses are apparent in the AB judgment. Firstly, it does not directly address the unlawful appointments through the lens of the right to a tribunal established by law, which would make it clear that those appointed lack the qualifications of judges. Secondly, the judgment fails to explicitly acknowledge that Poland’s Constitutional Tribunal is no longer a court due to its unlawful composition. The former president of the German Federal Constitutional Court aptly described it as a “puppet”. Additionally, the ECJ fails to directly address the violation and overturning of its judgment in AK.
Despite these shortcomings, AB is a positive and important judgment concerning EU law and national judicial appointment procedures. Unfortunately, AB alone will not stop the deliberate dismantling of judicial independence in Poland for two primary reasons. Firstly, the limitations of the ECJ’s preliminary ruling jurisdiction require independent judges to apply its rulings and set aside national law if an EU law violation is confirmed. Secondly, the Commission’s consistent failure to fulfill its responsibilities presents a significant obstacle.
2. Neglecting the Duty: The Commission
The AB judgment indirectly exposes the Commission’s ongoing failure to uphold its responsibility as Guardian of the Treaties. In addition to consistently acting too late with insufficient measures, as seen in Case C-824/18, the Commission appears to be intentionally unhelpful in preliminary ruling cases concerning the rule of law. This is evident in its adoption of the narrowest possible interpretation of the principle of judicial independence.
In Case C-824/18, the Commission argued contrary to the ECJ’s eventual decision, stating that neither Article 19(1) TEU nor Article 267 TFEU precluded the legislative amendments in question. The Commission’s stance implied that EU law would only be violated in the event of a “structural rupture” in the judicial appointment process. The meaning of “rupture” remains unclear, but the intention is evident: to do the bare minimum in defending judicial independence. This involves downplaying serious problems or pretending they don’t exist, as seen in the pending Case C-132/20.
This lesser-known case merits attention because it involves the first national request for a preliminary ruling submitted by an individual whose judicial appointment appears highly questionable. This situation marks the first time an autocratic government has attempted to exploit an EU procedure meant exclusively for judges.
Disregarding the absurd questions raised in this case, the ECJ is confronted with a request from an individual whose appointment stems from a procedure fraught with irregularities, as outlined in Case C-824/18. These irregularities include the blatant disregard for a binding order issued by Poland’s Supreme Administrative Court.
Instead of firmly asserting that the reference is inadmissible due to not being submitted by a court, the Commission failed to take a clear stance on the individual’s lack of independence during the hearing on March 2, 2021. This inaction disregards the fact that the appointment directly violates a court order. Moreover, the Commission did not object to the “established by law” criterion, implying that the reference, having come from Poland’s Supreme Court, originated from a legitimate court.
This flawed logic likely pleased Poland’s autocratic government. This approach would allow the ruling party to disregard ECJ case law concerning judicial appointments with procedural irregularities. It would also enable illegitimately appointed judges to seek legitimacy through ECJ hearings on their preliminary ruling requests. They could then exploit Polish state television, a platform frequently used to discredit independent judges, to claim recognition from the ECJ, despite lacking legitimacy. While Caligula may not have succeeded in appointing his horse as a Roman senator, the Commission’s reasoning could allow individuals with questionable qualifications to be appointed to the Supreme Court. The Commission’s failure to safeguard the integrity of the legal remedies system outlined in the Treaties is deeply concerning. The hope remains that the ECJ will recognize the importance of preventing autocrats from further undermining the EU legal order by overwhelming the Court with illegitimate requests from unqualified judges.
The current situation presents a bleak picture. The Commission continues to act insufficiently and belatedly on enforcement, as evidenced by Case C-824/18. This forces national judges to risk their careers and personal lives to challenge unlawful measures that the Commission fails to address. Furthermore, the Commission appears intent on weakening national requests related to judicial independence, refusing to adopt an interpretation of EU law that strengthens the rule of law, as demonstrated in Case C-824/18. Lastly, the Commission has declined to challenge the admissibility of a preliminary ruling request from one of Poland’s illegitimate judges, who are actively colluding with the PiS-led executive to dismantle judicial independence.
However, one can take comfort in the fact that the demise of judicial independence in Poland will be documented in the Commission’s Rule of Law Report, if not in the upcoming edition, then certainly in the 2022 edition.
Photo credit: User Darwinek, via Wikimedia Commons