Rule of law Poland

Backgrounder: Upcoming CJEU Decision on Poland

Update: You can read an analysis of the judgement by Barbara Grabowska-Moroz and Jakub Jaraczewski on the Verfassungsblog here.

On 19 November 2019, the Court of Justice of the European Union will hand down its judgment in three combined cases on Poland’s judiciary. This decision is the latest in a string of CJEU decisions on the Polish government’s attempts to transform the country’s judiciary.

DRI’s Jakub Jaraczewski answers some questions ahead of the decision.

What will the CJEU decide on?

In 2017 the Polish government passed a law, since-abolished, lowering the mandatory retirement age of judges. Before these changes were rolled back, Polish justices brought three cases before the Chamber of Labour Law and Social Security of the Supreme Court of Poland, arguing against the law. In 2018, another change in law gave the newly established Disciplinary Chamber of the Supreme Court the power to hear these cases. Faced with this, the Chamber of Labour Law and Social Security, which was supposed to turn these cases over to the Disciplinary Chamber, referred the cases to the CJEU, asking whether the Disciplinary Chamber respects the criteria for judicial independence provided in EU law.

Does this mean that one chamber of a Polish court is questioning the independence of another chamber of the same court?

Yes. The Chamber of Labour Law and Social Security is one of the “old” chambers of Polish Supreme Court – one that saw its members appointed before the changes to the National Council of Judiciary introduced by the current government. The Disciplinary Chamber is a “new” chamber, established in 2018 and appointed by the “new” National Council of Judiciary.

How did these cases make their way to the CJEU?

These cases are ‘referral procedures’, one of the most common ways a case can be lodged with the CJEU. By means of referral, a court in an EU Member State asks the CJEU a legal question regarding the interpretation and implementation of EU law. Courts use this procedure frequently when they encounter problems in reading EU law or applying it to a specific case. The ruling of the CJEU is binding for the court which submitted the referral.

Why are the cases joined?

The CJEU will hand down one decision on three cases, because they ultimately concern the same legal issue and were referred by the same Polish court. The CJEU frequently joins cases to streamline its work and avoid redundant multiple judgments dealing with the same, or a very similar, matter.

What is the role of Poland’s Supreme Court?

The Supreme Court of Poland is the highest instance of civil, criminal and military justice in Poland. There is a separate highest court for administrative proceedings and the role of judicial review is vested in the Constitutional Tribunal. The Supreme Court is also the highest instance of disciplinary proceedings against Polish judges.

What is the Disciplinary Chamber?

Before 2018, there was no separate chamber within the Supreme Court that was dedicated to disciplinary proceedings. The Disciplinary Chamber was established in 2018 along with other new chambers as part of a controversial overhaul of the Supreme Court. Its members were nominated by the President following recommendations made by the National Council of Judiciary.

What is the National Council of Judiciary and why does it matter for this case?

The questions concerning the independence of the Disciplinary Chamber relate directly to another Polish constitutional body – the National Council of Judiciary. Formed in 1989 as part of the overhaul of the Polish constitutional system following the fall of communism, the NCJ is the body tasked with safeguarding judicial independence and protecting the integrity of the judiciary. Under prior laws, most of its members were appointed by the judiciary itself. In 2017, the NCJ membership was effectively “reset” when the parliament enacted a law that removed all the sitting members and gave parliament the power to appoint a majority of NCJ members. The parliamentary majority then appointed new members to the NCJ, replacing the ones that had been removed. Most of these new members are judges drawn from lower courts and the process of their appointment was highly controversial due to a lack of transparency and concerns about the qualifications of the candidates. As part of the same reform package, the NCJ was also tasked with recommending judges for appointment by the President to the Disciplinary Chamber of the Supreme Court.

How is this different from other cases concerning the Polish judiciary before the CJEU?

Cases concerning Polish courts have found their way to the CJEU in many ways. Some of those cases were initiated by the European Commission, which can take a Member State before the CJEU for violating EU law under an ‘infringement procedure’. That’s how the recent cases concerning the lowering of the mandatory retirement age of judges came before the CJEU. In these cases, the European Commission claimed that a Member State had violated the law. In contrast, in this case, the core question concerns the interpretation of EU law in a particular case before a referring court.

Interested in learning more about the upcoming CJEU decision?

Join us in Brussels for breakfast at 9:30 on Monday 18 November. Find out more here.