epa11039727 A sign reading 'Hearing in progress' is seen in front of the Salle d'audience III, inside the Court of Justice of the European Union (CJEU) in Luxembourg,. Behind such doors the fate of Poland's judicial reform hangs. EPA-EFE/Mohammed Badra


ECJ silent on ‘legitimacy’ of Polish judges


The European Court of Justice (ECJ) has refused to accept prejudicial questions from Polish judges who claim some of their colleagues have been appointed in a non-legitimate manner.

The ECJ made its ruling on January 9, effectively avoiding taking any official position on the validity or otherwise of the system of judicial appointments in Poland.

The case was brought by two Polish district courts, which submitted prejudicial questions asking the ECJ to rule on the legality of certain aspects of judicial reform introduced in Poland during the tenure of the previous Conservative PiS government.

The two Polish district courts asked the ECJ to opine on whether judges were correctly appointed according to the procedures and were fit for office.

The judicial recommendations in question had been made by the National Judicial Council. The then-Polish opposition, the European Commission and previous European court judgments have said they were illegitimate, being composed of “political” appointees made by parliament rather than judges.

Despite EC rapporteur Michael Collins originally saying the appointments were questionable and, therefore, the courts where they served were also illegitimate, the ECJ on January 9 ruled that “prejudicial questions” submitted by the Polish judges opposing the previous government’s judicial reform were “inadmissible”.

The ECJ did so because it found the examples cited by the Polish judges were not sufficient. It added, with reference to one of the questions, that the domestic court in Poland did not have the legal authority to make judgments on the assignment of judges to individual cases.

Genowefa Grabowska, a former MEP who is also an international and European lawyer, told Brussels Signal the ruling has come as a relief. That was, she said, because the commonly used derogatory term “neo-judge”, adopted by some in the dispute in Poland, was “outrageous”.

She said she felt that the decision ought to now “stabilise” the legal system in Poland as it implies all judges appointed in country, according to the constitutional procedure of a recommendation from the National Judicial Council and accepted by President Andrzej Duda, were “legitimate”.

Grabowska stated: “You cannot question the independence and legitimacy of a judge just based on who recommended and appointed them.”

She said she hoped the ECJ’s position would now “cool the hot-heads among both politicians and the judiciary who want to remove all 3,000 judges appointed by the President because they were recommended by the reformed National Judicial Council”. That is the body charged with constitutional responsibility for making such recommendations.

Grabowska also welcomed the the ECJ’s acknowledgement that the appointment of the judiciary was reserved for Member States alone.

The European courts should not interfere in such details, she said, pointing to the fact that the Polish Constitution did not rule out Parliament appointing members of the National Judicial Council – just as it appoints the members of the Constitutional Tribunal, or court.

The judicial reform instigated by the previous PiS government caused outrage in the Polish legal profession as it removed control of the National Judicial Council from judges and increased the justice minister’s powers over the way courts are organised and judges disciplined.

The PiS has defended the reforms by arguing there needed to be more accountability following little or no reform of the judiciary since Communist times. It also pointed to what it claimed was a lack of public confidence caused by allegations of corruption as well as the extended time cases were taking to be heard and completed.

In addition, it said, the Polish judiciary remained “resistant” to reforms such as the introduction of justices of the peace, jury trials and the limitation of general immunity for judges that the Constitution bestows on them.

It argued that the judiciary remains a defence against excessive executive and legislative power, one that is vital to uphold the balance and division of power envisaged in the Constitution.