The Advocate General of the European Court of Justice (ECJ) has indicated that Polish judges cannot be automatically excluded from adjudicating just because the way they were appointed had been questioned.
Dean Spielmann, the ECJ’s Advocate General, on April 28 issued an opinion on a case concerning the exclusion of a judge from adjudicating in the city of Poznań on the grounds that his appointment was unlawful.
In the case brought before the ECJ, a citizen challenged the right of a judge appointed on recommendation of the National Judicial Council (KRS) to adjudicate, arguing the official was not validly appointed to their position.
The grounds for seeking the exclusion of that judge was that the justice in question had been recommended by the KRS. That body has been challenged by both the present centre-left Polish Government led by Prime Minister Donald Tusk as well as in judgments issued by the ECJ.
That arose as the result of the previous Conservative (PiS) government’s reform of the KRS, making it elected by parliament instead of , as previously, by the judiciary.
During the lifetime of the PiS government, the newly constituted KRS recommended the appointments of approximately 2,500 judges. The Polish Government has since announced plans to demote or dismiss most of them.
The ECJ Advocate General, though, has now cast doubt on those plans with the opinion he issued.
According to an ECJ spokesperson: “The involvement of a body lacking a guarantee of independence in a procedure for the appointment of a judge does not, in itself, justify the exclusion of that judge.”
The ECJ stated: “Advocate General Dean Spielmann considers that neither the involvement of the KRS in the appointment procedure, nor the absence of an effective remedy for unsuccessful candidates automatically supports the conclusion that the judge and the court issuing a ruling has done so illegally.”
Spielmann further recommended an “individual and specific assessment, taking account of the legal and factual context”, maintaining “effective compliance with the principles of independence and impartiality as well as the maintenance of public confidence in the judiciary” that was important, he said, “given that 2,500 judges in Poland were proposed by the current KRS”.
PiS MP and former deputy minister of justice Sebastian Kaleta told Brussels Signal on April 29 that “even the ECJ is rubbing its eyes in amazement at what the government are doing in Poland”.
“The Advocate General points out that it is not possible to automatically challenge a judge’s status by questioning the KRS.”
But he added that, in his view: “The ECJ is not competent to rule on such matters as EU treaties do not give the EU any powers over the way countries organise their judiciary.”
He said he did feel it was worth “noting that those who, by interfering with Polish sovereignty, weaponised those who want to destroy the Polish State are now telling them to stop as they have gone too far”.
Judge Konrad Wytrykowski told Conservative portal Niezależna.pl that, in his opinion, the ECJ Advocate General’s opinion challenged the narrative of the present Polish Government regarding the “removal from adjudication” of the judges who were targeted and confirmed that “the judicial appointments made are in essence irreversible”.
The former PiS government in its disputes with the ECJ and the European Commission had always maintained that it had the right to reform the judiciary, that the reforms carried out were inline with practices in member states such as Germany and Spain where parliaments appoint bodies that oversee judicial appointments.
It also stated that the Polish Constitution granted the president the exclusive power to make judicial appointments based on recommendations made by the KRS those decisions are irreversible.
