The European Court of Justice (ECJ) ruled that flaws in a judge’s appointment does not automatically mean that the judge lacks independence to adjudicate cases in Poland.
The ruling yesterday is a setback for the current Polish Government, which had planned to deal with the issue of status of judges on a wholesale rather than individual basis.
According to the ruling, national courts must examine all the circumstances surrounding appointments and cannot automatically deem that a judge is not independent or impartial just because they had been appointed in a particular way.
The ECJ ruling came in response to questions from the District Court in the city of Poznań, western Poland and is in line with previous opinions issued by the Venice Commission, the advisory body to the Council of Europe.
The case the ECJ was adjudicating concerned a dispute over the status of a judge appointed with the involvement of Poland’s National Council of the Judiciary (KRS). That is the body that recommends judicial appointments to the President.
The last Conservative (PiS) government in 2017 changed the way KRS members are appointed from being chosen by senior judges to being elected by parliament.
This reform was challenged by the European Commission and ECJ on the grounds that the KRS ceased to be an independent entity.
The ECJ ruled in 2021 that the restructured KRS had “been established in breach of basic principles of Polish constitutional law and did not guarantee the independence and impartiality required under EU law”.
The PiS government of the time defended its actions by arguing that, according to EU treaties, oversight over the judiciary is a power of the member states and not European institutions. It. also argued that EU member states such as Germany and Spain involve their legislatures in choosing members of bodies who then make recommendations on judicial appointments.
The dispute on which the ECJ has just ruled began during a civil case over money owed under a contract. One of the parties asked for the judge handling the case to be removed, arguing that her appointment was open to doubt because she had been recommended by the KRS in its post-2017 format.
There have been a number of instances of Polish judges ruling that decisions by lower courts in both criminal and civil law cases can be questioned on the grounds that the judge in question was appointed on recommendation of the current KRS.
Europe’s top court has now ruled that the participation of the new KRS in the appointment process was not enough by itself to justify removing a judge from a case.
It added that the decision of a court can only be called into question “when irregularities surrounding the appointment create a real risk of interference by the executive branch of government giving rise to doubts about the judges’ independence”.
The judgment does not settle the underlying Poznań case itself with the final decision to be made by the original court, but it does suggest that the government policy of seeking to create categories of judges to be demoted or removed because they were appointed by the KRS should be reviewed.
In practice the ECJ ruling implies that Polish courts handling recusal requests must assess all the circumstances surrounding the appointment in question and decide whether they could raise reasonable doubts in the minds of the public.
The court noted that more than 3,000 judges in Poland, around 30 per cent of the judiciary, were appointed on the recommendation of the KRS in its new composition. It recommended that Poland “create a legal framework to allow an assessment of whether individuals appointed to judicial posts through flawed procedures can continue performing their duties”.
According to the ECJ such a framework would “help restore public trust in the justice system and uphold the principle of the separation of powers”.
The centre-left government led by Prime Minister Donald Tusk since coming to office in late 2023 has introduced legislation that would lead to a wholesale review by categories of the 3,000 appointments made during the lifetime of the last PiS government rather than reviewing all cases individually as suggested by the ECJ.
Those attempts at wholesale demotion and elimination of appointed judges have been criticised by the opposition PiS and led to both the last opposition-allied President Andrzej Duda and his successor, the incumbent head of state, President Karol Nawrocki to reject such legislation.
Both presidents pointed to the fact that according to Poland’s Constitution it is left to parliament to determine the method of election of the KRS and that the power of appointment of judges is the sole and discretionary power of the head of state.
The ECJ ruling was welcomed by the opposition PiS, whose former justice minister Marcin Warchoł told Catholic broadcaster Radio Maryja: “This is a breakthrough ruling that totally undermines the Tusk government’s narrative that all the appointments made on recommendation of the KRS were illegal.”
Warchoł’s view was supported by constitutional expert Professor Ryszard Piotrowski who told news portal Wirtualna Polska: “This ruling could help move us away from the legal chaos which has been caused by questioning the status of judges because of the way they were appointed.”
Tusk’s domestic allies, though, claim that all the ECJ ruling implies is that there is a need for legislation to rectify problems “caused by the PiS reforms” and that their legislative proposals do allow for individual appeals and are therefore in line with the European court’s thinking.
