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CJEU: questions from Polish courts on status of judges inadmissible

Published: 11.01.2024

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- The Court of Justice of the European Union has declared inadmissible preliminary questions from the District Court in Katowice and the District Court in Krakow in connection with an ongoing dispute over how judges are appointed in Poland.

- The courts asked the CJEU whether judges appointed at the request of the National Council of the Judiciary, which since 2018 has consisted mostly of parliamentary representatives, can be considered independent.

- The questions asked were aimed at determining whether the court can exclude such judges from hearing cases, as well as ignore the rulings they issue.

- The CJEU declared the preliminary questions inadmissible, stating that they were not related to the cases considered by the questioning courts.

The essence of this dispute concerns the question of whether judges' communities (as they were until 2017) or democratically elected parliamentarians (as they have been since 2018) should have the decisive influence on the selection of judges. Supporters of the first solution point to judges as best equipped to assess the qualifications of candidates for judicial positions. Supporters of the second solution, on the other hand, point to the need to strengthen the democratic legitimacy of the judiciary.

Judges in Poland are appointed by the President of Poland on the proposal of the National Council of the Judiciary. The National Council of the Judiciary is a collegial body of 25 members, including 15 judges, six parliamentary representatives, a representative of the President of Poland, the Minister of Justice, the First President of the Supreme Court and the President of the Supreme Administrative Court. Until 2017, the 15 judicial members of the NCJ were elected by judicial circles, and since 2018 they have been elected by the Sejm. As a result, parliamentary representatives have a majority in the NCJ, and they have a decisive influence on which candidates will be presented to the President for judicial positions.

The new composition of the Council has been criticized by some legal circles, according to whom the election of the majority of members by parliamentarians poses a significant risk that they will be guided by their political sympathies rather than their qualifications and experience when selecting judicial candidates. Since then, some 2,300 judges have been selected through the newly-formed NCJ, whose status is being challenged on charges of lacking independence from the legislative and executive branches of government. Over the course of several years, the Supreme Court, the European Court of Human Rights and the Court of Justice of the European Union have issued a series of rulings declaring that the method of electing the 15 judicial members of the NCJ needs to be changed, because the current method negatively affects public confidence in judges. 

The preliminary questions from the Cracow court and the Katowice court concerned doubts about whether judges of common courts appointed at the request of the newly formed National Judicial Council meet the requirements of EU law regarding independence and establishment with respect to national law. Also related to the questions raised was the issue of whether rulings issued by judges who did not meet these requirements could be declared null and void.

The Katowice court's preliminary question was asked in connection with a complaint heard by a three-judge panel, with the participation of a judge appointed after March 6, 2018. The reporting judge wanted to determine whether such a composition of judges is compatible with EU law.

The Krakow court's question, on the other hand, was posed by the judge in connection with a civil case that had already been heard, and which had been validly dismissed by a different composition of the same court, with the participation of a judge appointed at the request of the newly-formed CJEU.  

However, the CJEU refused to answer the preliminary questions, indicating that they were formally inadmissible.

"The Court provides the national courts with the elements of interpretation of EU law which are necessary for them to resolve the disputes pending before them, and that a reference for a preliminary ruling is not intended to give advisory opinions on general and hypothetical questions, but is to be dictated by the need for effective resolution of the dispute," the CJEU pointed out.

Meanwhile, according to the Court, the preliminary questions raised concerned purely hypothetical issues.

Even if the CJEU found that the said judges appointed under the new procedure that has existed since 2018 do not meet EU requirements, the questioning courts would have no legal basis for excluding them from adjudication or assessing the legality of their appointment. In the case of the Katowice Regional Court, the Court stressed that under Polish procedural regulations, the rapporteur judge is not authorized to exclude another member of the adjudicating panel. In contrast, in the case of the Regional Court in Krakow inquiring about a final decision, the Court noted that "this court has no jurisdiction either to 'exclude' the judge sitting on the bench that issued the decision, or to challenge that decision."

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