AG Tanchev strongly defends judges’ right to ask prejudicial questions directly to CJEU

The Advocate General of the Court of Justice of the EU, Evgeni Tanchev, recommended that the Court reject two of a number of prejudicial questions presented by Polish courts in conjunction with the attack on judicial independence in Poland.

But contrary to some premature interpretations, the opinion is favourable for the remaining questions – the AG has affirmed that judges may pose questions to the CJEU regarding their independence in the context of the disciplinary system.

According to some rash initial interpretations presented in Polish media, Tanchev’s opinion is said to be “favourable for the PiS government”, and even “a victory for the government”.

Nothing could be further from the truth.

Publikujemy teksty po angielsku o praworządności w Polsce, aby pełna informacja o sytuacji w naszym kraju docierała do czytelników i czytelniczek za granicą. Udostępnij znajomym mieszkającym poza Polską. #RuleOfLawPL

Dziś angielska wersja tekstu "Łętowska i Bogdanowicz: rzecznik Tanczew potwierdził, że sędziowie mogą pytać TSUE o swoją niezależność". Anna Wójcik wyjaśnia w nim, że przedwczesny jest triumf rządu PiS po ogłoszeniu opinii Rzecznika Generalnego TSUE o dwóch spośród kilkunastu pytań prejudycjalnych zadanych przez polskich sędziów Trybunałowi Sprawiedliwości UE. Choć prof. Tanchew uznał, że te dwa pytania nie zostały dobrze uzasadnione, to jednoznacznie potwierdził, że sędziowie mogą pytać TSUE o swoją niezależność w kontekście postępowań dyscyplinarnych.

Prof. Ewa Łętowska of the Polish Academy of Sciences, a renowned lawyer and authority on legal issues in Poland, former justice of the Constitutional Tribunal and the first Human Rights Commissioner, concluded:

“The government argues that disciplinary issues are not an EU issue, but an internal one. Tanchev’s opinion explicitly states that this is an EU matter (Article 19 of the Treaty on European Union), only that in the specific case of two questions from judges Maciejewska and Tuleya, the existence of a threat to the independence of judges by the disciplinary system was insufficiently justified. This is different. In my view, this opinion is by no means in line with the government’s expectations.”

What follows is a breakdown of the issues involved.

Read more on the cases.

Advocat General rejects two judges’ questions, but…

The Advocate General of the EU Court of Justice, Bulgarian lawyer Prof. Evgeni Tanchev, known for issuing critical opinions on the dramatic changes in the Polish courts rammed through by Law and Justice (PiS), recommended on 24 September 2019 that the EU Court of Justice reject two questions referred for a preliminary ruling by Judge Ewa Maciejewska from the Łódź District Court and Judge Igor Tuleya from the Warsaw District Court (Advocate General’s Opinion in Joined Cases C-558/18 and C-563/18).

Although the Court of Justice may disagree with Tanchev’s opinion, the Court’s judges usually concur with his recommendations. This was the case with Tanchev’s April opinion stating that the provisions of the Supreme Court Act are incompatible with EU law, which was confirmed by the CJEU Grand Chamber in June. In a few weeks’ time we will learn of the Court’s decision in this case.

Tanchev stated the following with regard to the questions posed by judges Maciejewska and Tuleya:

“In the present cases, the orders for reference do not provide sufficient explanation of the relationship between the relevant provisions of EU law and the Polish measures in question.”

…he affirms judges’ right to pose such questions to the CJEU

“Advocate General Evgeni Tanchev first examines whether the situation in the main proceedings falls within the material scope of EU law. He finds that the referring courts in the present cases are bodies which ‘could’ rule, as courts or tribunals under Article 267 TFEU, on questions concerning the application or interpretation of EU law.

Therefore, based on the Court’s case-law, the referring courts fall within the material scope of the second subparagraph of Article 19(1) TEU and that provision is applicable in the present cases.

The Advocate General considers that ‘the fields covered by EU law’ under the second subparagraph of Article 19(1) TEU include an authority vested in the Court to rule on structural breaches of the guarantees of judicial independence, given that Article 19 TEU is a concrete manifestation of the rule of law, one of the fundamental values on which the EU is founded under Article 2 TEU2, and Member States are bound under the second subparagraph of Article 19(1) TEU to ‘provide remedies sufficient to ensure effective legal protection’.

Structural breaches of judicial independence inevitably impact on the preliminary ruling mechanism under Article 267 TFEU and thus on the capacity of Member State courts to act as EU Courts. Consequently, in the view of the Advocate General, the situation in the main proceedings falls within the material scope of EU law.”

In simpler terms:

This means that, in the Advocate General’s opinion, the EU Court of Justice should accept and review properly submitted questions concerning the independence of judges within the context of the disciplinary system that applies to them.

PiS politicians and pro-government media declare victory…

Tanchev’s opinion on the two questions referred for a preliminary ruling – Polish courts have posed numerous such questions in connection with the “reforms” of PiS – has been held up as a “victory” by Law and Justice politicians and pro-government media. Even the liberal daily “Gazeta Wyborcza” gave the title “Polish government wins for the first time in the CJEU”.

The Polish Minister of Justice Zbigniew Ziobro commented that it is appropriate to speak of “the disgrace of the judges who posed these questions”, imputing to Maciejewska and Tuleya “insufficient legal knowledge” and “politicization”.

The pro-government website wPolityce.pl wrote that “the CJEU agreed with the government” and “stated that questions referred by Polish judges regarding the disciplinary system in Poland should be considered inadmissible.”

The misunderstanding lies in the fact that the main part of the Advocate General’s opinion says precisely the opposite.

… which is in fact a loss

The opinion of the Advocate General of the CJEU bodes well for the remaining preliminary questions, in which Polish courts have asked the CJEU to assess the compatibility with EU law of the judicial elements of the “reforms” by Law and Justice.

“The Advocate General confirmed that judges have the right to ask the EU Court of Justice about their independence in the context of the disciplinary system for judges,” explains Dr hab. Piotr Bogdanowicz of the Department of European Law at the University of Warsaw.

Disciplinary action against judges by government authorities may constitute a violation of EU law, and such matters are suitable for questions posed to the CJEU.

It should also be recalled that the Commissioner for Human Rights (CHR) invoked this argument in the case during a hearing before the EU Court of Justice. The Commissioner’s position was presented in in Luxembourg on 18 June 2019 by Dr hab. Maciej Taborowski, Deputy CHR and Mirosław Wróblewski, Director of the European, International and Constitutional Law Group at the Office of the CHR (their arguments can be read here – in Polish).

Dr hab. Piotr Bogdanowicz explains:

“Tanchev determined that the independence of judges in light of the disciplinary system is a matter which falls within the scope of EU law, and more specifically of Article 19 of the Treaty on European Union, which deals with the principle of effective judicial protection.

Also of importance is that the Advocate General has confirmed that structural violations of judicial independence affect the mechanism for referring questions for a preliminary ruling to the EU Court of Justice. The possibility of referring matters to the CJEU for a preliminary ruling is a fundamental right of national courts, which are also courts of European Union law.

On the other hand, Attorney General Tanchev determined that two particular questions presented in 2018 by Judge Maciejewska and Judge Tuleya did not indicate with sufficient clarity the link between the provision of Polish law on whose basis the judges had ruled and the principle of effective judicial protection in EU law, on which these judges demanded the CJEU to elaborate.”

Questions referred by Judge Ewa Maciejewska and Judge Igor Tuleya

Judges Beata Maciejewska and Igor Tuleya sought to inquire whether it was compatible with European law for judges to fear that their judgments – for example, those unfavourable to the State Treasury – would result in disciplinary action being taken against judges.

Maciejewska and Tuleya’s questions were the first in a series of questions referred for preliminary rulings by Polish common courts judges.

After asking these questions – as if to confirm the concerns expressed by the judges – the disciplinary spokesman began to demand explanations from Maciejewska and Tuleya. In addition, he called the question referred by Judge Maciejewska for a preliminary ruling an example of “judicial overreach”.

Such actions and statements by the disciplinary spokesman were an attempt to create a chilling effect on judges: they were intended to discourage judges from exercising one of their most fundamental prerogatives, to submit questions to the CJEU, a right guaranteed by Article 19(3) of the Treaty on European Union and Article 267 of the Treaty on the Functioning of the EU.

Judges of EU Member States’ national courts are by law EU judges, because they settle cases which are governed by European law.

The preliminary ruling mechanism is designed to ensure that national judges receive replies from the CJEU on matters of interpretation of EU law when it is necessary for national judges to resolve a specific case. This explains how the mechanism of preliminary questions has a direct impact on the interests of citizens and legal persons whose cases are being adjudicated.

Read more on why Polish judges are submitting motions for preliminary rulings to the CJEU.

“Iustitia” speaks out

The Association of Polish Judges “Iustitia” disagrees that the questions posed by Maciejewska and Tuleya were, as the Advocate General of the CJEU described in his opinion, “hypothetical”, because they were based on the subjective conviction of judges that they may now be threatened with disciplinary proceedings for issuing decisions unfavourable to government authorities.

“Iustitia” issued a statement reminding the EU Court of Justice that investigations under disciplinary proceedings had actually been initiated against judges following referrals referred for a preliminary ruling.

The judges from “Iustitia” also point out that, among other issues, the proceedings against Tuleya and Maciejewska were the reason why the European Commission initiated proceedings in April 2019 against Poland for breach of EU law. Currently, the procedure is in its second stage. The next stage will be a complaint by the European Commission against Poland to the CJEU. This is expected to take place after the upcoming parliamentary elections in Poland.

Full statement – in Polish

Previous opinions of AG Tanchev

CJEU Advocate General Evgeni Tanchev first came to the public’s attention in Poland for his opinions issued in proceedings on the European Commission’s complaints against the Polish authorities.

First, on 11 April 2019, Tanchev stated that the provisions of the Supreme Court Act were inconsistent with EU law, which a landmark ruling of the Grand Chamber of the EU Court of Justice confirmed in June 2019.

Then, on 20 June 2019, the Advocate General issued a negative opinion on the Common Courts Act. The CJEU’s judgment in this case will be announced in late autumn.

In June, Tanchev issued a crushing opinion critical of the new National Council of the Judiciary and Supreme Court Disciplinary Chamber in response to questions referred for a preliminary ruling by Poland’s Supreme Court and the Supreme Administrative Court.

The opinion on the questions raised by judges Maciejewska and Tuleya is the fourth element of Professor Tanchev’s contribution to the discussion on changes in the judiciary forced by Law and Justice.

The Advocate General’s previous opinions led to attacks on him by politicians of the ruling majority and their supporters.

The text was translated by Matthew La Fontaine.

The English translation originally appeared at Rule of Law in Poland, a joint initiative of the Wiktor Osiatyński Archive, FOR Foundation and Helsinki Foundation for Human Rights in Warsaw.