Attacks on CJEU Advocate General after his crushing assessment of judicial “reforms” in Poland

The opinion of CJEU Advocate General Evgeni Tanchev, announced 27 June 2019, led to a firestorm among politicians, as well as among members of the newly constituted National Council of the Judiciary (“neo-NCJ”) and Disciplinary Chamber of the Supreme Court. The AG determined that the Disciplinary Chamber of the Supreme Court was not in compliance with the standards of EU law due to the fact that the neo-NCJ was involved in its selection.

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If the CJEU judgement to be handed down in the autumn concurs with the opinion of AG Tanchev, to implement the ruling Poland will have to select a new Council. Changes will also be necessary in other EU Member States.

Politicians from the governing majority in Poland have unanimously belittled the opinion of the CJEU. The Minister of Justice and the neo-NCJ claim that the opinion of AG Tanchev is inconsistent and contrary to EU law.

Assuming, as does Warsaw University professor Marcin Matczak, that the autumn will see an earthquake hit the Polish justice system, the first tremors are being felt already.

Three blows to the neo-NCJ

On Monday 24 June, the Court of Justice of the European Union announced in its final and binding ruling that the provisions of the Act on the Supreme Court that were questioned by the European Commission were in violation of EU law. In the very same judgment, the Grand Chamber of the CJEU stated directly that the opinions of the National Council of the Judiciary regarding candidates for the bench must be issued on the basis of objective and relevant criteria, and properly justified, while the Council itself must be independent from the legislative and executive powers (para 115 and 116).

In turn, on Thursday 27 June the Advocate General of the CJEU issued an opinion concerning prejudicial questions submitted by the Supreme Court. Advocate General Tanchev determined that the Disciplinary Chamber of the Supreme Court did not meet EU standards, because the evaluation process for candidates to the bench involved the participation of the neo-National Council of the Judiciary.

Tanchev wrote about the neo-NCJ: “On this basis, taking into account that judicial councils are crucial for guaranteeing the independence of the judiciary in the jurisdictions where they are established, and that they must themselves be independent and free from interference from the legislative and executive authorities in carrying out their tasks, there are legitimate reasons to objectively doubt the independence of the Disciplinary Chamber in light of the role of the legislative authorities in electing the 15 judicial members of the NCJ and the role of that body in selecting judges eligible for appointment by the President of the Republic.”

He also clarified EU standards regarding evaluations of candidates for the bench. He stressed that in many EU countries, judiciary councils and similar bodies play a crucial role in ensuring the independence and autonomy of the judiciary. Their mission is to uphold the independence of the courts and of the judges, and therefore they must be free from the influence of the legislative and executive authorities.

The composition of the judiciary councils must guarantee their independence and effective functioning. The Advocate General pointed out that judges elected by members of their milieu should sit on the judiciary councils, in order to avoid manipulation and excessive pressure. The selection procedure should be objective and ensure a broad representation of the judicial community.

Regardless of what occurred in Luxembourg, on Friday 28 June the Supreme Administrative Court ruled that the Chancellery of the Sejm was to disclose the names of those who supported candidates to the National Council of the Judiciary, which had previously been kept secret.

Allergic reactions to the Advocate General’s opinion

Laying the groundwork for a defence of the neo-NCJ, already on 25 June Waldemar Gontarski, professor and attorney at law as well as representative of the Polish government in matters of prejudicial questions, presented in the national daily “Rzeczpospolita” a curious interpretation of the significance of the CJEU’s judgement on the Supreme Court for the status of the neo-NCJ. Gontarski declared that “Poland was victorious in the fundamental issue at stake, in respect of the legality of the National Council of the Judiciary”.

Attorneys Sylwia Gregorczyk-Abram and Michał Wawrykiewicz, also present as representatives at the hearing, but on behalf of judges of the Supreme Court and Supreme Administrative Court, responded that “the exact opposite is the case”, while Piotr Bogdanowicz of Warsaw University pointed out in an opinion piece that Prof. Gontarski drew his surprising conclusions based on one paragraph in the judgement, while glossing over the two preceding ones.

Issued on 27 June, the opinion by AG Tanchev, unfavourable for the Disciplinary Chamber of the Supreme Court and the neo-NCJ sparked vigorous reactions on the part of PiS politicians, including the Minister of Justice Zbigniew Ziobro, who declared that “it is essentially a de facto defence of pathology in the Polish judiciary.”

Comments by politicians of the governing majority concerning the opinion by AG Tanchev were unanimous in attempting to diminish its value, or even discredit it.

“My feelings towards this opinion is that it is internally a highly inconsistent and incoherent opinion, that goes beyond the scope of the treaties of the European Union, but in fact it boils down to a defence of de facto pathology in the Polish judiciary.”

“We are in fundamental disagreement with this opinion,” said Ziobro and regretted that the Advocate General had ignored the judgment of the Constitutional Tribunal legalizing the neo-NCJ. Justice Minister Ziobro gives greater weight to the judgment of the Constitutional Tribunal headed by Julia Przyłębska, the justification of which was described by constitutionalists as “replete with manipulation, inconsistent and problematic” than to the opinion issued in the highest court of the European Union.

The President of the Disciplinary Chamber of the Supreme Court, Tomasz Przesławski, declared in a statement that “the opinion of the Advocate General is not binding on the CJEU, and is only of an advisory nature.”

The leader of the Law and Justice (PiS) parliamentary caucus, MP Ryszard Terlecki, stressed that “We respect all sorts of opinions and ideas, but we don’t necessarily have to concern ourselves with them.”

In a similar tone, Jarosław Gowin declared that the government would respond to the judgment of the Court in Luxembourg, but not to the opinion of the Advocate General.

Some politicians, including Deputy Minister of Justice Sebastian

" target="_blank" rel="noopener noreferrer">Kaleta, are commenting on the opinion of the CJEU Advocate General as if they did not understand the role of the Court of Justice and the essence of the independence of Advocates General and judges, who are neither defenders of vested interests nor of the political systems of the countries from which they originate. The Statute of the CJEU provides that Advocates General take an oath to perform their duties impartially.

Information on the opinion of the Advocate General of the CJEU was not presented in the main news bulletin of state broadcaster TVP.

The neo-NCJ requests another chance and appeals for a Europe-wide discussion

On Thursday June 27, the Chairman of the National Council of the Judiciary, Leszek Mazur, announced on behalf of the Council that “the theses of this opinion [of the Advocate General – editor’s note] finds no basis in European Union law.” The National Council of the Judiciary maintained its previous position that the EU Court of Justice was not authorised to pass judgement on issues concerning the appointment of judges in the Member States.

The chairman of the neo-NCJ, glossing over the specificity of the CJEU as a court for the community of states, also opined that the Advocate General of the CJEU himself does not fulfil the criteria for independence that he demands of bodies issuing opinions on judges, because he is appointed “by common agreement between the governments of the Member States.”

On Friday 28 June, the neo-NCJ adopted a resolution in which it stated that “the opinion of the CJEU Advocate General does not fulfil the standards of a legal opinion. It contains internal contradictions, is biased, and in addition formulates legal rules without indicating the sources of law, or unknown principles that have been constructed solely for the benefit of the pending proceedings.”

The neo-NCJ declared that it would motion to the Court of Justice to reopen the oral phase of proceedings before the Court. It also called for its opinion to be distributed to universities around Europe.

At the final hearing before the CJEU in May 2019, judge Jarosław Dudzicz of the neo-NCJ gave assurances that “all of the premises of independence fit like a glove,” and prosecutor Tomasz Szafrański, representing the Office of the National Prosecutor’s, tried to convince the CJEU that “the Disciplinary Chamber of the Supreme Court is appreciated by Poles. It retains all guarantees of independence. Guarantees of judicial independence are so extensive that judges from other countries can only dream of them. This system is something to be proud of.” This argument failed to convince the Advocate General.

The Grand Chamber of the EU Court of Justice will issue judgment in the autumn. An indication that it may concur with the Advocate General’s opinion regarding the Disciplinary Chamber and neo-NCJ is its previous agreement with the opinion of AG Tanchev in the judgment on the European Commission’s complaint against the Act on the Supreme Court.

If the CJEU rules in accordance with the recommendations made by Evgeni Tanchev, the Member States of the European Union will be forced to adapt their judicial councils to this requirement, as well as other bodies that deliver opinions on candidates for judicial posts, something which will be pleasing to citizens of all the Member States.

Paradoxically, the changes introduced in the judiciary by PiS may lead to clarification of EU standards on issues surrounding the independence of judges. They are also instructive as to how important and powerful an authority the European Union’s highest court is.

What will happen if the CJEU judgement scheduled for autumn concurs with the Advocate General’s opinion?

Dr Maciej Taborowski, the deputy Commissioner for Human Rights, explained in an interview with prawo.pl that “it will mean that the process of appointing judges to the Disciplinary Chamber, and indirectly also to the Extraordinary Review and Public Affairs Chamber, was improper in the light of European Union standards. These criteria, referred to by the AG, refer to the necessity for the National Council of the Judiciary to be independent of the legislative and executive authority. If the NCJ does not meet the requirements, and nor does the judicial nomination process, this would mean that, in effect, the judges were nominated without meeting EU requirements.”

This will mean that the judges appointed to the Disciplinary Chamber are not judges within the meaning of Art. 19 (1) of the Treaty on European Union. In other words, they will not be able to adjudicate on issues in which European law applies.

If the Grand Chamber of the CJEU agrees with the position of Advocate General Tanchev, the judges sitting in the Disciplinary Chamber of the Supreme Court will not be able to remain on the bench, because they would be prevented from considering cases involving an element of EU law.

Dr Taborowski noted that “a judge of a Member State cannot be a European judge only halfway”, and a judge’s independence, protected in Article 19 para. 1 of the Treaty on European Union, cannot be divided into matters with an EU element and without such an element.

If the government fails to implement the upcoming CJEU ruling, and that ruling would declare the neo-NCJ and the Disciplinary Chamber of the Supreme Court to be incompatible with EU legal standards, then the verdict could be implemented by judges themselves, as the respected legal journalist Ewa Siedlecka has written for OKO.press. Siedlecka says that this may lead to chaos, because the Disciplinary Chamber would be able to unseat judges who will fulfil their duty of being simultaneously European and national judges.

Professor Marcin Matczak, of Warsaw University, foresees an “earthquake” for the Polish judiciary. “The National Council of the Judiciary would have to be reconstituted in accordance with the rules set out by the judgement, so that judges would select the greater part of the National Council of the Judiciary, which in consequence means the liquidation of the present Council,” said Matczak.

Translated by Matthew La Fontaine and first published in English at ruleoflaw.pl.

Anna Wójcik is editor at rule of law monitoring websites Archiwum Osiatyńskiego and Rule of Law in Poland. She tweets at @annawojcik.

We will continue to monitor and provide commentary on issues related to the rule of law in Poland and around the European Union on the website of Archiwum Osiatyńskiego (in Polish), and in English here at Rule of Law in Poland. Follow us on Twitter @RULEOFLAWpl