The beginning of the end for Poland’s so-called “judicial reforms”? Some thoughts on the ECJ ruling in Commission v Poland (Independence of the Supreme Court case)


Laurent Pech, Professor of European Law, Middlesex University
London
Sébastien Platon, Professor of Public Law, University of Bordeaux
Surely we cannot be talking about
a country belonging to the EU. Sadly, you would be wrong to think so. Indeed, the
retirement measure described above was at the heart of the infringement action
initiated by the European Commission against Poland last July and which resulted,
earlier this week, in the European
Court of Justice’s first ruling
on the compatibility with EU law of one of
Poland’s so-called “judicial reforms”. 
This post will explain the extent
to which the Court’s ruling may be considered a landmark one, and the Court’s main
findings, before assessing the ruling’s immediate and potential impact.
For the very first time, the
Court of Justice has found a national government to have failed to fulfil its
obligations under the second paragraph of Article 19(1) TEU which provides that
“Member States shall provide remedies sufficient to ensure effective legal
protection in the fields covered by Union law.” This is far however from the
only “EU law first” one may “credit” to the current Polish authorities:
         
The first EU Member State to be threatened with the
payment a fine of at least €100,000 per day in
November 2017 by the ECJ
should it continue to ignore an interim order
adopted by the same Court in July 2017;
         
The first EU Member State to have seen its
“judicial reforms” provisionally suspended by the ECJ via two interim orders
adopted in October
and December
2018.
It has now become the first EU
Member State to have been found by the ECJ to have failed to fulfil its Treaty
obligations by violating both the principles of the irremovability of judges
and judicial independence.
2. The Court’s findings
2.1 Organisation of the Polish national justice system as an allegedly
exclusive competence immune to EU review
According to the Polish government,
supported by the Hungarian government, the organisation of the national justice
system constitutes a competence reserved exclusively to the Member States,
which would imply that that EU institutions, including the Court of Justice,
cannot examine Poland’s “judicial reforms” in light of EU law requirements.
The Court easily explains why
this argument cannot survive any serious scrutiny and does so by initially and
unusually reminding the Polish government that “as is apparent from
Article 49 TEU, which provides the possibility for any European State to
apply to become a member” of the EU, Poland “freely and voluntarily committed”
itself to respecting and promoting “the common values referred to in
Article 2 TEU”, including the rule of law (§ 42). Furthermore, while the
Court agrees that “the organisation of justice in the Member States falls
within the competence of those Member States”, this obviously cannot be
construed as a carte blanche to
violate its EU law obligations, not to mention the fact that requiring Poland
to comply with its EU law obligations is not akin in any way to exercising
“that competence itself” (§ 52). This is merely a reminder of the longstanding
difference between the applicability of EU law and the competence of the EU,
which explains why EU law can apply in situations where the EU has no
competence to legislate.
With respect to the Polish
government’s argument that the EU principle of judicial independence can be
applicable only in situations governed under EU law, the Court merely
reiterates what it previously held in the Portuguese
judges ruling
. National authorities must respect the principle of judicial
independence even in situations where national “judicial reforms” do not
implement EU law. Article 19(1) TEU indeed covers any national court which may rule
“on questions concerning the application or interpretation of EU law”, in which
case any national measure affecting the independence of the said court falls within
the fields covered by EU law.
In the present case, it was
obvious that Article 19(1) TEU was applicable as it was common ground that
Poland’s Supreme Court “may be called upon to rule on questions concerning the
application or interpretation of EU law and that, as a ‘court or tribunal’,
within the meaning of EU law, it comes within the Polish judicial system in the
‘fields covered by Union law’ … so that that court must meet the requirements
of effective judicial protection” (§ 52). It follows that Polish authorities cannot
adopt measures which undermine its independence without activating the application
of EU law.
2.2 The lowering of retirement age as allegedly required to bring the
Supreme Court’s retirement regime in line with the general retirement regime
According the Polish government,
it follows from the Court’s own case law, that “that the Member States retain
the option to adapt the employment conditions applicable to judges and, thus,
their retirement age, in particular in order, as in the present case, to bring
that retirement age into line with that provided for in the general retirement
scheme, while improving the age structure of officers of the court concerned”
(§ 67).
Not unsurprisingly, the ECJ
easily came to the conclusion that the forced early retirement of Supreme Court
judges is not compatible with the principle of irremovabilily, which is a
guarantee of independence. While phrasing this delicately, the Court all but
explicitly states that the Polish government has deliberately sought to mislead
it when it refers to the information contained in the “explanatory memorandum
to the draft New Law on the Supreme Court” and on the basis of which one may
have “serious doubts as to whether the reform of the retirement age” was not in
fact made “with the aim of side-lining a certain group of judges of that court”
(§ 82).
The Court could have stopped
there but if only to make it clearer to any future government which might be
tempted to follow a similar path, the Court proceeds to perform a
proportionality test. In a few words, the Court sees no reason why, for the
sake of standardising retirement age, the judges of the Supreme Court should be
forced into retirement when all other workers have a right to retire (or not) before
holding that the lowering of retirement age with immediate effect, without any
transitional measure, is in any event disproportionate.
2.3 Discretionary prerogative granted to the Polish President as
(allegedly) required to protect the judiciary
While possibly difficult to
believe, the Polish government claimed that “the authorisation conferred on the
President of the Republic to decide as to whether to allow” Supreme Court
judges “to continue to carry out their duties once they have reached retirement
age” constitutes a “prerogative, the specific purpose of which is to protect
the judiciary both from interference by the legislative authority and from that
by the executive authority” (§ 103).
In other words, it is suggested that
the Polish President, itself part of the executive, is the best placed to protect
the judiciary from interference by both the executive and legislative branches
by deciding alone and in the absence of any substantive conditions, procedural
rules and access to judicial review, when to authorise a Supreme Court judge
not to be forcibly retired. This is by the way the same office holder who has
deliberately ignored
court orders
, repeatedly attacked
Polish judges
while also questioning the independence of the Polish
ECJ judge
and the authority
of the ECJ
. Even Kafka could not have imagined something more Kafkaesque.
For the Court, the inescapable
conclusion is that “by granting the President of the Republic the discretion to
extend the period of judicial activity of judges of that court beyond the newly
fixed retirement age”, Poland has violated Article 19(1) TEU (§ 124).
While explaining why this is so, the Court makes noteworthy observations in
relation to the new “National Council of the Judiciary” (NCJ), arguably
established in breach of the Polish Constitution
and since suspended from the European Networks
of Councils for the Judiciary
(ENCJ) due to its lack of independence. In a
nutshell, the Court explains that the prior involvement of the NCJ cannot “save”
the presidential extension regime organised by the Law on the Supreme Court as the
NCJ has proved unable to deliver properly reasoned opinions based on objective
and relevant criteria to the President for the purposes of authorising Supreme
Court judges to continue to carry out their duties.
3. Immediate and potential impact
We agree with this assessment.
The Court’s ruling also establishes
a solid de facto precedent with respect
to any future attempt in Poland or elsewhere to take control of a court via a retroactive
lowering of the retirement age of judges under false pretences. The ruling will
similarly add to the growing body of evidence which shows repeated violations
by the Polish government of the principle of loyal cooperation in its dealings
with the Commission, the Council and now the ECJ.
The Court does not explicitly
tackle the question of the NCJ, which was established in 2018 in open
violation of what the Commission recommended
. The ruling however makes it
apparent that the consultation of the NCJ cannot be viewed as an effective
safeguard to protect judicial independence. The Court will get a chance to make
this crystal clear in Joined Cases C-585/18,
C-624/18
and C-625/18.
One may expect the Court to follow
AG Tanchev
and find the new NCJ as lacking the required independence from
the legislative and executive authorities. The ramifications of such a finding
would be extremely significant as it would essentially mean that every single
decision made by the ENCJ-suspended NCJ would be have been made by a compromised
body acting in breach of its mandate to safeguard the independence of courts
and judges. The potential impact could be extremely significant especially as
regards the Polish courts which include the “judges” nominated by the tainted
NCJ and appointed by the Polish President.
With respect to the new
disciplinary system, the Court could not have more clearly indicated that it
shares the Commission’s concerns when it stated that its case-law requires that
the rules governing the disciplinary regime “must provide the necessary
guarantees in order to prevent any risk of that disciplinary regime being used as
a system of political control of the content of judicial decisions” (§ 77).
This is virtually the same phrasing used by the Commission when it announced
the launch of its latest infringement action
regarding Poland’s “reforms”
on 3 April 2019. We understand this as an implicit encouragement for the
Commission to promptly continue with its action. This means inter alia that it
is only a matter of time before the so-called “Disciplinary Chamber” is found
to violate the requirements of judicial independence required by EU Law. Again,
the ramifications of such a finding would be extremely significant as all of
the Disciplinary Chamber’s decisions to date would then have been made by a
body masquerading as a court.
Notwithstanding the above, the direct
practical consequences
of the Court’s ruling will remain modest. Indeed, a
significant number of Supreme Court judges had previously refused
to subject themselves
to the plainly unlawful retirement regime both as a
matter of Polish constitutional law and EU law, with all relevant Supreme Court
judges requested
to return to work
following the first interim order by the Chief Justice
(the President of the Supreme Administrative Court (SAC) did
the same in relation to the SAC judges
who were forcibly retired as well).
Furthermore, Polish authorities essentially conceded
defeat after the final interim order
adopted by the ECJ last December
(while doing so it however sought to discreetly neutralise some pending
preliminary ruling requests in order to prevent the ECJ from examining the NCJ
and the Supreme Court’s Disciplinary Chamber in light of the EU requirements of
judicial independence).
Most importantly, this ruling
does not directly engage with one of the decisive issues raised by the
Commission: the decision of the Polish President to increase the number of
posts within the Supreme Court, which will eventually enable the ruling party
to capture it. However, considering the arguably unlawful nature of the
procedure having been used by the Polish President to appoint individuals to
the Supreme Court, this issue should eventually reach the ECJ as it was the
subject of the most recent preliminary ruling request adopted by a not yet
captured chamber of Poland’s Supreme Court on 12 June 2019.
The key lesson we draw from this
ruling is that any “dialogue” with authorities engaged in rule of law
backsliding
should be systematically accompanied with the launch of as many
infringement actions as possible and as soon as possible.
In the present case, one may not
forget how seemingly difficult some
within the Commission
found it to accept the need for prompt
legal action in the first place
. To justify legal inaction, we often heard
the argument that Article 7 TEU should be considered a lex specialis and therefore exclude the launch of Article 258 infringement
actions on issues already highlighted as problematic under any ongoing Article
7 procedure. As observed by AG
Tanchev
, Article 7 TEU And Article 258 TFEU must however be considered as
separate yet complementary procedures which can be invoked in parallel.
To maximise the effectiveness of
infringement actions and “prevent the
completion of constitutional capture before any eventual ECJ ruling
”,
accelerated infringement actions ought to be the default position when a Member
State openly violates the rule of law. The Commission ought to also systematically
request the ECJ to decide these actions under an expedited procedure while also
simultaneously request relevant interim measures so as to prevent authorities
from changing the facts on the ground before the ECJ is able to issue final
rulings.
What the Commission has done and
achieved in the present case should be commended. It should also be “considered
the new template to follow
” whenever judicial independence of national
courts is under threat due to autocratically-minded authorities.



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