CJEU: Polish law on judiciary council may violate EU code

Poland's Supreme Administrative Court (NSA) the Court of Justice of the European Union (CJEU) for a preliminary ruling regarding a dispute between Poland's new National Council of the Judiciary (KRS) and judges who had not been appointed to adjudicate in the Criminal and Civic chambers of the Supreme Court. The said judges sought to appeal against the KRS decision, but according to a law passed on April 26, 2019, they no longer had such right, and appeals pending at the time were discontinued.

Therefore, the NSA asked whether stripping judges of the right to appeal against the new KRS' decision was in line with the EU law. Furthermore, the question was whether the rule of law and the right to a fair trial in Poland were being violated or not, as well as if newly passed laws could discontinue ongoing appeal proceedings.

"Successive amendments to the Polish law on the National Judiciary Council, which have led to an absence of effective court supervision of Council's decisions to present nominees for Supreme Court justices to the president, may be in violation of the EU law" - the Court of Justice of the European Union ruled on Tuesday.

In the verdict, the CJEU also said that if the referring court decides that legislative changes implemented in 2018 violate the EU law, it will be bound to disapply the provisions in question under the rule of EU law primacy, and consequently, to reapply the law that had been binding before the one in question.

During the trial before the Court of Justice of the European Union, Polish government stressed that the EU treaties did not require member states to maintain court oversight of the decisions regarding appointing judges - Article 19 of the Treaty on European Union, on which the Supreme Administrative Court's questions were based, does not specify it directly.

On December 17, 2020, CJEU Advocate General Evgeni Tanchev issued his opinion on the matter. "Polish law introduced in order to exclude the possibility for legal review of the National Council of the Judiciary’s assessment of judicial candidates to the Supreme Court violates EU law" - we read in a press release regarding the said opinion.

Tanchev also stressed that "the removal of the (right to a) judicial remedy which was until then open in a case such as the one in the main proceedings and, in particular, the application of such a removal to litigants who – much as the applicants in the main proceedings – have already introduced such an action constitutes a measure of a nature which contributes to – indeed reinforces – the absence of the appearance of independence and impartiality on the part of the judges effectively appointed within the court concerned as well as the court itself". "Such an absence of the appearance of independence and impartiality violates the second subparagraph of Article 19(1) TEU" - the Advocate General explained.

The opinion also advised that "national provisions which constitute an obstacle to bringing about the aims of the second subparagraph of Article 19(1) TEU should be disapplied by the referring court".