ECJ Advocate General says Polish law on judges violates EU treaty

The Advocate General of Court of Justice of the European Union on Thursday issued an opinion on a Warsaw court's request for a preliminary ruling regarding secondment of judges to higher courts by the Minister of Justice, who is also the Prosecutor General.

"EU law precludes the Polish practice of secondment of judges to higher courts that may be terminated at any moment at the discretion of the Minister of Justice, who is simultaneously the General Prosecutor" - Advocate General Michał Bobek said.

The opinion is yet another blow to the euro-sceptic ruling coalition in Poland which has been at odds with the European Union over the changes it has been introducing to the judiciary since it took power in late 2015.

The EU's top court usually, though not always, follows the opinion of the advocate general in its rulings.

"The Advocate General concludes that, in circumstances such as those in the main proceedings, the minimum guarantees necessary to ensure the indispensable separation of powers between the executive and the judiciary are no longer present," the advocate general said in a statement.

"The national rules at issue do not offer safeguards sufficient to inspire in the individuals, especially those subject to criminal proceedings, reasonable confidence that the judges sitting on the panel are not subject to external pressure and political influence, and have no vested interest in the outcome of the case," he said.

Furthermore he said that "there is nothing in EU law that precludes Member States from having recourse to a system according to which judges may, in the interest of service, be temporarily seconded from a court to another".

"In systems where the Ministry of Justice is in charge of organisational and staff matters concerning the judiciary, decisions on secondment of individual judges may fall within the competence of the Minister. Provided that the statutory procedures are followed, all the appropriate consents required under national law have been given, and the ordinary rules on appointments, tenure and removal of judges continue to apply during secondment, that aspect too is in itself not problematic" - the opinions reads.

"However, that clearly does not appear to be the case under the national rules at issue. The seconded judges are, in his view, not subject to the ordinary rules, but to a rather special – and very troubling – legal regime" - the Advocate General stressed.

MIchał Bobek also took the view "that in a rule of law-compliant system, there should be at least some transparency and accountability with regard to the decisions on the secondment of judges"

"In particular, any decision relating to a secondment of a judge (initiation or termination) should be made on the basis of some ex ante known criteria and be duly motivated" - he explained.