The proceeding in C/792-19 arose as a response to a number of concerning acts carried out by the Polish executive directed at a number of judges who sat in earlier sets of proceedings, each of which concerned the use of the preliminary reference procedure and a number of punitive steps taken against judges who had submitted preliminary requests.
It was in response to the punitive steps taken by the Polish executive against sitting judges through the use of the Disciplinary Chamber that the Commission brought the present action in C/792-19.(1) The Court in its judgment adopts a similar tone as that set in the recent decisions of Commission v Poland (Independence of the Supreme Court)(2) and Commission v Poland(3) and outlines the legal basis for its decision with clear and direct reference to the facts at hand. The judgment of the Court also offers a clear illustration as to the importance of Article 267TEU to the rule of law and the functionality of an independent judicial as it offers a mechanism through which ongoingdialogue is guaranteed.(4)
An analysis of legislative reforms in Poland
There are a number of general considerations concerning recent legislative reforms in Poland that are of acute relevance to the judgment of the ECJ in C/791-19. In Poland, a number of legislative reforms have eroded the Polish judicial institution rendering the operation of the courts no longer independent or impartial in even the most abstract of definitions. The Disciplinary Chamber was created within the jurisdictional competencies of the Supreme Court and it tasked with adjudicating proceedings against judges.(5) While the chamber is a component of the Supreme Court it enjoys a notable level of autonomy within the Polish judicial system, namely an increased average remuneration of 40% and additional administrative independence.(6)
In contrast to the increased financial autonomy of the Disciplinary Chamber, the broader Supreme Court is subjected to the financial control of the President of the Republic who has the sole competency of administering the budget of the Supreme Court separately to the budge of the Disciplinary Chamber.(7) Concerning the appointment of judges to the Disciplinary Chamber such appointments are made by the President of Poland, following a proposal from the National Council of the Judiciary ("KRS").(8) This is a break from the general rule that chambers within the Supreme Court are typically staffed by way of internal judicial transfers within the Supreme Court.
The judicial activity of the Disciplinary Chamber must be considered in light of the recent legislative reforms experience by the KRS which altered the term lengths of members of the body, establishing new appointing procedures for judge by providing those judges may no longer be selected by other judges per standard procedure but instead are appointed by the Sejm directly.(9) As a result of these legislative reforms, 23 of the 25 members of the KRS were appointed directly by the Polish executive. (10) The reform of the KRS directly undermines the judicial independence of the Disciplinary Chamber and as a result renders the Polish incapable of carrying out its judicial functions in an independent and impartial manner.
The judicial activity of the Disciplinary Chamber is also concerning as the court has jurisdictions to sit as both a court of first instance and final instance with appeals to the decisions of the Disciplinary Chamber being brought by the Minister for Justice. The precarious nature of judicial independence in Poland is further illustrated by recent decisions taken by the Disciplinary Chamber in respect of 18 appeals brought by the Minister for Justice wherein the Disciplinary Chamber has increased liabilities imposed and in some instances of exoneration implemented disciplinary penalties.(11)
Discipline and punishment
With the above context provided it is important to first consider the earlier sets of proceedings relating to C/792-19 in order to further understand the approach of the ECJ in its judgment and to highlight the processes through which a state can act to undermine the rule of law using purely legal mechanisms. It will become clear from an analysis of the proceedings that the actions taken by the Polish executive through the Disciplinary Chamber amounted to attempts to neuter the judicial activity of specific judges by imposing personal liabilities in response to judges who attempted to rely upon the support of the ECJ through the mechanism of judicial dialogue provided under Article 267TEU.
The first set of proceedings I will cover is Miasto Łowicz and Prokurator Generalny (12), Joined Cases C‑748/19 to C‑754/19 and Prokuratura Rejonowa w Słubicach (13). In response to each of the mentioned cases, the Disciplinary Officer launched an investigation into the judicial activity of the sitting judges and ordered that each judge to formally submit their respective opinions on whether they consider the use of preliminary reference procedure could amount to a “disciplinary offence” under Polish legislative provisions.(14)
Similarly, in response to the preliminary reference raised in Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) (15), the Disciplinary Office confirmed an inquiring had been opened into the conduct of the judge chairing the panel who had submitted the preliminary request to ascertain if this conduct constituted a “disciplinary offence”.(16) On 6 December 2019, this inquiry led to the launching of a set of proceedings against the mentioned judge upon the request of the Disciplinary Officer who submitted that the judge in question had exceeded her legal powers.
Article 19TEU and commonality
In its judgment the Court outlined the nature of Article 19TEU as requiring Member States to provide certain guarantees that its institutional bodies are capable of being defined as a “court or tribunal”.(17) Further, the definition of Article 19TEU was specifically applied to the disciplinary regime in question which raises a number of important points to consider. Article 19TEU therefore is a provision primarily concerned with systemic features present within a national legal framework and this systemic analysis also extends to disciplinary measures applicable to judicial appointments. This statement was endorsed through the judgment of the Court in the present proceedings. As noted by AG Bobek in his recent opinion of C/132-20, the threshold for a breach of this provision is high and as such the provision is only infringed by breaches of sufficient seriousness of a systemic nature.(18) To reference AG Bobek again in his opinion in WB and Others he noted that the systemic nature of Article 19TEU is rather broad and it is unlikely that a body would fail to satisfy the provision in anything other than the most serious of circumstances.(19) The Court continued the systemic definition of Article 19TEU and endorsed same in relation to the current proceedings.
The Court once again re-affirmed the applicability of the provision of Article 19TEU to the Disciplinary Chamber as established in recent proceedings.(20) This is acutely relevant as the Disciplinary Chamber sits as both a court of first and second instance.(21) The Court was clear in confirming the precarious nature of the Disciplinary Chamber in light of the recent legislative reforms and the operation of the KRS was as to raise reasonable doubts as to the independence of the body.(22)
With the above outlined the Court continued to address the disciplinary regime specifically and in doing so responded to the first to fourth submission of the Commission.(23) In response to the first to fourth submission of the Commission the Republic of Poland raised the defense of competency with reference to Article 5TEU and Articles 3 and 4TFEU. The Polish defense suggested that the issues of legislative reform within the context of a disciplinary regime was an internal matter and outside the remit of Article 19TEU. The Republic of Poland further contended that Article 19TEU does not in fact act as a source of fundamental rights.(24)
From the outset, the Court was quick to addressed issues of competency as raised by the Republic of Poland as a defense. As a preliminary point the Court noted that the European Union is composed of Member States who have voluntarily committed to certain values as expressed under Article 2TEU and as such a Member State is precluded from amending legislative provisions in contravention of these shared common values.(25) The Court continued with the theme of commonality and further confirmed that the commonality of fundamental principles extends to the courts and tribunals of the respective Member States.(26) In relation to the applicability of Article 19TEU the Court referenced A.B. and Others and Repubblika and in doing so formulated judicial independence within the context of judicial protection confirming that Member States thus must ensure that any judicial body capable of ruling on the application or interpretation of EU law must meet the minimal requirements of judicial protections which extends to the necessity for judicial impendence.(27)
Within the concept of judicial protection, the Court outlined further its position regarding the disciplinary regime and as such specified that within the rules defining the regime applicable to judges there must be present sufficient safeguards so as to prevent any risk of political control in order to ensure judicial independence.(28) The Court continued and states that any rules applicable to judges concerning disciplinary offences must be sufficiently precise and clear.(29) As such, the definitions of ”disciplinary offence” and ”findings of error” within the relevant national measures was not found to be sufficiently precise and clear and thus the disciplinary regime in itself failed to satisfy the requisite guarantees of judicial protection as expressed under Article 19TEU with reference to Article 2TEU.(30)
Article 267TEU and the need for judicial dialogue and sincere co-operation
With the position of the disciplinary regime vis a vis the obligations provided under Article 19TEU outlined the Court moved to consider the fifth submission by the Commission – the restriction of the rights of courts and tribunals to submit a preliminary reference under Article 267TEU. This submission primarily concerns the use of disciplinary proceedings by the national executive as a response to submissions by judges to the ECJ under the preliminary reference procedure. The Court confirmed the importance of the preliminary reference procedure to the judicial order established under Treaties as mechanism to ensure ongoingdialogue.(31) Article 267TEU acts as an important mechanism not just within the context of the EU legal order but within national judicial systems.
In its 2021 Rule of Law Report, the European Commission noted that the ability of a Court to rely upon the assistance of the ECJ in a referential capacity is inherent to the uniform application and interpretation of EU law and the maintaining of the rule of law within the EU.(32) The Court continued with reference to the concept of sincere cooperation as expressed under Article 4TEU and noted that national laws cannot restrict the right of a court or tribunal to access the preliminary reference procedure. (33) The Court also confirmed at paragraph 225 of its judgment the jurisprudence of A. B and Others and stated that national law cannot also prevent a national court from exercising judicial discretion or complying with its obligations as set out under Article 267TEU.
When considering the use of a disciplinary regime against a judge in response to the use of the preliminary reference procedure that Court ruled that the mere threat of such a regime and the risk of personal liability being imposed as a response to the use of the preliminary reference procedure is counterintuitive to the principle of judicial cooperation and judicial independent. In this regard, the Court referred to the earlier decision of the Court in Miasto Łowicz and Prokurator Generalny.(34) As the disciplinary regime does not satisfy the requirements of certainty and clarity as required under Article 19TEU creates a risk that the use of the disciplinary procedure may be used to influence the judicial activity of a judge this naturally extends to the risk that said disciplinary regime also creates the risk of executive influence in relation to the use of the Courts discretion to submit a preliminary reference.(35) With the above outlined the Court in its judgment confirmed the position of the disciplinary regime vis a vis the provision of Article 267TEU as being one of incompatibility and concern.(36)
Conclusion
In Associação Sindical dos Juízes Portugueses the Court emphasized that the guarantee of independence as inherent to the task of adjudication. Concerning judicial independence, the Court in the present proceedings reaffirmed the importance of independence in relation to the effective performance of a judicial institution and further outline the applicability of the” reasonable doubt” test regarding assertations of perceived judicial independence. (37) In C/791-19 the Court confirmed conclusively that the legislative reforms enacted by the Polish executive and the judicial activity of the Disciplinary Chamber failed to satisfy the requirements per the ”reasonable doubt” test.
In its judgment it was clear that the Court sought to preserve the concept of ongoingdialogue as a key component of judicial independence. It is truly concerning to see the executive of a Member State seek to restrict or deny the operation of Article 267TEU and actively undermine the integrity of judicial independence and the rule of law.
It is essential that both the EU and the Member States respect the fundamental democratic value commonly shared as Europeans and that this respect takes the form of sincere cooperation. The current political events unfolding in Poland are concerning as we are seeing intentional measures adopted to remove the rule of law and thus the democracy of Poland. The emerging body of law arising as a response to the various rule of law crises is an area of jurisprudential activity both academics and practitioners should observe closely as an area of both academic and personal concern.
Footnotes:
1. C/791-19 Commission v Poland Régime disciplinaire des juges at para 1
2. C-619/18 Commission v Poland (indepdeenance of the Supreme Court
3. C/828-18 Commission v Poland
4. The term ongoingdialogue was coined by AG Bobek in Joined Cases C‑748/19 to C‑754/19, EU:C:2021:40, Opinion of AG Bobek, para 154. The term means the concept of continually and active judicial dialogue between national courts and the institutions of the CJEU. The preservation of ongoingdialogue is essential to the maintaining of the rule of law.
5. Article 3(5) and Article 6 The new Law on the Supreme Court
6. C/791-19 Commission v Poland Régime disciplinaire des juges at para 70 and 75
7. C/791-19 Commission v Poland Régime disciplinaire des juges, para 10 and 70
8. see Polish translation Krajowa Rada Sądownictwa ("KRS")
9. C/791-19 Commission v Poland Régime disciplinaire des juges at para 66
10. ibid
11. ibid at para 71
12. C‑558/18 and C‑563/18
13. ProkuraturaRejonowa w Słubicach (C‑623/18,
14. Article 107 § 1 of the Law on the ordinary courts
15. Joined Cases C‑748/19 to C‑754/19 SądOkręgowy w Warszawie (Regional Court, Warsaw, Poland
16. C/791-19 Commission v Poland Régime disciplinaire des juges at para 118
17. C/791-19 Commission v Poland Régime disciplinaire des juges at para 1
18. C/132-20 BN, DM, EN v Getin Noble Bank SA, Opinion of AG Bobek para 37 -39
19. Joined Cases C‑748/19 to C‑754/19 WB and Others, Opinion of AG Bobekat para 132
20. See C/204/21 R Commission v Poland and C/828-18 Commission v Poland
21. C/791-19 Commission v Poland Régime disciplinaire des juges at para 81
22. ibid para 103 - 110
23. ibid para 1
24. ibid para 49
25. C/64-16 Associação Sindical dos Juízes Portugueses, para 50 and 51
26. ibid
27. C/791-19 Commission v Poland Régime disciplinaire des jugesat para 54 – 59
28. ibid para 61
29. ibid para 140
30. ibid para 140-156
31. ibid para 223
32. European Commission, 2021 Rule of Law Report, Brussels, 20.7.2021 COM(2021) 700 final, pg 28
33. ibid para 223
34. ibid para 228
35. ibid para 230
36. ibid para 234
37. C/64-16 Associação Sindical dos Juízes Portugueses, para 47