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Supreme Court judges refer questions to CJEU over President Manowska`s secondment of them to the Civil Chamber

The judges of the Supreme Court who were delegated to the Civil Chamber against their will are addressing questions to the CJEU. These are cases from a different area of substantive law. And there will no longer be any appeal against our rulings - Judge Bohdan Bieniek explains to OKO.press.

Due to a large backlog in the Civil Chamber of the Supreme Court, President Małgorzata Manowska seconded judges from the Labour and Social Insurance Chamber and from the Extraordinary Control and Public Affairs Chamber, appointed by the Law and Justice Party, to adjudicate there. This makes a total of 22 people, for the time being for three months. The cases were to be heard by them from April 2023.

On Monday 3 April, the panel of judges of the Civil Chamber, in closed session, issued orders to refer questions to the CJEU for a preliminary ruling in two cases. The formations were judged by Supreme Court judges Karol Weitz (from the Civil Chamber), Bohdan Bieniek (from the Labour and Social Insurance Chamber) and Maciej Pacuda (from the Labour and Social Insurance Chamber). 

In Case II CSKP 496/22, the judges ask whether judges who are temporarily transferred from a division that is compatible with their experience and competence should have an appeal against this decision of the President of the Supreme Court? Secondly, if a three-judge panel includes two judges who have been assigned to this chamber without their consent, without the possibility of appeal, are we dealing with an independent, impartial court established by law? 

In a subsequent case (II CSKP 501/22), the judges referred to the judgment of the CJEU in the case of Judge Waldemar Żurek, which stated that the transfer of a judge without his or her consent to another court or between two divisions of the same court may violate the principles of immovability and independence of judges. In this judgment, the Court also challenged the orders issued by neo- judges on a one-man and last instance basis.

Referring to this judgment, the judges therefore ask whether, in the case of a secondment to which they have been subjected, there is also a breach of the principle of immovability and independence. 

The question lists the circumstances of such a transfer, namely the fact that:
- The judge is appointed to rule on cases for which he was not originally appointed.
- He has no recourse against the decision.
- The decision was issued by persons (it is both the President of the Supreme Court and the President of the Civil Chamber) who obtained their judicial appointment with the involvement of the neo-KRS.
- There is no basis in national law for an appointment to adjudicate in the new chamber while being obliged to adjudicate in the mother chamber.
- This violates the provisions of the EU directive on average working hours.

In addition, the judges are asking whether it is a court established by law that is constituted as a result of an order of the First President of the Supreme Court and the President presiding over the work of the Civil Chamber of the Supreme Court, if they are appointed in circumstances that have already been questioned in the case law of the CJEU. The judges also ask whether, if the first or second question is answered in the affirmative, they may apply the principle of the primacy of Union law and refuse to act in the case thus assigned, or whether they should give judgment and leave it to the parties to contest it, if any, before a court meeting the Union requirements? 

The delegates are supposed to help sort out a large backlog. However, the judges rebel because it goes against their specialisation. Besides, the Supreme Court is a court of law and the last court to adjudicate. Its judgment is therefore very important for the litigants. There can be no mistake, because no one will correct it anymore. In addition, the judges point out that the decision to select judges to adjudicate in the Civil Chamber of the Supreme Court is a completely arbitrary decision of the president of the Supreme Court. The cases are then assigned to the judges by the President in charge of the Chamber. Again - according to an unknown key. 

Why exactly has there been such a backlog in the Civil Chamber? In March, the press office provided OKO.press with an explanation that 40 per cent of the judges; positions in the Chamber are vacant because the neo-National Council of the Judiciary has not yet decided on the competitions. Moreover, the Ministry of Justice refuses to second lower court judges to the Supreme Court. In addition, the Swiss franc loan cases exacerbated the backlog in the chamber.