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Neo-judges ask CJEU about right to ask preliminary questions

Katarzyna Żaczkiewicz-Zborska
11.11.2022

Neo- judges ask CJEU about right to ask preliminary questions


Assuming that any panel in which even one judge, appointed to office after 8th December 2017, has ruled does not meet the requirements of a court established by the law would prevent these courts from asking preliminary questions - significantly limiting the judicial dialogue between Polish courts and the CJEU. In the background is the failure to secure the Supreme Administrative Court and subsequent appointments.
The question to the Court in Luxembourg emerged against the background of Judge L. G.'s appeal against the resolution of the National Council of the Judiciary of 18th February 2021 on the continued occupation of a position by a judge reaching the age of retirement.
The Supreme Court asked the EU Court whether the CJEU could interpret a provision making the effectiveness of a judge's declaration of intent to stay in the office conditional on the consent of another body? Now the judges of the Chamber of the Extraordinary Control are clarifying the circumstances under which the preliminary questions were sent to the CJEU. The issue was presented by the panel of three judges: Paweł Księżak (chairman, rapporteur), Adam Redzik and Janusz Niczyporuk.
Participation in the competition for a post at the Supreme Court
This proceeding is the first (among the proceedings before the CJEU and the ECHR) in which Polish judges appointed after 2018 may refer to circumstances raised by the European Commission that do not correspond to the facts.
The judges comprising the questioning court state that, acting in good faith and relying on the applicable legislation, they took part in the competition initiated by the President's announcement of 24th May 2018, published in the Monitor Polski official journal on vacant judge positions in the Supreme Court.
As they point out, following a public, open competition, a resolution of the National Council of the Judiciary of 28th August 2018 presented the President of the Republic of Poland with a proposal to appoint the judges who were part of the questioning court to serve as judges of the Supreme Court in the Extraordinary Control and Public Affairs Chamber. It should be noted that this was the first fully open competition to the Supreme Court. Seventy-six participants applied, which represented a significant new development in previous practice.
The judges of the questioning panel point out that until 2018, competitions to the Supreme Court were in practice held at the Supreme Court, at the assemblies of judges. The Supreme Court presented the National Council of the Judiciary with a maximum of two candidates for the position (usually one). They emphasise that the proceedings before the Supreme Court were closed to the public, and that unsuccessful candidates had no opportunity to challenge the indications of the assemblies of judges of the Supreme Court.
Appointments despite Supreme Administrative Court`s order
The judges comprising the court asking the preliminary question were appointed to the office of judge of the Supreme Court by the President on 10th October 2018. Earlier - on 27th September 2018 the Supreme Administrative Court issued a decision to suspend the implementation of the resolution of the National Council of the Judiciary. As the questioners emphasise, this order was never served on the judges who were part of the questioning court, nor were they informed of its content.
The proceedings took place without the participation of the judges forming part of the questioning court, which, in the view of the questioners, constitutes a multifaceted violation of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Failure to serve the order
The freezing order was also never - either before the appointment of the judges or afterwards - delivered to the President of the Republic of Poland. The information provided by the Judicial Information Division of the Supreme Administrative Court shows that the anonymised operative part of the freezing order was published in the Central Database of Judgments of Administrative Courts on 28th September 2018, while the draft statement of reasons of the order was only submitted to the Registry by its author on 11th October 2018. Thus, already after the judges comprising the questioning court had been appointed to the office of a judge of the Supreme Court. At that stage, the signatures of the other members of the composition were still missing and there was no possibility whatsoever of seeing the content of that justification.
Moreover, the order to serve the order of the Supreme Administrative Court of 27th September 2018, was not issued until 19th October 2018. (i.e. 9 days after the judges comprising the questioning court were appointed to serve as Supreme Court judges).
In the view of the judges of the Extraordinary Review Chamber, the national legislation in force at the time of the freezing order and at the time of the appeal against the NCJ's resolution did not allow for the recognition, or even the supposition, that such an appeal could ultimately lead to a challenge to the application for appointment of the candidate selected by the NCJ. Consequently, it could not have stood in the way of an appointment as a judge of the Supreme Court.
It was evident from the information provided to the media by the spokesperson of the Supreme Administrative Court that, according to the wording of the law in force at the time, the security only applied to the non-final part. It was further clear from these communications that the candidates, i.e. the judges now forming part of the questioning court, were not recognised as a party to the proceedings precisely because the resolution of the NCJ was final and enforceable. This reinforced the candidates' belief that the security granted did not apply to them.
Doubts in this respect, which took the form of questions for a preliminary ruling, arose after the judges who were part of the questioning court had already been appointed as judges of the Supreme Court. The Supreme Administrative Court submitted the questions for a preliminary ruling to the Court of Justice of the European Union (registered under case number C-824/18) only on 22 November 2018, i.e. more than a month after the judges comprising the questioning court were appointed as judges of the Supreme Court. - This circumstance is known to the European Commission, says Presiding Judge Paweł Księżak.
Assuming that any composition on which even one judge has ruled, appointed to the office of judge by the President of the Republic of Poland in a procedure in which the candidate was indicated by the NCJ formed under the Act of 8th December 2017 amending the Act on the National Council of the Judiciary, does not meet the requirements of a court established by law, would make it impossible to ask these courts questions for a preliminary ruling - which would significantly limit the judicial dialogue between the Polish courts and the CJEU.
There will be no future response from the CJEU
It follows from the GNB ruling C-132/20 that the CJEU will not respond to preliminary questions from those judges who have been directly affected by a judgment of a national or international court prejudging that they are not an impartial and independent court.
- For the time being, therefore, there is a presumption in place which protects contact with the CJEU through the preliminary ruling procedure, but this may be rebutted, for example, by a Strasbourg judgment which shows that the court which initiates the preliminary ruling procedure is not an impartial and independent court. In ruling C-132/20, the Court answered the question for a preliminary ruling because the ECtHR judgment in the Advance Pharma case had not yet become final, says Prof. Maciej Taborowski of the Institute of Legal Sciences of the Polish Academy of Sciences and a lawyer (Hoffman, Taborowski & Wspólnicy) . - In it, the ECtHR stated in February this year that the composition of the Civil Chamber of the Supreme Court hearing the cassation appeal of Advance Pharma was not "an independent and impartial court established by law". This is because it was composed of judges appointed at the request of the current National Judicial Council. It also sat with Prof. Kamil Zaradkiewicz, who single-handedly asked the question in case C-132/20. In the future, Strasbourg judgments of this type may therefore undermine the effectiveness of the preliminary ruling procedure and thus the effective application of EU law in the Polish legal order, explains Prof. Taborowski.
Case reference I NKRS 76/21, order of 3rd November 2022.

Original text _ prawo.pl