The EU’s top court Thursday ruled that a chamber of the Polish Supreme Court, the Extraordinary Review and Public Affairs Chamber, “does not constitute a ‘court or tribunal’ for the purposes of EU law.” The Extraordinary Review Chamber was held to “not have the status of an independent and impartial tribunal” due to the process by which its judges are appointed.
This case originated from a Polish judge’s declaration to the country’s National Council of the Judiciary (KRS). Any judge in Poland who wishes to continue practice after retirement age must declare this to the KRS. However, this particular judge’s declaration was made after the required deadline. The decision was appealed to the Extraordinary Review Chamber, which is responsible for ruling on the validity of national elections. The chamber subsequently requested a preliminary ruling from the Court of Justice of the EU (CJEU) regarding the matter. However, in considering these questions, the CJEU was led to question the legality of the Chamber and the way its members were appointed.
Appointments of most individuals to chambers of the Supreme Court are handled by the KRS, consisting of 25 members, including 15 judges. In 2017, Polish law was reformed to allow the Sejm (the highest governing body of Poland) to remove the sitting 15 judges and to replace these members with judges that they appointed. Appointments to the Supreme Court are therefore highly influenced by whoever is sitting on the Sejm at the time.
The CJEU held that “In view of all the circumstances connected with the appointment of judges” to the Extraordinary Review Chamber, there were “legitimate doubts in the minds of individuals as to the independence and impartiality of those judges.” In its judgment, the CJEU considered the 2017 political reforms to the KRS and held that it did not have the full “ability to put forward independent and impartial candidates for judicial posts at the Supreme Court.” The adjudicating panel was therefore not “independent” or “impartial” as the Sejm had direct influence in the way the panel members had been appointed. As a result of this, the CJEU could not issue the desired preliminary ruling as the Chamber’s questions were “inadmissible.”
This is not the first instance that Poland has violated laws regarding the judiciary. In June, the CJEU ruled that Poland’s 2019 judicial reforms breached EU laws on judicial protection and independence. Most recently, the European Court of Human Rights found that judicial reforms from 2017 had violated former president and Nobel Peace Prize winner Lech Wałęsa’s right to a fair trial.
