Saturday, July 20, 2024
European Union

EU-supported judges vs parliamentary sovereignty in Poland

Source: Pixabay / AJEL

This major attack by the CJEU judges sitting in Luxembourg on the sovereignty of the 27 member states has been largely ignored by the media in Western European countries

Agnieszka Golańska-Bault

On June 5, 2023, the Court of Justice of the European Union once again affirmed in a ruling against a former Eastern Bloc country that any of that country’s judges should be allowed to assess the compliance of any national law with EU law, with general principles of the rule of law, and with the requirement to “provide effective legal protection in the fields covered by Union law” (article 19 of the Treaty on European Union). Such a power, according to recent CJEU case law, should be exercised by judges under the direct supervision of the CJEU and should take precedence over a country’s national constitution and constitutional court.

This new principle of EU case law first appeared in a November 2019 ruling against Poland (more of which later), and was stated explicitly for the first time in a December 2021 ruling against Romania: “The primacy of EU law is to be interpreted as precluding national rules or a national practice under which national ordinary courts are bound by the decisions of the national constitutional court.

This major attack by the CJEU judges sitting in Luxembourg on the sovereignty of the 27 member states has been largely ignored by the media in Western European countries whose constitutional courts have in the past affirmed the supremacy of the national constitution and their own interpretation thereof. EU institutions have so far avoided a frontal clash with these countries, as they do not enjoy the financial blackmailing power they have over the big net beneficiaries of the EU budget in the eastern part of the block.

Both Poland and Romania have been the target of combined actions by the CJEU and the European Commission, supported by a number of member states whose governments are engaged in an effort to make the European Union more federal through case law.

Activist judges

The CJEU’s June 5 judgment was in fact a response to a Polish judicial reform passed in December 2019 in reaction to the EU court’s first decision to that effect. Poland’s December 2019 law was meant to rein in unelected activist judges and make them liable for sanctions when they overstep their competencies – by questioning national laws and constitutional principles in the light of their own interpretation of EU law and general principles, and by abusing the EU’s mechanism of preliminary questions to bring under the CJEU’s scrutiny laws that are outside the normal remit of EU institutions and have no link to the case those judges have to rule on. The new law also meant judges had to disclose their past and present membership of political parties and associations.

For these reasons, that law has been dubbed the “muzzle law” by the Polish opposition and by the judges who are in revolt against the reforms of the judiciary initiated by Justice Minister Zbigniew Ziobro and pushed through by Poland’s United Right coalition in 2017.

It is worth noting that this additional reform passed in December 2019 has already cost Poland over 550 million in the form of daily penalties deducted from EU funds paid to Poland for not complying with a 2021 interim judgment that ordered Warsaw to suspend that law until the case brought to the Court by the European Commission had been judged on the merits.

This cost of Poland’s differences with the EU institutions has to be added to the 58 billion of Next Generation EU funds still being withheld by the Commission, among other things because of its conflict with Warsaw over whether it is entitled to meddle in the country’s justice system and dictate to the Poles how they should change their judiciary and give up on making judges accountable to an elected power of any sort.

Ursula von der Leyen delivering her first State of the European Union address, 2020 (CC-BY-4.0: © European Union 2020 – Source: EP)

In the Polish case, there are two main issues at stake: the first is about the validity of judicial appointments made by President Andrzej Duda among candidates put forward by the country’s National Judicial Council (KRS) after the 2017 reform of that body in charge of supervising the judiciary; the second concerns the creation of a Disciplinary Chamber within the Polish Supreme Court as part of the reform of that court, which was also passed in 2017.

With the support of the European Commission, and in spite of the Polish Constitutional Tribunal having confirmed the reform’s compliance with the Polish constitution in April 2020, some Polish judges questioned the validity of that reform, and used the EU’s preliminary ruling proceedings repeatedly to refer the reform to the Court of Justice of the European Union.

Judicial profession

As early as June 2018, some conservative media in Poland sounded the alarm on concerted plans by part of the judicial profession to abuse this EU referral mechanism to block the functioning of the judiciary in Poland and force the CJEU to intervene in matters that are, at least as per the letter of the EU treaties, reserved to member states, in this case the functioning and organization of the national justice system.

In training sessions organized by the Warsaw Bar Association (Okręgowa Rada Adwokacka, ORA), the Iustitia association of judges (which has been fiercely engaged against the 2017 judicial reforms), and the Helsinki Foundation for human rights (which is partly financed by George Soros’ Open Society Foundation), judges have been encouraged to systematically send general preliminary questions to the CJEU on their ability to rule on all sort of cases when, in their view, their independence as judges is no longer assured in light of the reforms passed by parliament. Normally, preliminary questions referred to the CJEU should be linked to the application of EU law in the specific case on which a court has to rule, and the EU court should reject any such question put in general terms with no clear link to a given case, but in the case of Poland, the Luxembourg judges have now changed their practice and admit most such referrals.

For example, the CJEU’s November 2019 ruling was an answer to a set of five preliminary questions sent by seven judges sitting on the Polish Supreme Court’s Labor and Social Insurance Chamber in August 2018 with no direct link to their case, and it was the first of a long series of such referrals by unelected Polish judges trying to overturn the reforms adopted in majority votes by elected MPs.

In short, the seven Polish Supreme Court judges submitted questions to the Court of Justice of the European Union for a preliminary ruling on the lowering of the retirement age for judges from 70 to 65. To justify their request for a preliminary ruling, the judges of the Labor and Social Insurance Chamber of the Supreme Court considered that they needed an interpretation by the CJEU in the light of EU law in order to judge the situation of two judges of that Chamber who had just reached the age of 65, in relation to the coordination of EU social insurance systems. Normally, a referral for a preliminary ruling can only concern aspects of EU law, and it was on the basis of the EU’s competence to coordinate social security systems that these seven national judges were asking the CJEU to rule on the compliance of Polish law with EU law in terms of respect for the independence of the judiciary in light of the lowering of the retirement age, which parliament had decided should apply also to sitting judges of the Supreme Court (an aspect of the Polish reform which was meant to get rid of the last judges that had been appointed under communist rule, but on which the Polish parliament backtracked later that year in an attempt to ease off on the growing conflict with Brussels).

Seat of the European Commission in Brussels ( Source: Wikimedia Commons/EmDee)

Only in rare cases, where a judge goes too far and a referral is too visibly flawed, has the CJEU rejected it. This is what happened to one of the best-known judges engaged in this open struggle with the Polish government and parliament over the reforms passed in 2017. The very media-friendly judge Igor Tuleya was one of two judges whose referrals were rejected by the CJEU in March 2020 for being formulated in excessively general terms and having no direct link with EU law.

Tuleya’s referral was all the more shocking to the Polish public because it led to the suspension for over one and a half years, in the context of already lengthy trials in Poland, of proceedings in a case involving brutal kidnappings and torture by organized crime. It also led to two convicted criminals being set free while awaiting the CJEU’s preliminary ruling. In addition, by the time the trial could be resumed by the Warsaw regional court in 2020, a state witness who was key to the case had also been kidnapped!

Gravity of the case

In spite of the gravity of the case and the danger posed to witnesses, and although that case did not have any political implications that could have put the court under pressure from the executive power, judge Tuleya decided in September 2018 not to miss this opportunity to question the judicial reforms adopted by Parliament in late 2017. In his referral to the CJEU, he questioned the ability of a Polish court – in this case himself – to judge a case like this in light of the existence of a Disciplinary Chamber of the Supreme Court with the ability to sanction a judge in the last instance.

At the core of Tuleya’s reasoning was the fact that all members of that newly created Disciplinary Chamber had been appointed after the reform of the National Judicial Council (KRS) whereby the 15 judges sitting on the KRS (out of 25 KRS members in total) had now been elected by the Sejm (the lower house of Parliament) instead of being appointed by their peers as before. As it was the KRS that had put forward all of the candidates among whom President Duda was to appoint the members of the Disciplinary Chamber, judge Tuleya claimed that it was under the direct influence of the executive power and its parliamentary majority.

Another example of Tuleya’s practice of systematically sending preliminary questions to the CJEU in order to question his country’s judicial reforms came in 2020, when he did so in a completely different case where some 200 people had fallen victim to a fraudulent scheme by a para-bank, the “Pozabankowe Centrum Finansowe,” which had defrauded them of some 14 million euros, thereby adding unnecessary delay to an already lengthy trial.

Judge Tuleya has also been very active in the media, whereas according to the Polish Constitution, a judge is not supposed to engage in such political and public activity. He also appeared on posters this year where he encouraged Poles to take part in the major opposition protests that were organized by Donald Tusk’s Civic Platform (PO) and their allies last June 4.

Although he is not a member of the Constitutional Tribunal and has no power to decide on the constitutionality of laws, Tuleya also keeps saying publicly that he does not consider the Chamber of Extraordinary Control and Public Affairs to be legitimate. This is a new chamber of the Supreme Court that has been created on new terms to replace the now-dissolved Disciplinary Chamber in an unsuccessful attempt by Warsaw to satisfy the European Commission. This assertion by Tuleya that the new Supreme Court chamber created by law is not a real court because it is in violation of the Polish constitution and EU law is something he repeated again in the media in early June, after the said chamber reversed the disciplinary measures that had been taken against him by the defunct Disciplinary Chamber.

Fighting the reforms

Another way for some of Poland’s unelected judges, in particular those belonging to Iustitia, to fight the reforms passed by the voters’ elected representatives sitting in parliament has been to question other judges’ rulings on the basis that those judges, whom they call “neo-judges”, were appointed after the reform of the KRS judicial council, which they call the “neo-KRS” (the prefix “neo” being intended in both cases to question their real status).

An example of such behavior is that of Paweł Juszczyszyn, a judge sitting in the regional court of Olsztyn and a member of Iustitia, the judges’ association at the forefront of the opposition’s fight against the conservatives’ judicial reforms.

In a civil case in which he was supposed to hear an appeal in 2019, judge Juszczyszyn decided that he should check first whether the judge of first instance was entitled to rule on the matter, saying that the CJEU’s ruling of November 2019 meant that all judges in Poland were henceforth entitled to carry out such checks on judges appointed by President Duda among the candidates proposed by the reformed KRS. This led to Juszczyszyn’s suspension and several years of disciplinary proceedings against him, including before the Supreme Court’s new Disciplinary Chamber, where he was summoned but refused to appear as he said he did not consider it to be in compliance with EU law. Juszczyszyn was eventually restored to his functions, but he is now the target of new disciplinary proceedings after he publicly claimed on the TVN24 television channel, again invoking the CJEU’s recent decisions, that the appointment of “neo-judges” is flawed, thereby again questioning the legitimacy of other judges whose appointment lies exclusively, as per the Polish constitution, with the President of the Republic.

Such questioning, supposedly in light of EU law, of the President’s exclusive constitutional right to appoint judges has been developing not only among lower-level activist judges. Some of the “older” judges sitting on Poland’s Supreme Court (a court of cassation, not to be confused with the country’s Constitutional Tribunal) still refuse to sit with those whom they call “neo-judges”, and this has been causing additional delays in the work of the Polish judiciary. Some of those “older” judges also tend to overturn judgments by civil and criminal courts when at least one of the sentencing judges was appointed after the reform of the KRS. This happened again on May 30 this year when a group of three judges sitting in the Supreme Court’s Penal Chamber canceled a 4-year sentence against a gangster for extorting 500,000 zlotys (some €115,000) and being in possession of drugs. Funnily enough, two of the three Supreme Court judges who questioned the impartiality and independence of the appeal court judges who had taken part in the sentencing were themselves appointed as judges by the communist dictatorial regime in the 1980s.


In acting in this way, and in spite of (or maybe because of?) the de facto anarchy this has brought to the Polish courts, rebel judges have enjoyed the support of both the European Commission and the CJEU, who – as mentioned earlier – now consider that any judge in Poland should have the capacity, in light of “EU law” and the general principles of the Union, to question the legitimacy of any other judge.

In particular, the European Commission refuses to transfer any money linked to the Next Generation EU recovery package for as long as Poland does not reverse all such disciplinary proceedings against judges and for as long as Polish law is not changed in such a way that it gives judges the capacity to question the legitimacy of other judges in light of general EU principles, something that does not exist anywhere else in the EU and would be in blatant violation of the Polish constitution!