ECJ's Advocate General to issue opinion on Polish Supreme Court's questions on May 23
The Court of Justice of the European Union (ECJ) held on Tuesday a hearing of both sides in the case regarding questions asked by Polish Supreme Court pertaining to the Polish National Council of the Judiciary and its independence from politicians. The ECJ informed that the Advocate General of the court will issue an opinion regarding the case on the 23rd of May.
The hearing regarding the questions posed by the Polish Supreme Court was held between 9:30 a.m. and 4 p.m. before the Court of Justice of the European Union in Luxembourg.
The ECJ informed that the Advocate General of the court will issue an opinion regarding the case on the 23rd of May.
Arguments of the Polish side
The representatives of Polish authorities argued in Luxembourg that the Polish National Council of the Judiciary (KRS) and its newly formed Disciplinary Chamber both have their independece guaranteed.
By doing so, they referred to the concerns raised in the questions posed by the Supreme Court, namely if the Disciplinary Chamber can be considered independent if it was appointed by the KRS, which in turn, was appointed by the parliamentary majority.
"This absolutely doesn't affect the independence of the Disciplinary Chamber in any way whatsoever. The Constitutional Tribunal in Poland is appointed by the parliament and no one is questioning its independence. The ECJ is appointed by the governments of the member-states, namely by executive power and here as well no one is making any complaints," argued Bogusław Majczyna from the Ministry of Foreign Affairs.
The plenipotentiary of the Prosecutor General, Tomasz Szafrański argues that similar solutions regarding appointing of judges are being applied in other European countries and yet they are not being questioned. He added that the potential ruling in Poland's case should apply to those other countries too.
Request to exclude ECJ's chief
At the end of his speech, szafrański submitted a request to exclude the President of the ECJ, Koen Lenaerts from the proceedings.
He motivated his request, among other things, by Mr Lenaert's participation in conferences organised in Poland by circles contesting changes in the Polish judiciary.
"I will not withdraw myself from the proceedings, unless the court decides otherwise," Lenaerts said in his reply to the request. He added that he had participated in events in Poland before the Supreme Court's questions were sent to the ECJ.
"EU law orders separation of powers"
The representatives of Polish judges that received negative opinions from the new National Council of the Judiciary (KRS) argued during the hearing that selection of judges by "politically appointed members of the KRS" violates the separation of powers rule. They indicated that the EU law orders the separation of the judiciary from other powers.
"The new KRS, being fully dependent upon political bodies, raises concerns regarding the independence of judges appointed by it," said Sylwia Gregorczyj-Abram who represents judges rejected by the KRS. She added that such situation causes the public to lose trust in courts. In her opinion, these regulations violate the EU treaties and the Charter of Fundamental Rights.
The ECJ decided in November 2018 to proceed the case of the Polish Supreme Court's questions under the expedited procedure.
As TVN24 correspondent Maciej Sokołowski explained, the key concerns raised by the Supreme Court boil down to the question, whether or not, Polish courts are independent if the KRS, which is appointed by politicians, selects judges who sit in the Disciplinary Chamber of the Supreme Court. According to Polish top court, there is a strong suspicion that Polish judiciary may not comply with EU standards.
When issuing the questions to the ECJ, the Supreme Court stressed that they pertain to "the ability of the KRS to perform its constitutional duty to safeguard the independence of courts and judges, in the context of systemic model of the council and its functioning by far".
What this case is basically about is the question "if the manner of selection of the KRS members, as well as its consequent functioning, haven't destabilised its independence from legislative and executive powers," according to the Supreme Court's statement from September 2018.