Advocate General oversteps his powers in Polish Supreme Court case


In his opinions of 15 April 2021 given in cases C-487/19 W.Ż. and C-508/19 Prosecutor General, Advocate General Evgeni Tanchev directly assessed the compatibility of Polish legal norms with the EU order. In addition, he reviewed the norms of the Polish legal order, a task to which he is not entitled. Under the first paragraph of Article 267 TFEU, the Court of Justice of the European Union has jurisdiction to give preliminary rulings on: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union. It does not in any way follow from that provision that the Court has jurisdiction to review the compatibility of Polish laws with the Polish Constitution. Consequently, neither is the Advocate General empowered to assess such compliance.


This is already the second case (the first was the issuance of an opinion in case C-824/18) in which the Advocate General E. Tanchev directly assesses the compatibility of Polish regulations with EU law and reviews the norms of Polish law. Thus, the Advocate General goes beyond the scope of competence granted to the Court.


In his opinions in cases C-487/19 and C-508/19, the Advocate General questioned two newly created chambers of the Supreme Court: The Extraordinary Control and Public Affairs Chamber and the Disciplinary Chamber. The Advocate General firmly assumed that, in the appointment procedures for the judges of these chambers, the President had committed a potentially flagrant breach of national law. In doing so, the Advocate General completely disregarded the arguments of the Polish side. Appointment to the office of judge by the President of the Republic of Poland is his constitutional prerogative, not subject to judicial review and, moreover, in the view of the Constitutional Tribunal, such appointment cures any possible irregularities in the nomination procedure and thus makes it impossible to challenge it (judgment of the Constitutional Tribunal of 24 October 2017 , ref. K 3/17). Contrary to the Advocate General’s opinion, allowing judicial review of the judicial selection model would de facto mean that the balance of powers would be disturbed. The possibility of challenging or annulling the act of appointment of a judge in any procedure, including a judicial one, would constitute a clear negation of the principle of irremovability of judges. Appointment to a specific judicial position by the President of the Republic completes the nomination procedure. This act is irrevocable and indisputable in nature.

In addition, with respect to Case C-508/19 itself, the Advocate General assessed the act of appointing a panel of judges. He pointed out that a court hearing a disciplinary case cannot be appointed by a judge whose appointment was made in breach of EU law. That assessment entirely contradicts the Polish Government’s view that the order designating the disciplinary court constitutes a purely administrative act and does not involve the exercise of the administration of justice by the Supreme Court. It merely constitutes the performance of a statutory duty and is not connected with the adjudication of the rights and obligations of individuals. Actions of this nature may also be entrusted to court assistants, legal secretaries, as well as court clerks.