Amendment to the Act on the Supreme Court of 20 December 2019. Disciplinary delict under Polish law.

Summary concerning disciplinary torts

1. The act implements the judgement of the Court of Justice of the European Union of 19 November 2019 in cases: C-585/18, C-624/18 and C-625/18, in which it was confirmed that the appointment of judges by the President of the Republic of Poland cannot be the subject of a judicial review (point 133 of the justification). It means that they are irrevocable. Such a position is taken not only by the CJEU, but also by the Constitutional Tribunal and the Supreme Administrative Court in numerous rulings.
2. The CJEU judgement does not provide any basis for a general (abstract) challenge to the validity of appointments and the status of judges. Challenging is possible only if the manner of the appointment of a judge may affect a specific case, i.e. a decision issued by the particular composition of the court. The CJEU has formed the European standard pursuant to which courts in the European Union member states are authorised to assess the impartiality of judges and independence of the court, but in a specific individual case and under the national provisions of law. It means that the assessment should be carried out in the light of the provisions of acts (including the Constitution) of the given member state. The court and judges in Poland do not have competences to undermine or to assess the correctness of the performance of constitutional competences – by the National Council of the Judiciary and the President of the Republic of Poland and all the more to challenge the legitimacy of constitutional state authorities.
3. Due to the constitutional nature of these institutions, the Polish law does not and cannot provide for any procedure or competences to undermine the correctness of the appointment of judges or the composition of the National Council of the Judiciary.
4. The standard established in the CJEU judgement has been taken into account in the act by putting clear stress in the content on appropriate legal norms and the inadmissibility of the challenge raised by a judge to the judge status of another person appointed to this position by the President of the Republic of Poland; such an activity constitutes a disciplinary tort. At the same time, the act introduces a particular procedure applied to assess the independence of the court and obliges judges to disclose to the public some data which may be essential for the assessment of the independence of the court in the composition in which they issue rulings as well as the impartiality of the judge (membership in associations, including also future membership in political parties). They are circumstances which in the light of the CJEU standard may be essential for the assessment of the composition and the judge. Therefore, the act also preserves the constitutional standard of apolitical character of judges and implements the principle of transparency of law enforcement bodies and judges, which constitutes the basic guarantee of a democratic state governed by the rule of law. The performance of the obligation to make a statement on public activities of a judge being a public officer is in the public interest and is essential from the point of view of its protection. Activities in associations, in particular in professional associations and political parties, are not covered by the privacy of an officer operating within the justice system.
5. Noticing the necessity to counteract groundless challenges to the impartiality of judges and, as a consequence, court decisions and, finally, to ensure the independence of courts guaranteed in the Constitution, the act specifies the catalogue of disciplinary torts, stating that some acts or omissions which may prevent or impede to a considerable extent the functioning of the justice system should be indicated; as well as activities questioning the existence of the service of judges or the effectiveness of a judge or the authorisation of a constitutional state authority and public activity which cannot be reconciled with the principles of the independence of courts and the impartiality of judges. Therefore, the act specifies the existing provisions which the disciplinary tort defined only by means of general and imprecise expressions within which it was also possible to consider the activities indicated above as inadmissible.
6. In the scope of the disciplinary liability, the act does not diverge from standards existing in other European countries, including from similar French and German solutions, in which such activities are subject to further liability than the liability in the act – to criminal liability.
7. In the course of legislative works, taking into account positions on and comments to the draft act concerning the application of the European law, the regulation related to disciplinary torts waives the judge’s disciplinary liability for the refusal to apply the provision of the act if the Constitutional Tribunal has not identified its non-compliance with the Constitution or with an international agreement ratified upon prior consent expressed in the act as well as waives the judge’s disciplinary liability which is incompatible with the principles of the independence of courts and the impartiality of judges. Nevertheless, pursuant to the Tribunal case law, a judge who has doubts as to the compliance of the act with a higher-ranking legal act, primarily with the Constitution, is obliged to submit to the Tribunal a legal question. The refusal to apply the act without a prior decision of the relevant Tribunal is considered to be inadmissible both in the case law of the Constitutional Tribunal and in the case law of the Supreme Court. The Polish law does not allow the so-called fragmented judicial review, but only the constitutional review.
8. The catalogue of disciplinary torts is closed, but it covers types of conduct impossible to be catalogued unambiguously and, therefore, the legislator uses imprecise expressions to define torts. Nevertheless, their legal frameworks are clarified in the case law. The disciplinary liability is of a particular nature and combines features of quasi-penal and ethical liability. Therefore, it is not possible to define all actions.

1. Definition of a judge. Article 179 of the Polish Constitution does not define the concept of a judge. However, it specifies the constitutional grounds and procedure for appointing a judge. It establishes the requirements for an effective acquisition of the status of a judge, which requires two elements: a request from the National Council of the Judiciary (KRS) and an appointment by the President of the Republic of Poland. These are necessary and sufficient elements to obtain the status of a judge. The nomination process under the Constitution excludes the necessity to meet any other conditions and, regardless of other conditions that are provided for in the Act, if these two constitutional requirements are fulfilled, it is the sole and sufficient prerequisite for obtaining the status of a judge.
2. There is no statutory definition of a judge in the Polish Constitution or any other legal act. Nevertheless, it can be concluded from all constitutional norms that these requirements are: the status of a natural person with a full capacity to enter into legal transactions and the status of a university graduate in law, i.e. having the command of law confirmed by a university diploma. Other requirements have been left to statutory regulations.
3. The amendment introduces a definition of a judge that is not contrary to Article 179 of the Constitution. Indeed, it determines what conditions are necessary for an effective investiture (judge’s vote), and thus the ability to adjudicate. They are: an official confirmation of appointment from the President and taking an oath. Contrary to the opinion of the Judicial Decisions Bureau of the Supreme Administrative Court (NSA), the fact that the statutory definition does not include the phrase “at the request of the National Council of the Judiciary (KRS)” does not mean that the President chooses a judge independently of the KRS’s request. In the light of Article 179 of the Constitution, it should be considered that upon the appointment, the entitled person obtains a guarantee of independence, which is implemented, among others, by the person’s irremovability and impossibility of challenging their status by any entity or state authority.

• The definition of judge introduced in the Act makes it possible to determine when a judge’s service relationship originates. A judge’s service relationship (as an employment relationship) is established on the basis of their appointment (within the meaning of labour law – nomination) following an oath.

1. The definition of a judge thus introduced applies to all judges; therefore, it applies to judges appointed by the President and by authorities competent for such appointments pursuant to the provisions that are in force at the date of appointment. Indeed, the statement in item 8 (p. 10) of the opinion of the Judicial Decisions Bureau of the Supreme Administrative Court (NSA) that the current legal framework lacks provisions allowing to challenge the status of judges appointed by the Council of State of the Polish People’s Republic is inexplicable. On the one hand, questioning of the status of a judge appointed by the current National Council of the Judiciary (KRS) is accepted and a claim for determination that a judge’s service relationship is non-existent is allowed, whereas, on the other hand, no challenging actions are accepted in the case of judges appointed by the undemocratic Council of State. It should be noted that no provision enacted after 1990 sanctioned or recognised as valid the status of persons appointed by an undemocratic authority of the communist state.