The essence of the case: interpretation of the judgment of the Court of Justice of 19 November 2019 in the case of A.K. and others (joined cases C-585/18, C-624/18 and C-625/18 – consequences of a negative assessment of the independence of the National Council of the Judiciary) and obtaining an unambiguous decision on the possibility of applying this judgment with regard to the examination of the procedure of appointing all currently adjudicating judges, including judges appointed during the existence of the Polish People’s Republic.
Waiting for the date of the hearing to be set
Opinion of Advocate General Evgeni Tanchev in Case C-824/18 A.B. and Others
“What I find important for the Court to consider here is that whereas certain types of procedure of and rules pertaining to the appointment of judges in Member States (and also the lack of a judicial remedy in the context of such procedures, as is the case in the main proceedings) may not be questionable under EU law as such, they may well turn out to be unacceptable when they occur on the basis of a recommendation of a body which is itself manifestly not independent.” (pt 109)
Opinion of Advocate General Gerard Hogan in Case C-896/19 Repubblika:
“It is true that, as recognised in the judgment in the Independence of the Supreme Court case, the existence of independent bodies such as a national Judicial Council or a Judicial Appointments Committee can assist in ensuring that the judicial appointments procedure (or, as in that case, the extension of a specific judge’s term of office) is objective and transparent. As such, the existence of such bodies may be therefore very desirable in themselves. It is nonetheless clear from the decision of the Court in AK that their existence is not of the essence of the judicial independence required by a combination of Article 19 TEU and Article 47 of the Charter. I say this even though in Independence of the Supreme Court the Court spoke of ensuring that the ‘substantive conditions and detailed procedural rules governing the adoption of [appointment] decisions are such that they cannot give rise to reasonable doubts’ (51) as to the independence of the specific judges concerned. However, as we have just seen, these comments were were made in relation to an appointment which extended the tenure of judicial office and not to an actual judicial appointment itself. It must, therefore, be reiterated that Article 19(1) TEU is essentially forward-looking in that it seeks to ensure that judges, once appointed, enjoy sufficient guarantees of judicial independence.” (pt 78)
Since in the case of judges appointed during the Polish People’s Republic it is impossible to talk about participation in the procedure of appointing an independent body, the question arises whether in case C-132/20 Getin Noble Bank the view of Advocate General Evgeni Tanchev or the view of Advocate General Gerard Hogan will apply. . In other words: will the Court of Justice find it advisable to examine the procedure of appointment that was applied to judges appointed during the period of the Polish People’s Republic?