The essence of the case:
- deciding whether the Disciplinary Court of the Bar Association in Warsaw may be considered a court within the meaning of EU law
- determining whether the case initiated by the appeal of the Minister of Justice against the decision of the Disciplinary Commissioner to discontinue the disciplinary investigation against an advocate can be considered an EU case given that it falls within the scope of the so-called Services Directive
Waiting for the date of the hearing before the Court of Justice to be set
The admissibility of recognizing the Disciplinary Court of the Bar Association in Warsaw brings to mind Judgment of the Court of Justice of 19 September 2006, C-506/04, Graham J. Wilson v Ordre des avocats du barreau de Luxembourg
“53. Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and the grounds for abstention, rejection and dismissal of its members, in order to dismiss any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it (see, in that regard, Dorsch Consult, paragraph 36; Köllensperger andAtzwanger, paragraphs 20 to 23; and De Coster, paragraphs 18 to 21; see also, to that effect, Eur Court HR De Cubber v. Belgium, judgment of 26 October 1984, Series A No 86, § 24).
- In this case, the composition of the Disciplinary and Administrative Committee as laid down by Article 24 of the Law of 10 August 1991 is characterised by the exclusive presence of lawyers of Luxembourg nationality, registered in List I of the Bar Register – namely the list of lawyers practising under the Luxembourg professional title and who have passed the examination at the end of the traineeship – and elected by the general assemblies of the Bar Associations of Luxembourg and Diekirch.
- As regards the Disciplinary and Administrative Appeals Committee, the amendment made to Article 28(2) of the Law of 10 August 1991 by Article 14 of the Law of 13 November 2002 confers overriding influence on the assessors, who must be registered on the same list and presented by the Bar Councils of each of the Bar Associations referred to in the preceding paragraph of this judgment, as compared with the professional magistrates.
- As the Advocate General observed in point 47 of her Opinion, the Bar Council, whose members, in accordance with Article 16 of the Law of 10 August 1991, are lawyers registered in List I of the Bar Register, thus has its decisions refusing registration of a European lawyer reviewed at first instance by a body composed exclusively of lawyers registered on the same list and on appeal by a body composed for the most part of such lawyers.
- In those circumstances, a European lawyer whose registration on List IV of the Bar Register has been refused by the Bar Council has legitimate grounds for concern that either all or the majority, as the case may be, of the members of those bodies have a common interest contrary to his own, that is, to confirm a decision to remove from the market a competitor who has obtained his professional qualification in another Member State, and for suspecting that the balance of interests concerned would be upset (see, to that effect, Eur. Court HR Langborger v. Sweden, judgment of 22 June 1989, Series A No 155, § 35).
- The rules governing the composition of bodies such as those at issue in the main proceedings do not appear, therefore, to be of such a kind as to provide a sufficient guarantee of impartiality.
The finding of the Court of Justice in the case C-55/20 The Ministry of Justice will decide whether the Disciplinary Court of the Bar Association in Warsaw, composed of the president, vice-president, members (not judges) and substitute members who may be only advocates (Article 51 (1) of the Act – Law on Advocates), as in the case of the Luxembourg authority, will be considered a body that does not guarantee a sufficient degree of impartiality, or – for reasons currently unknown – will be considered a court within the meaning of EU law.