Case C-791/19 European Commission v. the Republic of Poland

The European Commission accused the Republic of Poland of:

• by allowing the content of judicial decisions to be treated as a disciplinary offence so far as concerns judges of the ordinary courts (Article 107(1) of the Law on the Organisation of the Ordinary Courts and Article 97(1) and (3) of the Law on the Supreme Court), the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU
• by allowing the right of courts to refer questions for a preliminary ruling to the Court of Justice to be limited by the possibility of the initiation of disciplinary proceedings, the Republic of Poland has failed to fulfil its obligations under the second and third paragraphs of Article 267 TFEU

In other words: the Polish definition of a disciplinary offense is too general

According to Art. 107 § 1 of the Act – Law on the Organisation of the Ordinary Courts, a  judge is disciplinary responsible for professional (disciplinary) misconduct, including:

1) obvious and blatant offense against the law;

2) actions or omissions that may prevent or significantly impede the functioning of the judicial authority;

3) actions questioning the existence of a judge’s service relationship, the effectiveness of the appointment of a judge, or the authorization of a constitutional body of the Republic of Poland;

4) public activity incompatible with the principles of judicial independence and the independence of judges;

5) breach of the dignity of the office.

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Opinion of Advocate General Michal Bobek in Case C-397/19 AX v Statul Român – Ministerul Finanțelor Publice:

“90.      Third, there is the succinct and abstract character of the definition of judicial error criticised by the national court. However, I must admit to being somewhat puzzled in this regard. Given its infinitely variable nature, how else could judicial error be defined? Hardly by an exhaustive list of acts which are to constitute judicial error. Any such provision would soon turn into a phonebook, owing to the continuous discovery of a number of new acts that were not previously included in the list. Thus, in a similar way to the definition of, for example, judicial disciplinary offence, the structure of the definition of what may constitute judicial error cannot be anything other than a general and somewhat abstract definition with which makes reference to indeterminate legal concepts. (54) This, in turn, underlines the importance and the knowledge of its interpretation by the relevant national courts and authorities. There has, however, been no such practice to date, or at least no such practice has been brought to the attention of this Court.”

In the near future, both the Advocate General and the Court of Justice itself will decide whether Advocate General Michal Bobek has made a proper assessment in relation to Romanian regulations.

The fact that, in all likelihood, C-397/19 AX v. Statul Român – Ministerul Finanțelor Publice will be made before the judgment in case C-791/19 European Commission v. the Republic of Poland will allow to examine the practical implementation of the principle of uniformity of EU law.

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• by failing to guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court, which has jurisdiction for the review of decisions issued in disciplinary proceedings against judges (Article 3, point 5, Article 27 and Article 73(1) of the Law on the Supreme Court, in conjunction with Article 9a of the Law on the National Council for the Judiciary), the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU

Opinion of Advocate General Gerard Hogan in case C-896/19 Repubblika v. Il-Prim Ministru:

“78.      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’ as to the independence of the specific judges concerned. However, as we have just seen, these comments 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.”

The future opinion of the Advocate General and the judgment of the Court of Justice will allow us to examine whether Advocate General Gerard Hogan’s position will be adopted with regard to the Republic of Poland.