CJEU judgment in the case of communist judges – recognition of Judge Zaradkiewicz’s status

CJEU judgment in the case of communist judges – recognition of Judge Zaradkiewicz’s status

In its judgment of 29 March 2022 in Case C-132/20, the Court of Justice of the European Union (hereinafter: the Court of Justice) held that the mere fact that a judge was appointed at a time when his or her country was not yet democratic does not call into question his independence or his impartiality.

• Facts of the main proceedings.

The claimants demanded that GETIN NOBLE BANK SPÓŁKA AKCYJNA with its registered office in Warsaw be ordered to pay them jointly and severally a specific sum of money with statutory interest for delay from the date of filing the claim until the date of payment. The claim related to the conclusion of a mortgage loan agreement indexed to a foreign currency (Swiss franc).

The first-instance court partially accepted the claim. The Court of Appeal in Wrocław agreed with the facts and legal assessment made by the first-instance court and dismissed the appeals of the parties. A cassation appeal was submitted to the Supreme Court against the ruling of the Court of Appeal.  The appellants claimed that the judgment of the Court of Appeals should be reversed in the contested part and the case should be returned for re-examination.

The Supreme Court, while examining the admissibility of the cassation appeal, raised doubts as to whether the appellate court could be regarded as an independent and impartial court established by law within the meaning of EU law. It therefore referred several questions for a preliminary ruling.

• Admissibility of references for preliminary rulings. 

Ombudsman raised objections as to whether the judge concerned, sitting as a single judge on the panel which made the reference to the Court for a preliminary ruling at issue here, meets the requirements that a body must satisfy in order to be regarded as a ‘court’ within the meaning of Article 267 TFEU. [paragraph 68].

The Court of Justice points out that, in so far as a reference for a preliminary ruling has been made by a national court, that court must be presumed to satisfy the requirements for being regarded as a ‘court or tribunal’ for the purposes of EU law, regardless of its specific composition [paragraph 69].

The Court of Justice shared the position of the Ministry of Justice in saying that it cannot examine whether the order of the Supreme Court on the preliminary questions was made in respect of national law, as this would mean applying national law, which the Court of Justice is not entitled to do [paragraph 70].

Paragraph 72 of the judgment deserves special attention. In view of its importance, it is necessary to quote it: 

72 However, the presumption set out in paragraph 69 of this judgment may be overturned if a final judicial decision by a national or international court would lead to the conclusion that the judge sitting as the referring court is not an independent and impartial court previously established by law in light of the second subparagraph of Article 19(1) TEU in the light of the second paragraph of Article 47 of the Charter of Fundamental Rights..

It follows that, in the view of the Court of Justice, a national court is not a ‘court’ for the purposes of EU law:

1.  which, in a particular case, is composed of a judge who has given a judgment which the European Court of Human Rights considers to be in breach of the right to a court or tribunal within the meaning of Article 6(1) of the Convention for the Protection of Human Rights, or
2.  whose composition in a given case consists of a judge appointed to perform his duties on the basis of a resolution of the National Council of the Judiciary which, following an appeal, was held by the Supreme Court or Supreme Administrative Court to have been issued in breach of the law – irrespective of the effect of such an assessment on the validity of the appointment of the judge to perform his duties within the meaning of national law.

The justification of the opinion presented above is indicated by the fact that in paragraph 73 of the judgment, the Court of Justice stated that, at the end of the oral stage of the proceedings, there was no information that a final judicial decision had been made against the judge sitting as the referring court, which was mentioned in paragraph 72 of the judgment. As a result, the CJEU recognised the status of Supreme Court judge Kamil Zaradkiewicz.

As a result, the questions referred for a preliminary ruling were declared admissible because they were raised by a ‘court’ within the meaning of EU law.

• Ruling of the Court of Justice on the questions referred for a preliminary ruling.

The Court of Justice stated that, in questions 1 to 3, the referring court seeks to ascertain whether the fact that a judge was first appointed to office during the communist period affects his independence and impartiality [paragraph 100]. It pointed out in that context that such an effect may exist if there is a link between the legal situation in which the appointment of the judge concerned took place and the current emergence, in the minds of individuals, of well-founded and serious doubts as to that judge’s independence and impartiality [paragraph 101]. The referring court has in no way demonstrated such a link [paragraph 106].

In that context, the Court finds that the circumstances surrounding a judge’s first appointment to office, which took place during the non-democratic regime of the Polish People’s Republic, cannot in themselves be regarded as giving rise to serious and justified doubts as to that judge’s independence and impartiality in the performance of his judicial duties later [paragraph 107].

By asking further preliminary questions, the Supreme Court aimed to clarify whether the second subparagraph of Article 19(1) TEU, and consequently also Article 47 of the Charter of Fundamental Rights, must be interpreted as precluding recognition as an independent and impartial court, previously established by law, of a formation of the judiciary of a national court sitting with a judge whose first appointment to office or subsequent appointments to a higher court arose as a result of:

• the selection of his candidature for appointment to the office of judge by a body formed on the basis of statutory provisions which were subsequently declared unconstitutional by the competent constitutional court, or
• his candidature for appointment as a judge was selected following a procedure that lacked transparency, was not open to the public and was not open to judicial review.

In this regard, the Court of Justice emphasised that the normative content of the second subparagraph of Article 19(1) TEU corresponds to the normative content of Article 47 of the Charter of Fundamental Rights [paragraph 115]. The normative content of Article 47 of the Charter of Fundamental Rights, by virtue of Article 52(3) of that Charter, corresponds to the normative content of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms [paragraph 116]. As a result, the case-law of the European Court of Human Rights, including the Guðmundur Andri Ástráðsson/Iceland judgment, is relevant. Consequently, the right to a court established by law has the character of a ‘stand alone law’, which is closely linked to the guarantees of independence and impartiality. The purpose of the above is to respect the rule of law and the principle of the tri-partite division of powers [paragraph 117]. An anomaly in the process of appointing a judge leads to a violation of the requirement of a court established by law if it is of such a nature and seriousness that it creates a real risk that the other authorities, and in particular the executive, have influenced on the outcome of that process [paragraph 122]. Not every breach in the process of appointment of a judge allows the judge’s independence and impartiality to be doubted and therefore to be in breach of the requirement of a court constituted in accordance with the law [paragraph 123].

With regard to the issues raised by the referring court, the Court of Justice points out that:

the unconstitutionality of the regulations in the Law on the National Council of the Judiciary concerned the individual nature of the term of office of its members and the rules on the distribution of seats and did not decide on the Council’s independence. 

Therefore, the ruling of unconstitutionality cannot have the effect of casting doubt on the independence of the Council and thereby raising doubts about the independence of the judges appointed with the Council’s participation  [paragraphs 125 and 126];

• The fact that a person has been selected for judicial appointment following a procedure which lacked transparency, was not public and did not provide an administrative appeal procedure is not sufficient to cast doubt on the independence of the judges selected as a result of such a procedure if there are no grounds for questioning the independence of the National Council of the Judiciary from the executive and the legislature.

According to the judgment, the Court of Justice recognised the equal status of all judges in Poland. The mere fact that a judge was appointed at a time when his or her Member State was not yet democratic does not call into question that judge’s independence and impartiality.

• In conclusion, the Court of Justice of the European Union:

• recognised Supreme Court judge Dr Kamil Zaradkiewicz, who asked the preliminary questions, as a ‘court’ within the meaning of Article 267 TFEU (against the Ombudsman’s position),
• found a lack of transparency in the proceedings before the National Council of the Judiciary until 2017,
• stated that the circumstances surrounding a judge’s first appointment to office, which took place during the undemocratic regime of the People’s Republic of Poland, cannot in themselves be regarded as capable of giving rise, in the opinion of individuals, to justified and serious doubts as to that judge’s independence and impartiality in the later performance of his judicial duties,
• has recognised the jurisprudence of the Polish Constitutional Court.