Double standards of the jurisprudence of the CJEU


Today’s (March 2, 2021) judgment of the Court of Justice of the EU is an expression of the application of double standards towards Poland. The CJEU arbitrarily gives permission the ignore Polish constitutional order if the Supreme Administrative Court finds that the National Council of the Judiciary is not sufficiently independent under EU law.

The judgment indicates that in the field of the judicial matters the CJEU places itself on higher positions in the hierarchy of sources of law than the provisions of the Polish constitution. Under the Treaty on European Union, such competences belong exclusively to the sovereign EU Member States. 

The CJEU applied double standards to Poland when compared to the solutions functioning in other Member States of the European Union. The judicial nomination procedure, e.g. in Germany or in Malta, is politicized, which cannot be stated in the case of Polish regulations. In the Polish legal order, both the Prime Minister and the Minister of Justice have no influence on the selection of judges.

Evidence of the application of double standards by the CJEU can be found in the judgment of July 9, 2020, in which the Court stated with regard to German judges that their independence should be examined in the context of the realities of a specific case, and not in a general and abstract manner, as it is in Polish case.

The CJEU without legal basis questions the assessment of candidates for Supreme Court judges made by the National Council of the Judiciary. Meanwhile, according to EU law, decisions relating to the appointment of judges do not have to be subject to judicial review.

The current ruling of the CJEU is inconsistent with the unanimous position of Poland and the European Commission. In the course of the proceedings, the Deputy Minister of Justice, Dr. Anna Dalkowska, representing the government of the Republic of Poland, demonstrated that there is no obligation under EU law for decisions concerning the appointment of judges to be subject to judicial review. The same position was presented by the European Commission. Thus, there is no requirement that candidates for Supreme Court judges should have the right to appeal to the Supreme Administrative Court against resolutions of the National Council of the Judiciary.

The judgment of the Court of Justice of the EU undermines the uniformity of EU law. It is contradictory, inter alia, with the opinion expressed on December 17, 2020 by the Advocate General of the CJEU, Gerard Hogan. He recalled that almost all judges of the German Federal Constitutional Court are associated with specific political parties, and in France politicians become ex officio judges of the constitutional court. However, their independence from other organs of state power cannot be put into question. Meanwhile, the CJEU denies the independence and impartiality of judges appointed in Poland with the participation of the democratically elected National Council of the Judiciary, due to the alleged politicization of the Council.