National Council of the Judiciary
The National Council of the Judiciary is a constitutional body and its competences result directly from the Polish Constitution. Nevertheless, it is not a judiciary body, which is confirmed by the case law of the Constitutional Tribunal. Therefore, its structure and the manner of selecting its members, including judges, may not be assessed according to standards of court independence.
The organisation of the justice system does not belong to areas covered by the European Union’s competences. Neither Article 19 of the Treaty on European Union nor Article 47 of the EU Charter of Fundamental Rights are the basis for accepting the European Union’s competences in the scope of the national justice system. It applies to the criteria and legal effects of the judge appointment. The CJEU judgement of 19 November 2019 concerns the assessment of the court independence in specific cases.
It results from the existing CJEU case law that inspecting the compliance with the Union law of national measures undertaken outside the scope of the Union law is inadmissible. The elements of the Constitution outside the scope of the Union law is not subject to the Treaty. They determine the so-called framework of the constitutional identity.
The legal system, the manner of appointing judicial councils and the manner of appointing judges in the member states of the European Union differ to a great extent (unless they exist). There is no uniform standard of appointing Judicial Councils in the European law. Therefore, this area falls under the power of the national legislative authority.
Four member states of the EU (Germany, the Czech Republic, Austria and Luxembourg) do not have judicial councils and these states are at the top of the ranking of trust in the justice system. In three member states – Denmark, the Netherlands and Sweden – members of councils are appointed by the government. Representatives of the legislative authority are in judicial councils in the following member states: Belgium, Bulgaria, Spain, France, Croatia, Italy, Portugal, Romania, Slovenia and Slovakia. Representatives of the executive authority – Ireland, France, Italy, Malta, the Netherlands, Portugal, Slovakia and Poland.
Article 47 of the EU Charter of Fundamental Rights cannot constitute a model of monitoring the manner in which members of the National Council of the Judiciary are appointed. The requirement of respect for basic rights guaranteed in the Union law is binding upon member states only if they act within the application of the European Union law.
Pursuant to the judgements of the Constitutional Tribunal, case ref. no. K 5/17 and K 12/18, the model of the National Council of the Judiciary formed in Poland is permitted in the light of the Polish Constitution. It concerns the manner in which the members of the Council are selected by the parliament. It means that the European model resulting from a possible judgement of the CJEU is not compliant with the Polish Constitution.
Effects of the CJEU judgement of 19 November 2019 in the scope of the National Council of the Judiciary.
The implementation of the CJEU judgement consists in carrying out an “independence test”. In this way, the effects of the CJEU judgement extend to all courts. The test may be carried out by each court in each case without the necessity to refer to the CJEU (acte éclaire). The test indicated in the CJEU judgement is of a universal nature – it does not only concern the Polish National Council of the Judiciary in its current constitutional form.
The judgement gives the possibility to carry out the test in relation to individual groups of judges, i.e. also to judges selected by former compositions of the National Council of the Judiciary, including those whose unconstitutionality in the scope of the term of office was established by the Constitutional Tribunal in the judgement of 20 June 2017, as well as appointed by the PRL State Council at the request of the minister of justice of PRL (also at the request of the minister of national defence); the procedure of selection by the National Council of the Judiciary carried out at its sole discretion was also considered to be unconstitutional by the Constitutional Tribunal (2007) – there is a group of judges in relation to whom these reservations, including infringements at the constitutional level, occur jointly.
The CJEU determined the standard for the assessment of the independence of the National Council of the Judiciary, which consists in the joint examination of circumstances to which the CJEU refers in points 143–151 of the judgement justification. In point 143, the CJEU indicated that “whereas each of the factors indicated by this court may not be subject to criticism on its own and may fall, in this case, under the competences of member states and choices made thereby, their coincidence in connection with circumstances in which these choices were made may lead to doubts as to the independence of the authority taking part in the procedure of the appointment of judges, even if such a conclusion was not reached in the case of considering these factors independently”.
Only the cumulation of all elements included in points 143–151 and other circumstances which may be considered as essential in a specific case by the court assessing the independence of other composition may constitute the ground for the recognition of lack of independence of the National Council of the Judiciary and cause the necessity to examine the independence of the court in a specific case.
The elements include: the manner of the establishment and operation of an authority selecting candidates for judges (thus, for example, in the period of PRL – the minister of justice). This assessment should be carried out in the light of the national law and, therefore, the Polish rules, requirements and constitutional standards, which in the scope of the selection of members of the National Council of the Judiciary and judges are unambiguous and confirmed by the Constitutional Tribunal.
The CJEU independence test in the light of the judgement of 19 November 2019 should be applied in such a way that in each case the following should be indicated: the importance and the impact of the manner of the selection of members of the authority selecting candidates for judges and the court functioning (its independence) on the assessment of the maintenance of court independence and the impartiality of a judge hearing the specific case. It does not mean undermining the appointment of judges or the legitimacy of operations of the authority selecting candidates for judges in general (in abstracto).