The independence of the disciplinary chamber of the Polish Supreme Court or how to forget about discipline

On the 19^th of November 2019, the Court of Justice (the Court), ruled on the joint cases concerning the independence of the disciplinary chamber of the Polish Supreme Court (C-585/18, C-624/18 & C-625/18), intervening in the context of what is often described as a ‘rule of law crisis’. It all goes back to 2015, when the new governmental majority introduced a reform of the Constitutional Court, later followed by the reforms of the Supreme Court and of the National Council of the Judiciary (NCJ). The latter were found contrary to the Union standards of judicial independence in Commission v Poland, discussed here. Five aspects of those reforms are relevant for the cases at hand. First, the lowering of the retirement age of Supreme Court judges to 65, unless the Polish President, after receiving an opinion from the NCJ, consents to their request for continuation of their post. Secondly, the nomination by the Parliament of the majority of the NCJ’s members. Thirdly, the exclusive jurisdiction of the newly created disciplinary chamber for disputes on the retirement of Supreme Court judges. Fourthly, that the members of this chamber are selected by the NCJ and nominated by the President. Finally, the incomplete nominations for that chamber at the material time of the cases, which led to the filing of the disputes before the labour and social insurance chamber of the Supreme Court (the referring chamber). Departing from the Court’s assessment on the Union’s standard of independence, the post discusses some aspects of judicial cooperation, with a focus on the ECHR, the articulation of primacy with sincere cooperation, and the empowerment of national judges to set aside jurisdictional rules.

Facts and national proceedings:

In case C‑585/18, A. K. was a judge of the Supreme Administrative Court who reached the age of 65 and had submitted a request to keep his position. The NCJ issued an unfavourable opinion, challenged before the Supreme Court. A.K. notably claimed that retiring him at the age of 65 infringed Article 19(1) TEU, Article 47 of the Charter and Directive 2000/78. In cases C‑624/18 and C‑625/18, C.P. and D.O. were judges at the Supreme Court, who also reached the age of 65 but did not submit declarations to keep their positions. The Polish President therefore declared their retirement. They brought actions before the Supreme Court for a declaration that their employment relationship was still that of a judge in active service. The referring chamber submitted five preliminary questions and raised doubts as to the independence and impartiality of the disciplinary chamber.

The Court’s assessment:

 After reformulating the questions referred, the Court focused on two points. First, assessing the independence of the disciplinary chamber, in the light of the circumstances leading to its creation and the nomination of its members, regarding Article 2 & Article 19(1) TEU, Article 267 TFEU and Article 47 of the Charter. The second consisted in assessing whether, in case that chamber was found to be non-independent, the principle of primacy of Union law requires the referring judge to disapply the national provisions which reserve jurisdiction to rule on such cases to that chamber.

The Opinion of the Advocate General (AG), was rather radical in that it invited the Court to provide a clear-cut substantive answer to the preliminary questions instead of guidance, configuration that occurredin a very limited number of cases: Köbler,  Chateignier, Brouwer. The Court did not follow the AG approach.

Substantive assessment of Article 47 of the Charter:

After recalling that Article 47 of the Charter needs to be effectively protected even where no Union rules are specifically governing the matter, the Court observes that, according to the explanations of the Charter, Article 47 corresponds to Articles 6(1) and 13 of the ECHR. In what will be proven crucial in the later reasoning, the Court refers to Article 52(3) of the Charter and observes that it must ensure at least the same guarantees as those stemming from the ECHR, as interpreted by the ECtHR. Further, the Court recalls that the guarantee of independence forms part of the essence of the right of effective judicial protection. It guarantees all the other rights derived by Union law and safeguards the common values and especially the rule of law.

Paragraphs 121 and 122 introduce the Union standard of judicial independence – specifically, the external and internal aspects of independence. The external aspect concerns the autonomy of the adjudicatory body, meaning the absence of hierarchical constraints, subordination, taking orders or instructions. The objective is to protect the judiciary from external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions. The internal aspect is linked to the impartiality of the judiciary and seeks to ensure equal distance from the parties and their interests. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law.

The Court continues with the procedural guarantees concretising those aspects. It namely refers to the existence of rules on the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members. Those guarantees pursue a rather subjective aspect of independence as they aim to dispel any reasonable doubt as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it. Referring to the external pressures liable to jeopardise judicial independence, the Court recalls the principle of separation of powers which concerns independence regarding both the legislature and the executive. To that regard, the rules precluding interference with the rendering of justice must be such “as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned” (para.125).

In what is uncustomary for the case-law of the Court, several paragraphs of its ruling refer to relevant case-law of the ECtHR. The reference to that case-law is particularly interesting regarding the tests of impartiality, as introduced by the Strasbourg Court, but also regarding the joint examination of independence and impartiality, or the aim of the requirement of independence which is not to force a Member State to comply with a specific constitutional model but rather to make it respect the specific requirements stemming from the ECHR.

Guidance regarding the concrete assessment of independence:

At first, the Court remarks that the mere fact that the judges of that chamber were appointed by the President is not a sign of subordination or of absence of impartiality “if, once appointed, they are free from influence or pressure” (para.133). The Court also stresses the importance to apply substantive and procedural guarantees to the decisions of appointment, to avoid giving rise to reasonable doubts as to the independence and impartiality of the judges concerned. In that regard, the Court observes that the Polish legislation provides the conditions to be satisfied before any nomination and that the nomination results from a proposal of the NCJ, which is the constitutional organ empowered to ensure the independence of the courts and of the judiciary.

As the Court held that the participation of the NCJ “may, in principle, be such as to contribute to making that process more objective” (para.137), especially in that it circumscribes the President’s discretion in the nomination, it immediately observed that this can only be the case if the NCJ “is itself sufficiently independent of the legislature and executive” as well as of the Polish President. According to the Court, the degree of independence of the NCJ is particularly relevant when ascertaining the independence of the judges which it selects. Thus, it is for the referring court to focus on two issues specifically: the independence of the NCJ and the independence of the disciplinary chamber as such.

Concerning the independence of the NCJ, the Court explained that while some of the factors suggesting the absence of independence of the NCJ might individually escape criticism, “when taken together, in addition to the circumstances in which those choices were made, they may, by contrast, throw doubt on the independence of a body involved in the procedure for the appointment of judges” (para.142). For that reason the Court invited the referring judge to carry an overall assessment regarding the various factors mentioned in the preliminary reference, but also regarding the way in which the NCJ exercises its constitutional responsibilities and the absence of judicial review of the decisions of the Polish President appointing the judges of the Supreme Court. To that regard, the scope of review of the resolutions of the NCJ might be crucial in assessing the effectiveness of judicial review.

Concerning the independence of the disciplinary chamber, the Court observed the relevance of four factors. First, the exclusive jurisdiction granted to that chamber especially on matters of retirement of judges of the Supreme Court. Secondly, the finding in Commission v Poland of an infringement of Article 19(1) TEU for violation of the guarantees of irremovability and independence of the judges, based on the same Polish law. Thirdly, the disciplinary chamber being constituted “solely of newly appointed judges” (para.150). Fourthly, the “particularly high degree of autonomy” (para.151) of that chamber within the Polish Supreme Court. The Court observed that although any of the abovementioned facts, taken individually, is not capable of calling into question the independence of the chamber, this may change if they are taken together, especially if the assessment of the referring judge was to find that the NCJ lacked independence.

Finally, to guarantee “the trust which justice in a democratic society must inspire in subjects of the law”, the assessment of the referring chamber needs to consider whether there could be any “legitimate doubts, in the minds of subjects of the law” as to the independence of the NCJ and of the disciplinary chamber (paras.153, 171, operative part).

Setting aside national jurisdictional provisions by virtue of the primacy of Union law:

The Court qualified the principle of primacy as the source of the principle of conforming interpretation of national law with Union law, to the greatest extent possible. It also linked it to the duty of the national judge to give full effect to provisions of Union law, “if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for that court to request or await the prior setting aside of such provision by legislative or other constitutional means” (para.160). Making a link between the principle of primacy and that of direct effect, the Court specifically recalled the obligation of any national judge to disapply national provisions contrary to directly effective provisions of Union law, such as Article 47 of the Charter (see Egenberger, discussed here), or Article 9(1) of Directive 2000/78 (para.163).

Unsurprisingly, what followed was the recognition of the duty of the referring judge to ensure “within its jurisdiction the judicial protection for individuals flowing from Article 47 of the Charter and from Article 9(1) of Directive 2000/78, and to guarantee the full effectiveness of those articles by disapplying if need be any contrary provision of national law” (para.164). Thus, in order to avoid depriving the individual of any effective remedy and of the rights stemming from Union law, the referring judge should set aside any national provision granting exclusive jurisdiction to any non-independent body, according to Union law.

It is however interesting that at this stage of the reasoning, the disapplication would be “in accordance with the principle of sincere cooperation enshrined in Article 4(3) TEU” and not with the principle of primacy. It also needs to be stressed that the Court puts a cumulative condition as to the capacity of the referring judge to rule on the case. Indeed, Union law does not only require that the ‘new’ judge meets the requirements of independence stemming from Union law, but also that it would have been the designated judge in the absence of the provision to be set aside.

The Court finally refuses to rule regarding Articles 2 and 19 TEU, essentially because the result would have been redundant with the analyses under Article 47. It also refuses to rule regarding Article 267 TFEU since its relevance was not explicated by the referring chamber.

Comments:

First, whilst the Court maintains a firm position on issues relating to judicial independence, its guidance to the referring chamber testifies a conciliatory stance regarding the Polish government: by insisting on the subjective perception of independence, by the subjects of the law, the Court avoids a bold statement of a flagrant violation of that fundamental principle.

Secondly, not only does the referring judge cooperate with the Court of Justice to safeguard the guarantees of independence and of the rule of law, by referring for a preliminary ruling, but also the Court of Justice cooperates with the ECtHR when, in an exceptional move, it very prominently quotes the case-law of the latter.

The direct references to the ECHR case-law demonstrate harmony of interpretation in terms of fundamental rights protection. But they more significantly allow the Court to ‘internalise’ the Strasbourg case-law. The references to that case-law, while allowing the Court to only follow a literal interpretation of Union provisions on the relationship between the ECHR and Union law, also stresses the thorough material content of judicial independence under the ECHR as part of that law. There are various advantages of such an internalisation. First, providing the detailed reasoning of the ECtHR in a case of the Court, makes that reasoning part of the authentic interpretation of Union law and thus vests it with its specific characteristics: including primacy. Secondly, while providing for an extensive interpretation of judicial independence, the Court excludes any viable claim of judicial activism. What might logically correspond to the general competence of the ECtHR regarding fundamental rights might provoke a competence-based criticism against the Court of Justice. A less maximalist analysis of those direct references suggests that the Court was kindly providing a reminder that beyond being a MS of the Union, Poland is also bound by the ECHR and that the standards of the latter form the substantive content of the rule of law in Europe.

Thirdly, as underlined before, the Court linked the principle of primacy to the principle of conforming interpretation and the duty of the national judge to set aside national law contrary to Union law. However, when concretely assessing this possibility with regard to the referring judge, the Court solely mentioned the principle of sincere cooperation. Is this to say that the principle of sincere cooperation, mentioned in the Treaties, is a principle that derives from primacy? Or, more cogently, that primacy is the derived principle and as it is more concrete, it is used more than the principle of sincere cooperation?

Such an understanding of the different principles, consisting in articulating them from the more abstract to the more concrete, seems to be confirmed regarding the refusal of the Court to rule on the reference to Articles 2 and 19(1) TEU. Indeed, if the previous case-law on judicial independence was almost exclusively focused on those provisions, it was interesting to observe in that case the exclusive focus on Article 47 of the Charter. This could be the result of having a specific provision of secondary law at stake, enabling the application of Article 47. However, such an analysis disregards two elements. First, the direct effect of Article 47, granting a justiciable right and as such being able to be the basis of any legal argument on judicial independence. Secondly, the broad interpretation of the scope of application of Union law regarding the guarantees of judicial independence, reiterated at paragraphs 82-83. Indeed, for the guarantees of independence stemming from Union law to be applicable, it suffices that the adjudicatory body might be called to apply Union law.  A more convincing reading could thus focus on the different procedural context in the cases at hand: contrary to the previous case-law, those cases did not aim to establish a breach of the duty of a MS to guarantee judicial independence or to draw from such a breach the existence of exceptional circumstances.

Additionally, focusing on the procedural context of the joint cases allows one to relativize any claim of excessive limitation of the capacity of MSs to define their justice systems and procedures. What the Court held was not that the referring chamber could rule on the non-independence of the disciplinary chamber and as an immediate result to substitute it. The Court established the cumulative condition that the referring chamber would have had jurisdiction in the absence of the national provisions aimed to be set aside. Therefore, the setting aside of the national jurisdictional rules was not an ex nihilo granting of jurisdiction. The same applies regarding the power to vary the decisions of lower courts, recognised despite the national provisions in Torubarov.

Ultimately, the joint cases demonstrate the relevance of the Union as a system of effective legal protection of rights and values, as well as a system of multidimensional cooperation built upon checks and balances.