“You Cannot Change the Rules in the Middle of the Game” – An Unconventional Chapter in the Rule of Law Saga (Case C-824/18 A.B. and others v the KRS)

In what seems like a breath of fresh air for the Polish constitutional landscape, the Court of Justice recently reaffirmed its vital role in safeguarding the founding principles of EU law in its judgment in C-824/18 A.B. and others v the KRS. On 2 March 2021, the Grand Chamber delivered another verdict that touches upon the rule of law crisis which has been going on in Poland since at least December 2015. This time, the Court was given an opportunity to reflect on the interpretation and the scope of application of the second subparagraph of Article 19(1) TEU with regards to the substantive conditions and procedural rules for the appointment of the members of the Polish Supreme Court. Furthermore, the Court of Justice’s verdict concerns Article 267 TFEU and Article 4(3) TEU and the attempts of the Polish legislature to prevent a national court from referring questions to the CJEU. 

As far as the Polish law in force at the start of the proceedings was concerned, a Supreme Court candidate had to be approved by the Krajowa Rada Sądownictwa (the National Council of the Judiciary; the ‘KRS’). If the candidate did not agree with the KRS’ resolution, s/he had a right to judicial review and appeal to the Polish Supreme Administrative Court (the ‘NSA’). Such a possibility was removed by virtue of a legislative amendment, yet several candidates decided to appeal nonetheless.

The preliminary questions were referred to the Court of Justice by the NSA, which faced some serious obstacles during the proceedings both on the national and European level. Even during the course of the proceedings, the Polish government performed several actions to attempt to discontinue the proceedings before the CJEU and prevent it from ruling in future preliminary references similar to the one brought in the present case. 

The Court of Justice, however, did not bow to the consistent political pressure from the Polish government officials like the Prosecutor General and Minister of Justice, Zbigniew Ziobro. It delivered a verdict, underlining that Article 267 TFEU read together with Article 4(3) TEU precludes national legislative amendments that prevent the Court of Justice from ruling on preliminary references brought by domestic courts (see e.g. in paras 140 and 141). What also flows directly from the judgment and might be regarded equally as vital for the situation of the individuals in this case (‘subjects of the law’) is a principle that might be summed up as follows: you cannot change the rules in the middle of a game. Hence, the Court of Justice clarifies, what in ordinary circumstances should be obvious in a democratic society, yet because of purely political reasons had to be elucidated by the Court of Justice. 

1. Factual background to the case

At first glance, the appointment procedure for judges to the Supreme Court does not seem like the most captivating of legal problems. Yet, the judicial appointment procedure has been at the epicentre of a ferocious political and legal battle in Poland for quite some time now. It has become clear that the appointment procedure is a key battleground for democracy itself. 

The political and legislative aspects of the case were taken into account by the Court of Justice in its ruling. As duly noted by the Court, under the Polish constitutional framework, the KRS is a body responsible for nominating judges to domestic courts, including the Sąd Najwyższy (the Supreme Court). The Polish Constitution envisages the KRS as an essential institution and provides it with a unique authority of deciding who can (and who cannot) become a judge. In recent years, the Polish legislature has introduced several amendments on the Law on the KRS. The KRS is now composed almost entirely of people subservient to and dependent on the executive branch of the Polish government (paras 18-28 of the judgment). The body has also already been suspended from the European Network of Councils for the Judiciary (ENCJ). According to the ENCJ, the KRS no longer meets the Network’s requirements of being independent from the executive and the legislature in a manner that ensures the independence of the Polish judiciary (see also AG Tanchev’s Opinion, paras 120-127). 

The case at hand has its roots in several judges’ applications for vacant positions at the Polish Supreme Court. Indeed, some of the unsuccessful candidates (referred to as Kamikaze Judges by the Polish media as it had been clear from the start that the KRS would not grant them judicial nominations because they were not politically connected to the ruling party) decided to challenge the KRS’ decision which denied them their appointment to the Supreme Court. In accordance with the previous procedure (i.e. the procedure in place before the more recent reforms), the candidates appealed the KRS’ decision before the NSA (the referring court). During the course of these proceedings, the Polish legislature introduced a law that specifically targeted these candidates and required the NSA to annul the proceedings. Article 3 of the Law of 26 April 2019 states that ‘proceedings in cases concerning appeals against [KRS] resolutions in individual cases regarding the appointment of Supreme Court judges, which have been initiated but not concluded before this Law comes into force, shall be discontinued by operation of law’ (see para 28 of the judgment).

In the meantime, the vacant Supreme Court seats had been filled with the nominees of the ruling party in Poland. 

The NSA, however, did not succumb to the legislative overreach and referred questions to the Court of Justice. While the case was pending before the CJEU, the Polish legislature tried to interfere with the process by introducing even further amendments to the Law on KRS. One of the amendments (after the referral of the questions to the CJEU! – see paras 24-28 of the judgment) required the NSA to discontinue the pending appeals. This would clearly make the referring court’s questions irrelevant and prevent the NSA from obtaining an answer to the questions it had referred to the CJEU. Yet, the NSA continuously refused to annul the proceedings and did not rescind the referred questions. 

2. Legal background of the case

Generally speaking, procedural aspects of judicial appointments have already previously been addressed in the case law both of the Court of Justice (see Joined Cases C-542/18 RX-II and C-543/18 RX-II Simpson) and the European Court of Human Rights (Guðmundur Andri Ástráðsson v Iceland).

Due to numerous endeavours of the Polish government to subvert the judicial system in the country, the Court of Justice has also had an opportunity to solidify its line of jurisprudence with regards to the principle of rule of law and Article 19 TEU (see Joined Cases C-585/18, C-624/18 and C-625/18 A.K. and others, C-558/18 and C-563/18 Miasto Łowicz and Prokurator Generalny, C-192/18 Commission v Poland, C-619/18 Commission v Poland – Independence of the Supreme Court).  

In the A.K. and others, the Court emphasised that a national rule cannot prevent a national court, where appropriate, from exercising the discretion in referring questions to the Court of Justice under Article 267 TFEU (para 103). In Miasto Łowicz and Prokurator Generalny, the Court considered national regulations that exposed judges to disciplinary proceedings as a result of submitting a preliminary reference to the Court of Justice. The Court clearly stated that a rule of national law that prevents a judge from using the discretion cannot be considered as valid in the light of Article 267 TFEU (paras 56-59). 

With regard to Article 19(1) TEU, the Court has continuously confirmed its settled case law concerning its responsibility and that of national courts and tribunals to ensure the full application of EU law in all Member States (e.g. A.K. and Others, paras 123 and 134). In particular, it is the Member States’ obligation to establish a system of legal remedies and procedures which ensures the protection of the right to effective judicial protection in the fields covered by EU law (Commission v Poland, paras 98-99). Consequently, in the Commission v Poland – Independence of the Supreme Court, the Court presented a similar perspective, underlining that both national courts and national bodies such as the KRS must dispel any reasonable doubt in the minds of individuals as to their imperviousness to external factors and their neutrality with respect to the interests brought before them (paras 114-118).  

Even unrelated to cases concerning the constitutional crisis in Poland, the Court of Justice has continuously highlighted the significance of Article 19 TEU in the EU law framework. Effective judicial review is essential for the rule of law (see C-64/16 ASJP, para 36 and the case law cited) and therefore touches upon the very core of the EU’s functioning. Accordingly, in C-216/18 Minister for Justice and Equality, the Court held that the guarantees of independence of a judicial body are both internal and external in nature. The external aspect – relevant to the present case – requires rules on the composition of the body and the appointment procedure, the length of service and grounds for abstention, rejection and dismissal of its members (paras 64-66). The Court has also been quite clear that systemic or generalised deficiencies in a Member State’s judicial system might affect other cornerstones of the cooperation between the Member States, including, e.g., judicial cooperation in criminal cases (see C-216/18 LM). 

3. Judgment in C-824/18 A.B. and others v the KRS

In accordance with the case law outlined above, the Court emphasises in the present case that Member States are required to ensure the application and respect of EU law pursuant to Article 4(3) TEU (para 39). They must provide remedies sufficient to ensure effective legal protection for individuals in the field of EU law. Such protection constitutes an essential characteristic of the rule of law referred to in Article 2 TEU and must be guaranteed in compliance with the conditions set out in Article 47 of the EU Charter of Fundamental Rights (para 39). 

Next, the Court of Justice confirms the possibility – in principle – for a Member State to amend its domestic rules, e.g., on jurisdiction even if this means that the legislative basis for a preliminary ruling would disappear. Yet, a Member State cannot, without infringing Article 267 TFEU read in conjunction with Article 4(3) TEU, amend its national legislation so that pending preliminary references have to be rescinded and that, consequently, the Court of Justice is precluded from ruling on such requests (para 95). 

In its judgment, the Court meticulously analyses the Polish political and legislative context. It explicitly declares that the national legislative changes were introduced with the specific intention to exclude any possible judicial review of the appointments made by the KRS and likewise of all other appointments to the Supreme Court made since the establishment of the KRS in its new composition (para 138). Therefore, the Court seems to be conscious of the fact that the legislative amendments at hand might lead to an irreversible situation, in which all subsequent Supreme Court judges are appointed in a severely defective procedure. 

In other words, the Polish government introduced provisions aimed at preventing the preliminary reference procedure under Article 267 TFEU from being effective. It is noteworthy that such provisions had, incidentally, already been deemed to contravene EU law in the above-cited Miasto Łowicz and Prokurator Generalny

Significantly, from the point of view of the rights of individuals (in this case – the Supreme Court candidates), the Court of Justice underlines that a process of appointment to judicial positions and a judicial remedy must not be devoid of ‘real effectiveness’ and it cannot create ‘only the appearance of a judicial remedy’ (para 157). To this effect, the Court emphasizes that during the course of the appeal procedure in the present case, the vacant seats at the Supreme Court have already been filled (para 158). This means, that even if – hypothetically – the appeals were successful before the NSA, the appellants would not be able to receive the Supreme Court nominations, as there are no longer any vacancies, which makes the judicial remedy (i.e. the appeal) completely fictional and indeed, devoid of any ‘real effectiveness’.

It is now for the domestic court (the NSA) to decide on the basis of the guidance of the Court of Justice’s judgment whether the national law provisions in question could give rise to legitimate doubts about the imperviousness of the Supreme Court judges appointed in accordance with the newly adopted regulations (para 165). And if so, the NSA must set aside the domestic regulations (i.e. the legislative amendments introduced following the appeals) in accordance with the principle of primacy of EU law (para 169). 

4. Comment

The Polish government has been notorious for ignoring the Court’s judgments in recent years. As an example, on 8 April 2020, the Court imposed interim measures on Poland and ordered the authorities to suspend the functioning of the Disciplinary Chamber of the Supreme Court. While the measures are de iure in force, they are being continuously ignored by the Polish authorities. Therefore, it is safe to assume, that the A.B. and others v the KRS judgment, as well as the subsequent ruling of the NSA will also be ignored by the Polish authorities. Nevertheless, from the point of view of EU constitutional law, the judgment should be regarded as a major step in clarifying what the effective protection in the light of Article 19 (1) TEU entails. 

The request for a preliminary ruling in A.B. and others v the KRS provided the Court with another opportunity to illustrate the interplay between Article 2 TEU, Article 19 TEU and Article 267 TFEU read in conjunction with Article 4(3) TEU. The Court also demonstrates what the principle of primacy of EU law may mean in practice. An obligation of the domestic court to set aside the legislative amendments in this case (if the NSA decides that they do in fact contravene EU law) might have two crucial outcomes. 

First of all, the Court’s decision will hopefully limit any future attempts of a political overreach to destabilise judicial systems in Member States. In A.B. and others v the KRS, the Court identifies a dangerous phenomenon, where the national legislature introduces regulations that aim to prevent a domestic court from referring preliminary questions to the Court of Justice. It holds that such national measures very clearly breach EU law. This should most likely mean that the NSA will have to set aside these domestic provisions. 

Second of all, as the Court emphasizes, a legal remedy – within the meaning of Article 19(1) TEU – must not be devoid of any real effectiveness. It cannot serve as a façade and offer only an appearance of effectiveness. Thus, to this effect, the Court’s decision seems to open the door for an arduous yet necessary process of the recuperation of the Polish judiciary’s independence, as it may lead to the resumption of the initial appointment procedure before the KRS that had eventually led to the preliminary reference. Hence, the NSA (the referring court) – should it find a breach of EU law – in accordance with the CJEU judgment will be required to disapply the contested legislative amendments and to rule on the basis of the provisions that had previously been in force (before the contested amendments were made). This would mean that the NSA would have to adjudicate on the merits of the appeals of the KRS’ appointment decisions and eventually reinstate the original Supreme Court nomination process. 

Although political consequences remain to be seen, it is clear that A.B. and others v the KRS is not the last case the Court of Justice will hear on the Polish rule of law crisis; on 31 March 2021, the European Commission referred Poland to the CJEU in yet another bid to protect (or one could say – regain) independence of Polish judges and has asked the CJEU for interim measures.