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The EU Court of Justice (CJEU) will look at two more cases concerning political changes in the Polish Supreme Court. The decision proceeds from two legal questions issued with regards to the cases of two judges: Waldemar Żurek and Monika Frąckowiak- members of the Polish Association of Judges “Themis” and “Iustitia. Following the judicial “reforms” adopted by the Polish government in 2018, the president was free to appoint multiple new judges to the Supreme Court. All the nominees were selected by the politicized National Council of the Judiciary. The CJEU will now consider the legality of their appointment. 

Judges who brought the cases before the EU Court of Justice addressed the court in Luxembourg on Tuesday. They explained that “the questions concern whether persons appointed to the Supreme Court in the politicized procedure can be considered as independent judges and whether the Polish court may deliberate over the status of such persons”.

In Mr. Żurek’s case, the question is essentially this: can we assume that a court chaired by a judge whose appointment was a blatant violation of the EU law is still a legitimate court? The question refers to the case of the former deputy minister and current member of the Extraordinary Control and Public Affairs Chamber of the Supreme Court (IKNiSP), Aleksander Stępkowski. The president appointed him despite a decision of the Supreme Administrative Court to suspend all recommendations of the disputed National Council of the Judiciary. „It was an intentional violation of law” – claimed the Supreme Court.  

-We need to ask ourselves whether the people who serve in our courts are legitimate judges or just a bunch of judge impersonators. We picked up this fight so that verdicts issued by the Polish courts can be considered legally valid. Otherwise, they’d be nothing but a piece of paper - Mr. Żurek said before the hearing.

In 2019, Stępkowski essentially ruled in his own case and dismissed Mr. Żurek’s appeal against his appointment by the National Council of the Judiciary. Following the disputed ruling, the Civil Chamber of the Supreme Court issued a preliminary legal question to the CJEU. The question asked whether the Court of which Stępkowski is a member can even be considered legal according to the EU law.

-The decision of the CJEU of these doubts is important not only with respect to Aleksander Stępkowski but also with respect to other people adjudicating in the Extraordinary Control and Public Affairs Chamber and other chambers of the Supreme Court appointed in the new procedure.– say the members of the Free Courts Initiative (Wolne Sądy) who represent Mr. Żurek. - The CJEU could now decide on the legal status of the Extraordinary Control and Public Affairs Chamber of the Supreme Court –they add. Before, CJEU already considered the case of the Disciplinary Chamber of the Supreme court, ruling that Polish courts should be free to assess its independence.

- We propose that the response to the request for a preliminary CJEU ruling should be affirmative and decisive- said Sylwia Gregorczyk-Abram from the Free Courts initiative, adding that - a single-person bench consisting of a person appointed to hold the office of judge in gross violation of the rules of law of a Member State regarding the appointment of judges is not an independent and impartial judge.

-A gross breach of the appointment procedure made intentionally should result in the refusal to extend protection to such a person who is not a judge in accordance with the law, which arises from the guarantee of irremovability of a judge- said the Polish Deputy Ombudsman, Maciej Taborowski, who was also present at the court on Tuesday.

The Polish government requested that the prejudicial questions issued by the Supreme Court be dismissed. According to the representatives of the Ministry of Justice and Public Prosecutor's Office, Mr. Żurek’s case does not fall under the jurisdiction of the EU law, and the Union itself has no authority to decide on the judicial system of its Member States. Moreover, new judges are protected by the constitutional principle of irremovability, they argue.

- A situation where the judges have to live in constant fear of having their status challenged in any way is simply unacceptable. Their security is guaranteed by the Polish law- said the Deputy Minister of Justice, Anna Dalkowska. She pointed out the possible outcomes of a CJEU ruling. It would affect 570 judges appointed with the help of the new National Council of the Judiciary who have already issued over 10,000 judgments.  

- There are simply no legal grounds on which the judicial independence or the effectiveness of their appointment could be questioned- said the prosecutor Andrzej Reczka.

The legality of the new appointments is directly challenged in the second case brought before the CJEU. The question which proceeds from the case initiated by Monika Frąckowiak can be summarized as follows: Is it valid for the Supreme Court to decide that the person whose appointment was the effect of a legally flawed procedure is not a judge? 

A judge from Poznań filed a lawsuit with the Supreme Court asking it to recognize that one of the new judges is in fact not a judge. It is Jan Majchrowski from the Disciplinary Chamber. Majchrowski, as Acting President of ID, appointed the disciplinary court to hear the Frąckowiak case. A spokesperson appointed by Zbigniew Ziobra is prosecuting her for failure to produce timely justifications. 

Ms. Frąckowiak has filed a lawsuit with the Supreme Court to asking it to recognize the illegal status of one of the newly appointed judges. The case concerns a member of the Disciplinary Chamber, Jan Majchrowski. As the acting chairman of the Chamber, Majchrowski initiated a disciplinary proceeding against Ms. Frąckowiak.  

-I speak in front of the court not as a judge, but as an EU citizen who has every right to have her case heard by an independent court. This case concerns guarantees for everyone- Frąckowiak said in a press briefing before the hearing. - The question is whether a judge appointed in a flawed procedure by a politicized body can be treated as a judge within the legal context of European Treaties. It is a case that seems to be crucial for all judges appointed by way of the new procedure - she added.  

Again, the Polish government requested that it be ruled inadmissible.

Assuming that the CJEU’s verdict will be affirmative, it would shake the ruling camp’s judicial "reform" to its core. The Supreme Court itself has already decided four times that the Disciplinary Chamber is not a legal court, but has not yet decided to question the status of new judges. The government’s narrative is that no one has the right to challenge the presidential appointments, and any potential flaws in the nomination process are annulled by the president's decision. – Controlling the process of appointments would be possible if the Constitution provided for it- Ms. Dalkowska said in the CJEU hearing. The Constitutional Tribunal compromised and controlled by the ruling camp ruled on several occasions that the nominations are legal and cannot be questioned.  

Should the CJEU even decide to respond to the request for a preliminary ruling, its decision won’t be announced before next year. Its ruling will be preceded by an opinion issued by the Advocate General of the CJEU in January. – We hope that the ruling will be universally applicable and lay the foundations for defining judicial independence within the legal context of the European Treaties. This would ensure that all EU judges respect the same legal standards - says a member of the “Iustitia” Association, judge Joanna Hetnarowicz-Sikora.  

On Tuesday, attorneys from the Free Courts Initiative asked the CJEU to issue an unambiguous ruling that cannot be undermined by the Polish authorities (which had been the case before with regards to ruling on the Disciplinary Chamber) -We, in Poland, are witnessing a unique revolution in Poland against the rule of law. The Polish judiciary is currently relying on the heroism of the individual and the courage of individual judges, as the systemic protection of their independence has been dismantled. The CJEU is the last court whose judgment can save the independence of the courts in Poland. And this is precisely that moment” – said Ms. Gregorczyk-Abram.

-CJEU has the sole and exclusive competence to give a binding response to the question of the criteria that an independent court should meet under EU law and specify the consequences of judgments issued by a person and body that do not satisfy these criteria. For this reason, the decision it issue is absolutely crucial to the whole of the European Union – she added.

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