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The Polish law of 26 April 2019 changed a provision of the law on the National Council of the Judiciary (NCJ), which is now worded as follows: ‘There shall be no right of appeal in individual cases regarding the appointment  of Supreme Court Judges’. The amendment, introduced by the Law and Justice governing majority, deprived the Supreme Administrative Court of the right to control judicial competitions conducted by the politicized NCJ.

Currently, NCJ proposes to the Polish President candidates who it deems worthy of being appointed as Supreme Court judges. In 2018, the Council was manned by the Sejm, i.e. the politicians of the Law and Justice (PiS) and the Kukiz '15 (the opposition boycotted the unconstitutional process of appointing the NCJ members). The new NCJ then assessed candidates who applied to the Supreme Court. From among 200 candidates, it selected former prosecutors working for the Minister of Justice Zbigniew Ziobro, former deputy ministers in the Law and Justice (PiS) government, and lawyers affiliated with the ruling camp.

When the results of the selection process were contested by some of the rejected candidates, the governing majority introduced an amendment to the law aimed at eliminating the possibility of appeals. It decided to do so only in case of assessment procedures conducted by the NCJ with respect to the Supreme Court appointments. At the time when the bill was passed, there were 19 ongoing cases before the Supreme Administrative Court (SAC) where the rejected candidates challenged the legality of the politicized NCJ. In several cases, the SAC applied an interim measure: it suspended the decisions of the new NCJ, which should have stopped the appointment of new judges. But President Andrzej Duda disregarded the court's measure and handed in the nominations.

Supreme Administrative Court requested a preliminary ruling

The highest administrative court in Poland also sent a number of prejudicial questions to the CJEU in order to obtain a preliminary ruling on whether the new rules were in conformity with EU law. In order to have the request for a preliminary ruling withdrawn, the Law and Justice party tried to forcefully close the cases. According to the bill removing the possibility of legal review concerning the NCJ assessment, "the ongoing proceedings were subject to legal discontinuance. As a result, the prosecutor general and the Minister of Justice Zbigniew Ziobro demanded that the cases argued before the SAC be thrown out. The Supreme Administrative Court, however, submitted further questions to the CJEU for a preliminary ruling. In these questions, the Court asked about the relationship between the EU law and the forced discontinuation of the cases which would lead to prejudicial questions being raised in front of the CJEU.

The CJEU will issue the preliminary ruling next year. Advocate General Tanchev issued his opinion, which precedes the ruling. While the Court is not bound by the AG's opinion, in most cases its reasoning is consistent with the eventual ruling. In his damning opinion, Tanchev not only challenged the amendment introduced by the Law and Justice MPs, but also questioned the judicial independence of the new Supreme Court judges.

"The Polish law introduced in order to exclude the possibility for legal review of the National Council of the Judiciary’s assessment of judicial candidates to the Supreme Court violates EU law.- argued Tanchev.

The Advocate General stated that EU law does not allow the discontinuance of court proceedings by law without allowing other courts to hear cases. "It denies that court both the possibility of successfully initiating preliminary ruling proceedings before the Court of Justice and the right to wait for a ruling from  the Court,  thereby undermining the EU principle of sincere cooperation." - he added.

AG Tanchev: Supreme Administrative Court should disregard the current law excluding the possibility for legal review

The Advocate General also referred to the appointment of new Supreme Court judges. He concluded that depriving rejected candidates of the opportunity to appeal constitutes "a measure whose nature contributes to –indeed reinforces –the absence of the appearance of independence and impartiality on the part  of the judges actually appointed to the court concerned, and on the part of the  court itself.  "This lack of independence and impartiality violates the second subparagraph of Article 19(1) TEU. - assessed the Advocate General. The EU treaties require the Member States to ensure effective judicial protection in all areas covered by EU law.

In the AG's opinion, there can be no question to the ineffectiveness of appeals to the Supreme Court against the results of the selection procedure, since they did not stop the appointment of new judges. Such right was granted to President Andrzej Duda by the Law and Justice (PiS)-sponsored bill on the NCJ, and as a result  the President appointed 27 new Supreme Court judges in 2018. Before the new law was introduced, an appeal procedure would automatically postpone the president's ability to appoint the judges selected by the NCJ.

- The appeal becomes illusory. Even in the case of a positive outcome, the seat in the Supreme Court would have already been occupied," the Polish ombudsman Adam Bodnar noted at the time. AG Tanchev is of a similar opinion. "The appeal process is completely ineffective". - he recognized. In order to be effective, the filing of an appeal must postpone the entire appointment procedure until the court has issued its ruling.

The appeals concerning the NCJ's assessment of candidates to the Supreme Court are currently placed on hold. The Supreme Administrative Court is waiting for the preliminary ruling to be issued by the CJEU. A judgment in line with the Advocate General's opinion would provide the SAC with an opportunity to hear the appeal cases.

AG Tanchev believes that the Polish court should bypass the NCJ law from April 2019 and assess the cases under EU law. According to the Advocate General's opinion, Article 19(1) of the Treaty on European Union can be applied directly by Supreme Administrative Court in order to disapply the existing law on the NCJ and to rule on the appeal cases vased on the legal framework which was applicable before the adoption of that law.

Referring to numerous amendments to the NCJ Act over the last several years, the Advocate General added that such a course of action by the Supreme Administrative Court is all the more necessary", since "judicial review of appointment procedures by a court whose independence is beyond doubt is indispensable in order to maintain the appearance of independence of the judges appointed in these procedures".   

- Those changes give rise to reasonable doubts as to whether the appointment procedure is currently oriented towards the selection of internally independent candidates, rather than politically convenient ones, for judicial office at such an  important and systemic institution as the Supreme Court, the court of last instance - Tanchev concluded.

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