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The CJEU’s decision concerns a key element of the so-called judicial "reform" which the Law and Justice government successively pushed through since 2018. Following the reform, President Andrzej Duda was free to appoint multiple new judges to the Supreme Court. All his nominees, however, were pre-selected by the politicized National Council of the Judiciary (NCJ). The judges were appointed despite a decision of the Supreme Administrative Court (NSA) to suspend all recommendations of the disputed NCJ. The CJEU has now questioned the validity of these appointments.

-Successive amendments to the Polish Law on the National Council of the Judiciary (NCJ) which have the effect of removing effective judicial review of that council’s decisions proposing to the President of the Republic candidates for the office of judge at the Supreme Court are liable to infringe EU law. Where an infringement has been proved, the principle of the primacy of EU law requires the national court to disapply such amendments- reads the CJEU ruling.

Poland’s Supreme Administrative Court, which referred the case to the CJEU, will now be able to disapply the provisions introduced by the Law on the NCJ. Moreover, should it find that the amendments were adopted in breach of EU law, the court will also be free to dismiss “constitutional amendments” passed by the politicized Constitutional Court chaired by Julia Przyłębska.

“The principle of the primacy of EU law requires the referring court to disapply those amendments, whether they are of a legislative or constitutional origin, and to continue to assume the jurisdiction previously vested in it to hear disputes referred to it before those amendments were made” – the CJEU has found.

-Ordering Poland to disregard its own constitutional rule in matters concerning the organization of our judiciary is a violation of the treaties and yet another example of restricting our sovereignty- said the Deputy Minister of Justice, Michał Woś, commenting on the ruling.

Following the CJEU ruling, the Supreme Administrative Court will assess, among other things, whether the Law and Justice party actively intended to prevent it from referring questions to the European Court. Such an act would be a violation of EU law. Most importantly, however, the NSA will also examine whether the amendments affected the independence of the new Supreme Court judges appointed by the President.

“Such amendments would then be liable to lead to those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in subjects of the law” – the CJEU has also found.

Sylwia Gregorczyk-Abram, a lawyer associated with the Wolne Sądy (Free Courts) initiative, explained the legal consequence of the CJEU’s ruling on Twitter: "in case of doubts as to the compatibility of a domestic law with the European law, a national court (Supreme Administrative Court) may refrain from applying the amendments (ignore them)”.

A key issue for the Supreme Administrative Court to consider in this case will be the de-facto independence of the new National Council of the Judiciary (NCJ).

“The degree of independence enjoyed by the NCJ in respect of the Polish legislature and the executive may be relevant in order to ascertain whether the judges which it selects will be capable of meeting the requirements of independence and impartiality”- the CJEU has stated.

The full press release including all the CJEU’s findings can be accessed here

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