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A judge at the District Court in Kraków decided to refer the case to the Court of Justice of the European Union on Tuesday. The judge, Waldemar Żurek, is a member of the judges’ association “Themis” and a former spokesman for the National Council of the Judiciary (before it was taken over by PiS). Because of his long-time involvement in defending judicial independence, he’s now being persecuted by disciplinary officers appointed by the Minister of Justice. Turning to the CJEU is likely to only cause him further problems.

Mr. Żurek is challenging the legitimacy of the politically compromised National Council of the Judiciary and questions the independence of judges appointed at the council’s request. For his actions, the judge is facing disciplinary removal from office under the so-called “muzzle law”, although the CJEU ruled that punishing judges for submitting questions to it is illegal.

The questions, as many others referred to the CJEU by various Polish courts, concern the effects of the judicial "reforms" introduced by PiS. "The questions posed so far concern people appointed to the Supreme Court, not the common courts. It involves a different procedure and the scale of irregularities is also different. Thus, the question we’re asking here is new" – Mr. Żurek said.

The District Court in Katowice asked similar questions in March. Krystian Markiewicz, head of the association of judges Iustitia, questioned the legitimacy of the newly appointed common court judges. In his writing to the CJEU, Mr. Żurek specifies that the two cases go hand in hand and quotes excerpts from Mr. Markiewicz's line of argumentation.

Both judges have a similar goal. They hope that the CJEU’s decision will make it possible to exercise effective control over the courts with newly-appointed judges, and thus guarantee the citizens their right to a fair hearing by an independent court.

"Currently, hundreds of illegitimately appointed judges are sitting in common courts" – Mr. Żurek wrote to the CJEU. Last year, there were more than five hundred judges appointed at the request of the politically compromised NCJ. The Council continues to recommend new judges.

Are the verdicts issued by the contested court legally binding? 

Mr. Żurek decided to ask the questions in reference to a civil case brought against a bank. Claiming that their home loan agreement in Swiss francs is invalid, the bank’s clients demanded a refund. Moreover, they asked to temporarily freeze further payments for as long as the case is still pending.

Mr. Żurek sided with the plaintiffs, but after the bank appealed his verdict a district court panel consisting of three judges dismissed the motion. One of the panel members has been appointed at the request of the politically compromised NCJ. When the case came back to Mr. Żurek, he began to raise doubts about whether a panel with such a judge can indeed be considered a legitimate court, and whether its ruling was valid and effective.

"The court must examine ex officio the validity of a significant procedural decision that affects the outcome of the case" – Mr. Żurek points out. The suspension of further payments will determine the claim amount asserted by the bank. "Doubts increase the state of uncertainty for consumers" – the judge added.

Mr. Żurek asks whether a court with a judge appointed in a contested procedure meets the standards of a court under EU law. "And consequently, whether such a court can conduct the proceedings and issue a ruling" - he adds.

"The nature of the problem is systemic, as it indirectly relates to many other people who were appointed in the same or in a similar way" - the judge wrote.

Awaiting an answer from the CJEU

"Our intention is to determine whether such a court is still capable of adjudicating as an EU court, given the circumstances described above"-  Mr. Żurek asked the CJEU.

The CJEU’s potential answer will not explicitly determine whether the court can or cannot adjudicate. But it can indicate how the issue should be examined. How to proceed in case it turns out that a court was staffed in gross violation of the law? How to keep an illegitimately appointed judge from adjudicating? – These are also some of the answers Mr. Żurek is hoping to receive.


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