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On Thursday, Poland’s Supreme Administrative Court (SAC) considered appeals filed by Supreme Court candidates who were rejected by the politicized National Council of the Judiciary (NCJ) in 2018. The Council proposes to the President candidates for the Supreme Court. In 2018, out of 200 applicants, it recommended only those associated with the ruling Law and Justice party, former deputy ministers, and prosecutors or lawyers with close ties to the Minister of Justice Zbigniew Ziobro.

“The National Council of the Judiciary is not an independent body”

At a closed session on Thursday, the SAC considered five such appeals, overturning two resolutions of the politicized NCJ which recommended to the President whom to appoint to the Civil and Criminal Chambers of the Supreme Court.

All five cases were heard by an adjudication panel composed of sitting judges of the Supreme Administrative Court’s Chamber of Commerce: Małgorzata Korycińska, Cezary Pryca, and Wojciech Kręcisz.

- Justifying its decisions, the SAC stated that "the current National Council of the Judiciary is not a sufficiently independent body"- Sylwester Marciniak, SAC’s spokesperson, told the Polish Press Agency.

The SAC also found that the president’s official notice about open positions at the Supreme Court lacked the prime minister's countersignature- another legal irregularity pointed out by the rejected candidates.

- The SAC poked massive holes in the Council’s Supreme Court nominations. The current NCJ does not even meet the minimum requirements for selecting the candidates. The SAC also pointed to a violation of the constitutional requirement of a countersignature. These are serious violations-  says Judge Bartłomiej Przymusiński, spokesperson for the Polish judge’s association Iustitia.

In the repealed resolutions, the new NCJ appointed one judge to the Criminal Chamber of the Supreme Court and seven others to the Civil Chamber. Among the recommended candidates were the current president of the Supreme Court, Małgorzata Manowska, a former deputy Minister of Justice, and Kamil Zaradkiewicz, a former director in the same ministry.

Without waiting for the appeals to be heard, in 2018, president Duda appointed new judges to the Supreme Court. NCJ resolutions are necessary to appoint new judges, and they have now been overturned. Despite this, the SAC has not challenged the president’s appointments.

- The outcome of the ruling does not relate to the systemic validity and effectiveness of the presidential acts of appointment- explains Mr Marciniak. – Under the current law, these acts are not subject to judicial review and are not revocable- he added. The Law and Justice government as well as the politicized Constitutional Tribunal have for a long time taken a similar stance on that issue.

- The president's decisions were not the subject of the appeal. Thus, the Supreme Administrative Court could not confirm the validity of these appointments- Mr Przymusiński argues. - In our opinion, the decision of whether these nominees should be recognized legal judges is up to the Supreme Court’s Chamber of Labor- he adds.

Members of the Themis and Iustitia judges’ associations sued a total of 25 newly appointed Supreme Court justices. The Supreme Court has asked the CJEU whether the questionable appointment process invalidates the nominations. The EU Court has yet to issue an answer.

Circumventing PiS’ judicial “reform”

In order to issue Thursday’s rulings, the SAC had to disregard specific provisions of the law on the National Council of the Judiciary amended by PiS, as well as the decision of the politicized Constitutional Tribunal. It could do so because of the ruling issued by the CJEU on March 2.

When in 2018 the SAC refused to toe the party line, PiS introduced a bill eliminating the possibility of effective oversight of the Supreme Court nominations and ordered the SAC to discontinue the cases. The politicized Constitutional Tribunal Court declared the appeals to the Supreme Administrative Court unconstitutional, and in consequence removed the provision that was the basis for resolving such cases.

However, the Supreme Administrative Court did not discontinue the proceedings as the ruling camp hoped it would, and referred the case to the Court of Justice of the EU. According to CJEU’s judgment, the SAC was to examine whether the amendments violated EU law. Were it to prove an infringement, the principle of the primacy of EU law requires the national court to disapply the government’s amendments. This is exactly what happened on Thursday.

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