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In its Wednesday ruling, the CJEU interpreted the principle of effective judicial protection of individuals’ rights that the member states must guarantee under EU law. Such protection can only be guaranteed by courts that are independent, impartial, and have been established in accordance with the law.

"Does a court whose judge has been appointed in blatant violation of the existing law meet these requirements?" - that was the question posed to the EU court earlier by a seven-member panel of the Civil Chamber of Poland’s Supreme Court.

The CJEU ruling instructs the Supreme Court on how to examine whether a given court meets EU standards.

- The case will ultimately be decided by the Polish Supreme Court, but the CJEU judgment is very clear and contains sufficient information to conclude that in this case, we are dealing with a court that was not properly constituted- says Maciej Taborowski, international law expert and Deputy Commissioner for Human Rights.

The question concerned the Chamber for Extraordinary Control and Public Affairs (IKNiSP) - one of the Supreme Court’s new chambers created by the ruling Law and Justice (PiS) party and President Andrzej Duda. More specifically, the question addresses the composition of the Chamber, which includes Aleksander Stępkowski, co-founder of the fundamentalist Catholic organization Ordo Iuris and former Deputy Minister of Foreign Affairs.

Like several dozen other Supreme Court judges, Mr Stępkowski was appointed on the recommendation of the politicized National Council of the Judiciary. President Andrzej Duda assigned him before the appeals against the validity of Supreme Court appointments had been resolved.

The President also ignored a ruling by the Supreme Administrative Court, which halted the execution of a resolution regarding a recommendation to the Supreme Court, without which a judge cannot be effectively appointed. "This was a conscious violation of the law" - the Supreme Court has later found.

CJEU: the rulings must be considered null and void

„Viewed together, all the circumstances may lead to the conclusion that the appointment of the judge concerned took place in clear disregard of the fundamental procedural rules for the appointment of judges to the Supreme Court" – the CJEU has found on Wednesday, adding that the circumstances may also raise doubts as to the independence of the new judge.

Whether a blatant violation of the law has indeed taken place is ultimately to be decided by the Polish Supreme Court. Should it find that the court involving Mr Stępkowski did not meet the EU requirements for an independent judiciary, it will be able to disregard his rulings.

"In that case, in accordance with the principle of the primacy of EU law, the order of inadmissibility at issue must be declared null and void, without any provision of national law being able to preclude this"- the EU court declared.

- This is an extremely important judgment that will have far-reaching consequences. The CJEU concluded that a judgment of the court of the last instance, in which a single judge has been appointed via a defective procedure, should be deemed null and void, that is, non-existent - says attorney Michał Wawrykiewicz, member of the Free Courts Initiative.

The demotion of judge Waldemar Żurek

In effect, a ruling issued in 2019 regarding the demotion of the Kraków-based judge Waldemar Żurek may be considered non-existent. It was this very case that led to the CJEU question. 

The judge, known for actively defending judicial independence, was transferred from the Appeals Division (second instance) to the Civil Division (first instance). The decision was made by Dagmara Pawełczyk-Woicka, the president of the Regional Court in Kraków and a member of the politicized NCJ appointed by the Minister of Justice.

Judge Żurek regarded his transfer as harassment and appealed against the decision to the new NCJ, and, once the council discontinued the proceedings, to the Supreme Court. There, his appeal was rejected by Mr Stępkowski. He did so even though the case file was in the Civil Chamber, which was examining the motion to exclude the judges of the Supreme Court. 

"Transfers without consent of a judge to another court, or between two divisions of the same court, may constitute a way of exercising control over the content of judicial decisions"- the CJEU has found, adding that such transfers "may have effects similar to those of a disciplinary sanction decision".

- We are still dealing with such situations in the Kraków court- Mr Wawrykiewicz recalled after the CJEU ruling. In September, the president of the Kraków court transferred two judges to other departments, because they had refused to sit on the bench with the illegally appointed neo-judges.

- Judge Maciej Czajka was transferred from the criminal division, where he had ruled for a very long time, to the civil division. Beata Morawiec and Katarzyna Wierzbicka were transferred to other departments. This is clearly a form of harassment, which, according to the CJEU, may influence adjudication – the lawyer added.

In the context of judge Żurek, the CJEU emphasized that the Kraków court must ensure effective judicial protection in accordance with EU requirements. To do so, it must remain independent. This means that the independence of judges cannot be interfered with by decisions to transfer them. Such decisions must be justified, and the judge must have the right to appeal to an independent court. A court filled in gross violation of the law is not such a valid court. 

"The politicized NCJ is infecting Polish courts"

- This is another devastating defeat for the Minister of Justice and the entire ruling camp trying to rearrange the Polish justice system. It is already the twelfth if we count the rulings of the most important European courts [CJEU and ECHR]- comments Wawrykiewicz.

- Today's CJEU ruling, but also its previous judgments, allow to file a motion for exclusion of the new judges or resumption of the proceedings due to improper staffing of the court - he adds.

The lawyer believes that all candidates appointed to the Supreme Court in the same defective procedure as Aleksander Stępkowski should leave the Supreme Court as soon as possible. This includes the head of the Supreme Court Małgorzata Manowska. - Based on the CJEU's assessment, Aleksander Stępkowski cannot be deemed to have guaranteed independence, and therefore the composition of the court with his participation cannot be deemed to have met EU requirements- he added. This, however, is yet to be determined by the Supreme Court’s Civil Chamber, where the case will return.

"All the objections we raised against this political procedure have been confirmed" - Krystian Markiewicz, president of the judges' association Iustitia, says of the appointments made with the help of the neo-NCJ. "The politicized NCJ is now infecting all the courts in the country with appointments that will soon share Mr Stępkowski's fate" – Iustitia’s spokesman Bartłomiej Przymusiński added. Today, the Council is helping to staff all the courts in the country.

PM Morawiecki: we won’t allow to destabilize Poland’s legal system

"Once again, the CJEU wants to replace our Constitutional Tribunal in assessing the Polish court system. Its ruling incites anarchy inside the Polish legal order" - Deputy Justice Minister Sebastian Kaleta wrote on Twitter on Wednesday.

The Polish government believed that the Supreme Court’s question was inadmissible, and thus CJEU should not answer it. At an earlier hearing in Luxembourg, representatives of the Ministry of Justice said the EU could not interfere in the Polish judiciary.

- Poland is a state governed by the rule of law based on the constitution with very clear rules. An attempt to strike at the very core, at the very heart of the stability of the socio-legal system is an attempt at a far-reaching destabilization of this system- Prime Minister Mateusz Morawiecki said on Wednesday. - We cannot allow this to happen- he added.

It is possible that the Constitutional Tribunal, controlled by the ruling Law and Justice party, will soon respond to the CJEU ruling by issuing its own decision. On Thursday, the Constitutional Tribunal will hold a hearing regarding the compatibility of the EU law with national law. The proceeding was initiated by PM Morawiecki.

The Prime Minister is challenging the principles of primacy of EU law and effective judicial protection. In his view, it is unconstitutional to use EU laws to control the resolutions of the politicized National Council of the Judiciary, as well as the independence of judges appointed with its help. In this way, Mr Morawiecki wants to prevent Polish courts from examining whether the PiS-appointed judges meet EU standards of judicial independence.

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