- In his opinion, the CJEU Advocate General expressed serious doubts as to the possibility of collectively challenging the status of judges appointed since 2018.
- Moreover, his position can be interpreted to mean that EU law does not prohibit judges who are members of the National Council of the Judiciary from being elected by another body (e.g. the Sejm), and therefore does not require them to be elected by judges alone, as was the case until 2018.
- The Advocate General, however, advocates for the individual assessment of these judges and warns against adopting solutions that could paralyse the Polish justice system.
Less than three weeks ago, the Advocate General of the Court of Justice of the European Union proposed that Polish courts should be able to challenge the judgments of the Extraordinary Control and Public Affairs Chamber of the Supreme Court. Today (29 April 2025), the same Advocate General, Dean Spielmann, proposed that the Court adopt a position that is in many respects completely opposite.
Namely, in his opinion in case C‑521/21, the Advocate General prepared a proposed answer to a preliminary question from the District Court for Poznań-Stare Miasto in Poznań, raised in the context of a civil dispute (it may be added, incidentally, that this court was presided over by the current president of the ‘Iustitia’ association, whose demands we referred to in a recent post). One of the parties to the proceedings (the defendant) argued that the panel hearing the case included a person who could not be considered a judge (as the defendant put it: ‘is not a judge’) because he had been appointed to his position on the basis of a proposal by the National Council of the Judiciary operating under the rules in force since 2018.
The questions referred by the District Court therefore concern the following issues:
- the impact of possible procedural irregularities on the validity of the appointment of a judge,
- the consequences that the referring court may draw from examining the validity of that appointment.
At the outset of his considerations, the Advocate General made two important observations. Firstly, he emphasised (in points 35 and 36 of the opinion) that not every doubt concerning the procedure for appointing a judge will result in the court losing its independence and its status as having been previously established by law under EU law. In the Advocate General’s view, such effects can only apply to cases of sufficient importance:
As regards the criterion of assessment of the effects which an irregularity in the appointment may have on respect for the guarantee of a tribunal established by law, it is not sufficient to refer to any irregularity whatsoever. It is necessary to focus on the nature and degree of gravity of the irregularity. […] In accordance with that criterion, the irregularity must relate to the rules governing the appointment procedure and be of such a kind and of such gravity that it may give rise to a real risk of arbitrariness on the part of the public authorities – and in particular of the executive – of such a kind as to undermine the confidence of individuals in the independence and impartiality of justice.
At this point, one may ask whether the above reasoning does not apply more to Minister Bodnar’s actions, such as presuming authoritative powers to influence the judiciary without a legal basis, than to the currently functioning National Council of the Judiciary.
Returning to the opinion, however, the Advocate General also made a second point, noting (in paragraph 47) the need to exercise particular caution when taking any action regarding the status of judges appointed since 2018, including taking into account the impact of such measures on the efficiency of the justice system and, consequently, on the right of ordinary citizens to a fair trial:
The stakes are considerable. As was emphasised by the Ombudsman, the Polish Government and the Commission at the hearing, approximately 3 000 judges in Poland have been appointed on a proposal of the KRS. Therefore, if it were recognised that a judge might be excluded on the sole ground that the KRS, in its new composition, was involved in the procedure for the appointment of that judge, the effect would be, in practice, that the same would apply to all of those judges, giving rise de facto to an erga omnes impact. That would give rise to a major risk for the continuity of the public service of justice, legal certainty and public confidence in the judiciary.
Turning to the substance of the case, the Advocate General emphasised, first of all, that the mere fact that judges have been appointed since 2018 on the basis of proposals from the National Council of the Judiciary, composed of members elected by the Sejm, does not in itself deprive those judges of their independence. In this regard, the Advocate General referred (in point 54 of the Opinion) to earlier judgments of the CJEU, in particular in joined cases C‑562/21 PPU and C‑563/21 PPU:
The Court accepts that the fact that a body, such as the KRS, involved in the process of the appointment of judges, is composed mainly of members chosen by the legislature does not in itself suffice to cast doubt on the independence of the judges appointed following that process.
It then summarised this (in paragraph 56) in its own words:
I am therefore of the view that, in the context of the present case, the mere fact that a body, such as the KRS, was involved in the procedure for the appointment of the judge concerned does not in itself suffice to give rise to doubts as to the independence of the judges thus appointed.
Furthermore, it also stated (in paragraph 61) that:
However, it does not seem possible to me to conclude that the absence of an effective remedy before the abovementioned judicial body is sufficient, in itself, to affect the legality of the appointment. The existence of a judicial remedy plays only an ancillary role by comparison with the intrinsic independence of the KRS, since it is intended to allow that independence to be challenged. It would therefore be illogical to consider that the absence of a remedy against the same appointment procedure (that is, the second factor identified by the referring court) would suffice, in itself, to exclude the judge concerned, even though the mere challenge to the independence of the KRS (the first factor stated by the referring court) cannot determine per se whether the legality of the appointment is affected.
The conclusion of this part of the Advocate General’s opinion can be found in paragraph 50, according to which, with regard to judges appointed since 2018, there are no factors that could automatically lead to the conclusion that those judges do not constitute a ‘court established by law’. The Advocate General emphasised at this point that, instead of collective solutions, these judges should be assessed individually in each case, taking into account all relevant aspects of their appointment:
I consider that it is for the national court to carry out on each occasion an in concreto assessment, taking account of the legal and factual context and of other factors relating to the particular situation of each judge or panel of judges concerned.
Further in the opinion (in paragraph 64), the Advocate General gave examples of the circumstances that should be taken into account when assessing the situation of such a judge:
By way of example, it may be necessary to examine the extent to which the candidate eventually selected had, in the light of objective criteria, higher qualifications than those of other unsuccessful candidates. It may also be necessary to determine whether there was any political pressure or to evaluate the public conduct of the judge appointed that might reveal undue external influence. It must then be determined, in the light of all of those factors, whether, on the one hand, a fundamental rule was breached and, on the other, whether that breach undermined the integrity of the appointment of the judge concerned, giving rise to a real risk of interference by the executive.
In view of the above, the Advocate General concluded his Opinion by proposing the following answer to the question concerning the status of judges:
The second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in order to determine whether a court in which a person appointed to the post of judge sits meets the requirement of a ‘tribunal previously established by law’, the competent judicial authority must take into account not only the fact that the candidature of that judge was recommended by the new KRS following its reform, and of the absence of an effective right of appeal for the participants in the appointment procedure, but also of any other relevant circumstance relating to the appointment of that person and capable of affecting the independence and impartiality of the court concerned.
Two important conclusions can be drawn from the Advocate General’s opinion, especially if it is adopted by the CJEU in this respect:
1. European Union law does not prohibit the Sejm from electing members of the National Council of the Judiciary who are judges, nor does it require a return to the corporate (or, to put it more bluntly, oligarchic) model of their election that was in force until 2018.
Since the Constitution does not provide for such a requirement either, as the Constitutional Tribunal clearly and definitively stated in its judgment of 25 March 2019 (ref. no. K 12/18), it is completely unfounded to talk about a ‘neo-KRS’ or a ‘flawed KRS’. It is therefore equally unfounded for Minister Bodnar to initiate disciplinary proceedings for the mere fact of sitting on the KRS.
2. It would be inappropriate to collectively dismiss judges of common courts appointed since 2018 without an individual assessment of each of them by an independent court.
This second conclusion is particularly important in light of the draft law ‘on restoring constitutional order in the judiciary’ presented by the Ministry of Justice on 24 April 2025. This draft provides for the dismissal of a significant group of judges appointed since 2018, without any real possibility of appeal to a court.
The conclusions of the Advocate General’s opinion were aptly summarised by Dr Kamil Zaradkiewicz, who responded to a note from the Polish Press Agency with the following comment: Opinion of the Advocate General of the CJEU: the mere participation in the appointment process of a judge by a body that does not guarantee independence does not justify his exclusion from hearing the case – with the following words:
If this were not the case, the German judiciary would be completely paralysed.
This is probably an allusion to the case of the judges of the regional courts of Hesse, mentioned in the previous post on the Advocate General’s opinion.
It is to be hoped that, when deciding on the case in question, the Court of Justice of the European Union will depart from its current practice of applying double standards – different standards for Germany and different standards for Poland.
