CJEU: The Germans are allowed, the Poles quite to the contrary!

“CJEU case law review”, or how Polish judges appointed after 2018 by the President of the Republic of Poland at the request of the NCJ are not impartial and independent in the view of the CJEU and therefore are not a European “court”, while German judges appointed and dependent on the Minister of Justice, quite to the contrary. 

Since there is so much delight in the media and in the ruling coalition over the CJEU’s ruling that the Supreme Court’s Chamber of Extraordinary Audit and Public Affairs (which, by the way, rules on the validity of elections) is not “impartial and independent” and is not a “court” at all, it is worth taking a closer look at how the EU Court ruled in the case of German judges. We are referring here to the CJEU judgment of 9 July 2020, ref. C-272/19. 

Leaving aside the subject matter, which is not crucial here, the CJEU considered the question of the impartiality and independence of the judges of the Land of Hesse in Germany. According to Article 127(3) of the Constitution of that Land: 

“The decision on temporary employment and lifetime appointment shall be taken jointly by the Minister of Justice and the commission for the selection of judges”. 

In accordance with para. 2b of the Law of the Federal State of Hesse on the Status of Judges: 

“The assessment of the fitness for office, competence and work of judges is subject to the guidelines of the Ministry of Justice”.

According to para. 3 of the aforementioned law: “Judges are appointed by the Minister of Justice”. 

To make things more interesting, the very court which was requesting the judgment of the CJEU had doubts about its own impartiality and independence, since:

1) judges are appointed by the executive, i.e., the Minister, and promoted by him,

2) the evaluation of judges is regulated by the Ministry of Justice according to the same rules which apply to civil servants,

3) the personal data and official information concerning judges is administered by this Ministry, which therefore has access to this data,

4) in order to meet temporary staffing needs, civil servants may be appointed as temporary judges,

5) the ministry in question determines the external and internal organization of the courts, determines the allocation of personnel, means of communication and computer equipment of the courts, and also decides on judges’ business trips abroad. 

The issue seems obvious. The political dependence of the German judge is glaring. Meanwhile in Poland, the appointment of a judge is decided by the President of the Republic of Poland at the request of the National Council for the Judiciary, which is mostly composed of judges. Moreover, the German court itself has doubts in this case.

But not for the CJEU. A Pole is not permitted that, which a German is!  CJEU response:

“This circumstance cannot, however, in itself lead to doubts being cast on the independence of the referring court. Indeed, the independence of the national court must, also in terms of the conditions under which its members are appointed, be assessed taking into account all relevant factors. (…)”.

And further: ‘In these circumstances, the Verwaltungsgericht Wiesbaden (administrative court in Wiesbaden) must be regarded in the present case as a ‘court’ within the meaning of Article 267 TFEU. It follows that the request for a preliminary ruling is admissible.” 

That sums it all up all regarding the justification of the CJEU hammering of Poland and how fair the European judicial body is.