Judge Land: on Judges and Courts fighting back for the Polish Rule of Law

by: in Law
Escalator_blog on Polish rule of law_UM.jpg

The Polish turn away from democracy, named by Sadurski as anti-constitutional populist backsliding, has taken on a new dramatic and bold turn involving the active use of the available tools by the judges to question and address the rule of law problems in Poland. The judges seem to be fighting back hard resulting in a suspenseful and binge-worthy narrative.

The judges’ ‘rule of law movement’ started earlier this year with the question from the High Court of Ireland requesting the opinion of the Court of Justice on the possibility to execute the European Arrest Warrant in relation to the Polish citizen in what became known as a ‘Celmer’ case (Case C‑216/18 PPU Minister for Justice and Equality v LM). The High Court expressed serious doubts whether in the context of the lack of independence of the judiciary in Poland the suspect would receive a fair trial. The Court of Justice of the European Union was called upon to rule on the basis of the ensuring fundamental rights protection standards as manifested by the Charter of Fundamental Rights. The judgment establishing the two prong test for national courts received mixed reception (see the critical account by Wouter van Ballegooij, Petra Bárd on Verfassungblog) as presenting more structured possibility to suspend mutual recognition, which in turn may threat the functioning of the EU legal system. On the other hand the decision of the Irish High Court and the subsequent judgment of the CJEU constitute the instances of the joining on the part of the judges to the movement against the undemocratic populist backsliding in Europe in general and in Poland, in particular. It seems that the boldness of the Irish judge worked as an encouragement and stimulated re-discovery of the preliminary reference procedure of the Polish judges as a tool to address the domestic rule of law troubles.

The trend was initiated with the very Polish Supreme Court, which on 2 August 2018 referred six preliminary questions to the CJEU. The questions focused on the position of the Polish judiciary following the reform of the Supreme Court and their limited independence and, potentially, impartiality. The case appeared before the court as the result of the proceedings started by the Polish Insurance Institution (one of its regional units) against an individual. Simultaneously, the Polish Supreme Court, suspended application of the controversial provisions of the Supreme Court Act. This step was welcome by the judges and academics. The Polish court had undoubtedly the power to ask the question, it was not sure whether the question focused on rule of law should be considered admissible. Yet, the CJEU agreed to instigate the proceedings in line with the expedite procedure and the hearing was scheduled for February 2019.

Elsewhere, in Łódź, the regional court was called to rule on a seemingly banal case arising between the municipality of Łowicz and the Treasury. According to the plaintiff, the city of Łowicz did not receive adequate subsidies from the state to run its activities. Following the hearing of evidence, it is quite likely that the ruling will be disadvantageous for the Treasury which will be required to pay ca 2,4 million PLN (equivalent of 600.000 Euros) to Łowicz. Here as well the Regional Court decided to stay the proceedings and refer the question to the CJEU (C-558/18). It was asked to assess the new form of disciplinary proceedings against the Polish judges, which seem to be threatening judicial independence inasmuch as they create risks for political influence over outcomes of judicial proceedings, and their content. The Regional Court asked also whether it was acceptable to use in the disciplinary proceedings illegally obtained evidence.

In the meantime on 29 September 2018, as it seems, under pressure from the government, the Polish Insurance Institution withdrew the claim thus bringing the proceedings, within the framework of which the Polish Supreme Court referred the questions to the Luxembourg Court, to the end. The former was suspected to withdraw the questions all together thus ending the entire controversy.

And yet this was not what happened.

On 3 October 2018 the Polish Supreme Court in a different case, relating to the establishment of the employment relationship in relation to a worker posted in Poland (and so falling under the application of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services) referred further 5 questions to the CJEU. These questions are identical to the ones filed in August 2018 and focus on the independence and impartiality of the judges of the Supreme Court in particular.

It remains to be seen whether these instances of judicial activism will turn into an actual movement involving judges from multiple Member States (a phenomenon feared both by the judiciary themselves and the politicians) thus marking the actual, as opposed to formally proclaimed by the CJEU, birth of the European judiciary.

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