Supreme Court Warszawa, 27 August 2019
of the Republic of Poland
First President of the Supreme Court
Professor Dr. Hab. Małgorzata Gersdorf
Ladies and gentlemen,
Members of the National Council of the Judiciary
Due to my office as the First President of the Supreme Court, I am appealing to you to suspend the proceedings on the presentation of applications to appoint Supreme Court judges to office, which were initiated by the announcements of the President of the Republic of Poland published in the official journal, Monitor Polski, of 2018, item 831 and of 2019, item 675.
I would like to point out that Article 4 (3) of the Treaty on European Union imposes the obligation of sincere cooperation on the European Union Member States. This provision stipulates that 'Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union…’ In the light of the reservations regarding the constitutional model and the way in which the National Council of the Judiciary works, expressed by Advocate General Evgeni Tanchev in the opinion of 27 June 2019 in case C-619/18, the continuation of the proceedings described at the outset will be in clear contradiction with the obligations of the Republic of Poland expressed in the cited provision.
At the current stage of the proceedings before the Court of Justice of the European Union in the above case, whether the Court agrees with the opinion of Advocate General Tanchev cannot be prejudged. However, the continuation of the proceedings described at the beginning will be tantamount to a disloyal approach to the institutions of the European Union to incite legal effects, despite the fact that, within a few months, these effects may be considered contrary to EU law. Therefore, although the Council questions the reliability of the said opinion in Resolution No. 630/2019 of 28 June 2019, this body – in spirit of sincere cooperation with the institutions of the Union – should refrain from actions that can result in the recognition that a court with judges appointed by a request of the NCJ does not comply requirements arising from Article 47 (1) of the Charter of Fundamental Rights of the European Union, which, in accordance with the requirements arising from Article 6 (1) TEU, has the same force as the Treaties.
Proceedings regarding the submission of applications to appoint Supreme Court judges to office must also be suspended in the light of the position of the Presidium of the National Council of the Judiciary of 22 August 2019 regarding the organized smear campaign with insinuations and accusations about judges. In view of the constitutional position and role of the Supreme Court, the presentation of applications to the President of the Republic of Poland to appointment judges to this Court should not be accompanied by any suspicion or speculation as to whether members of the Council behaved in a manner inspiring or supervising organized campaigns of insinuation and accusations with respect to other judges. Meanwhile, the members of the National Council of the Judiciary whose names appear in media reports regarding this scandal should withhold from publicly formulating explicit positions as to their role in the procedure described by the media. Until these doubts are resolved, all proceedings before the Council should be suspended in the interests of the image of the justice system in Poland and the sense of legal security of its citizens. It is in these latter cases that judges, the circumstances of whose appointment may give rise to objections, will rule.
In these circumstances, recruitment to the Disciplinary Chamber of the Supreme Court absolutely requires suspension. In the position of the Presidium of the National Council of the Judiciary of 22 August 2019 on the candidacy of members of the National Council of the Judiciary to the office of judges of the Supreme Court, the Presidium of the Council expressed the expectation that the nominated judges should withdraw their applications to that chamber of the Supreme Court or immediately resign from the office of Council members. There has been no public announcement to date that the interested parties have made any decision on this. It should also be mentioned that the name of one of the candidates – members of the Council appears in the media in the context of belonging to the group in the newsgroup which is credited with inspiring and supervising actions that are detrimental to other judges, including the First President of the Supreme Court. In the interests of the justice administration, these circumstances must be clarified before proceeding with the examination of the nominated candidates, regardless of the decision made by the interested person in response to the appeal of the Presidium of the Council of 22 August 2019.
Notwithstanding the foregoing, I would like to mention the validity of verifying the medical and psychological certificates of the candidates to the office of Supreme Court judge, who applied in connection with the announcements of the President of the Republic of Poland, published in the official journal, Monitor Polski, of 2018 item 831. In the light § 6, para. 1 of the Regulation of the Minister of Justice of 19 September 2014 on medical and psychological examinations of candidates for the office of judge (Journal of Laws of 2018, item 619), a candidate may use a medical certificate and psychological certificate in other proceedings regarding the appointment of a judge to office within 12 months of the date of issue. Admittedly, this provision refers to “other proceedings”, although it cannot be denied that for almost 12 months which have passed since the candidates were presented, the health condition confirmed by the certificates that were submitted may have changed.
In view of the above, I appeal to the members of the Council, as in the introduction.