Annual report for 2020 – From bad to worse – the Polish judiciary in the shadow of the ‘muzzle act’ (second publication).

Report prepared by Dariusz Mazur, press officer of the Association of Judges ‘Themis’

updated as at 31 December 2020.

• Introduction.

A year ago, in a ground-breaking judgment of 19 November 2019 (C-585/18, C-624/18, C-625-18)[1], the Court of Justice of the European Union (CJEU) agreed with the reservations of the Polish Supreme Court (SC) raised in a request for a preliminary ruling that the new Polish National Council of the Judiciary (neo-NCJ) and the Disciplinary Chamber of the SC may not satisfy the requirement of independence from the legislative and executive powers under EU law. The CJEU has simultaneously authorized all Polish courts to establish whether judges appointed with the participation of the neo-NCJ are judges in the meaning of EU law and provided clear criteria according to which they are to assess the independence of the neo-NCJ and the Disciplinary Chamber. On the one hand, the CJEU ruling undermined the compliance with the provisions of European Union law, the core elements of the pseudo-reform of the Polish judiciary and, on the other, it provided Polish judges with the ability to question the independence of the central elements of this reform, which are the Disciplinary Chamber, the neo-NCJ and the judges appointed and promoted with its participation.

In line with the guidelines contained in the CJEU judgment of 19 November 2019, in its judgment of 5 December 2019 (III PO 7/18)[2] the Labour Chamber of the Polish SC assessed that the Disciplinary Chamber and neo-NCJ are not independent and that the Disciplinary Chamber is not a court either under the Polish constitution or EU law.

Another ruling issued by the Polish SC in the implementation of the CJEU ruling of 19 November 2019 is the Resolution of the Joined Chambers of 23 January 2020 (BSA I – 4110 – 1/2020)[3] on the basis of which:

• the SC did not nullify all judgments issued by judges appointed or promoted with the participation of the neo-NCJ, but upheld the judgments of the ordinary courts issued up to 23 January,
• while referring to the judgments of the ordinary courts passed after 23 January, the SC decided that they would not be automatically squashed, but would be examined at the request of a party. In each specific case, the court of the second instance will need to assess whether the procedure for choosing the judge who issued the decision in the first instance justifies the presumption that he is not an independent judge under Article 47 CFR EU and Article 6 ECHR (the independence test); in the justification of the said resolution, the Polish SC also presented a detailed list of criteria that should be taken into account by the appellate court when assessing whether the method of appointing a judge of the first instance justifies the presumption that the judgment issued with his participation is not a judgment of an independent and impartial court in the meaning of Polish and European law,
• only all judgments issued by the Disciplinary Chamber of the SC, regardless of the moment that they were issued, were considered void by the SC………

[1] http://curia.europa.eu/juris/document/document.jsf?docid=220770&doclang=en

[2] https://ruleoflaw.pl/wp-content/uploads/2020/02/III-PO-0007_18_English.pdf

[3] https://forumfws.eu/bsa-i-4110-1_20_english.pdf

More see below

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