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By Olivier Bault.

Poland – The mechanism of the preliminary ruling that allows any court to turn to the Court of Justice of the European Union, is instrumentalized by Polish judges struggling with the reforms of the judicial institution voted by the Parliament.

This is a little group of judges of the Polish Supreme Court that triggered the hostilities at the very beginning of August as they asked the Court of Justice of the European Union for a preliminary ruling. Meanwhile, other judges from courts of inferior level have begun to do the same. The method consists in using an affair being examined to ask the Court of Justice of the European Union whether the new Polish laws reforming the Justice and voted by the PiS majority in the Parliament do guarantee the respect of European right. All this to say that this request of a preliminary ruling from the Court of Justice of the European Union has not much to do with the affair concerned.

Regarding the one sent by the Supreme Court on the 2nd of August, the judges at the origin of this request had moreover the pretentiousness to suspend some paragraphs of the laws adopted by the Parliament, while the Polish Constitution does not recognise them such an ability. But those judges relied on the jurisprudence of the Court of Justice of the European Union according to which a request for a preliminary ruling should have a suspending effect on the national laws for the answer given by the judges in Luxembourg to those requests have some sense.

Let’s precise here that in Poland, the Supreme Court is not the Constitutional Court that is only empowered to invalid laws voted by the parliament. This is a court of cassation for civil and criminal affairs as well as for labour laws that is only empowered to precise the correct interpretation of the laws for the courts of a lower level which it does supervise. When we have seen at the beginning of August in Western medias that the Supreme Court had sent a request to the Court of Justice of the European Union concerning the conformity with European laws of the reforms of Justice made by the PiS, there were in fact seven judges of its Labour and Social Insurance Chamber (out of 72 active judges at the Supreme Court at this time) who addressed five requests to the European Court. To put it in a simple way, those seven judges, of which two have reached the age of 65, have considered that it was necessary that the Court of Justice adjudicates on the validity of the lowering of the pension age of the judges from 70 to 65 years according to European law and particularly according to the article 47 (“Right to an effective remedy and to a fair trial”) of the Charter of Fundamental Rights of the European Union. This is the article with which each one of those five requests is dealing. The case that is supposed to motivate those five requests concerns – are you ready? – the obligation to pay contributions to the social security when a Polish citizen has a company in Czechia or in Slovakia. The requests of the seven judges to the Court of Justice have therefore nothing to do with the affair itself but it is the reason why those seven judges consider themselves entitled to suspend the application of some paragraphs of the law and particularly the one that harmonises the pension age of judges with the common law.

The Polish law is naturally still valid as on the contrary, Poland would not be a parliamentary democracy any more but a dictatorship of judges. The president of the Constitutional Court said herself that those seven judges of the Supreme Court had acted in violation of the Constitution and of the Code of Civil Procedure and recalled that the Constitution and the laws of the Republic of Poland do not entitle the Supreme Court to suspend the application of any legal stipulation.

But it seems indeed that it is a voluntary and coordinated operation of a minority of judges who are trying this way to stop the three big reforms of the judicial institutions voted by the Polish parliament: the reform of the Supreme Court (that obviously needed to be reformed), the reform of the National Court Register (KRS) and the reform of common law courts. And indeed, last June, the information portal wPolityce.pl denounced the organisation by the Warsaw Bar Association (Okręgowa Rada Adwokadcka, ORA), the association of judges Iustitia (that is politically engaged against the PiS) and the Helsinki Foundation for human rights (financed inter alia by the Open Society Foundations of George Soros) of trainings to teach the judges how they might lead – while sending massively requests to the Court of Justice of the European Union – to an obstruction of the effective implementation of the new laws voted by the parliament!

The same organisation of judges Iustitia had also called without success to boycott the procedure of recruitment of 44 judges by the Supreme Court announced in the Official Journal of Laws (Dziennik Ustaw) by the Polish President Andrzej Duda within the reform of this institution. A part of the judges of the Supreme Court indeed retired while this court has also got new chambers, and particularly a disciplinary one that will be in charge of sanctioning the judges who might commit abuses, what would be something absolutely new in this country where since the fall of communism the indelicate judges only appeared in front of their peers who were nominated by other judges and were this way quite systematically protected by the corporatism spirit of the profession. With the reform of the National Court Register that counts 15 judges among its 25 members – those 15 judges will be furthermore chosen by the Parliament and not by other judges anymore. Yet it is this very National Court Register that selects the candidates to the Supreme Court to be proposed to the Polish President.

The judge Igor Tuleya from the court of Warsaw is himself well-known since years for being engaged against the PiS. Within a criminal affair concerning gangsters appearing for organised criminality, this judge also turned toward the Court of Justice of the European Union – with the effect of interrupting the process against the gangsters – for asking if the EU laws that impose to the member states to provide to each citizen the right of appeal against court decisions might be incompatible with the new legal stipulations that “suppress the guarantees for an independent disciplinary procedure toward the judges in Poland”. What he calls a suppression of an independent disciplinary procedure is thus the fact that the National Court Register that selects the candidates for the new disciplinary chamber of the Supreme Court is not anymore dominated – since the PiS reforms – by judges nominated by other judges but by judges nominated by the parliament.

A part of the opposition and some judges consider therefore this reform as incompatible with the Polish Constitution, but if it were the case, it would be the Constitutional Court that should be entitled to act. The same people consider however that this court is not independent anymore since its reform by the PiS and the conflict around the nomination of its judges. This is the same argumentation that is given by the European Commission when it decides to consider itself entitled to be a kind of constitutional court for Poland, even if the European treaties principally do not allow it. Based on this pretext, the parliamentary opposition and the protesting judges of the Supreme Court turn to the European institutions that are not competent for those questions while they would have the right to call the Polish Constitutional Court that is the only competent one. Let’s precise furthermore that if the Polish Constitution clearly states that the National Court Register must always have 15 judges among its 25 members (art. 187.2), it does not state by whom those 15 judges have to be nominated but in the contrary that the Parliament has to define by the law a modus of nomination for the members of the National Court Register (art. 187.4). Those stipulations of the Polish Constitution are very clear for any honest person who is able to read Polish, what is surely not the case of the First Vice-President of the European Commission Frans Timmermans who is leading both ongoing procedures against Poland (in front of the Council and in front of the Court of Justice, this second procedure still being on September 14 at the preliminary step of injunctions addressed to the government in Warsaw).

Like the seven judges of the Supreme Court, the judge Tuleya has invoked – in his request to the Court of Justice of the European Union – the Charter of Fundamental Rights joined to the European treaties through the signature of the Treaty of Lisbon. Within another affair concerning a financial litigation between the City of Łódź and the voivode of the region, the court of Łódź has also invoked – for quoting its press office – the Charter of Fundamental Rights and “decided to address a request for a preliminary ruling in relation with the strongly politicised new disciplinary system concerning the judges and in relation with the laws relating to the common law courts, the Supreme Court and the National Court Register”. The invoked pretext is that if the court in Łódź would render a judgment unfavorable for the state, the judges at the origin of the judgment might be the object of “a politically motivated disciplinary procedure”.

One does not really see how the government of Mateusz Morawiecki might do it just because the Parliament has nominated judges to the Court Register that has then proposed to the Polish president the candidates to the disciplinary chamber of the Supreme Court and that the president then nominated the candidates he accepted (without being able to revoke them afterwards). What is clearly politically motivated are the requests for preliminary rulings of the court in Łódź, of the judge Tuleya in Warsaw, of the seven judges of the Labour and Social Insurance Chamber of the Supreme Court as well as of other Polish courts that have decided in the last time to overflow – like three very engaged organisations proposed them to do in last June – the Court of Justice of the European Union with requests for preliminary rulings with the only goal of blocking the application of the laws voted by the Parliament.

Furthermore, while invoking the Charter of Fundamental Rights against their own country (as did the European Commission), those judges act as if they would consider as null and void the Protocol No. 30 of this charter that clearly states that “the Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedom and principles that it reaffirms.” This exemption had been obtained by London and Warsaw during the negotiations on the Treaty of Lisbon. One sees today how right these both capitals were to fear abusive recourses based on this charter.

Logically, the Court of Justice of the European Union should reject all those requests but the past experience shows that the judges of Luxembourg might go very far in the interpretation of the European treaties in order to push the EU on the way to federalism and to extend the competences of Brussels to the disadvantage of the member states. Their reaction is therefore to be followed very near by all Europeans, as if the Court of Justice would agree with this group of Polish judges in open rebellion against their own parliamentary democracy, this might have very serious implications in terms of sovereignty and democracy for all the member states of the EU. Are we progressively going toward a dictatorship of the judges or will we be able – like Poland is trying – to restore a democratic control on a third power that is getting more and more expansive?

Translated from French by the Visegrád Post.