"Judgeland" (In English)

“Judgeland”: on Judges and Courts fighting back for the Polish Rule of Law

The Polish turn away from democracy, referred to by Sadurski as “anti-constitutional populist backsliding” has recently taken on a new bold and dramatic 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 both in Poland and beyond its borders producing a suspenseful and binge-worthy narrative.

The judges’ ‘rule of law movement’ started earlier this year following the so-called ‘Celmer’ case (Case C‑216/18 PPU Minister for Justice and Equality v LM). In this case the Irish High Court requested the opinion of the Court of Justice of the European Union (CJEU) on the possibility to refuse to execute the European Arrest Warrant in relation to the Polish citizen. This was based on serious doubts whether in the context of the lack of independence of the judiciary in Poland the suspect would receive a fair trial. In other words, the CJEU was to provide tools to the EU judiciary as to how to assess the rule of law standards in other MSs in the light of standards included in the Charter of Fundamental Rights. The judgment establishing the two prong test for national courts encountered 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 might threaten the functioning of the whole EU legal system.

The decision of the Irish High Court and the subsequent judgment of the CJEU can be seen as an instance of the willing joining on the part of the judges to the movement against the undemocratic populist backsliding in Europe, in general, and in Poland in particular. The boldness of the Irish judge triggered the re-discovery of the preliminary reference procedure by the Polish judges, here as a tool to address the domestic rule of law problems.

The Polish Supreme Court was the first to start this trend. On 2 August 2018 it referred six preliminary questions to the CJEU focused on the manner in which the independence of the Polish judiciary was threatened following the adoption of the controversial Supreme Court Act. The case appeared before the Supreme Court as a result of the proceedings started by the Polish Insurance Institution (one of its regional units) against an individual. Simultaneously, the Polish Supreme Court suspended the application of the mentioned Supreme Court Act. This was a courageous move. The populist criticism towards the Supreme Court ensued. In addition, although the Polish court undoubtedly had the power to send the referral, it was unclear whether the questions concentrated on rule of law would be considered admissible. Yet, the CJEU agreed to address the questions and the hearing was scheduled for February 2019.

Meanwhile, in Łódź, the regional court was called to rule on a seemingly banal case arising between the municipality of Łowicz and the Polish 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. In the proceedings, lodged as C-558/18, the CJEU was asked to assess the new rules on the disciplinary mechanisms that can be undertaken against the Polish judges. Those rules seem to be threatening judicial independence inasmuch as they create risks of political influence over both outcomes of proceedings and their content as well as the unfairness of the evidentiary proceedings.

Finally, on 29 September 2018, seemingly under pressure from the government, the Polish Insurance Institution withdrew the claim, within the framework of which the Polish Supreme Court referred the questions to the Luxembourg Court. The former was expected to withdraw the questions all together thus ending the entire controversy.

And yet this was not what happened due to another daring move on the part of the Polish Supreme Court.

On 3 October 2018 the Polish Supreme Court in a different case, this time relating to the establishment of the employment relationship in relation to a worker posted in Poland (thus triggering the application of Directive 96/71/EC), referred a further five questions to the CJEU. These questions were identical to the ones filed in August 2018 and focus on the independence and impartiality of judges, of the Supreme Court in particular.

It remains to be seen whether these instances of judicial activism will turn into an broader movement involving judges from multiple Member States (a phenomenon feared both by the judiciary themselves and the politicians). This would mark the actual birth of the activist (federal in the words of Matej Avbelj) European judiciary.

Karolina Podstawa is als Lecturer verbonden aan de University of Maastricht, Department of European and International Law