LUXEMBOURG (CN) — The European Union’s top court found on Tuesday that Polish judges selected by an illegal judicial body aren’t per se unlawfully partial.
The European Court of Justice (ECJ) held that judges shouldn’t automatically be considered to be lacking independence and impartiality solely by virtue of their appointment process even when they are appointed by an undemocratic governing body.
The case began as a dispute between Warsaw-based Getin Noble Bank and a mortgage holder who took the bank to court over a loan agreement that indexed the mortgage to a foreign currency. It ultimately ended up at the Sąd Najwyższy, the Polish Supreme Court, which referred the matter to the ECJ, questioning if the appeals court ruling was valid.
The three-judge panel, which sided with the mortgage holders over the bank in 2019, comprised one judge appointed by the Communist government in 1998 and two judges appointed by the newly reformed National Council for the Judiciary, or KRS.
Since coming to power in 2015, Poland’s ruling ultra-conservative Law and Justice party has moved to force out judges it doesn’t like in an effort to tighten its control over the country’s justice system. The far-right nationalist party claims its 2017 reforms package is an effort to rid the country of corrupt judges from the Communist era.
The Luxembourg-based court ruled that the KRS was no longer an independent judicial body in 2021, finding it “does not provide all the guarantees of impartiality and independence” after its members were dismissed in 2018 and replaced with judges selected by parliament, which is controlled by the Law and Justice party. The court is currently fining Poland more than a million euros a day for failing to follow its orders.
Despite its reservations about the KRS, the court rejected the idea that all judges approved by the council should automatically be discredited. The referring court had not offered any “specific evidence capable of supporting the existence of legitimate and serious doubts … as to the independence and impartiality of the judges concerned,” the 13-judge panel wrote in a decision only available in French, Czech and Polish at press time.
Jakub Jaraczewski, research coordinator at Democracy Reporting International, a Berlin-based nonprofit that promotes democracy, describes the decision as “a somewhat predictable ruling” but takes issue with the widening gap between the ECJ and the European Court of Human Rights (ECHR) in their approach to Poland’s rule of law problems. Last year, the Strasbourg-based ECHR held that Poland’s judiciary was no longer independent and impartial.
“It is perplexing is that ECJ did not look closely at the status of the judge who submitted the referral,” Jaraczewski says. A previous ECHR ruling found that a three-judge panel containing the referring judge in this case, Kamil Zaradkiewicz, did not meet fair trial standards in part because Zaradkiewicz was part of a new slate of judges appointed by the ruling party.
Although the two European courts are unrelated — the ECHR was created by the European Convention on Human Rights to protect the political and civil rights of Europeans while the ECJ was created to adjudicate European Union law — they should take heed of each other’s case law, as national courts must respect both courts’ rulings. Apparent contradictions like today’s ruling make this balancing act difficult.
In a landmark decision last month, the ECJ found that the EU can withhold funds from Poland and other countries that violate rule of law norms. Brussels wants budget payments to be tied to meeting democratic standards in an effort to combat democratic backsliding in countries like Poland and Hungary.
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