Amendments to act on National Judiciary Council may infringe EU law: CJEU

The Court of Justice of the European Union (CJEU) ruled on Tuesday that subsequent amendments to the Polish law on the National Council of the Judiciary (KRS), which led to the abolition of effective judicial control of the Council's decisions regarding which applications for appointment to Supreme Court (SN) judges to present to the Polish President, may violate EU law.

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The case concerned the Polish Supreme Administrative Court (NSA), which made a reference for a preliminary ruling to the CJEU in the context of proceedings between candidates for the office of judge and the KRS. As part of these proceedings, these candidates appealed against the resolutions under which the KRS decided not to submit to the President a motion to appoint them to the position of a SN judge, and at the same time submitted a motion to the head of state to appoint other candidates.

By the Act of April 26, 2019, the Act on the KRS was amended in Poland, giving it the following wording: “The appeal is not available in individual cases concerning the appointment to the office of a judge of the Supreme Court.”

The CJEU ruled that “if the referring court reaches the conclusion that the 2019 legislative amendments were adopted in breach of EU law, the principle of the primacy of that law requires the referring court to disapply those amendments, whether they are of a legislative or constitutional origin, and to continue to assume the jurisdiction previously vested in it to hear disputes referred to it before those amendments were made.”

"The second subparagraph of Article 19 (1) TEU [Treaty on European Union] precludes legislative amendment, such as those, cited above, made in 2018 in Poland, where it is apparent that they are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the judges thus appointed to external factors, and as to their neutrality with respect to the interests before them and, thus, may lead to those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in subjects of the law,” the CJEU continued.

“If the referring court reaches the conclusion that the 2018 legislative amendments infringe the EU law, it will be for that court, under the primacy of that law, to disapply those principles and to apply instead the national provisions previously in force while itself exercising the review envisaged by those latter provisions,” the Court concluded.