December 01
2021
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6th October 2021
Human Rights Justice & Litigation

Court of Justice: Grand Chamber ruling on forced transfers and appointments of Polish judges

The Court of Justice has just given its judgment in the Grand Chamber case W. Ż. (Chambre de contrôle extraordinaire de la Cour suprême – Nomination) (C-487/19), ruling that transfers without consent of a judge from one court to another or between two divisions of the same court are liable to undermine the principles of the irremovability of judges and judicial independence enshrined by EU law.

The case stems from a preliminary reference made by the Polish Supreme Court (Sąd Najwyższy) concerning the compatibility with EU law of the appointment of a single judge to the recently created Chamber of Extraordinary Control and Public Affairs (CECPA). The situation concerns a former member of the National Council of the Judiciary challenging a mandatory transfer who, on appeal before the Supreme Court, sought the exclusion of all judges sitting in the CEPCA, following which the Polish President appointed as a single judge the prior judge in charge of examining the appeal, in manifest disregard of national law.  

In its judgment today, the Court of Justice ruled, firstly, that this kind of mandatory transfers are capable of interfering with the content of judicial decisions because they have effects similar to those of a disciplinary sanction. From this perspective, the Court of Justice noted that the rules applicable to transfer of judges without their consent must be accompanied by the necessary guarantees to prevent any risk of judicial independence being jeopardised by direct or indirect external interventions. This means that such transfers may only be ordered on legitimate grounds, in particular relating to distribution of available resources to ensure the proper administration of justice, and that such decisions may be legally challenged in accordance with a procedure which fully safeguards the rights enshrined in the Charter, in particular the rights of the defence.

Moreover, the Court of Justice ruled that the question of whether CEPCA may be regarded as constituting an ‘independent and impartial tribunal previously established by law within the meaning of EU law’, given the circumstances in which the appointment of A.S. took place, must be established by the referring court. However, today’s judgment noted that the circumstances of the case indicate that (i) A.S. was appointed in clear disregard of the fundamental procedural rules for the appointment of judges, and that (ii) this circumstance undermined the integrity of the outcome of the appointment process by serving to create reasonable doubts as to the imperviousness of that judge and as to his neutrality, independence and impartiality.

The judgment is available here.

An Op-Ed on this case by Jakub Jaraczewski will be published soon on EU Law Live.

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