Op-Ed: “Another round in the Polish rule of law fight, Prokuratura Rejonowa: Legal jiujitsu, a chicken game or just a mess?” by Pablo Martín Rodríguez
The recent Grand Chamber judgment of the Court of Justice in Prokuratura Rejonowa – likely to be renamed in the habitual ‘legal alphabet soup’ as something like WB and Others (Secondment of judges) – gives us another twist in the fight over respect for the rule of law that has been unfolding in Poland since the PiS party took the Hungarian avenue some years ago. This case seems to be perfectly in line with the groundbreaking case law on Article 19(1) TEU announced in ASJP in 2018 and progressively applied since then, notably in three infringement proceedings against Poland (here, here and here) and two preliminary references (A.B. and Others and W.Ż.).
Answering to seven requests for a preliminary ruling, in Prokuratura Rejonowa the Court of Justice found the Polish model of secondment of judges to be in violation of the independence of the judiciary and the presumption of innocence. Under the relevant Polish rules, the Minister of Justice may almost at will second a judge to a regional tribunal, while permitting him or her to continue to serve as assistant for disciplinary purposes also under the ultimate authority of the same Minister, who incidentally is also the General Prosecutor (paragraphs 77-89). Nevertheless, in my opinion the ghost of a past case (Miasto Łowicz) hovers over this one and, maybe because of that, the solution given by the Court even goes a bit deeper.
In this Op-Ed I will argue that the step further taken in Prokuratura Rejonowa makes the legal complications posed by the revolutionary new case law on Article 19 TEU even more visible. An accurate assessment of the meaning and relevance of the case warrants, however, a brief reminder of both its wider legal context and its specific background.
The wider legal context of Prokuratura Rejonowa
The case was brought before the Court of Justice in the context of a muddled legal situation in Poland, where part of the judiciary and the Ombudsman are trying to resist the assault by the autocratic machinery of the party in power (PiS), which has already taken over the legislature and part of the judiciary. This includes a mortifyingly obsequious Constitutional Court – see the European Court of Human Rights (ECtHR) in Reczkowicz , appeal pending− whose composition has been declared by the Strasbourg Court in Xero Flor as contrary to the right to a court established by the law under Article 6 of the European Convention on Human Rights (ECHR).If it were not for its extreme seriousness, the tragic Polish judicial scenery would qualify for a ‘legal soap opera’, as can be easily inferred from the country chapters in the Commission 2020 and 2021 Rule of Law Reports.
As is widely known, the Court of Justice has responded to this attack with a broad interpretation of the second subparagraph of Article 19(1) TEU that oblige Member States to assure effective legal protection in the fields covered by EU law. This broad interpretation is based on applying a holistic ideal notion of judicial independence – as demanded by the appearances doctrine – but also on detaching the obligation to respect it from the classic scope of EU law (as I explain here). Later, the Court of Justice has strongly reinforced this provision by granting it direct effect (even if this direct effect is determined somehow par richochet via Article 47 of the Charter of Fundamental Rights of the EU (AB and others, paragraphs 44-46).
In this sense, Prokuratura Rejonowa is no different from previous cases. Indeed, the unconcealed attempt by the executive to control Polish judges would have not been more obvious if they had put a political commissar inside every courtroom. Neither legal sophistication nor subtlety is something that the Polish Government practices at all. Reading just a few paragraphs of this judgment (or of some others such as A.K. or AB and Others for that matter) should suffice for anyone, even those ideologically close to PiS, to feel deeply embarrassed and immediately advise hiring some finer legal minds.
In this regard, it is not redundant to recall that this situation also stems to a significant extent from the apparent belief by most Member States’ Governments within the Council and the European Council that the defense of EU founding values has nothing to do with them and that it is something to be left to the European Parliament, the European Commission and the Court of Justice.
The specific legal context of Prokuratura Rejonowa
At a closer look, I think that Prokuratura Rejonowa is determined by two features. The first one is the Miasto Łowicz ghost or fiasco. That case, which was a preliminary reference concerning the new Polish disciplinary judicial regime, was considered inadmissible due to its hypothetical character, but it has painfully materialized subsequently. Unwilling to go through the same traumatic experience of inadmissibility, in Prokuratura Rejonowa the Court of Justice helped the referring ‘court’ in filling the dossier (see paragraph 22 of the judgment). Resorting to an old precedent (Reina), it also disregarded the fact that the request stemmed, strictly speaking, from the President of the panel and not from the referring court itself (paragraphs 43-44), which by the same token facilitated the conclusion that the interpretation of Article 19 TEU was necessary and pertinent for the national court to rule on the main proceedings. The lengthy considerations devoted to all these questions in the Opinion of Advocate General (AG) Bobek (points 48-129) prove beyond any doubt that they were not as straightforward as the judgment might imply.
The second feature relates, in my opinion, to the current situation under Polish law, where ordinary courts and tribunals have been deprived of the power to control the respect of judicial independence when assessing the composition of a panel or the appointment of a judge as part of the right to a court established by law, as required by EU case law on Article 19(1) TEU, and even risk disciplinary sanctions if they try to exercise such control.
These Polish rules are part of a pending infringement action (C-204/21) in which relief interim measures were taken by the Court of Justice last July ordering their suspension (here) and, failing compliance therewith, a significant periodic penalty has followed on 26 October (here). The situation has however worsened as a result of a defying and confrontational ruling of the Polish Constitutional Court of 7 October (here) declaring inter alia the unconstitutionality of Article 19 TEU as interpreted by the Court of Justice and so denying its primacy over Polish law (see EU Law Live Symposium thereon).
It is my guess that this controversial status of Article 19(1) TEU in Polish law and the potential sanctions that Polish judges would face may have spurred the Court of Justice to add Directive 2016/343 on the presumption of innocence to the legal arsenal justifying setting aside any domestic law or case law that may be contrary to the principle of judicial independence as required by EU law.
The edgy prolongations of Prokuratura Rejonowa
The Prokuratura Rejonowa judgment once again elucidates the problems posed by the brand new constitutional function of the second subparagraph of Article 19(1) TEU on which I reflected elsewhere. So far, the Court of Justice has not answered to the reasonable calls for restraining the scope of this provision to systemic deficiencies and/or exceptional cases made by several AGs –from the early Tanchev to the latterly Bobek. Conversely, Prokuratura Rejonowa keeps the maximum possible legal effects of Article 19(1) TEU without apparently noticing its costs in terms of internal coherence and/or its potential for constitutional conflict, be it with Member States’ constitutional courts or with the Strasbourg Court. Let us just highlight some of the former, since the latter have not changed with this judgment.
Despite the finding that Directive 2016/343 applies to a situation such as the one before the referring court, Article 47 of the Charter does not. Without any explanation as to why this connecting factor does not suffice to bring the case under the purview of EU law within the meaning of Article 51 of the Charter, the Court of Justice relied exclusively on Article 19 TEU. The Court has thus chosen to follow Asociaţia «Forumul Judecătorilor Din România» instead of A.K., throwing away the idea that the second subparagraph of Article 19(1) TEU only comes in play in exceptional circumstances when the ordinary application of EU law (including the Charter) is of no avail (such as in AB and others or W.Ż.).
Additionally, in Prokuratura Rejonowa, the Court of Justice assumed that Article 267 TFEU serves as a channel for any judicial panel (admittedly, loosely appraised) to check on its own independence status as long as it applies EU law. While this is not necessarily wrong, the irony of the case deserves attention. The Court answered to a request of a judicial organ, which for the purposes of Article 267 TFEU needs to be independent, in the sense that… it lacks said independence (!). So, in essence Article 267 TFEU has turned into an advisory though binding procedure available for judicial organs with regards to its own judicial independence.
This judgment has large scale consequences, since a significant number of Polish judicial panels should be considered as breaking judicial independence. It will be extremely difficult to avoid that this judgment generally affects judicial cooperation and mutual recognition in criminal matters with Polish judicial authorities as the Court of Justice has so far tried (see Openbaar Ministerie (Indépendance de l’autorité judiciaire d’émission). This is a question to be decided soon (cases C-562/21 PPU and C-563/21 PPU) and, despite its profound consequences, Openbaar Ministerie represents an inconsistent case law that should end.
It is hard to tell whether we are witnessing some sort of legal jiujitsu, a chicken game or just a simple mess. There is room for confusion. However, as disgraceful and disheartening as the situation in Poland may appear to me, the sad truth is that the whole situation cannot be solved by the Court of Justice, let alone on its own. In pursuing that aim, the Court risks in my opinion to distort –if not undermine– the new constitutional role of Article 19(1) TEU for protecting the rule of law as a founding value common to the Member States.
Pablo Martín Rodríguez is Professor of Public International Law at the University of Granada.