It is summer, the vacation season is near, and the football World Cup is on everybody’s mind.  It is hard to think about politics these days… It is not a coincidence that the party ruling in Poland has just now submitted a draft amendment to the Polish law on the elections to the European Parliament.

Due to the lack of regulation at the EU level, each Member State has its own domestic rules for the election of members of the European Parliament. This freedom to determine the electoral rules in each country is limited only by the need to ensure that elections are universal, direct, and proportionate. It is also allowed to use a threshold clause, but not exceeding 5%. Moreover, the mandate of a member of the European Parliament cannot be combined with a mandate to the national parliament.

The current model

In Polish law, the rules of electing Polish deputies to the European Parliament are part of the Electoral Code (the act applying to all elections in Poland).

The current mode of electing Polish deputies to the European Parliament appeared to be complicated. It combines the Polish tradition of dividing the state into electoral districts with the proportional electoral system. The Polish legislator decided not to treat the entire state territory as a single constituency but to maintain a division into electoral districts, albeit different ones than used in elections to the Lower Chamber of the Polish Parliament (Sejm). It resulted, among others, from the decision and to adopt the system of voting on a specific list by indicating the name of a specific candidate from this list (preferential vote). This way of election, known as the open list, is also used in Poland in elections to the Sejm (the lower house of the Polish Parliament), so the voters are familiar with it. Furthermore, according to the 5% threshold rule, only lists that receive 5% of validly cast votes (counted on a national scale) participate in the distribution of seats.

The system is complicated because it entails three stages of determining the electoral results. First, the number of seats each electoral committee (party) obtains in the European Parliament is determined according to the d’Hondt method, which tends to favour strong parties. At this stage, the number of seats in the entire country are attributed to each electoral committee (party) which registered its district lists. Thus, the whole country creates a kind of "virtual" constituency, which preserves the positive effects of the principle of proportionality and the representation of various political trends in society.

In the next stage, the seats assigned to each party are allocated to its district lists. The allocation is carried out in proportion to the number of votes obtained by the respective lists (using the Hare-Niemeyer method).

During the last stage of determining the election results, the mandates allocated for the given constituency list will be attributed to candidates from the list in the order of the number of votes they have received.

This model assumes that individual districts do not have a fixed number of seats assigned to them but will always be dependent on the number of votes that the district lists have obtained. That way, even electoral committees whose district lists barely exceeded the threshold of 5% of validly cast votes had a chance to get a mandate.

What PiS indends

The amendment proposed by the ruling Law and Justice (Prawo i Sprawiedliwość or PiS) party makes very far-reaching changes in the above-mentioned procedure. The most important is the allocation of a certain number of seats to each electoral district, with the provision that they cannot be less than 3. If the current number of districts (13) does not change, on average there would be 4 seats per district. This change would be a consequence of a decision to determine the number of seats allocated to particular electoral committees (parties) at the level of the district (and not at the level of the entire territory of Poland as before). In practice, this change will significantly deform the final result.

To combine the proportional electoral system with small electoral districts has distorting effects strengthening the electoral results of the strongest party. In result, smaller parties which could be practically deprived of the opportunity to get seats in the European Parliament. It would mean that the 5% threshold would no longer be enough to obtain a mandate, as it would be still required to obtain in the district a support at the level of a dozen or so percent of votes cast.  The principle of proportionality of elections would thus get completely deformed.

Through the proposed amendments to the Electoral Code, the ruling party wants to achieve several goals. First of all, it wants to ensure that small right-wing groupings cooperating with PiS will not try to become independent and prepare their own lists. Secondly, it wants to prevent the electoral success of the emerging opposition parties against the ruling party. So far, the elections to the European Parliament, due to the way in which their results were determined and the low level of participation, were the easiest way not only to gain recognition in the whole country, but also to gain a seat.

An additional effect would be that PiS increases its numbers of seats by the mere fact of increasing their number in the districts located east of the river Vistula. In these districts, the support for PiS remains at the highest level, which is why this party would be the largest beneficiary of such a change. As the first calculations show, just by adopting a fixed number of seats the ruling party could obtain 3-4 more seats.

It also seems that the proposed amendment is an attempt to test the reaction of the society to changes in the rules of conducting elections. If this experiment proves successful, that is without major public protests, we can expect other changes in the Electoral Code, in particular concerning the elections to the Sejm. These changes would probably take a similar form to the currently submitted project, that is, formally avoiding deep changes, they would ensure the success of the ruling party even before the election day.  In the case of elections to the Polish Sejm, the changes could concern, for example, the number of constituencies. Ultimately, the nature of proportional representation would be violated.

Finally, it is worth emphasizing that reforms in electoral law should be rare. An important element is the durability of rules for holding elections and the conviction of voters that the shape of electoral law is detached from current polls. No party should create regulations of the electoral law motivated by its potential success. To ensure this, both the Venice Commission and the Polish Constitutional Tribunal (at a time when it was still able to operate in accordance with the Constitution) warned against changes within a few months before the election.

1. What Kind of a Test? With How Many Prongs?

In their latest post on this blog, Petra Bárd and Wouter van Ballegooij commented on the AG Tanchev Opinion delivered in the Case C‑216/18 PPU, Minister for Justice and Equality v LM. The preliminary reference from the Irish High Court concerns the possibility to surrender a crime suspect to Poland despite the controversial judicial reforms in this country. The authors claim that the legal problem in the case at hand should be framed – contrary to what AG Tanchev proposed – as a rule of law and not a fundamental rights issue. They suggest that the Court of Justice follow rather its approach from Associação Sindical dos Juízes Portugueses and assess the Polish judicial system in light of the requirements of judicial independence.

Instead, AG Tanchev opted for a different, “fundamental rights” approach from Aranyosi and Căldăraru. He agreed that the potential breach of the right to fair trial can be the basis to postpone the execution of the European Arrest Warrant. He opined however that the executing judicial authority should engage in a two-stage examination to find not only that (1) there are systemic deficiencies in the issuing judicial system but also (2) that the person concerned is actually exposed to such a risk because she is a political opponent. This approach causes multiple problems, some of which are discussed by the authors mentioned above with which I fully concur. Judicial systems of EU Member States should be constructed in a way to exclude any interferences in the judicial decision-making. To require of the accused to prove that such interferences may occur for whatever reasons (e.g. because the executive thinks that drug traffickers or those who bring their cases before the Court of Justice should be punished in an exceptionally severe way) is to introduce an impossible burden of proof.

In this post, I focus on what I believe is the most important question in the Celmer case: what kind of a test for the rule of law/fair trial, and with how many prongs? I argue that the rule of law/fair trial test that the Court should apply is the test for the appearance of independence, known from the practice of the ECtHR. I also argue that the Court should not leave the application of this test to the referring court but carry it out by itself.

2. Why pushing for Aranyosi and Căldăraru test?

AG Tanchev did not propose a reformulation of the questions referred and accepted the way in which the main legal problem had been framed – i.e. as a mutatis mutandis application of Aranyosi and Căldăraru test. This framing directed the reasoning and efforts of AG Tanchev on the adjustment of that test. He focused on the maximum limitation of exceptions to mutual trust on fundamental rights grounds in order to secure the effectiveness of mutual recognition system. But he underestimated the difference between the fundamental right at issue in Aranyosi and Căldăraru – i.e. the protection from inhuman and degrading treatment while being in prison – and the one in Celmer – i.e. the right to a fair trial. The prison conditions may vary in a State and prisoners may be transferred from one prison to another. That is why systemic problems with prison conditions do not necessarily mean that the prisoner will be subjected to degrading treatment. Hence, the Aranyosi and Căldăraru test has a second “concrete” prong. The executing judicial authority must find that the very individual against sought by means of the EAW is likely to experience degrading treatment.

On the contrary, the controversial judicial reforms affect all Polish judges to a comparable extent. In a nutshell, these measures enhance the powers of the Minister of Justice to oversee the functioning of common courts. As concerns likely effects of these measures on concrete judicial decisions, the Court should take a closer look to the new system of disciplinary proceedings for judges. The Minister can effectively initiate disciplinary proceedings against any judge, appoint an accuser and even issue binding instructions to latter. He also selects judges who serve in disciplinary courts. Moreover, the new Council of Judiciary – elected by the parliamentary majority and not judges themselves – will now decide on the membership of the Disciplinary Chamber of the Supreme Court. Importantly, the content of a judicial decision containing a “manifest breach of law” may also amount to a disciplinary offence. Although this is not a new measure, the possibility to punish or dismiss a judge for the content of her decisions is no more subject to strong procedural guarantees, in particular regarding the independence of disciplinary courts. Moreover, M. Matczak reported on this blog (see the Facts 6 and 7) about the judgment after which the Deputy Minister of Justice was publicly considering disciplinary proceedings for criminal judges who refused to accept the fruits of a poisonous tree, relying directly on the Polish Constitution and the ECHR. The new structure of disciplinary courts and proceedings may create at last a “freezing effect” on all Polish judges. It “encourages” them to follow in their decision-making the preferences of the executive.

In what way should this be considered by the Court? I believe that instead of adjusting the Aranyosi and Căldăraru test, the Court of Justice should perform a test for the appearance of independence.

3. The Appearance (of Independence) Matter

The appearance of independence test is applied by the ECtHR. The idea for this test is summarised in the legal maxime: “justice must not only be done, it must also be seen to be done”. In the Case 22678/93, Incal, the ECtHR held:

“Even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused (…). In deciding whether there is a legitimate reason to fear that a particular court lacks independence or impartiality, the standpoint of the accused is important without being decisive. What is decisive is whether his doubts can be held to be objectively justified (…).” (para 71).

Arguably, this approach has also been endorsed by the Court of Justice in the Case C-175/11, H. & D. v Refugee Applications Commissioner. In this case, the Court was called to assess the independence of the Refugee Appeals Tribunal. The applicants in the main proceedings submitted that the Tribunal was not independent, as organisational links exist between the Tribunal and the Minister of Justice. The Court held that:

“[the] guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and the grounds for abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it.” (para. 97)

The point is to verify whether the parties to judicial proceedings and members of the public have any objectively justified grounds to doubt the independence of the court (for another example of the application of this test, see Case 42856/06, Kinský v the Chech Republic, in particular paras. 95-97). The test is underpinned by the idea that no one is able to penetrate the mental sphere of a judge to get to know and evaluate the real motives of her decisions, and whether she was truly independent and impartial. The best we can do is to create an institutional and procedural setting in which the only interest of judges lies in deciding cases to the best of their abilities. Such a setting must be understandable to citizens and provide them with strong grounds to believe in judicial independence, the core building block of judicial legitimacy. With judicial independence we associate the highest achievable level of objectivity. If the courts of EU Member States are all protected by appropriate legal arrangements from undue interferences from the legislative and the executive, the parties to judicial proceedings and the EU citizenry in general have reasonable grounds to believe that judicial decisions are as objective as possible. Hence, they are likely to treat them as binding sources of legitimate authority. The lack of appearance of judicial independence result in the lack of mutual trust between the EU Member States.

The test that the Court should apply in Celmer boils down to the following questions. Does a reasonable observer or a party to proceedings before the Polish courts – being aware of the recently introduced measures regarding, among others, the Minister of Justice’s powers to initiate and coordinate disciplinary proceedings against judges – have objectively justified grounds to doubt that her or his case will be decided exclusively on the basis of the court’s best understanding of applicable law? Or does she or he have reasonable grounds to suspect that the court’s decision may be influenced by some factors external to law, for instance political preferences of the legislative or executive, even without the latter’s direct interferences, just due to the ‘freezing effect’?

3. A Hot Potato

AG Tanchev suggested that the Court should leave the final decision on the possibility of a fair trial in Poland to the referring court. On the contrary, I believe that the appearance of justice test should be carried out by the Court of Justice itself. Due to the differences between the judicial systems of EU Member States, an application of the appearance of justice test will necessarily result in clarifications regarding the EU standards of judicial independence. Each time the test is applied, new elements of the EU standards of judicial independence emerge. At the same time, certain legal arrangements are prohibited to all EU Member States and the scope of admissible interferences into the judicial branch by political branches is narrowed down. In other words, an application of the test implies the new interpretation of EU law. The latter is an exclusive task and responsibility of the Court of Justice. It would be different only if the application of the test required some case-specific and not only systemic considerations. But alas for the Court of Justice, the appearance of independence test should have only one prong – there should be no dividing line between the systemic and case-specific considerations. To require the person concerned to prove that the court of the issuing Member State hearing her case after the execution of the EAW will lack independence – where we already know of serious systemic deficiencies of this State’s judicial system in terms of its independence – is to charge this person with an impossible burden of proof.

At this point, it becomes clear that proceedings under Article 7 TEU and proceedings before the Court of Justice in the Celmer case indeed do have the same or at least very similar subject-matter, contrary to what AG Tanchev stated (para. 40 et seq.). But in no way does it mean that the Court could usurp powers conferred by Article 7 TEU upon the European Council and the Council. The questions referred by the Irish High Court are a normal consequence of the recognition in the EU legal order of fundamental rights, including the right to a fair trial. Even though the Court may be called to assess the independence of Polish courts, the Celmer judgment in will impose obligations of the Irish High Court, under the EAW Framework Decision and Article 47 of the Charter. Moreover, that the Court may be called to assess the independence of the Polish judicial system as a whole stems from the nature of the right to a fair trial and the controversial legal framework which affects all Polish judges to a comparable extent. Again, in no way is the Court’s task and competence in Celmer incompatible with Article 7 TEU.

The Celmer case is one in which the function of the Court of Justice as the constitutional and rule of law court of the EU is clearly visible. I hope that the Court of Justice will properly acknowledge this case’s distinctiveness.

These days mark the capture of the second-last central institution not yet fully under the control of the Polish Law and Justice (Polish acronym: PiS) party, namely, the Supreme Court (the last remaining one being the Ombudsman office). Having captured the Constitutional Tribunal, the National Council of Judiciary, electoral commissions, media regulation boards, prosecutorial offices and presidents of all local, regional and appellate courts, the illiberal revolution is eager to devour the highest court of the land.

This is all the more so since the Supreme Court is seen, largely with good reasons, as unwilling to subordinate itself to the will of the ruling party, and has issued a number of judgments unpopular with the party – for example, regarding the irregular “pardon” granted by President Andrzej  Duda to high PiS officials even though the court judgment on whether there was a criminal breach of the law while in office was still non-final. Also, a number of Supreme Court (SC) judges including the courageous and dynamic Chief Justice, Professor Małgorzata Gersdorf (a labour law professor from the University of Warsaw), have taken the lead in criticising unconstitutional laws enacted by PiS majority since 2015. More threateningly to PiS, the SC often has made gestures that, in circumstances in which the Constitutional Tribunal was emasculated, the common courts and in particular the SC itself may need to undertake the role of constitutional review, albeit in a “diffuse ” fashion. Since mid-2017, having effectively neutered the CT, PiS has taken up a fight with the courts, and in particular with the SC.

The new law, initially vetoed by President Andrzej Duda in July 2017 and redrafted by Duda himself, was enacted in December of that year. Its main – indeed only – aim was a thorough court-packing of the SC. The lowering of the new retirement age from 70 to 65 means that some 40 percent of judges of the SC (27 out of 73 judges) – and of course this includes the most experienced ones – have found themselves in the retirement zone, and compelled (if they wish to carry on judging) to make a demeaning declaration to the President, who maintains discretionary power on the matter: He may refuse to allow a judge to continue beyond 65 years of age. This also (in the intentions of the lawmakers, i.e. PiS) applies to Chief Justice Małgorzata Gersdorf, notwithstanding the fact that her term of office as Chief Justice is constitutionally defined as 6 years – Art. 183(3). As President Duda explained some time ago in a TV interview¹⁾Remarks by President Andrzej Duda in a TV interview (26 November 2017, at TVN24)., the retirement age (brought about by a statute) takes precedence over the constitutional term of office. (When asked by the journalist conducting the interview whether he should not worry that if the opposition party comes to power, they may want to use the precedent and shorten his own term of office, Duda responded that he has a long way to go before reaching 65 years, clearly failing to grasp the nature of the problem). This is one of the most striking instances of changing the constitution by statute. As a commentator noted, “If a parliamentary majority … may ‘recall’ the Chief Justice of SC, by enacting a statute at any time, and in this way influence the functioning of the most important court in our judicial system, no other judge or court in Poland can feel ‘safe’. It produces a serious risk of creating a so-called chilling effect among judges … which evidently threatens judicial independence….”²⁾Mateusz Leźnicki, “Konstytucja czy karykatura?” [A constitution or a caricature?] Rzeczpospolita 8 February 2018 at A20.

The other face of court-packing is the huge increase of the number of seats on the Court, from the current 73 to 120 (including creation of two brand new chambers). All new judges will be appointed by President by recommendation of the National Council of Judiciary (Polish acronym: KRS), which is now elected by the parliament, and hence staffed by PiS nominees. In combination with the discharge of prematurely retired judges, it means that some 60 percent of judges on the SC will be nominated, or at least approved, by the ruling party.

Under pressure from the European Commission, in May 2018 the Sejm introduced a cosmetic change to the regime of retirement: now, when deciding about whether to accede to a SC judge’s request for an extension of their term after reaching 65 years, the President will have to seek the opinion of the KRS. But considering that, as already mentioned, the composition of the KRS is totally subjected to political will of the majority party – and that in any event the advice is non-binding – this change does not make any difference and does not diminish the executive’s control over the retirement situation of SC judges.

As already said, out of the 73 judges of the SC, 27 judges reached the age limit of 65 by the time the new law entered into force. 16 of those judges expressed a will to continue in office, but there was a significant division within this group. Nine submitted the application to the President as required by the new law (accompanied by medical certificates), while the remaining seven adopted a different strategy: they merely filed “declarations” or made “announcements” that, in accordance with the Constitution which guarantees judicial irrevocability, they intend to complete their service until the age of 70. They did not present it in the form of requests to the President (nor the medical certificates required by the new statute), but as declarations lodged with the office of the Chief Justice of SC. One of those judges, Stanisław Zabłocki (President of the Criminal Law Chamber) expressly announced later that his declaration is not an application under the new law but merely articulates his “readiness to perform the function of a judge of the SC in accordance with the principle of the irrevocability of judges”.³⁾Cited in Łukasz Woźnicki, “Wyrok na sędziów odroczony”, Gazeta Wyborcza 26 June 2018 at 5. It remains to be seen what will be their fate. The remaining 10 judges conceded the (apparent) inevitable and took their retirement as of 4 July 2018. The Chief Justice was the eleventh of those who had not made any formal written declaration.

A web of legal inconsistencies

Which brings us to the situation of Chief Justice herself. Professor Małgorzata Gersdorf was appointed to a constitutionally guaranteed term of office of six years, starting 30 April 2014 – hence until 2020. She announced that she intends to complete her term until 2020, and that she is not going to request permission from the President because it is an unconstitutional condition, both on the basis of creating a restriction on an explicit and unconditional constitutional term of office of six years, and also by subjecting the fate of a judge to the discretionary will of the executive branch. The Chief Justice obtained massive support from her own colleagues: on 28 June 2018, almost in the eleventh hour before the statute-dictated purge, the General Assembly of Judges of the SC declared unanimously (with 63 judges participating in the meeting; the reasons for absence of the remaining 11 are unclear) that she would remain the Chief Justice until 30 April 2020. The Resolution is just one-sentence long and is worth citing:

“We, the justices of the Supreme Court … mindful of the oaths of office we made and allegiant to the Constitution of the Republic of Poland, which is the supreme law of the Republic of Poland, state that Justice of the Supreme Court, Professor Małgorzata Gersdorf … shall remain – according to Article 183 section 3 of the Constitution … directly applied under Article 8 section 2 of the Constitution … – the First President of the Supreme Court, heading of [sic] the institution in which we perform our service to the public, by 30 April 2020”.⁴⁾Resolution of the General Assembly of the Justice of the Supreme Court of Poland on the term of the First President of the Supreme Court, 28 June 2018, on file with the author.

The crisis came to its apex, with a good deal of theatrical effects, on 3 July 2018, i.e last Tuesday. PiS and the President declared that they believed that it was the last day in office for Professor Gersdorf while Gersdorf herself, supported by her colleagues on the Court, maintained that she was continuing to serve as Chief Justice until 2020, in accordance with an express constitutional provision. The speculations in Warsaw abounded: Who will blink first? Will Gersdorf maintain her position; will President appoint someone else; will the authorities use physical force to prevent Gersdorf from coming to her office the following day? Manifestations by democracy supporters were announced for that evening and the following morning.

A rather puzzling thing happened on 3 July 2018. Both Professor Gersdorf and President Duda nominated (ostensibly separately and independently of each other) Judge Józef Iwulski, the most senior judge on the SC (and the president of Labour Law Chamber) as a “Judge standing in for her during her absence” (in the language of Professor Gersdorf) or as “acting Chief Justice” (in the language of President Duda). The difference in nomenclature is significant. Under the old law on the SC, in the part not abrogated by the new law, Chief Justice may appoint another Judge to be her deputy during her absence (Art. 14(2) of the old statute on SC, the provision still in force). In turn, Duda could have cited the provision of the transitional arrangements of the new (PiS-enacted) law which mandates the President to appoint an acting Chief Justice (art. 111 (4) of the new statute on the SC) for a period before a permanent Chief Justice can be nominated (i.e., only after the Court counts at least 110 judges). The fact that he did not use this device, which after all has been invented for his own statute, means that clearly he could not find any judge on the Court willing to undertake this task. So he simply referred to the same provision as Gersdorf did, but with an additional (oral) proviso that Gersdorf’s mission is terminated, so Iwulski was not her “deputy” but rather an interim successor. But Article 14(2), on which hapless Duda in the end relied, provides no role for the President at all! Rather, it is a routine provision which may exist in all sort of organizations, about an official (here: CJ) appointing a deputy for a limited period of illness or other absence from office. By jumping on that bandwagon already set up by Gersdorf and saying that Judge Iwulski enjoys full confidence of the President, Duda hoped perhaps to acquire some legitimacy for his action, but it had no legal grounds or effect.

At the time, though, it seemed like a face-saving arrangement for both sides, with Professor Gersdorf claiming that she was about to take leave of absence anyway. For Duda, nominating Judge Iwulski was fraught with legal inconsistencies. Iwulski is older than Gersdorf (he is 66 years old), hence all the more he belongs to the group of judges in the retirement zone, and he did not make an application to the President in the procedure provided by the new law (just as many other “intransigent” judges). To the contrary, he made a declaration of his will to continue, making direct reference to the Constitution. In addition, Judge Iwulski was one of those who voted for the two resolutions of the SC of 28 June 2018, mentioned above. This means that President Duda accepted the continuation in office by a judge who, under Duda’s own law, had his term of office terminated because he had reached 65 years and did not ask the President for a right to continue in office! By using Article 14 of the old law (on temporary replacement for the current CJ), rather than Art. 111(2) of the new law (on interim successor) the President, perhaps unwillingly, accepted that Małgorzata Gersdorf was still Chief Justice.

And to make things even worse, Duda failed to hand Professor Gersdorf any written declaration regarding her stepping down, even though the law (Art. 39 of the statute on the SC) requires that such a declaration (countersigned by Prime Minister) be issued by President regarding any SC judge stepping down from his or her active duty: while it is declaratory rather than constitutive, it is nevertheless mandatory. On the eve of 3 July, a presidential advisor had suggested that the President would hand in such a decision to Professor Gersdorf. Later on, however, the official line from the presidential office was changed into a theory that Gersdorf’s retirement occurs ex lege so no additional presidential action was needed – something contradicted by express wording of Article 39.⁵⁾Article 39 of the law on S.C. states: „the date of transfer of a judge of S.C. into the retirement or moving a judge of the SC into the retirement is stated by the President of the Republic of Poland”, and the practice has been that this presidential decision requires a written form and counter-signature by Prime Minister.

One speculation for all these incoherent actions by the President was they were made in order to stop the procedure of infringement against Poland in CJEU: if Professor Gersdorf is still a CJ (though her functions are performed by her deputy), the argument goes, what is the point of an infringement action? But this argument is clearly inconsistent with the President’s frequently repeated official conviction that Gersdorf definitely terminated her office on 3 July 2018…

The oddness persisted after the 3 July awkward double appointment of Judge Iwulski the following day. On 4 July 2018, surrounded by her colleagues and applauded by thousands of demonstrators (some of whom stayed overnight around the SC building in the beautiful Krasiński Square near the Old Town), Judge Gersdorf returned to the Supreme Court, thus symbolically showing her disregard for the official statements about the expiry of her term of office. At a press conference Professor Gersdorf and Judge Iwulski kept repeating that Gersdorf is still the legitimate CJ and Iwulski merely stands in for her during her absences. But from his office not far from the SC building, President Duda and his lawyers maintained their theory that Gersdorf stood down ex lege from her office on the day before, and Iwulski is now the acting Chief Justice, until a regular appointment of the new CJ. The latter interpretation, it needs to be repeated, was fatally undermined at the very outset of Iwulski’s appointment, since he was not appointed under the new law (Duda’s statute) providing for the appointment of an acting CJ, but under the old law (in this respect, still in force) permitting the Chief Justice to nominate her replacement for a limited period of time (when, of course, she maintains her status as the CJ). Duda’s version is also impossible to maintain with a straight face due to the fact that Iwulski apparently has not agreed to that status; in fact, he made it clear that his status is due to Gersdorf’s decision, not the President’s.

So, for the time being, the President is caught in a web of legal inconsistencies, which was brought into sharp relief by the language of President’s officials who from 4 July on neither used the language of “acting chief Justice” nor “a deputy to stand in for CJ during her absence” to describe the status of Judge Iwulski but some vague phrases such as “leading the work of the Supreme Court” which have no legal meaning. However, since the legal basis for this was said by those same officials to be the old law’s Article 14(2), the inevitable implication was that Gersdorf is formally still Chief Justice since the provision speaks about standing in for Chief Justice during his/her absence. The absence of whom? “Chief Justice Gersdorf” is the only answer – but these implications either escaped or were ignored by the President and his lawyers.

A leave or a resignation?

Much, if not everything, now depends on Małgorzata Gersdorf. If she seriously treats her leave of absence as a short holiday and soon returns to her office, she may have a chance for a victory (temporary, at least) over the anti-constitutional plot masterminded by PiS and executed by the President. If, however, the “leave” is just a proxy for a de facto stepping down, leaving the space for PiS and the government to fill the vacant positions on the SC and elect a new Chief Justice – this will be very bad news for Polish democracy. As the infringement action by the European Commission against Poland concerning the rule of law violation related to the Supreme Court is now slowly (very slowly) underway, Polish rulers will have to hurry in order to create a fait accompli. Professor Gersdorf has a historical chance to make their job more difficult.

Whatever happens, one thing is already abundantly clear. To push through their illiberal and antidemocratic package, Polish rulers do not consider the Constitution to be an obstacle. In pursuing their aims, they are prepared to breach it, and to engage in legal inconsistencies of the sort visible to a first-year law student. And this applies first of all to Andrzej Duda, doctor of laws, lecturer in administrative law on leave from the renowned Faculty of Law of Jagiellonian University in Cracow, an official constitutionally described as the guardian of the Constitution.

"The will of the people is above the law. Law is to serve the people. If it does not it is no longer law."

Kornel Morawiecki, Honorary Marshall of the Sejm (and father of the Polish Prime Minister)

"Alles, was dem Volke nützt, ist Recht, alles, was ihm schadet, ist Unrecht."

H. Frank, Nationalsozialistisches Handbuch für Recht und Gesetzgebung, (1935), p. XIV (quoted from here)

The Polish Constitutional Court is gone. The ordinary courts have been captured. The National Council of the Judiciary brought to the heel and replaced with the loyalists. The state control of the public media and the indoctrination have reached the level of embarrassment. The Supreme Court, as we know it, is now joining the long list of the fallen institutions. The Ombudsman’s fate seems to be sealed as one of the fake judges of the “constitutional court” has recently called on and encouraged the majority to capture his office. We are well past mere rubber stamping. It is an incitement to unconstitutional action.

As most recent protests against the purge of the Supreme Court show, the citizens are learning on the fly the meaning of the rule of law, the importance of the independent judiciary and of the separation of powers. However, as they are discovering their collective liberal voice for the first time after 1989, the result of such impromptu civic awakening is anything but certain. The bigger question looms large, one that invites us to step back and look at the Polish constitutional debacle 2015 – 2018 from a distance. Two and a half years after the fateful elections of 2015 there are important lessons to be learnt from the way the democratic backsliding has progressed and the liberal democracy has been overpowered. In order to fully understand the Polish counter-revolution and to appreciate this most recent public awakening, though, we must start by revisiting 1989.

Undemocratic (De)consolidation

As perceptively argued by J. Rupnik, the new elites of the Central and Eastern Europe that emerged from the collapse of the Berlin Wall, thrived by consolidating the democracy without participation and by forming a policy consensus at the expense of politics. Civil society’s short-lived constitutional moment of 1989 was soon replaced by the mundane reality of institutional and economic catching-up. Paradoxically, the absence of any social engagement favoured the transition to a market economy. The latter enjoyed the strong and broad social legitimacy of the freedom-starved citizenry, with the democracy being reduced to electoral ritual on the election day with relentless pressure for more market liberalisation in-between the electoral cycles. Democratic rules of the game going beyond the ballot-box were never truly internalized. Rupnik was right when he said that people became used to markets much more readily than they came to embrace democracy.

As a result of this imbalance between liberalisation, markets and civic participation, the liberal institutions created after 1989 always operated against the long shadow cast by the illiberal platforms that never really disappeared. The politics of resentment that engulfed Poland since 2015 realised all this, and understood that nobody would die for a constitutional court (which indeed perished in silence) or courts in general. In 2016 Dawson and Hanley provided a compelling narrative on the vulnerability of the democratic transition post-1989. They warned: „The liberalism of the liberal consensus […] was an elite project driven by small groups at the apex of politics, business, academia and officialdom […] this narrow economic, technocratic variant of liberalism merged with existing illiberal narratives and interests which pro-European elites generally opted to accommodate rather than oppose”. Most importantly, as a result of the elitist project, liberal, progressive and rule-of-law-perfect institutions sailed in the sea of illiberal narratives and were only superficially embedded in the public consciousness. They then continued: „Despite appearances in East-Central Europe there is an absence of genuinely liberal platforms – by which we mean a range of mainstream ideologies of both the left and right, based on shared commitments to the norms of political equality, individual liberty, civic tolerance, and the rule of law. As a result, citizens were left unexposed to the philosophical rationales behind liberal-democratic institutions”.

As a result, democracy shorn of the civic engagement and liberal platforms was never consolidated. Such an unfinished democratic project on the way towards consolidation was always vulnerable to non-democratic practices. Once the incentive of joining Europe was gone, the gene of illiberalism and failures of transition resurfaced. The politics of resentment added to all this a crucial legal dimension: the constitutional capture. The process of capturing the state with the avowed objective of winning back the true state for the people was met with acceptance as democratic and liberal consensus proved to be extremely weak and fragile.

The Demand meets the Supply: Emotions Channeled

For a moment, it looked like in 1989 the Poles have turned the corner in their tumultuous, and all to too often tragic history. Common sense and the dream of living in a free European country had triumphed in 1989 and we seemed ready to come together and put our differences and nitpicking aside. This historical wisdom was nowhere better seen than in the concept espoused by the first democratic Prime Minister in Eastern Europe Tadeusz Mazowiecki when he spoke of „the red thick line” drawn between the past and present for the sake of future. We were living a dream of forgiveness, inclusion and building for the future.

However, virulent nationalism, ever-present anti-German sentiments, destructive martyrology mistrust and suspicion of the Other, and antisemitism were laid to rest only temporarily. If the catching-up to Europe was to be successful, Polish demons had to be put on hold. They resurfaced with the right circumstances – internal (electoral fatigue with the 8-year long reign of centre Civic Platform, relentless narrative of pitting “us vs them”, conspiracy theories along the lines of "institutions work for the elites, not for you”, a string of corruption scandals) and external (heightened uncertainties associated with the financial and migration crisis; playing off the German card). The internal met the external and created a perfect breeding ground for the resentment born out of fear, disgust, dissatisfaction, sometimes even boredom. What was needed to square the circle was the supply side. Emotions had to be channeled and expressed. This is where the populist politics of resentment provided much needed clarity and sense of direction. As argued by D. Rodrick, „Populist movements supply the narrative required for political mobilisation around common concerns. They present a story that is meant to resonate with their base, the demand side: here is what is happening, this is why, and these are people who are doing this to you”. If one adds to this that the culture of liberal constraints never met broad political consensus about democracy, the demand factors acted as enablers for the populist authoritarianism to take rein and implement the politics of resentment.

A Democracy on the Periphery

While post-1989 politics of, what Paul Blokker aptly called „legal constitutionalism” were dominated by the top-down approach to the institution-building and by ever-present legal formalism that paved the way for 2015, two and half years that had passed since 2015 elections prepared the groundwork for a new regime – a democracy on the periphery. A democracy on the periphery responds to, and crowns, the politics of resentment understood as a new constitutional doctrine. A peripheral democracy looks up to the politics of resentment for guidelines on a new constitutional design built in opposition to a post-1989 world. The ascent of a peripheral democracy marks the end of the post-1989 politics of transformation. The paradigms of peripheral democracy are built around a different vocabulary from the liberal one that reigned in the post-1989 world. The peripheral democracy is based on six foundational claims and themes: (1) transformation was not only politically, but also morally flawed; (2) that the  system as conceived in 1989 with the overarching rationale of rule of law served only the few, while leaving behind the many and, interconnected, (3) institutional design favored the powerful („Wall Street”) while disadvantaging the „Main Street”; (4) dominance of the political over the legal; 5) the liberal rule of law is portrayed as allegedly distorting and hiding the bad deeds of the old elites: as a result the rule of law must be rewritten and harnessed to uncover what the bad guys did and help building a new better and virtuous state. Finally and crucially, (6) new system of governance and novel constitutional design are needed, thus the concept of capture of the “bad” state and its corrupt institutions.

The element of periphery not only adds important insights into our understanding how a democratic regime is captured. The periphery also acts as the enabling and explicatory justification for the capture. As such, a democracy on the periphery is an important rupture in the hitherto dominant narrative of the three-step linearity of democratic transition (democratization) – liberalization – democratic consolidation (Europeanisation). Most crucially, a peripheral democracy critically questions the post-1989 assumption of irreversibility of democratic consolidation. The end result is a new state: a captured state with a captive citizenry. A peripheral democracy is characterized by the lack of engagement and participation by ordinary citizens. At its core, post-communist democracy was superficial and lacking a civic element. People choose not to participate as they never internalised what J. Linz famously called, “democracy as the only game in town”, and as such they never learnt the skills necessary to join, and shape the public discourse. For their part, elites were very content with this civic passivity and désintéressement as they relished the discretion of building a new democratic state from above. That in turn entailed most dramatic consequences in the form of low trust for the public institutions and weakly embedded public support for these institutions when they came under attack from the illiberal forces.

Crowning the Capture?

Last but not least, a democracy on periphery has its own understanding of the constitution. While the liberal democracy presupposes constitutional conflict (within the parameters of a legal system) over the values and vision of a state, a constitution of a peripheral state closes off space for dissent and different voices. A peripheral democracy captures liberal democracy both at the level of values (only „my values” matter) and legality (only “my law and institutions” matter). A peripheral democracy is defined by a constitution of fear. Fearful resentment is the leitmotif of the constitution-making process, shaped by suspicion, exclusion, with a drive for retribution and settling scores. As such, it reflects the main tenets of populist constitutionalism: distrust in institutions and rejection of the liberal status quo and culture of self-constraint. A constitution of fear is partisan as it only speaks to those whom it accepts as real people and who share the new ‘ideals’. A constitution of fear is inward-looking. It protects national uniqueness and is read in direct opposition to the outside and always hostile world that is portrayed as a source of uncertainty at best, and decadence and fear, at worst. A constitution of fear has a new role to play in the peripheral democracy. Instead of protecting the individual against the state, it elevates the community to the center stage and pushes the individual into the shadow of the state. While liberal constitutions put a premium on conflict management, inclusion, trust among different components of the polity and diversity as a social and normative fact, a constitution of fear thrives on dis-engagement and distrust. It is driven by a revolutionary tradition that builds on the avowed objective of a clean slate and starting from zero and a drive to settle fundamental questions once and for all. A constitution of fear reflects a unified vision of the people and a monolithic state. The people are defined by sameness, not difference. Those who do not fit are dangerous Other(s).

Democracy in Poland: the Only Game in Town?

With the capture almost complete, the Polish counter – revolution slowly draws to a finale. On 5 July 2018, we find ourselves at a critical juncture as we not only bid farewell to the Supreme Court, but first and foremost to three institutional paradigms of post-1989 liberal transition: i). the separation of powers; ii). trust in the transformative power of the law and in the institutions thought to be strong enough to withstand constitutional upheavals, and, iii). belief in the constrained political power. One is tempted to ask whether there is a light at the end of the tunnel, after all? The answer is very cautious: Yes, as citizens might finally be ready to leave their comfort zone of passivity (in a state of 40 million not too many cared when the Constitutional Court was demolished in plain sight) and show more interest in what the political is doing allegedly in their name. If this is indeed so, we are only discovering the power of public engagement and togetherness and the value of standing up for the common good.

However, in order to (re)build the Polish rule of law on more solid grounds of public participation and support this time, more permanent and sustained effort will be needed, one that would persist beyond fervent protests of 3-4 July 2018. Let us not forget that this government is ruthlessly smart and cunning. It will wait and weather the storm now, make few concessions here and there, only to get back to its business as usual once the protests wind down and the citizenry goes home. Business as usual this time, though, would ring the death knell for Polish liberal democracy by implementing the final stage of the capture – a constitution of fear that lacks even the minimal checks and balances and exposes the citizens to the unlimited power of the omnipotent state.

29 years after the (r)evolution of 1989, we are now coming to realise that the process of democratic learning is much more difficult than initially thought. Faced with the relentless onslaught on the institutions, Polish democracy faces a make-or-break moment. The time has now come to finally start embracing, and defending, the rules of liberal democracy from the grand up as we start to understand that even the strongest institutions must fall when they lack public support. We must never forget that for any democracy to survive, it needs democratic citizens and their sustained concern over the quality of public sphere. Not only must the practices of democracy be learnt, but first of all be experienced and internalised in citizens’ hearts to the point that they will truly become the only game in town, warts and all. Do we (citizens, judges, officials at various of levels of government, intellectuals) have what it takes to deliver a sustained democratic effort going beyond the here and now?

I know what you are thinking: oh no, it’s Poland again. After a lengthy period of sitting in a remote corner as far as global academic focus on constitutional law is concerned, all the while eclipsed by much more exciting locales such as Afghanistan or Saarland, we’re finally in the spotlight. In hindsight, I wish we weren’t, because we’re there for all the wrong reasons. From the hostile takeover of the Constitutional Tribunal, through the ongoing assault on the Supreme Court and undermining the ombudsman, the governing party Prawo i Sprawiedliwość (ironically, the name translates as “Law and Justice”) has launched an all-out attack on the rule of law, democracy and human rights in Poland. The slowly creeping depredations of Orbán and Erdogan pale compared to how rapidly did PiS move to undermine the Polish constitutional order, yet they insofar fell short of amending the basic law itself (since, for all their sabre-rattling and declarations of being supreme executors of sovereign’s unlimited will, PiS lacks the parliamentary majority necessary to amend the Constitution). All this happened since autumn 2015, over a mere two and a half years.

But today I am not going to talk about years, months or weeks. Not days, even. Hours and minutes are the matter at hand, for on June 27th Polish authorities broke the national record in speed of proceeding a bill in Parliament and getting it signed into the law by the President. And we are not talking about just an ordinary bill. The statute in question is the (in)famous Polish “Holocaust bill” or “Polish death camp law”. Verfassungsblog and others have written a great deal about what technically was an amendment to the existing Law on The Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation, so I’ll try to keep it brief. The above-mentioned law, aside from setting up the Institute itself, outlines a slew of criminal offences related to Poland’s complicated past. Just a few months ago the law was amended by means of introducing art. 55a which provided a new criminal offence of ascribing to the Polish Nation or to the Polish State, in public and against the facts, responsibility or co-responsibility for Nazi crimes committed by the Third Reich or for other offences which are crimes against peace [or] humanity or [that are] war crimes, or otherwise grossly reducing the responsibility of the actual perpetrators of said crimes. Furthermore, art. 55b provided that art. 55a would apply to foreigners as well, regardless of locally binding regulations at the place at which the act took place. There was no hiding from Polish justice by wearing those “Auschwitz was a Polish Death Camp, Not German!” t-shirts in the Caribbean or North Korea.

The intent of the law, as outlined by the Polish government, was to defend the good name of Poland and to halt the practice of ascribing ownership of Nazi concentration camps to Poland and Poles. Whether the actual text of art. 55a enshrined a legal norm which would achieve such goals wasn’t all that clear, as several scholars of Polish criminal law pointed out. Academic discourse aside, you can probably see the major problem arising from the afore-mentioned laws as written, for they paved the way to possible persecution of anybody who would state the obvious historical fact: that Poles, notwithstanding their frequent heroism in helping Jews (as evidenced by thousands of Righteous Among Nations titles awarded to Polish citizens) did, on many occasions, turn against their Jewish neighbours, frequently with tragic outcome.

Of course, such weaponization of memory laws did not go unnoticed. Matter of fact, it has thrust Poland into one of biggest diplomatic crises in its recent history. For the first time since 1989, Poland found itself in direct confrontation with Israel and unsurprisingly, with the United States. Both countries applied increasing diplomatic pressure on Poland, which yielded results. President Andrzej Duda submitted the abovementioned laws for review by the Polish Constitutional Tribunal. But, as we all know by now, the Constitutional Tribunal is mostly a hollow shell of its former self, led by a manifestly politicised President of the Court, ready to fulfil any commands issued by the power behind the throne, the PiS chairman Jarosław Kaczyński. So much for throughout judicial review. Additionally, on 20th Feb 2018, the Marshal (speaker) of the Senat (the upper chamber of Polish parliament), Stanisław Karczewski (PiS), stated that „the law (art. 55a and 55b – J.J.) will be effectively frozen from now on and will not be enforced”. Take that, Rechtsstaat, this is how you rule the law instead of allowing it to rule you!

Since then, art. 55a was indeed in a state of limbo. The Polish Prokuratura (Persecutor’s Offices) received dozens of reports on violation of art. 55a from erstwhile defenders of Polish national pride but took no action. No arrests were made, and no charges were brought against anyone. Yet the pressure, both academic and political, did not go away. The U.S. was still unhappy with that state of affairs and diplomatic circles began to whisper about Americans considering using their trump (sorry, couldn’t resist) card: the threat of downplaying the recently upgraded American military presence in Poland. It goes without saying that if you sit next to Russia, you likely want more U.S. soldiers on your soil, not fewer, if you know what is good for you. And then, taking everyone by total surprise, on 26th June 2018 the Polish government went into full „hold my beer” mode. What happened over the course of eight and a half HOURS on the subsequent day was of no precedent in history of democratic Polish parliamentarism and perhaps in history of any democratic parliamentarism.

Some quick background information: Polish legislative process is rather arcane, as you could expect. Once the proposed bill is lodged with the Marshal of the Sejm (the lower chamber of the parliament), it goes through three readings which encompass both work within parliamentary committees and in the plenary. Once the Sejm adopts the bill, it is sent over to the Senat (the upper chamber) for consideration. One of possible outcomes is that the Senat can accept the bill with no amendments, which leads to the bill being sent to the President for assent. The President may either sign it into law, send it over to the Constitutional Tribunal for review or refuse to sign the bill and thus exercise his over-turn-able power of veto. The entire procedure is outlined in the Constitution and detailed in rules of procedure for both chambers of then parliament, which describe the nitty gritty inner workings of the Sejm and the Senat. Several special legislative procedures exist, most importantly the procedure for adopting urgent bills, more on which later.

The following sequence of events was duely reconstructed by Ceiling: Sejm, a Facebook page ran by an anonymous academic vigilante pretending to be a cat whom I wrote about earlier on Verfassungsblog. I take no credit for the following timeline apart from translating it and providing some commentary. Hat’s off to you, Cat.

June 26th <time unknown>: The Council of Ministers (the Polish government) adopts the proposed bill, designating it is an urgent bill according to art. 123 of the Polish Constitution.

June 26th <21:05> The proposed bill is uploaded to the website of Government Centre for Legislation (the government’s legislative support unit).

June 27th <09:13> The Marshal of the Sejm opens the plenary.

June 27th <09:14> The Marshal informs the plenary about an amendment to the daily schedule by means of adding the discussed bill.

June 27th <09:28> Opposition deputies put forth a formal notion to delay the plenary until 12:00. The notion is rejected by a majority made up of PiS deputies.

June 27th <09:28> The first reading of the proposed bill commences.

June 27th <09:45> The opinion on the draft bill prepared by Polish Ministry of Foreign Affairs is uploaded to the Government Centre for Legislation’s website.

June 27th <10:47> The Sejm decides, on a notion brought forth by a PiS deputy, to immediately move the bill to the second reading. You can by now probably guess who voted in favour of this notion.

June 27th <11:29> The Sejm adopts the final text of the bill, rejecting all amendments proposed by opposition deputies. The bill is then forwarded to the Senat.

June 27th <12:21> The Senat’s Committee on Human Rights, The Rule of Law and Petitions commences work on the draft bill. It proposes no amendments.

June 27th <17:09> The Senat adopts the bill with no amendments, meaning that the procedure in the parliament is over and the bill is sent over to the President.

June 27th <17:58> The President signs the bill into law.

Total time elapsed from the first reading to signing the bill into law: 8 hours and 30 minutes.

So, once the shock resulting from this legislative Blitzkrieg is over, the question arises: was this this legally possible? First of all, the Constitution of the Republic of Poland provides, in art. 123, the procedure for consideration of urgent bills. Under that procedure, The Council of Ministers can classify any proposed bill as urgent unless it falls into one of several substantive categories, which was not the case with the discussed bill (it would be if Polish criminal law wouldn’t be scattered all over the legal system and instead codified solely within the Criminal Code, since codices cannot be considered as urgent bills. Alas, that was not the case.) The Constitution outlines two consequences of a bill being classified as urgent: the shortening of the time period for its consideration by the Senat (14 days, down from 30) and for its signature by the President (7 days, down from 21). The Constitution leaves further detailed modifications of the legislative procedure to be defined in the rules of procedure of the Sejm and the Senat. However, what the Constitution does also say in art. 119 is that the Sejm considers every bill over the course of three readings. While formally the bill did indeed pass through three readings, one can hardly see it as “considered” in any substantial sense of that word. The Polish Constitutional Tribunal has, on several occasions, noted that the principle of three readings must be understood in a way that it requires three separate considerations of the draft bill by Sejm in a substantive manner, not merely technical or formal (judgments K 31/12, K 37/03 and K 53/07). Of course, given the current state of the Tribunal, one can hardly count on it to eventually review the bill in accordance with its own case law.

But hey, you might ask, you’re kind of nit-picking here and taking cheap shots while the real deal is that a rather heinous chunk of law is gone. Shouldn’t we be celebrating instead? Well… First of all, the problematic criminal elements of the law are gone. This is good and is pretty much the minimum one could expect from a self-reflective lawmaker. Academic and journalistic integrity are no longer under threat, a healthy public debate on the Polish role in Holocaust is possible once again (not that it ever was a healthy debate to begin with) and one does not have to wonder whether posting this article on Verfassungblog constitutes “scientific activity” and thus is hopefully exempt from eventual criminal persecution under art. 55a. Phew!

But not all is well. While art. 55a and 55b are no more, art. 2a remains in force. Art. 2a extends the area of activity of The Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation (including its competences to carry out criminal investigations and bring forth charges) to activities of Ukrainian nationalists and members of military units collaborating with Nazi Germany. This amendment has opened a massive can of worms in already strained Polish-Ukrainian relations, better discussed elsewhere. Suffice to say, striking out this article could have been as simple as it was with the other two.

But the biggest issue is the evisceration of Rechtsstaat principles as enshrined in art. 2 of the Polish Constitution. Quality of law? How can you ensure quality of law over the course of eight and a half hours? Certainty of law, both as to the procedure of its adoption as to its content? Gutted. The case of law Polish Constitutional Tribunal, back from the days when it was an effective defender of constitutional order? Ignored. Over 20 years ago, The Constitutional Tribunal wrote: “in a lawful democratic state (…) the adoption of law should be conducted in a manner which allows the participants of legislative process to consider all proposals and to take into consideration all positions and arguments” (judgment K 18/95). The legislative process cannot be instrumentalised in the way it occurred on June 27th. Regardless of whether the subject matter of legislation is doing away with highway tolls so that Władysław and Grażyna can enjoy a smooth ride to Baltic seaside, or striking down laws which were obviously, blatantly and manifestly faulty to begin with, one cannot in good faith respect art. 2 of the Polish Constitution by acting with such reckless haste.

This is likely a topic for another paper, but suffice to say, this isn’t the last we’ll be hearing about crises and tensions arising from Poland’s increasing militant memory laws. In fact, once the dust settled down after the amendment, an entirely new political crisis in Israeli-Polish relations ignited over the political statements made by both countries’ governments. At least with the MELA (Memory Laws in European and Comparative Perspective) project in full swing we can expect some top-notch critical assessment of the topic in the coming years. Meanwhile, to sneak some World Cup into this, the Polish ruling party has succeeded to ridicule itself: first, by shooting the ball into their own goal and second, by desperately kicking the ball out from inside the goal long after the referee already awarded the score.

The Polish President Andrzej Duda has published a list of questions about the Polish constitution he intends to present to the people in November. What do you make of that?

President Duda has been talking about a constitutional referendum for a number of months already. There is nothing wrong for any politician and in particular the President to suggest that constitutional change is important. But he has not produced one single argument about any particular urgency of the need to have a new constitution or amend the old one. So we don’t know what is answer to the question ,why?’ would be. The second point is that it is particularly inappropriate to suggest the change of the constitution for a President who has been guilty of multiple and obvious breaches of the current constitution. If there is something wrong about the current constitutional situation in Poland it is that it is not taken seriously by those who are meant to enforce it. For him to stand before the public and call for a new constitution is a bit  rich. It’s not credible.

But legally, he is entitled to initiate such a referendum?

Legally, of course, every politician is entitled to make that proposal, however not in that particular procedure. The current constitution does not provide for this sort of constitutional consultative referendum that he has in mind. In Poland, there are consultative referenda on matters of particular importance, such as the accession to the European Union, for example. Or there are constitutional referenda to ratify constitutional amendments already adopted by the national assembly. When it comes to referenda in a constitutional context, the only way the current constitution provides for is an ex-post referendum. There is no such thing as an ex-ante consultative referendum based on generic questions as opposed to a document which you can have a meaningful discussion on. Procedurally speaking, he invents a totally new legal construct. Asking such vague questions on things all over the place as a first step in the procedure of constitution making – that doesn’t make any sense. That has never been done in constitutional history, and for very good reasons. Each constitutional reform process begins with a worked-out draft. Then, people can read it and make their minds up about it.

Would you say that this procedure would be a breach of the constitution by itself?

I’m not saying it would be against the constitution, but it is certainly extra-constitutional. It would be a breach of constitutional continuity, a new constitution not based on the process provided by the current constitution.

Couldn’t one say that the question of having a new constitution is a matter of particular importance which warrants a consultative referendum?

Then it is not a constitutional referendum. The only constitutional referendum the constitution provides for is ex-post, at the end of the process, when you have a bill that can be discussed and people can make their minds up about. The question is why the President doesn’t want to follow that clear path. The only explanation I can see has to do with Duda himself. He is a pathetic figure, in some ways comic, in some ways tragic. He occupies the highest position in the state basically having no political identity of himself. He knows that he is seen as a puppet of PiS Chairman Jarosław Kaczyński. A year ago, when he vetoed of two of the three „judicial reform“ laws some thought that he acquired finally an independent identity, but those who thought so were painfully disabused of this hope when he came up with his own bills which were just as unconstitutional as the bills he had vetoed in the first place. It was not a sign of protest of the guardian of the constitution but a petty act by a person who wanted to get for himself some of the competences of control over the courts which the initial laws had reserved to the Minister of Justice.

So, why does he want to have an ex-ante constitutional referendum?

I think it is basically a PR strategy. He hopes that from now on until November 2019 when he wants the referendum to take place, public opinion will focus on his office. With an ex-post referendum, all focus would be on the constitutional committee in the Sejm and Senate. With an ex-ante referendum run by his office, however, he may hope that the next year he will be in the limelight. It’s a bit of an ad personam argument, I realize that. But it is the only explanation I can find.

What do you make of the specific questions he intends to present to the Polish people?

There is only one question that is meaningful. The rest is either meaningless or redundant or detrimental. A meaningless question is, for example, the one about whether people want protection of „alimentary safety“. That is just ridiculous.

It sounds like a signal to the agricultural, rural voters.

Maybe, but it has absolutely no consequences. You might just as well ask: Do you want the state to make sure everyone is healthy, good-looking and young. These are so-called „motherhood questions“. Are we against motherhood? Who would be against alimentary safety? It doesn’t make any sense at all. The second group of questions are those that are redundant in the sense that they are about things that already are in the constitution. A reference to „Christian heritage“ in the preamble – it is already there! For Duda to make that point is, of course, a signal to the Church. But in terms of constitutional law, it makes no difference if you refer to Christian heritage once, twice, or five times. It doesn’t add anything.

At least it doesn’t hurt either, does it?

No, but there are other questions which are positively detrimental. He asks whether people want to have certain welfare benefits, such as the „500+“ payments for children and the lowering of the retirement age, constitutionally entrenched. Now we are talking about something very serious. If there will be a change of the government and of social policies, its hands will be tied. Many economists consider these policies very detrimental. They are popular now, because we are in an economic boom. But when the crisis returns to Poland, we will need to economize. To put it in the constitution would basically freeze certain economic policies which may or may not be rational and which normally would be very much within the legislative discretion.

Which one is the meaningful question?

That is about whether we should move, from the semi-presidential system we have today, into either a full-blown presidential system with enhanced powers for the directly elected president, or into a parliamentary system with the president elected by the national assembly. That is a serious choice. Some may say that semi-presidentialism as we have it in Poland – the president’s powers limited but he is elected in general elections – is inherently instable and you better choose if you want either presidentialism, French style, or full parliamentary democracy like in Germany. But I think Polish semi-presidentialism has worked very well; there is nothing unstable about it, under the condition that the Presidents takes his office seriously. Duda’s predecessors were strong personalities who managed to infuse the office with their serious sense of mission. In normal times, the most important of the limited presidential competences is the veto: They can be overriden only by qualified majorities in the Parliament. That means that the President can have a reasonably strong control over the legislative process. The problem with Duda is that he hardly ever exercised it. He has stronger powers than he actually uses. There were many laws that were clearly problematic where he acted in a strange way. The most obvious case would be the law about the Holocaust – punishing for attributing to Poland co-responsibility for Nazi crimes. Duda, rather than vetoing it, signed it and sent it to an ex-post scrutiny to the Constitutional Tribunal. Which is incoherent. You cannot do both. If the President signs an act, he implicitly says that he doesn’t have any constitutional doubts about it. If he then sends it to the Constitutional Tribunal, he says that he does have doubts. For Duda to ask the population this question about presidential powers carries an implicit message: I feel uncomfortable with my position of president, I have the legitimacy of an elected president but not have the powers that match his legitimacy. That is what his advisors say. But that is simply not credible. His powers aren’t so narrow. He just doesn’t use them.

This is not a simple yes-or-no question but a choice between three alternatives – presidential system, parliamentary system or status quo. How do you even determine a majority with such a tripartite question?

There are many badly crafted questions in this referendum. Another quite absurd question is: Are you in favour of constitutional regulation of our membership in the EU and NATO? What if your answer is Yes for EU and No for NATO, or vice versa? How do you answer that question? The reason EU and NATO were bundled together is that some weeks ago at the initial conference about constitutional change he and his advisor presented 15 questions, with EU and NATO in separate questions. Then, the general response was, well, 15 are too many. So they decided to simply reduce the number of questions., by bundling them together

So how, do you think, should Poles react to this referendum proposal?

The idea of the referendum is so totally disingenous, it is not based on any identification of problems with the current constitution, it is proposed by a President accused of many breaches of the constitution – the only way for people to respond is simply to ignore it. Do not go. Do not vote.

Is there a minimum quota?

For a constitutional ex-post referendum, there is no minimum participation , and the majority must be in favour. For a referendum on „matters of particular importance“, there is a requirement of minimum 50 percent turnout of those eligible in order for the result to be binding. But President Duda called this referendum consultative, so it cannot be legally binding anyway. In terms of political legitimacy, much will depend on the turnout. If it’s very high, which is unlikely, it will exert strong pressure on the parliament to come up with a new constitution that would follow the outcome.

Unlike Fidesz in Hungary, PiS does not have a constitutional majority. Do you think that this is an attempt to change the constitution anyway?

I am not sure. That would make sense if Duda had strong support of PiS. Unless it is all a particularly Macchiavellian play, which I don’t know, PiS seems not to know what to do with the President’s proposal. They reacted in a way that, to put it mildly, was unenthusiastic. What if there is a low turnout? That will be soon before the parliamentary elections and the presidential elections. I doubt they will put their weight behind it. And Kaczyński doesn’t need it. He may not have a constitutional majority, but these two and a half years of PiS in power have shown that the absence of a constitutional majority is not a problem for him, that he can govern against the constitution quite easily. Few people know or remember that PiS, in their time of opposition, had drafted a fully fledged constitution – very illiberal, very restrictive, but at least they came into the open. That is an honest way of discussing constitutional change. But that draft has been very quietly withdrawn, you don’t find it on the PiS website anymore, no-one talks about it any more. Because they think they don’t need it.

Questions by Maximilian Steinbeis

The much-awaited judgment in the case LM (also known as Celmer) is a landmark decision. The European Court of Justice acknowledged for the very first time that the essence of the right to a fair trial prohibits, under certain circumstances, the surrender of individuals from one EU Member State to another. Against the backdrop of the rule of law crisis in Poland and elsewhere, this acknowledgment is certain to be seen as a big step towards strengthening the rule of law in Europe. At the same time, the decision falls short of the expectations of those who wanted the Court of Justice to assess the independence of the Polish judiciary in substance. Such a substantive assessment by Luxembourg would have been a novel and arguably more effective approach to responding to the rule of law crisis, particularly within the framework of a preliminary reference procedure. With its preceding judgment in ASJP, the Great Chamber had even identified the legal instrument by which this new path could be pursued: Article 19 TEU. Or at least so it seemed. Alas things did not quite turn out that way this time. In LM the Court of Justice sidestepped a substantive review of judicial independence in Poland, leaving the task to the national courts. Could it be that in LM the judges in Luxembourg were afraid of their own courage previously demonstrated in ASJP?

Framing the Case in Terms of Fundamental Rights: The Right to Fair Trial

The novelty of LM lies in its focus on the essence of the right to fair trial under Article 47 § 2 CFR. The Court of Justice decided that national judicial authorities must refrain from giving effect to European Arrest Warrants if there is a real risk that the persons concerned would suffer a breach of their „fundamental right to an independent tribunal and, therefore, of the essence of [their] fundamental right to a fair trial.“ One important consequence is that a person is henceforth protected against transfers to other EU Member States in which a lack of judicial independence would endanger the essence of his or her right to fair trial. This sends a clear message to the Polish government.

From a doctrinal perspective, the Court of Justice adopts, in principle, the fundamental rights framing which had been initially suggested by the referring High Court of Ireland and later on supported by Advocate General Tanchev. Interestingly, the Court of Justice applies its previous case law on Article 4 CFR (Aranyosi et al. in particular) to fair trial cases. Taking into consideration that Article 4 CFR is protected in absolute terms, while Article 47 § 2 CFR is not, this step is far from self-evident. The categorical difference between the two fundamental rights did not motivate the Court of Justice to adopt the (narrow) condition used by the ECtHR in expulsion cases, i.e. the requirement of a “flagrant denial of justice”. However, the difference between Article 4 and Article 47 § 2 CFR may explain why the Court of Justice puts the essence of the right to fair trial at the centre of its reasoning. Not every risk of a violation of Article 47 § 2 CFR seems to justify a prohibition of surrender, but only a risk of a violation related to its essence. The requirement of judicial independence, which is further substantiated in the judgment and the “cardinal importance” of which is highlighted by the Court of Justice in the context of the values set out in Article 2 TEU, is convincingly argued to form part of this essence. However, by relying on the concept of the “essence of a fundamental right” in the context of inner-European transfers, the Court of Justice opens up a whole new range of questions – questions also relating to the field of EU asylum law, which cannot be dealt with here in detail.

Applying the Aranyosi-Test in Full

Unlike the referring Court’s proposal, the Court of Justice does not significantly modify its non-surrender approach initially developed with regard to Article 4 CFR. Rather the Aranyosi-test is applied in full to the case at hand. Hence, the Court of Justice requires national judicial authorities to follow a two-step-approach. In a first step, they have to assess whether there is „a real risk of breach of the essence of the fundamental right to a fair trial on account of systemic or generalised deficiencies concerning the judiciary of that Member State, such as to compromise the independence of that State’s courts.“

However, as in Aranyosi and in open contrast to the Irish High Court’s suggestion, the Court of Justice also upholds the second step. It does not deem the existence of deficiencies at the systemic-general level to be a sufficient condition for non-surrender. Rather, the national court must, in a second step, also assess whether the systemic or generalised deficiencies would impact in concreto the case at hand with regard to all particular circumstances, including the individual’s personal situation as well as the nature of the offence for which he or she is being prosecuted. This requirement limits the impact of the LM-jurisprudence on cases related to a (systemic) rule of law crisis considerably. And on the basis of the preliminary reference it seems far from clear whether LM will not be surrendered to Poland after all.

Neglecting Article 19 TEU?

It is here that the question arises why the Court of Justice did not take the opportunity to rely predominantly on Article 19 TEU instead of framing the case in terms of fundamental rights. Certainly, the referring court had asked specifically for the interpretation of fundamental (or rather ECHR) rights. Furthermore, ASJP, in which the Member States’ obligation to safeguard judicial independence was linked to Article 19 TEU, was not a case about the execution of a European Arrest Warrant. And finally, Article 19 TEU and ASJP do indeed play a role in LM with regard to the normative importance of safeguarding judicial independence at the national level.

However, ASJP could very well have served as a door opener for a broader judicial review in cases such as the one at hand. In ASJP the Court of Justice postulated a general “principle of the effective judicial protection of individuals’ rights under EU law,” applicable in all fields covered by EU law, irrespective of whether the Member States concerned are implementing EU law in the meaning of Article 51 CFR. This principle was based on the premise that the functioning of the national judiciary – its independence included – is conditio sine qua non for the functioning of a Union based on the rule of law as a whole. Understood in this sense, this principle would have provided the Court of Justice with a proper standard for reviewing whether or not a certain Member State complies with its obligation to ensure, within the scope of EU law, the necessary degree of judicial independence. In contrast to the fundamental rights framing in LM, this approach would not have required, according to this reading at least, the applicant to demonstrate a real risk that the essence of his or her right to fair trial would be violated in concreto.

Sidestepping a Substantive Review: Empowering or Abandoning National Courts?

Relying (predominantly) on Article 19 TEU would have also arguably made it more difficult for the Court of Justice to shy away from assessing the independence of the Polish judiciary itself. In ASJP, the Great Chamber, albeit briefly and with an ultimately moderate as well as well-founded result, actually assessed a Portuguese austerity measure and its (non-)effects on the independence of the national judiciary. A substantive assessment of judicial independence in Poland would have provided legal certainty at the EU level and sent a clear message to the Polish government that the undermining of the rule of law by one Member State is a legal question that cannot, in a Union based on the rule of law, be ignored by the EU’s highest judges. However, a look at the pending infringement procedures launched by the Commission tells us that the story is far from being over. By the way, N.S. (in contrast to Aranyosi) shows that an assessment of the systemic deficiencies in a Member State is also possible within the framework of a fundamental rights case.

It may very well be that the idea of a centralized assessment by the Court of Justice of the judicial independence in Poland is too simplistic. Is there not a positive element of judicial restraint in LM? And is there not also some virtue in a non-centralized approach, empowering national courts to play their part in a system of mutual, albeit exceptional checks? On the other hand, if I were the referring judge in the matter at hand, having borne the brunt of a ghastly and highly personalized campaign following the preliminary reference, would I be satisfied with the response of the Court of Justice? Would I consider the rather abstract criteria developed by the Court of Justice to be helpful tools for closing the case in a persuasive and conclusive manner?

Mutual Trust or Federal Distribution of Human Rights Responsibility

LM once more reveals that the famous principle of mutual trust is, in the field of fundamental rights, a terminologically irritating denomination for the important federal problem of distributing fundamental rights responsibilities horizontally, i.e. amongst the Member States. It is not so much about trust in the proper sense of the word, but, as the Court of Justice aptly put it itself, about a legal “require[ment] to presume” that other Member States, being bound by the Charter and being parties to the ECHR, generally respect (EU) fundamental rights.

The challenge is, of course, determining the point at which this horizontal presumption of fundamental rights compliance is to be rebutted. Transforming the courts of Member State A to watchdogs of the independence of their colleagues in Member State B is not an unproblematic endeavour. Holding the executing Member State A itself responsible for transferring a person to Member State B where he or she would be exposed to a real risk of the said dimension, always means preventively shifting the human rights responsibility from troublemaking Member State B to Member State A. This could even create negative incentives. In this respect, the Court of Justice is right to point out that the principle of mutual trust (and mutual recognition) may be limited only in “exceptional circumstances.” The question remains, however, if the rule of law crisis in Poland may not constitute such an exceptional circumstance, even if it would not affect every criminal case individually.

Mapping the Role of the Judiciary and the Article-7-Procedure

Finally, the more general question arises as to where the Court of Justice sees the role of the judiciary – itself included – in the rule of law crisis against the backdrop of the Article-7-procedure. On the one hand, the Court of Justice highlights the importance of the Commission’s reasoned proposal under Article 7 § 1 for the purpose of assessing the existence of systemic or general deficiencies (first step of the Aranyosi-test). This is a very important and practical relevant statement.

On the other hand, according to Luxembourg, there can be no automatic ban on surrenders as long as the European Council has not taken a decision under Article 7 § 2 determining that the respective Member State is seriously and persistently breaching the values set out in Article 2 TEU. That the Court of Justice seems to draw this conclusion predominantly based on recital 10 of the EAW Framework Decision, and not primary law, is certainly one of the weakest parts of the judgment, given that EU secondary law can hardly determine the relationship between Article 7 TEU and fundamental rights review. Article 269 TFEU which (only?) seems to shield the political nature of the Article-7-procedure from the Court of Justice is not mentioned at all.

Final Remark

Finally, when the Court of Justice highlights the important role of the European Council, the reasoning of the Court appears to suggest at first sight that there is no room to judicially address the rule of law crisis in its overarching and general dimension. But this is precisely what the Court seems to have implied in ASJP – an act of judicial courage that, in LM at least, it arguably did not do justice. It could do so, however, in the pending and forthcoming infringement procedures.

It would have been difficult to overstate the stakes of the LM case. Faced with the question whether ultimately a polish citizen charged with drug trafficking can be surrendered from Ireland to Poland on the basis of a European arrest warrant, the CJEU seemed to be confronted with a nearly impossible choice. Deciding that the Irish executing judicial authority must disregard the ongoing crisis surrounding the independence of the judiciary in Poland and surrender the person for the purposes of criminal prosecution would have ridiculed the fundamental values enshrined in Art. 2 TEU, or, even worse – as von Bogdandy and his co-authors rightly point out – it would have contributed to transforming the understanding of these values within the EU to include illiberal tendencies and solutions (see the contribution of von Bodgandy et al in this debate).

In contrast, allowing the Irish High Court to refuse to surrender the person concerned because of the systemic concerns relating to the independence of the Polish judiciary could have effectively questioned the participation of Poland in the European Union. If for systemic reasons Polish courts are not independent enough to guarantee a fair trial in a criminal case, are they better suited to handle any case based on EU law? And if not, how could the effective enforcement of EU law and the effective protection of the rights of EU citizens be provided for? These are questions the answer to which would probably forego the conclusions of an eventual Article 7 procedure against Poland.

The CJEU was thus navigating highly dangerous waters. How difficult the dilemma was is aptly demonstrated by the opinion of AG Tanchev in the case (or an analyses of the opinion see Petra Bárd, Wouter van Ballegooij). Lead by the obvious desire to do as little harm to the business as usual operation of EU law as possible while maintaining respect for the values in Art. 2 TEU, the opinion sought to utilise the case law of the European Court of Human Rights on the extraterritorial effect of Art. 6 (1) ECHR in extradition cases. The applicable standard as suggested by AG Tanchev was accordingly high: only the possibility of a flagrant denial of justice in the individual case should have been sufficient to refuse the execution of the EAW. Not only would have this solution ignored the fundamental difference between a solely intra EU situation and an extradition to a non-ECHR member state. It would also have eliminated the underlying idea of mutual recognition and mutual trust, namely a sufficiently coherent level of respect for the rule of law and human rights in all EU member states.

Against this background one has to commend the CJEU for its wisdom in finding a far more elegant compromise between the interests of the everyday operation of the EU and respect for its basic values. This wisdom is demonstrated by insisting on judicial independence as the essence of the right to a fair trial and linking it to the values in Art. 2 TEU, while, at the same time, requiring a specific assessment of the individual risks the person concerned would be exposed to in case of his surrender to Poland.

The repeated references to the requirement that courts be independent which forms part of the essence of the right to a fair trial (see paragraphs 63, 68, 73 of the judgment) suggest that the CJEU is not ready to compromise on the independence of the judiciary and regards it essential for the rule of law and the operation of EU law as such. This may have consequences for the infringement procedure pending against Poland before the CJEU in relation to the retirement scheme in the Law on Ordinary Courts, as well as the infringement procedure launched by a letter of formal notice by the Commission on 2 July to protect the independence of the Polish Supreme Court.

The judgment also provides specific aspects which need be considered while assessing the independence of the judiciary: Paragraphs 66-67 of the Judgment list the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, the requirement that dismissals of its members should be determined by express legislative provisions as well as the requirement that disciplinary regime governing those who have the task of adjudicating in a dispute must display the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions. This is to be welcomed even if the Court does dot get very specific and invites the Irish High Court to consider essentially non-judicial documents like the European Commission’s Reasoned Proposal for a Council Decision under Art. 7 TEU.

In spite of this clear stance on judicial independence, the judgment effectively ensures that systemic deficiencies in the judiciary of a member state do not question the participation of this very member state in the EU. This magic is performed by sticking with both parts of the Aranyosi et al test (see the contribution of Wendel in this debate) and requiring an individual assessment of the risks the person concerned would face in case of his surrender.

First, the list of circumstances to be considered in this individual assessment – the personal situation of the person concerned, the nature of the offence for which he is being prosecuted and the factual context that form the basis of the European arrest warrant – is unduly limited. Is it possible to argue that absent specific circumstances of the individual suggesting a certain bias by the court a fair trial is guaranteed even if there are legislative measures in place which challenge the independence of the judiciary as a whole? To take an extreme example, imagine military commissions comparable to the US were to decide on criminal charges. This would clearly be an institutional deficiency and not an individual risk. Would this fit the test suggested by the CJEU?

Second, the circumstances to be considered by the executing judicial authority are extremely difficult to prove in practice. What would be the evidence the person concerned needs to submit in order to convince the Irish judge in our case that he faces an individual risk on account of the specific circumstances of his case? Is it enough for a suspected drug dealer to argue that the Polish government is determined to fight drug trafficking? If so, would political statements of Government officials suffice to support this allegation? These evidentiary difficulties raise the probability of the actual surrender of the person concerned. The difficulties will not be alleviated by the procedure suggested by the judgment whereby the executing judicial authority shall seek further information from the issuing authority. Not only would this procedure put the issuing authority in a subordinated position in relation to the executing authority. If the courts in the country issuing the EAW are not independent, how would they confirm this information which is so uncomfortable for their government?

Third, most importantly, by requiring an individual assessment of the case the CJEU implies that a fair trial is possible even if the independence of the judiciary is systemically flawed, or, at least, the systemic flaws of the Polish judicial system are not so serious that they would automatically exclude the possibility of a fair trial. This assumption clearly applies also outside of the context of EAW. Even if this assumption is reasonable, it raises the question of why we have to insist on systemic institutional guarantees of judicial independence. Nevertheless, this underlying assumption is indispensable for keeping a member state with a flawed judiciary within the EU. Without this assumption, the only possible conclusion could be that the respective member state can no longer ensure respect for EU law domestically.

That being said, the LM judgment is certainly not the end, rather the beginning of a development. The Court is ready to take seriously judicial independence as an essential part of the rule of law. What is more, the CJEU is ready to offer its contribution to maintaining the values of Art. 2 TEU and does not regard this as the sole domain of political processes. In the coming infringement procedures, the CJEU will be forced to pronounce on the concerns relating to the independence of the judiciary in Poland and will certainly follow up on the standards outlined in this present case. The teaching of LM is not that systemic deficiencies of the judiciary do not matter. Rather, such deficiencies shall be addressed systemically, either in infringement procedures or within the framework of an Article 7 TEU procedure. Such systemic solutions may force the respective member state to adjust without making its participation in the EU abruptly impossible. Viewed from this angle, the LM judgment certainly does not constitute a tectonic shift, but it carries the possibility of changes of that magnitude.

A lot, indeed too much, hope has been laid in the impatiently anticipated CJEU’s ruling in the LM case. On the one hand, this is understandable. The state of constitutional democracy in several EU member states has been on a notable decline. Since the EU has failed, either deliberately or due to a genuine lack of competences or simply due to its proverbial inertia, to address the process of decay early on, the still insular cases of constitutional exceptionalism  possess a capacity of developing into a new normal. First Hungary, then Poland, since forever Bulgaria and Romania, and many other pseudo-constitutional democracies inside the EU which even failed to get on a politically very selective map.

The diagnosis is grim. So, the CJEU should have done something! If the political class is reluctant, the law in the hands of the CJEU must be put to play. The conventional narrative has it that this has always been the case. Therefore, the EU was first the Rechtsgemeinschaft, and all the rest has followed, or still will. This was the gist of the hope laid in the anticipated LM case. The CJEU has not lived up to those high expectations. This is not a landmark ruling and neither will its impact be of seismic constitutional proportions. The reason for that is, as we shall see, not the reluctance of the CJEU to address the problem seriously, but a plain fact that the expectations have been simply too high. While this is, most likely, as good as it can judicially get, the LM decision has still not brought us what we have been looking for. Nevertheless, we might be at least an inch closer toward that goal.

The systemic dimensions of the LM ruling

Many, if not most observers, have looked at the LM case from a systemic perspective. According to this approach, the referring Irish court enabled the CJEU to step in and to make its own, perhaps decisive contribution in the Polish backsliding saga. The Court has been cognizant of that opportunity and has indeed seized it in several paragraphs and dicta spread across its ruling. The Court reiterates its understanding of judicial independence, its inherent, primordial constitutive relationship with the rule of law and sets it in EU constitutional stone. In laying out the elements of judicial independence, the Court’s narrative is rich. It clearly plays an educator’s role, teaching from the bench and, indirectly at least, sends many signals to the Polish authorities where they have gone wrong with their ‘reformist’ attempts.

Also, still within the systemic dimension, the Court here – very differently from its previous Hungary-related jurisprudence where the attacks on constitutional democracy were assessed trough the market rationality – is not blind to the overall context of the case, in particular to the Commission’s reasoned proposal on the basis of Art. 7(1) TEU. While the mechanism envisaged by this article has been, by many, regarded as mainly, perhaps even exclusively, political, the Court has now made it, again at least indirectly, a standard of judicial review of the circumstances engendering (or not) mutual trust in the EU. This, on a first sight, innocent step, has a potential of constitutionalizing Art. 7 in liaison with Art. 2 TEU further, turning it from a politically unappealing nuclear bomb, into an irreducible epistemic core of the EU legal order that simply, lest the very identity of EU law is destroyed, cannot be encroached upon.

Importantly, the CJEU has not followed AG Tanchev’s very restrictive proposal, according to which an individual should be subject to a real risk of flagrant denial of justice for the execution of his arrest warrant to be postponed. The Court clearly opts for a higher standard of human rights protection, which requires demonstrating ‘only’ a real risk of breach of the fundamental right to a fair trial. In so doing, it also departs from the ECtHR standard according to which the individual, in a situation such as claimant’s in this case, would need to prove that his right to a fair trial would be nullified or indeed destroyed entirely. Had the CJEU pushed the bar so high, as suggested by the AG or as practiced by the ECtHR, the Polish and other authorities, which might become sympathetic to authoritarianism in the future, could get away basically with any systemic tempering with their judiciary.

So, in systemic terms the CJEU indirectly constitutionalizes the Art. 7 TEU procedure; opts for a higher standard of human rights protection; thereby confirming that the EU is substantively a denser value-based community than the Council of Europe. All this is convincing and normatively ‘useful’ for addressing the challenges posed by the constitutionally backsliding regimes, including from a policy perspective. The same, albeit less in terms of usefulness for devising policy mechanisms to address the Polish problematique, can be claimed for the Court’s persuasive insistence that the cases of non-implementation of EAW must be exceptional. After all, this is a court that has cared deeply about the uniformity and effectiveness of application of EU law. Neither primary nor secondary EU law, let alone the Court’s judicial philosophy, permit for a laxer standard, for loosening the principle of mutual trust and making the EAW basically conditional on national courts’ preferences that could, in case of alleged systemic deficiencies, put EAW to an automatic halt. Nevertheless, even against this uniformist background, the Court has been willing to draw a new exception to implementation of the EAW, adding the Art. 47 of the Charter on the list next to the pre-existing Art. 4 (inhuman or degrading treatment).

As good as it gets

It is for the above stipulated reasons, that this is as judicially good as a court can get it. Taking into account the separation of powers inside the EU system of governance, the relationship between law and politics, as well as the pluralist relationship between EU law and the Member States, it would be simply not just unrealistic, but even extra-constitutional, to demand more from the Court. A decision permitting systemic, general and automatic non-implementation of the EAW with regard to a specific state is left in the political hands. The judiciary can draw red lines on a case by case basis, following a double-pronged test. The latter, convincingly, binds the national court, which has been seized by the EAW, to exercise both a systemic and therefore abstract review of the nature of the requesting state’s judiciary; as well as a specific and therefore concrete review of the aggrieved individual’s own perspective within an alleged systemically deficient judiciary. Finally, it is for the national courts to draw the red line in an actual case, following the still relatively loose CJEU’s criteria.

And, it is here that it might get (even) better, or at least more interesting. Perhaps, depending on the courageous stance of the national judges, the EU will be turned in the federal judicial laboratory in which the rule of law could be built (also) bottom up through the system of a horizontal national judicial (non-)cooperation. Of course, this can come with its own risk as well. Suspending the EAW in Ireland on the grounds of systemic deficiencies in Poland, will be detrimental to the uniform and effective use of this mechanism, but it will also cause a political outcry in Poland. The crisis would accentuate, but perhaps for the better, as all the sides involved: legal and political, on the national and supranational plane, would come under a mounting pressure to justify their (in)actions. And it is in this process of transnational legal and political justification, which has a potential of smoking out the illegitimate interests, that I lay my hopes for holistically improving the state of constitutional democracy in the EU.

More legal arms, but what about the individual?

The LM decision could be hence understood as a legal arms-making factory of sorts. Systemically, both legally and politically, the room for autocratic manoeuvre has shrunk.  At least a bit. The high politics of log-rolling between Brussels and Warsaw has already been ‘formalized’ by the initiation of Art. 7 procedure. This mechanism has now been deepened and indirectly constitutionalized. The national courts have now been, on the initiative of the Irish court, formally drawn in the review of systemic compatibility of the Polish judicial system with the well-established EU standards. More cases, with potentially conflicting outcomes, can be expected in the future, which will, on the one hand, require the CJEU to say more, as well the EU legislature and the EU political crown: the European Council to act more determinedly when the EU irreducible epistemic core is under attack.

Hence, there is room for some optimism. Especially, if our expectations from the courts are not too high. The expectations that cannot be met, the unfulfilled expectations, are just another word for crisis. Scholars should not, by asking too much from the courts, create one, where it currently does not exist.  Nevertheless, EU law and its scholars alike, maybe, should start caring about those that these cases are really important for. It should not be just about systems, and the rule of law in abstracto. The LM case has been triggered by an individual risking his surrender to an increasingly legally arbitrary environment. Historically, it has, of course, been part and parcel of EU law to abstract away the individuals, despite nominally relying on them. This case, probably, will not be any different from others. But that should change.

Much was at stake in the LM / Deficiencies decision, one of the last but most anticipated decisions of this judicial year. Two of the thorniest issues of EU constitutional law crossed their paths: the EU’s reaction to the constitutional crisis in Poland, on the one hand, and the operation of the European Arrest Warrant under the principle of mutual trust, on the other. The Court of Justice was called to strike a complex balance between different interests, a balance that was bound to be controversial.

In my view, it managed to strike this balance in a fairly positive manner. The ruling of July 25 is clearly a step forward compared to the Opinion of Advocate General Tanchev, widely received with disappointment, including on this blog (see here and here). While it is true that the operative part of the ruling is not too dissimilar – the execution of a European Arrest Warrant (EAW) can be suspended in case of systemic deficiencies with the rule of law, threatening the essence of the right to a fair trial, only after an individual assessment of the concrete situation of the applicant – the underlying tone and reasoning of the Court are more convincing. While the ruling was not the defining ‘constitutional moment’[1] that some colleagues expected, this moment might be only postponed. The Court made it clear that ‘red lines’, to use the expression suggested by the first contribution to this symposium, already exist in European constitutional law, and that it is willing to operationalize them.

The ruling of the Court: explicit and implicit messages

The Court strikes this complex balance combining different techniques and languages. There are on the one hand the traditional mutual trust arguments: the Court repeats that mutual trust is a principle of fundamental importance for the Union’s legal order – making a textbook reference to Opinion 2/13 (this is also repeated in a second decision delivered on July 25, C-220/18 PPU ML) – and that it can only cease to operate in ‘exceptional circumstances’. Thus, the Court is not ready to do away with the need for an individual assessment of the specific and particular conditions of the applicant. At the same time, the Court gives significant leeway to the national court in ultimately deciding both on the existence of a systemic deficiency and on the individual assessment. On the basis of the Court of Justice’s decision, it seems the Irish High Court has sufficient margin to decide that sufficient guarantees of judicial independence are not present in the LM case, also considering that the case has now evidently become a political one (see also the comments delivered after the ruling by the Polish Minister of Justice). Hence, the re-affirmation of the mutual trust doctrine is balanced by the more implicit recognition of a wide margin of discretion for the national court.

In a second sense, the orthodox mutual trust arguments are balanced by a series of quite explicit signals that the Court considers the situation in Poland problematic. These paragraphs serve as a reminder on the existence of red lines in European constitutionalism. One of these messages, and also an important difference between the ruling and the Opinion of the Advocate General, is the emphasis on the concept of judicial independence. The Court holds that judicial independence ‘forms part of the essence of the fundamental rights to a fair trial’ (para 48), which seems to mean that any breach of the requirement should be considered a breach of the essence of the right. This is clearly a higher standard than that requested by the Advocate General, who argued that a lack of independence would only breach the essence of the right (and amount to ‘flagrant denial of justice’) ‘if it so serious that it destroys the fairness of the trial’ (para 93 of the Opinion).

A second signal is given in para 61, where the Court gives instruction to the referring court on the materials to be evaluated in determining the existence of systemic deficiencies. The Court affirms that the Commission’s reasoned proposal under Article 7(1) ‘is particularly relevant’ for that assessment. If we also consider the long summary of the Commission’s document in the first part of the ruling (paras 18-21), there are reasons to believe that the Court shares much of the concerns expressed by the Commission. And finally, the several references to the decision C-64/16 ASJP are an important message as well. In that ruling, the Court intentionally expanded the reach of EU law – specifically, of Article 19 TEU – to ‘the fields covered by EU law’, and it is now even more evident that it did so with the intention to assess the Polish judiciary reform in the future. If the Court had not stretched the interpretation of EU law in this manner, the most problematic profiles of the reforms, including those on the Supreme Court, would have arguable fallen outside the scope of EU law. The fact that the Court exercises caution in exercising this newly acquired (and self-conferred) power of review is, in my view, a positive sign of self-restraint (for a different view, see Mattias Wendel’s contribution to this debate). But there will soon be further opportunities to exercise these powers.

Future constitutional moments?

Generally, the framing of the LM case did not make it easy for the Court to take a bold position on Poland. The infringement actions on the Law on Ordinary Courts (see C-192/18, Commission v Poland, pending) and on the Law on the Supreme Court seem much more promising opportunities for giving real bite to the red lines, or in other words for determining the boundaries of the Union’s constitutional project.[2]

In the first place, the perspective through which the LM case reached the Court cannot be forgotten. The gist of the case was the protection of individual fundamental rights and the interpretation of the EAW Framework Decision; not the legislative changes operated by the Polish Parliament and the rule of law situation in Poland in general. Of course there are crucial connections between the two facets, but the applicant and the referring court asked the Court of Justice precisely how the rule of law situation in Poland reflected on the individual position of the applicant and on his right to a fair trial. The referring court even took for granted the existence of a breach of the rule of law in Poland. Thus, the substantive situation, i.e. the reforms undertook by the Polish government, were certainly crucial as a context and background of the decision, but not the core concern of the Court.

On the other hand, in the infringement procedures, the key concern of the Court will be whether the new legislation complies with the Article 19 TEU and in particular the requirement of judicial independence it is deemed to include (see again the ruling in ASJP). In other words, the attention will specifically be on the value of the rule of law as ‘specified’ by Article 19 TEU. Moreover, there will be no, or at least less, conflicting interests to safeguard, such as protecting the smooth functioning of the EAW or generally the effectiveness of EU law.

The second point relates to the consequences and effects of a possible ruling. Taking a strict stance in LM would have meant for the Court to assess the (potential) independence of all Polish courts, and possibly removing the Member State and its courts from the European legal sphere. I doubt that this would have ultimately been beneficial for the protection of EU values and the rule of law in the country: the Court would have lost its natural allies, the domestic courts; the reaction at the political level would have been extremely harsh, with further attacks to the Court legitimacy and authority; and finally Polish (EU) citizens might have been deprived of the protection offered by the Union legal system.

In the infringement actions, the rulings will be much more targeted and precise. The assessment will concern the pieces of legislation adopted and their alleged negative effects on judicial independence. If the Court finds a breach of EU law, Polish authorities will be forced to take measures in order to remedy the breach – in this sense, it will be important that the Court, learning from previous Hungarian mistakes, makes clear that ‘symbolic and creative’ forms of compliance[3] would not be acceptable – and if they fail to do so, the procedure of Article 260 TFEU would become available.

The importance of the political game

The two pending infringement actions are thus even more central to the current EU rule of law crisis and may give a better contribution to addressing the concrete problems on the ground. And so are the proceedings under Article 7 TEU. As frustrating as it might be for us lawyers to wait for the Council and Parliament’s deliberations, it should not be forgotten that the EU treaties themselves leave space for the ‘political game’ when it comes to the protection of EU values. Most importantly, they do so when they exclude the Court from substantive deliberations under Article 7 TEU (see Article 269 TFEU).

Hence, while it is true that the Court cannot simply leave all responsibilities to political authorities, it should not completely replace them and the procedures created by the Treaties. Furthermore, the political game is clearly on, as showed by the hearing before the Council a few weeks ago: it would be wrong to say that the Article 7 has already proven unworkable and that the Council has failed to take up its responsibilities. Both the decisions under Article 7 TEU and the future rulings in the pending infringement actions will therefore be crucial constitutional moments for the Union. The showdown some were already excepting in the LM decision is merely postponed.

[1] Armin von Bogdandy – Piotr Bogdanowicz – Iris Canor – Maciej Taborowski – Matthias Schmidt, ‘A Constitutional Moment for the European Rule of Law – Upcoming Landmark Decisions Concerning the Polish Judiciary’, Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2018-10.

[2] Monica Claes and I made a similar argument in a comment to C-64/16 ASJP: M Bonelli – M Claes, ‘Judicial Serendipity: how Portuguese judges came to the rescue of the Polish judiciary’, EuConst (forthcoming).

[3] Agnesz Batory, ‘Defying the Commission: Creative Compliance and Respect for the Rule of Law in the EU’, Public Administration (2016).

The LM Court of Justice Grand Chamber ruling of 25 July 2018 (Case C-216/18 PPU) has been long awaited by all those following the development of the so-called rule of law crisis in the EU. It was possibly also a welcome opportunity for the Court of Justice itself, which appears keen to make its mark on this fast-developing field of EU law, after what might have felt like a series of frustrating rulings that made little difference to the situation on the ground (e.g. the ruling on the forced early retirement of Hungarian judges). In many ways, this case illustrates EU constitutionalism at its best: despite not being obliged to do so, the Irish judge made a request under Article 267 TEU, bringing together concerns raised by the pending Article 7 TEU procedure and the more technical and narrow issue of fair trial under Article 47 EU Charter. While the ECJ follows the path opened in Aranyosi for assessing the ‘real risk of breach’ under Article 47 EU Charter, in interpreting that provision it manages to weave in the wider Article 7 TEU contextual concerns as well, thereby considerably strengthening the constitutional status of the right to a fair trial.

At first glance, in LM the Court of Justice appears to make decisive strides with regard to the rule of law, stepping up as a key participant in the discussion triggered by reforms to the judiciary in Poland and Hungary: the ECJ has not waited for Article 7 TEU proceedings to come to an end in order to devise its own tests and assessment mechanisms, inviting Member States’ courts to apply them. The LM case can certainly therefore be understood as a strong promotion of the role of Member States’ courts in assessing the so-called rule of law crisis and related attacks on judicial independence in fellow Member States. However, contrary to what some observers might have expected, the ECJ makes no comment on the quality of the rule of law in Poland. Instead, the significance of LM lies in how the ECJ sets up (building on Aranyosi) a parallel procedure for domestic judges to address Article 7 TEU-type concerns in relation to the rule of law. For a start, Article 7 TEU documentation is included for the purpose of the abstract stage of the Aranyosi test (para 61), and doing so is very likely to lead to a finding of a real risk of breach of the right to a fair trial. However, there is no automatic causality, and it is for domestic courts to undertake this assessment.

The guidance provided by the ECJ focuses on structural issues, specifically judicial independence, with detailed guidance about the nature of external and internal pressure on judges. This could still be clearer, however. Firstly, the ECJ does not specify whether the external pressure criterion applies to the Polish court involved in the given European Arrest Warrant (EAW), to the entire judiciary in Poland, or to all the courts likely to be involved in the EAW case (para 63). Secondly, the ECJ provides no guidance –procedural or substantive – on the expected quality of criminal proceedings, which is the core issue in EAW. Finally, the ECJ’s total silence in relation to the European Court of Human Rights and its case law has to be noted here, differing in this respect from NS and Aranyosi. This might be explained partly by the lack of immediately relevant ECHR case law (unlike in the previous rulings). However, the case law on Article 6 ECHR is plentiful and might have provided valuable further guidance in LM, especially noting Articles 52.3 and 53 of the EU Charter which invite the ECJ to refer to the ECHR and its case law when there is a correspondence between the ECHR and the Charter rights.

Unlike the broad perspectives adopted by the EU Commission and the Venice Commission, the ECJ construction of the rule of law in LM ultimately focusses on the right to a fair trial. While this may be considered as a very narrow understanding of the rule of law, from a theoretical and contextual perspective, this raises the constitutional status of the right to a fair trial in an unprecedented manner, turning it into both the hallmark of the rule of law and a useful diagnostic tool for assessing the real risk of a breach. The ECJ does so by establishing an explicit continuum between the right to fair trial (Article 47 EU Charter), the principle of judicial independence and the commitment to the rule of law under Article 2 TEU (para 48). Semantically and politically this is not a big, or indeed controversial, step to take and the ECJ can hardly be criticized for activism (especially maybe by the Polish authorities, if this is whom the ECJ has in mind). The significance of this continuum is however far-reaching.

Firstly, it gives the rather abstract value of the ‘rule of law’ under Article 2 a very clear and concrete meaning, that is easy to understand by judges. Secondly, it arguably invites further normative connections to be established between other Article 2 TEU values and – presumably – all the EU Charter rights, opening up interesting hermeneutic possibilities. This in due course might be a useful way of strengthening the normative status of some of the EU Charter provisions, especially those considered as general claims or objectives rather than distinct fundamental rights. As can be seen in LM, the connection established by the ECJ between Article 47 EU Charter and Article 2 TEU elevates the normative status of the right to a fair trial to that of the absolute prohibition of inhuman treatment (under Article 4 EU Charter). This enhanced normative treatment justifies making an exception to the core principle of mutual trust and mutual recognition underpinning the entire EU law system and the EAW in particular.

More precisely, in practice, only ‘a real risk of breach’ is enough to justify protective measures (as per NS and Aranyosi), and further checks as in LM (the second step in the test). In this respect, the take-home message of the ECJ in LM is that the right to a fair trial – while not framed in absolute terms by the EU Charter – is so important that it requires the same judicial attention and protection as the absolute rights guaranteed under Title 1 (dignity) of the EU Charter (Articles 2, 3, 4 and 5). In so doing, the ECJ makes a welcome and potent addition to this title, highlighting the procedural dimension of human dignity, and completing the construction of these core rights’ protection. It also gives courts and individuals a tool – the right to a fair trial – to protect absolute rights when they are at risk due to large scale breaches of the rule of law, as well as (presumably) of other Article 2 values.

As a result, in the normal functioning of the judiciary as seen in Melloni, mutual trust can allow a lower level of protection of fair trial, including legal defence rights, in fellow Member States. By contrast, in situations of a real risk of ‘systemic generalised deficiencies’, the right to a fair trial trumps mutual trust, and checks have to be made on the quality of the trial. In ruling in this way, the ECJ draws a clear line between what can be a healthy level of constitutional pluralism and what can no longer be considered pluralism, but a threat to EU absolute rights (Title 1 EU Charter) and to its foundational values (Article 2 TEU), justifying constitutional distrust.

The LM case ultimately reminds us that safeguarding the rule of law is not the exclusive responsibility of the institutions listed under Article 7 TEU: it is also the responsibility of judges and of individuals. This is a message perhaps intended for the EU Commission, which is not known for having been quick to act in this field, and perhaps also an encouragement to those judges in Poland (and Hungary) who are committed to a fair trial. The ECJ’s silence about the – actual and possible – roles of the European Court of Human Rights is particularly disturbing and might confirm the quiet competition between the two courts ongoing since the rejection of ECHR accession. Considering the especially strict limitation of individual access to the ECJ, it might be recalled that one court – albeit it the ECJ – might not always be enough for safeguarding the rule of law.

Immediately after it was published, the judgment in Case C‑216/18 PPU Minister for Justice and Equality v. LM generated many varied assessments in Poland.  Some commentators treated the judgment as a general vote of no confidence against the Polish judiciary whilst others (including the Minister of Justice) found it to be a defeat of the Irish court. The judgment is used as an argument in current political disputes. Leaving aside, however, the aforementioned determinants, it is to be concluded that because of its approach to certain significant issues, the judgment does not yield to an unequivocal interpretation, and its actual consequences are still hard to anticipate.

The wish of some participants of political life in Poland for the CJEU to provide a critical assessment of the condition of the rule of law in Poland did not unfortunately come true. Such an expectation did not take account of the specificity of the proceedings and the preliminary ruling. The judgment essentially maintained the standard division of roles between the CJEU providing an interpretation of EU law and giving guidance to the national court, and the national court giving the judgment in the dispute in the main proceedings having regard to this guidance. It is a different matter whether the result of this division of roles in the analysed judgment can prove satisfactory in practice.

The judgment under discussion may be looked at from two perspectives: from a narrower perspective it can be seen as a reply to the question from the Irish court in relation to the specific case pending before it in which an assessment of the current state of the rule of law in Poland is of significant relevance. From a wider perspective it can be seen as a statement provided by the Court on a more general issue of the limits of the obligation to execute the European arrest warrant or even the limits of mutual trust between the courts and the functioning of judicial cooperation.

Current discussions are dominated by the first of these two perspectives, whilst the other one is more relevant for the future of EU law. There is no doubt that the judgment will be of  significance for the development of EU case law and the arguments set forth therein may potentially apply in various situations and proceedings. Because of that, some of the findings of the CJEU were formulated in a more general manner. This applies in particular to two major issues, the first being the development and supplementation of the arguments in Case C‑64/16Associação Sindical dos Juízes Portugueses, concerning the notion and meaning of independence of  national courts in the light of EU law, and the other concerning the setting of the limits of mutual trust and exceptions to the rule of mutual recognition of judgments on account of denial of fundamental rights in the context of executing the EAW and supplementing the judgment in Cases C‑404/15 and C‑659/15 PPU Aranyosi and Căldăraru. It is worthwhile to comment, from both of the aforementioned perspectives, on some of the arguments of LM judgment.

A central notion in the judgment is the independence of judges. In the Court’s view, the requirement of judicial independence forms part of the essence of the fundamental right to a fair trial, a right which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded (para. 48).

A new argument in the case-law of the CJEU is that if the court executing the warrant finds that there are substantial grounds for believing that the person in respect of whom that European arrest warrant has been issued will, following his surrender to the issuing judicial authority, run a real risk of breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial, warranted under Article 47.2 of the Charter of Fundamental Rights,  (para 73).

An important difference in comparison with the opinion of the AG is the absence, in the judgment, of the strict requirement for a breach of a fundamental right to a fair trial to be “flagrant”.

As regards to the notion of independence itself, the CJEU relied on the Associação Sindical judgment, but considerably extended its statements on the factors that build up and warrant the court’s independence (para 63-67). This is one of the most important parts of the judgment with relevance going beyond the specific case initiated by the High Court.

The Court maintained, following earlier case law, a distinction of two aspects of independence: external, i.e. freedom from influences, and internal, i.e. impartiality or equal distance from the parties, objectivity and the absence of any interest in the outcome of the proceedings (paras. 63 and 65).

Following the judgment in the Aranyosi case and the opinion of the AG to this judgment, the CJEU spoke in favour of an examination in two steps, by the court executing the warrant, of the prerequisites for an exceptional refraining from the execution of the EAW because of the risk of breach of the court’s independence (para 68).

Concerns can be raised relating to each of these steps of the examination. Regarding the existence of an actual risk of denial of the fundamental right to a fair trial, what is the significance of the reasoned proposal of the European Commission opening the proceedings pursuant to Article 7 TEU? From a more general perspective, it is to be noted that such a proposal will not be issued in future in each case of suspicion of the risks discussed; after all, in the history of the Union to date, it has only happened once. In the specific situation in which the Irish High Court is to take the decision, there should be no obstacles to relying on the findings and conclusions of the EC of December 2017. No such obstacle should be formed by that the proposal of the Commission was adopted under a different procedure of a political rather than judicial nature and that the decision of the Council has not yet been issued under Article 7.1 TEU. However, may the national court fully rely on the proposal of the Commission or should it verify or supplement the same? The judgment concerned is not unequivocal in this regard (cf. para. 61, 69, 73, 79).

A conclusion seems justified that the national court may fully rely on the proposal of the EC due to its detailed nature and extensive documentation without the need to gather further evidence for systemic risks but only their updates. It could only be mentioned, as a side note, that during the period of more than half a year since the Commission adopted the proposal under discussion, till July 2018, the condition of systemic breach in Poland worsened significantly as a result of the passing of new statutes on the judiciary, with utter ignorance of reservations from EU institutions and several proceedings opened against Poland.

More doubts arise with regard to the second step of the assessment, i.e. whether in the circumstances of the case, there are serious and proven grounds to conclude that the prosecuted person will be exposed to this risk as a result of the person being surrendered to the Member State issuing the warrant. The doubts concern both procedural and substantive aspects of the Court’s proposal.  According to the Court, the assessment should be made in “a specific and precise manner”.  The executing court must request from the issuing court any supplementary information that it considers necessary for assessing whether there is such a risk (para. 76). The issuing court may provide the executing court with any objective material on any changes concerning the conditions for protecting the guarantee of judicial independence in the issuing Member State, which may rule out the existence of that risk for the individual concerned (para. 77). The issuing court may seek assistance, if need be, from the central authority or one of the central authorities of the issuing Member State (para. 78).

Despite detailed guidance from the Court (or perhaps: due to them), such a procedure does not seem to be able to lead to a satisfactory result in many or perhaps in most cases. Indeed, one can doubt whether information received from the issuing court and the central authority will be comprehensive and creditable. An additional problem in the concrete perspective on the LM case is that the warrants to surrender the person were addressed to the Irish court by three different Polish courts and the cooperation with them may lead the High Court to ambiguous conclusions.

Doubts may arise also from the substantive aspect of step two of examining the risk of breach of the court’s independence. The point herein is to determine whether there are substantial grounds for believing that the surrendered person will run a real risk of breach of his or her fundamental right to an independent court or tribunal and, therefore, of the essence of his or her fundamental right to a fair trial, having regard to his or her personal situation, as well as to the nature of the offence for which he or she is being prosecuted and the factual context that form the basis of the European arrest warrant. (para 75)

What is meant in step two, therefore, are circumstances pertaining directly to the person to be surrendered under a warrant and the act the person is accused of. The guidance of the CJEU concerning the criteria of assessments in this step bring associations with the other element, referred to above, of the notion of independence that is impartiality. Such an approach should be deemed to narrow. With respect to a specific person and the act the person perpetrated, the risk of breaching the independence of the judge may also result from a breach of the external aspect of judicial independence. In the Polish circumstances, these are, amongst others, statements made by the Minister of Justice who is, at the same time, the Prosecutor General and the superior to presidents of courts.

A more general observation comes to mind at this point that there are serious difficulties dividing a general and specific breach of judicial independence, as well as the qualification of particular aspects of independence. This may be illustrated by the issue of potential threat to judicial independence created by the position of presidents of courts in Poland. The president of a court has indirect possibilities to influence judges through forming the adjudicating panels, the possibility to move judges between various departments in courts, or to initiate disciplinary proceedings against judges. The Minister of Justice had, in 2017-2018, for 6 months, the powers to dismiss presidents and vice-presidents of courts and appoint new ones without the observance of any procedure or the need to specify the reasons for the changes. The Minister exercised these powers with regard to ca. 150 persons that is 1/3 of the number of courts. It is hard to conclude clearly whether the state of affairs, as described, poses a risk to judicial independence and if so whether this is an element of systemic risk or whether it may possibly occur in certain cases in the courts where undue exercise of powers by the president is found regardless of when the president was appointed.

In the view of these and other difficulties, a question may arise whether it would not be a better solution to restrict oneself to the test in one step, i.e. examination of the systemic risk of breach of independence of the courts following the formula set in the context of the asylum law in the judgment in Case C‑411/10 and C‑493/10 N.S.  v. Secretary of State for the Home Department. Such a solution would be questionable though. Its consequences could prove too far-reaching and hard to accept due to the zero-one nature of this concept. In Poland’s current situation, a general exclusion of all courts from judicial cooperation within the EU would mean unintended but inevitable vote of no confidence against the entirety of Polish judges. However, a prevailing majority of the total of more than 10,000 judges (whilst it is impossible to empirically determine what majority it is) maintain their independence in very difficult conditions, both legal and psychological, which they face in their functioning. This is a dilemma straight from a Greek tragedy!

Finally, an observation comes to mind relating to the extensive reach of the Court’s arguments going beyond the framework of the case presented by the Irish Court but being of relevance throughout the scope of judicial cooperation. The independence of national courts is obviously also required when they refer questions for a preliminary ruling. Such a position was accentuated by the CJEU in its judgment in the Associação Sindical case, and repeated in the judgment discussed here (para. 54). It means that in the case of each reference for a preliminary ruling from Poland (or from another Member State in which there are corresponding doubts as to the respect of the fundamental right to a fair trial) it will be necessary for the Court (rather than courts of Member States anymore) to begin with a full test of independence of a referring court in the manner specified in the LM case. Did the Court realise that the judgment under discussion might have such consequences?

Suppose you had a craving for a mango.  Most people would simply go to the local market to buy one.  Mangoes might not always be in season or your local market might run out of them before you got there or the quality might be questionable on any particular day, but those are the vagaries of retail shopping.   You might not always get a mango when you want one.

Suppose you knew, however, that you would always crave mangoes – every day of the year – and moreover that you would always want to share the delight of mangoes with your friends, because you believe that mangoes are absolutely essential to the quality of life.   If mangoes are that important and you need a regular supply of them, then you should arrange for stable, bulk delivery with a reliable supplier under a legal contract.    You shouldn’t depend on the fluctuations in the local market for something that important; you’d depend on the law by ordering mangoes wholesale.   You’d create a structural solution to the mango problem.

A craving for the rule of law can also be satisfied in two ways.   You can invoke it legally through a case-by-case checking of its presence in any particular instance (though of course, retail assessment means you’re at the mercy of the court near you) or you can better guarantee a steady and plentiful delivery by contracting wholesale, thus providing a legal constraint on the supplier’s ability to deviate.   This week’s decision of the European Court of Justice in the “Celmer” case (Case C-216/18 PPU, Minister for Justice and Equality v LM) tells us that the rule of law is now available retail in the European Union, but it is not now – and probably can never be – available wholesale.   Celmer is an advance over prior the state of affairs because you may now be able to find rule of law in your local courts, but this doesn’t provide structural assurances that the rule of law will always be available.  On providing wholesale guarantees for the rule of law, the Celmer judgment is alarming.

The reference from the Irish High Court involved several Polish nationals present in Ireland who were sought for prosecution in Poland through the automatic operation of the European Arrest Warrant (EAW).  The narrow question posed in Celmer (so-called because the referring court named the person at the heart of the case) was whether the national judge, upon receipt of an EAW for a person in her bailiwick, was obligated to turn the person over to the issuing authority if the issuing country had compromised the independence of the country’s judiciary.   The observant judge from the Irish High Court, Justice Aileen Donnelly, was shocked reading the European Commission’s Reasoned Proposal to the Council in December 2017, calling for Article 7(1) TEU to be invoked with regard to Poland because the judiciary in Poland had been systematically attacked and was no longer reliably independent:

123. The Reasoned Proposal of the European Commission is, by any measure, a shocking indictment of the status of the rule of law in a European country in the second decade of the 21st Century. It sets out in stark terms what appears to be the deliberate, calculated and provocative legislative dismantling by Poland of the independence of the judiciary, a key component of the rule of law. Even “the constitutionality of Polish laws can no longer be effectively guaranteed” because the independence and legitimacy of the Constitutional Tribunal are seriously undermined . . . .

Justice Donnelly asked the ECJ whether, under the circumstances, she still had to follow the governing doctrine for making an exception to automatic extradition guaranteed by the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedure between Member States.  According to Aranyosi and Calderaru (C-404/15 and C-659-15, Grand Chamber, 5 April 2016), a national judge should perform a two-step test before making an exception.  First, the executing judge should assess whether there is a relevant structural deficiency in the issuing state.  In both Hungary and Romania, from which those cases came, European Court of Human Rights judgments had found prison conditions to violate the rights of prisoners under the European Convention of Human Rights.  Structural deficiency – check!   But, under Aranyosi, the executing judge also had to take a second step to determine whether that structural deficiency would affect the rights of the particular individual sent back to the deficient state.  The national judge could only suspend operation of the EAW in a particular case if the concrete individual’s rights would be violated by sending him or her to the issuing country.  The ECJ insisted that there could be not a general suspension of the EAW with regard to a rights-deficient state.  Temporary suspension in the individual case was the only choice available to an executing judge faced with fundamental deficiencies in the issuing state.  The EAW was to take priority over (almost) every other consideration, and any exceptions were to be narrowly construed.

In Celmer, the ECJ confirmed that Aranyosi’s two-step test is still the reigning standard.   The executing judge, having identified a deficiency in rights protection in the issuing state, must still assess whether the particular individual would run the risk of having her rights violated if sent to that state.   But the ECJ nonetheless radically expanded the grounds on which the executing judge could refuse to honor an EAW.    Following its judgment in Associação Sindical dos Juízes Portugueses v Tribunal de Contas (C‑64/16, 27 February 2018) (the Portuguese judges case) which required that all Member States maintain independent judiciaries under Article 19(1) TEU, the ECJ said in Celmer that an executing judge should take into account whether the issuing state had an independent judiciary.   Even more explicitly than in the Portuguese judges case, the ECJ in Celmer linked Article 47 CFR’s individual right to a fair trial to the structural provision of Article 19(1) TEU requiring an independent judiciary as the guarantor of effective remedies, and then tied both to the principle of the rule of law under Article 2 TEU.   This is a big deal.

Until very recently, it seemed unimaginable that the ECJ would find that the principles of Article 2 TEU could be protected by legal means, despite a growing chorus of commentators who had urged the Court to do so.    The Portuguese judges case was stunning in its novelty and boldness, and it gave many of us hope that the ECJ would eventually require the Polish and Hungarian authorities to honor the values of Article 2 TEU.    Celmer gave the ECJ its first chance to demonstrate what would follow once the lack of judicial independence in a Member State had been comprehensively assessed by a European institution and found wanting.

Because the case arose as an individual EAW determination, however, the ECJ in Celmer was called upon to address the retail availability of the rule of law in specific cases.  The Court instructed executing judges to consider judicial independence as one factor among many in deciding whether individuals’ rights would be violated if they were sent to compromised issuing states.  The Court also found that the Reasoned Proposal of the Commission was “particularly relevant” (para. 61) for the purposes of this assessment.  Justice Donnelly will now no doubt refuse to send the targeted people before her back to Poland, given what she has concluded about the Commission’s Reasoned Proposal.   All over the EU, we can now expect judges to read the Commission’s assessment as a statement of fact and temporarily suspend EAWs from Poland.  This is a revolution in the rule of law – and it is all to the good.   But the judgments will occur retail.  And just like the local market that may or may not have mangoes on any given day, issuing judges across the EU may or may not find that the rule of law is available in Poland.   They are not required to refuse all EAWs from Poland.

Case-by-case or “retail” rule of law assessments cannot by themselves guarantee the rule of law more generally without being backed by a wholesale approach that ensures as a matter of law that the structural preconditions necessary for the rule of law to exist are in fact present.   Consider two problems that arise under the EAW Framework:  the problem of rights-violating detention conditions and the problem of a politically compromised judiciary.   For detention, the Aranyosi “retail” approach works well enough.  The executing court could require that the individual sent to the issuing country be held in a facility that did not violate his rights, if such a facility were available.  The executing judge could ask the issuing judge to search the country and certify that the particular place of detention for the person in question met the standards of the ECHR (and the EU’s Charter of Fundamental Rights as well).   Problem solved.

But when the whole judiciary is the problematic institution, then a case-by-case assessment doesn’t work.  If the courts are compromised so that one cannot reliably tell which judges are independent and which are operating under political tutelage, then arbitrariness can sneak in anywhere in the system, including at the point at which the judge must reliably promise that a sought person would have his rights respected upon delivery to the compromised state.   For example, a garden-variety criminal case might not look terribly sensitive before the person arrives in the country, but an arbitrary public prosecutor unconstrained by independent courts might decide to turn that case into a show trial precisely because some foreign judge questioned his country about it.    Or an issuing judge in a compromised judiciary may himself be operating directly under political pressure in a manner not consistent with the rule of law.    EAWs require a high level of mutual trust, and that trust has been underwritten by the guarantee that the rights of the individuals transferred will be respected because the whole process occurs under judicial supervision.  If the judiciary in Poland is not independent because there are judiciary-wide pressures brought to bear on every individual judge, then how could any issuing court in Poland certify to any executing court anywhere in the EU that all Polish judges hearing the case would be independent?    How does the issuing judge certify that she herself is independent?

As the American blues song lyrics go, “Ain’t Nobody Here but Us Chickens.”  The song references an episode involving a chicken thief who was confronted by the farmer checking on his clucking birds in the night.   When the farmer asked the chickens whether there was a thief among them, the thief – invisible in the darkness – answered “Ain’t nobody here but us chickens!”, demonstrating that you can’t trust a chicken under stress to provide an accurate assessment of her situation.   Worse yet, the very fact that a chicken speaks at all may be a sign of trouble.  If judges in Poland are not independent, would you trust the judge issuing the EAW to say so?   Ain’t nobody here but us chickens, says the Polish judge.

What would it take for the EU to suspend Poland’s ability to benefit from the automatic execution of European arrest warrants unless exceptions are made one by one?  A case-by-case retail determination cannot guarantee that rights will be honored; the rule of law must be protected wholesale.   And this is where the ECJ in Celmer failed spectacularly.

Rather than trust the sober and detailed assessment of the Commission, which found already last December that the judiciary in Poland had been impermissibly compromised, the ECJ in Celmer held that the test to determine whether a national judiciary had been compromised enough to suspend the general presumption that basic values are honored in all Member States was not a legal or factual test — but a political one.  Citing Recital 10 of the EAW Framework decision, the Court found that the only way that a Member State could be found to violate basic values so that a general suspension of the EAW mechanism could be ordered would be through the unanimous agreement of the Member States:

70  It is apparent from recital 10 of [the European Arrest Warrant] Framework Decision 2002/584 that implementation of the European arrest warrant mechanism may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 2 TEU, determined by the European Council pursuant to Article 7(2) TEU, with the consequences set out in Article 7(3) TEU.

71      It thus follows from the very wording of that recital that it is for the European Council to determine a breach in the issuing Member State of the principles set out in Article 2 TEU, including the principle of the rule of law, with a view to application of the European arrest warrant mechanism being suspended in respect of that Member State.

72      Therefore, it is only if the European Council were to adopt a decision determining, as provided for in Article 7(2) TEU, that there is a serious and persistent breach in the issuing Member State of the principles set out in Article 2 TEU, such as those inherent in the rule of law, and the Council were then to suspend Framework Decision 2002/584 in respect of that Member State that the executing judicial authority would be required to refuse automatically to execute any European arrest warrant issued by it, without having to carry out any specific assessment of whether the individual concerned runs a real risk that the essence of his fundamental right to a fair trial will be affected.

With those paragraphs, the ECJ announced that EU law will continue to operate as if all Member States are in adequate compliance with Article 2 TEU values until such time as the Masters of the Treaties – the Member States acting unanimously in the European Council (with the exception of the targeted state) under Article 7(2) – decide that a particular Member State does not meet the standards.   And then under Article 7(3), the Council must specify each specific way in which the breach of these values affects the general application of EU law with regard to the offending Member State.  No other procedure, according to Celmer, can result in a wholesale – and not just a case-by-case – suspension of the application of EU law to a Member State.   The determination of whether a Member State has failed to honor the values of Article 2 TEU is not for the Commission to decide as a factual matter, as Justice Donnelly had inferred.   It is also not for a “mere” four-fifths of the Council backed by a two-thirds vote of the European Parliament to decide, as is required under Article 7(1) TEU.   No – the Masters of the Treaties must themselves speak in unison through Article 7(2) TEU and then issue concrete sanctions under Article 7(3) before a presumption can be replaced by reliable evidence to the contrary.

Article 7 (2) and (3) TEU are political mechanisms, not legal ones.  Plus, they are political mechanisms that will never be successfully invoked.  Hungary has said it will veto sanctions against Poland and vice versa, so virtually everyone working on the rule of law crisis in Europe now agrees that it is pointless to try to invoke Article 7(2).  (I think there may be a way around this, as I outline here, but the ECJ would have to agree.)   It is hard to imagine at this moment of normative breakdown in the EU that one could possibly find such a consensus.   But it is precisely at this moment of normative breakdown when the enforcement of the basic values is most necessary.

The ECJ has now required a procedure that can never be used and that rests on political foundations to succeed before a systemic violation of basic values can be found.  Never mind that real people are being hurt in the world by the presumption that Member States uphold the basic values of Article 2 TEU when they evidently don’t.  The ECJ tells us that a violation of basic values can now only be punished through the unanimous political will of its Member States at the wholesale level or on a case-by-case basis to do it in retail mode.   Now that at least two of the EU Member States have already gone rogue, it means that the rule of law cannot be guaranteed in the EU as a structural matter.

The ECJ seems to have made an elementary mistake of history in reading the Framework decision’s recitals.   Recital 10 refers to what is now Article 7(2) and (3) TEU, but Article 7(1) did not exist at the time that the Council Framework Decision was enacted.   Neither did the Rule of Law Framework under which the Commission issued its Reasoned Opinion to the Council.   Surely the ECJ should, at a minimum, have considered whether the recitals at the time that the EAW Framework was written should be interpreted in light of the multiple mechanisms that had been developed since that time for spotting and calling out deviating Member States.  Recital 10 invoked Article 7(2) and (3) because they were the only mechanisms available at the time, but now there are other ways to assess the situation in a Member State.  The ECJ could also have avoided this terrain altogether by indicating that the existence of the rule of law in a Member State is a factual question for the Commission, with its investigatory powers, to decide – rather than a political matter for the Member States acting in unison to determine.  If the ECJ were determined to find that a systemic breach of the rule of law requires a political determination, at least it could have decided that a qualified majority – higher than for ordinary legislation but lower than unanimity – would have been sufficient so the serious risk of a breach under Article 7(1) could suspend the presumptions underlying the operation of mutual trust.  But no – the ECJ announced in Celmer that only the Masters of the Treaties of the European Union, acting in concert, could determine whether any particular Member State has committed a wholesale violation of the rule of law.

Celmer tells us that when it comes to the structural enforcement of fundamental principles, the law disappears at the moment when it is most needed.  At that moment, only politics remain.  This is a particularly worrisome development in light of the fact that there are pending infringement procedures for attacks on the judiciary brought by the Commission against Poland.   Could the ECJ be telling us that it does not have the power to decide whether there has been a wholesale violation of basic values?  That this can be only a political judgment?    That the Commission cannot take steps to require that Poland restore an independent judiciary because a fundamental breach of a Member State’s obligation to honor European values isn’t an assessment that the European Commission – or even the ECJ – can make?  Let’s hope that the ECJ does not believe that the rule of law runs out at its most crucial moment so that all we are left with is politics all the way down.  That will spell the end of the EU as a normative community.    The ECJ can still redeem itself with a robust finding in the pending infringement actions that the Poland must repair its damaged judiciary to come into compliance with Article 19(1), at least.

If the ECJ won’t defend the basic values of the EU as a matter of law under the Treaties but instead reduces the systemic protection of these values to a naked political judgment of the Member States, however, then national judiciaries may find themselves in a Solange-like situation.  In the original Solange case, the German Federal Constitutional Court announced that it would provide at national level protection of rights that were not guaranteed at EU level until such time as the EU could guarantee that rights were equivalently protected.   If the ECJ insists that the process through which the EU ensures that basic values are systemically enforced is now a matter of naked political judgment rather than a matter of law, then the rule of law – and the rights that this value protects – cannot be reliably guaranteed.   National judges should therefore engage in a Solange-like protest – that “so long as” the ECJ does not enforce the principle of the rule of law as a structural matter, the national judges will do it for them.  Right now, under the Aranyosi standard, what can a national judge do when the Polish judge now says, “Ain’t nobody here but us chickens!” – in a system that relies for the protection of rights on judicial assurances?  National judges could enforce the principle of the rule of law by rejecting all EAWs from states that do not guarantee the independence of their own judiciaries.   For that matter, national judges could also go further and refuse to honor any judgments from courts of these compromised states.  Perhaps national judges will shoulder the burden of ensuring that that fundamental values – once common to the Member States but not any longer – are not just legal fictions.

On 25 July 2018, the Court of Justice delivered its judgment in the Case C‑216/18 PPU Minister for Justice and Equality v LM.

The issue concerned whether LM, a crime suspect, should be surrendered from Ireland to Poland when the executing judicial authority has serious doubts as to whether the suspect would receive a fair trial in the issuing state, due to the lack of independence of the judiciary resulting from changes to the Polish judicial system.

The case questions the principle of mutual trust between Member States, on which the EU rules regarding procedures for surrender between Member States – the Framework Decision on the European Arrest Warrant – is based. In accordance with the principle of mutual trust, it is emphasised that one Member State may not take unilateral action that overrides mutual recognition in order to address shortcomings in the implementation of EU law by another Member State. Instead, an executing state should presume the adherence of the issuing state to the values enshrined in Article 2 of the Treaty on European Union (TEU), the Charter of Fundamental Rights, as well as the safeguards found in secondary pieces of EU legislation. Proper implementation should be ensured in accordance with the tools provided for in the Treaties: the infringement procedure, to be initiated by either the European Commission or a Member State, or the procedure foreseen in Article 7 TEU. The presumption that all Member States fully comply with shared foundational values and corresponding international obligations enables the swift hand-over of suspects and sentenced persons, with limited exceptions.

The main legal issue in LM was whether and to what extent the joined cases of Aranyosi and Căldăraru, which carved out exceptions for surrender on human rights grounds, should be followed. We have previously argued on this blog that the CJEU needs to go beyond its case law and frame the case primarily as a problem of rule of law. While acknowledging that judicial authorities have an independent responsibility to put a halt to surrender if it would result in the violation of the wanted person’s fair trial rights due to a general lack of judicial independence in the issuing state, we also insisted that political responsibility for balancing diverse EU constitutional principles needs to be borne by democratically elected institutions. Therefore, we proposed that executing judicial authorities should freeze judicial cooperation in the event that doubts arise as to respect for the rule of law in the issuing Member State. This measure should stay in place until the matter is resolved in accordance with the procedure provided for in Article 7 TEU or the DRF Pact called for by the European Parliament, designed to monitor and enforce democracy, the rule of law, and fundamental rights in the Member States. If a Member State falls short in adhering to the above values, or if a country-specific assessment shows that there is either a clear risk of a serious breach or a serious and persistent breach of the values referred to in Article 2 TEU, mutual trust should be suspended until the next periodic review shows that the situation has sufficiently improved.

The Court, however, constructed the case as a possible violation of the right to a fair trial, the essence of which includes the requirement that tribunals are independent and impartial. This latter aspect could be seen as a positive step forward in the sense that the Aranyosi case law now includes rule of law considerations with regard to judicial independence. However, the practical hurdles imposed by the Court on the defence in terms of proving such violations and on judicial authorities to accept them in individual cases might amount to two steps back in upholding the rule of law within the EU.

1.     Suspending mutual trust at the political level rendered practically impossible

The referring court, the High Court of Ireland, emphasised the political nature of Article 7 TEU and it concluded that the outcome of an Article 7 procedure is less relevant for a national court deciding on issues of surrender. Instead, they reasoned that documents produced during the process may serve as persuasive evidence to be taken into account when deciding whether the European Arrest Warrant should be executed. The Court of Justice, however, does not accept ‘a clear risk of a serious breach’ of EU values (Article 7(1)) as a benchmark. Rather, it holds that the application of the Framework Decision on the EAW may only be suspended in accordance with Recital 10 if the sanctioning prong of Article 7 TEU (current Article 7(2)–(3)) is invoked and the Council determines a breach of EU values (paragraphs 7, 70). This understanding is based on a reading which disregards the historical evolution of Article 7 TEU. The reason Recital 10 is silent about current Article 7(1) TEU is that it did not exist at the time the Framework Decision had been drafted. Since a preventive arm has been added in the meantime, one could argue that the drafters of the Framework Decision intended to refer to Article 7 as such, and the preventive arm should also be read into Recital 10. Such an interpretation would have been preferable in light of the inherent asymmetry between the individual and the state, especially in the area of criminal law.

The Court reserved the task of suspending mutual trust exclusively to the European Council (see paragraphs 71–72), and only if the sanctioning prong of Article 7 TEU were executed, which is unlikely to ever happen. The Lisbon Treaty prescribes different voting majorities to the different prongs. Reaching consensus on even a risk of a serious breach is difficult, as it requires a four-fifths majority in the Council. But the process under the second prong, i.e. Article 7(2), is even more unlikely to be carried out, since the procedure can be vetoed by any Member State save for the one concerned. Therefore, the Court in effect precluded the possibility of having the EAW regime suspended vis-à-vis a state that violates Article 2 TEU values. Only individual surrenders may be suspended on a case-by-case basis (paragraph 73).

2.     Halting surrenders on a case-by-case basis: Herculean hurdles

The Court interpreted the Framework Decision such that the national court is allocated the responsibility to decide whether or not to execute a European Arrest Warrant even where an Article 7 procedure is pending. The Court also ruled that the two-step test in Aranyosi needs to be followed by the executing judicial authority when making this decision.

First, on the basis of objective the executing court must assess reliable, specific, and properly updated material concerning the operation of the justice system in the issuing Member State and determine whether there is a real risk of a breach of the fair trial rights of the person concerned, also with regard to a potential lack of independence of the courts (paragraph 61; cf. Aranyosi paragraph 89). When discussing judicial independence, the Court heavily relied on the case Associação Sindical dos Juízes Portugueses, and emphasised that both judicial independence and impartiality are crucial for the right to fair trial to be respected (paragraphs 64–67).

Second, if the first element of the test is satisfied, the executing judiciary must specifically and precisely assess whether, in the case at hand, there are substantial grounds for believing that the requested suspect will run the real risk of being subject to a breach of the essence of the right to a fair trial (paragraph 68; cf. Aranyosi paragraphs 92 and 94).

The judgment avoids the flaws of the AG Opinion and does not consider the question of whether and under what circumstances derogable rights, such as the right to a fair trial, could lead to suspending mutual trust in individual cases. It takes for granted that the potential breach of any fundamental right can trigger the Aranyosi test (paragraphs 59–60). Nor does the Court apply the AG’s extremely high ‘flagrant denial of justice’ test (see our analysis on this blog). Whereas the AG Opinion would have rendered both a general suspension of mutual trust as well as a case-by-case suspension of surrenders virtually impossible, the Court’s judgment enables the latter. But it does give rise to Herculean hurdles in which the Court echoes its position in Opinion 2/13 that limitations to mutual trust are to be reserved for ‘exceptional cases’ (Opinion 2/13 paragraph 192).

We disagree with the Court’s assertion that the only alternative to an Article 7(2)–(3) TEU procedure resulting in the suspension of instruments based on mutual trust is the executing national authority proceeding along the Aranyosi doctrine (paragraph 60). Instead, it could have followed its prior case law in Associação Sindical dos Juízes Portugueses, where the CJEU emphasised the importance that the national judiciary, in the enforcement of EU law, acknowledges that a lack of judicial independence jeopardises all fundamental rights, not just the right to an independent tribunal as an element of the right to a fair trial singled out in this case (paragraph 59).

We also disagree with the imposition of the second step of the test where a real risk of a breach of the rule of law is established. The Court’s requirement mixes up the responsibilities of the Commission as guardian of the rule of law, of the European Council – which is now given the sole power to suspend mutual trust –, and of individuals, who do not possess an apparatus demonstrating risks to their fundamental rights. Once the first step of the test is satisfied, the onus should shift to the stronger party, i.e. the state accused of rule of law violations, in light of the bedrock of the principle of a fair trial embedded in all constitutions of the democratic world and international human rights documents: the lack of equality of arms.

The Court’s insistence that Aranyosi includes the requirement that the executing authority acquire supplementary information from the issuing judicial authority (paragraphs 76-77), and that the two courts should engage in a ‘dialogue’, presupposes that a captured court will admit its lack of independence. Such a self-criticism is highly unlikely, not only because the issuing court would destroy its own reputation, but also because it would thereby criticise the issuing state’s executive, i.e. the branch of government upon which it is dependent.

3.     Assessment of the judicial test in LM

The Court’s acknowledgment that a lack of judicial independence may ultimately lead to a refusal to execute an EAW is to be welcomed as a step forward in upholding the rule of law within the Union. The Irish High Court will probably find sufficient ground to suspend surrender along the logic it presented in the reference for a preliminary ruling. If other national fora follow, the judgment could have a deterrent effect on Member States undermining the rule of law, thereby reinforcing other currently existing and employed mechanisms designed to enforce EU values.

However, the Court also takes us two steps back in upholding the rule of law. First, the Court’s suggestion that EAW procedures in general may only be suspended once the Article 7 (2)–(3) procedures have been completed vis-à-vis the issuing Member State will effectively result in shifting too much of a burden on national courts. If these courts do not or are unable to take up that responsibility, it will result in both impunity for Member States violating the rule of law as well as the proliferation of violations of individual rights. Second, with its large hurdles the modified two-step Aranyosi test is likely to be applied by some executing judicial authorities, but not by others. This will lead to the fragmentation of EU law and discriminatory treatment among EU citizens and residents.

4.     Conclusion

Surrender cases are litmus tests for the EU’s approach towards the enforcement of the rule of law in the Member States. Without judicial independence and other elements of the rule of law concept, EU law will cease to be operational, whether in the context of the single market or outside of it. Controversies involving a criminal law element are ideal test cases, because consequences caused by the EU’s inaction are more apparent and immediate due to the nature of that branch of law, which by definition includes limitations of individual rights. Aranyosi and LM are the beginning of a long journey. In a more general sense, these cases demonstrate that ultimately – as in all incomplete constitutional systems – it is the courts which play a crucial role in carving out and applying rule of law and fundamental rights exceptions. But as the LM judgment proves, it is difficult to come up with tests that, on the one hand, respect the duty of loyal cooperation and the presumption of trust vested in the protection offered by the issuing Member States, and on the other hand, make the Court act as a constitutional court.

In providing guidance to national judicial authorities on the application of rule of law exceptions, the EU – as Jan Willem van Rossem put it – needs to be serious about the Court’s ‘claim that the Union constitutes an entity with distinct constitutional features […] It should be prepared to translate this into a policy of deference towards external norms. […] Under a modern, liberal reading of the concept, more autonomy vis-à-vis international law in effect might mean less autonomy’. Limitations could be imposed from the top or the bottom. From the top would mean that the sui generis constitutional character of EU law predestines it to the status of ‘domestic law’ that could potentially be reviewed by the ECtHR. From the bottom would entail the establishment of a permanent and regular monitoring mechanism based on objective standards, developed along scientific rigour, sound methodology, and equal treatment of Member States, which, if necessary, leads to a warning when autonomous legal concepts such as mutual trust need to be suspended or reinstated. With the latter approach, instead of decentralised and fragmented rule of law attacks by national courts, an overall suspension of surrenders – and other forms of cooperation between Member States – would apply until such a quarantine is lifted by the same mechanism, but without the heavy political and practical burdens of an Article 7 TEU procedure.

The views expressed in this contribution are solely those of the authors.

The illiberal turn in Europe has many facets. Of particular concern are Member States in which ruling majorities uproot the independence of the judiciary. For reasons well described in the Verfassungsblog, the current focus is on Poland. Since the Polish development is emblematic for a broader trend, more is at stake than the rule of law in that Member State alone (as if that were not enough). If the Polish emblematic development is not resisted, illiberal democracies might start co-defining the European constitutional order, in particular, its rule of law-value in Article 2 TEU. Accordingly, the conventional liberal self-understanding of  Europe could easily erode, with tremendous implications.

To resist, the European rule of law needs ‘red lines’ and more bite than provided by the Article 7 TEU mechanisms. Through its ruling in Minister for Justice and Equality (Deficiencies in the System of Justice), the CJEU seizes an opportunity and advances along this path:¹⁾Case C-216/18 PPU, Reference for a preliminary ruling from the High Court (Ireland) made on 27 March 2018 — Minister for Justice and Equality v LM, http://www.courts.ie/Judgments.nsf/0/FD843302847F2E228025825D00457F19. For the referral of the Irish High Court 2013 295 EXT;2014 8 EXT; 2017 291 EXT The Minister for Justice and Equality v. Celmer, [2018] IEHC 119, http://www.courts.ie/Judgments.nsf/0/578DD3A9A33247A38025824F0057E747.  it frames the case in terms of the rule-of-law value, and not, as the Advocate General does, merely through the lens of the fundamental right to a fair trial.²⁾Opinion Advocate General Tanchev, EU:C:2018:517. 28^th June 2018. The concrete issue of the decision is whether Ireland may refuse to surrender a Polish citizen to Poland, following a European Arrest Warrant (EAW) because of a systemic deficiency in the rule of law in Poland.

From the very premise of its reasoning (para. 35), the Court makes clear that the case is about the fundamental structure on which the Union is built: the respect for the European rule of law and the mutual trust that flows from it. The term ‘value’ is foundational for the decision. The decision posits that it is also for the courts to interpret, apply, and defend the constitutional values of Article 2 TEU.

Thus far, a deep problem of the European rule of law has been its indeterminacy. Nevertheless, the Court succeeds in convincingly drawing red lines. At the outset, building on established doctrine, it determines judicial independence as part of the rule of law-value with external and internal aspects (paras. 48, 63, 65). If that still remains rather open, there are, importantly, also very concrete holdings which serve to draw clear red lines.

A core concern in the Polish development is a new disciplinary chamber for judicial behavior before the Polish supreme court, which has the potential to subdue independent-minded judges.³⁾Act on the Supreme Court of 8 December 2017, Journal of Laws (2018), item no. 5. The CJEU states that this is likely to infringe the required judicial independence (para. 67). Many more red lines can be drawn from the findings of the European Commission in its Reasoned Proposal under Art. 7(1) TEU regarding the Rule of Law in Poland which the Court endorses. Of course, the CJEU does not treat the proposal as a source of law. But it attributes great evidentiary value to the Commission’s findings, as they are “particularly relevant for the purposes of that assessment” (para. 61). From these findings, specific standards can be developed that substantiate the European rule of law. Through the thickening of one of its founding values, European constitutionalism makes a great step forward.

Moreover, the Court not only draws red lines, but also provides them with bite beyond the existing and so far, rather toothless Article 7 TEU. It adds bite to Article 7 TEU by attributing to Commission’s proposal the aforementioned effects. Here, one might criticize the Court for attributing such effects to a document prepared for a different purpose without the Member State in question having a right to challenge it before a neutral judge. Indeed in previous cases, such as N.S. and Aranyosi, the Court was guiding national courts to rely, among others, on judgments of international courts, in particular the ECtHR.

Despite that, one can consider that the Commission’s proposal relies on many sources: theCourt’s rulings, but also decisions and opinions of other institutions, in particular the European Court of Human Rights and the European Commission for Democracy through Law (Venice Commission). Such a broad spectrum of inspirations contributes to its legitimacy and supports the Court’s endorsement (see also para. 20).

The entire reasoning of the Court makes clear that the defence of European values is not entrusted to political institutions alone within the procedure of Article 7 TEU. It is also for the courts to defend them, and not only the European courts. Domestic courts play a crucial role. Indeed, the CJEU does not explicitly decide that the Polish measures breach the European rule of law: it leaves this sensitive determination to the referring national court. As any such decision requires much legitimacy and is likely to be hotly contested, it seems wise to share this burden among several courts. But also for domestic courts, it remains a difficult decision and it is important that the CJEU gives sufficient guidance. In that respect, one might criticize the initial “if” in para. 68 for leaving that difficult task too much on the shoulders of the national judge. After all, “systemic or generalised deficiencies” is a standard of European Union law.

By involving national courts, the CJEU also empowers individuals for defending European values. By linking these values to the essence of the fundamental right to a fair trial, the Court makes a doctrinal move similar to the one the German Federal Constitutional Court undertook in its Maastricht decision. It remains to be seen, if the CJEU thereby aims at a similar position as the German court in framing the founding principles of the polity. What is clear however, is that from here on, “the vigilance of the individual” is core not only for the “supervision” of European law (C-26/62, van Gend, p. 13), but also of European values.

The national courts can not only review whether there is a breach but they can also sanction it by interrupting judicial cooperation with the country. This instrument can no longer be limited to the extreme case of torture, inhuman treatment or the infringement of other absolute rights. A lack of judicial independence which affects the essence of the right to a fair trial might now impose a duty to deny surrender, and probably other forms of judicial cooperation. Asylum seekers might not be transferred on the basis of Dublin mechanism; civil judgments originating from this particular state will possibly not be enforced by the national courts of all the other Member States. The possible impact of the Deficiencies ruling is colossal and could by far exceed that of the N.S. or the Aranyosi case.

Applying the Aranyosi precedent, the CJEU directs the national court to carry out a specific assessment if there “are substantial grounds for believing that he [the surrendered person] will run a real risk of breach of his fundamental right” (para. 75). This helps to distinguish this procedure from the one under Article 7 TEU. One might nevertheless criticize that the Court introduced this requirement in addition to that of a systemic or generalized deficiency. Since the Polish measures undermine the independence of the entire judiciary, there is little point in conducting an individual and specific assessment of the concrete risks “at the level of the State’s courts with jurisdiction over the concrete proceedings” (para. 74) and the personal risks that the person concerned will run (para. 75): any case might at some point come before a compromised judge.

The Court should have adhered to the test developed in N.S., so that the systemic or generalized deficiencies and hence the abstract risk for the individual concerned should suffice to refuse a surrender. There are also practical concerns: it is difficult to imagine how the “dialogue” on judicial independence between the executing authority on the one side and the issuing juridical authority and its government on the other side can meaningfully take place. At the same time, it is clear that once a systemic deficiency has been established, the burden of proof shifts to the country issuing the arrest warrant, (para. 78). In dubio pro libertate.

Summing up, the CJEU makes a huge step in substantiating and defending the European rule of law through drawing red lines against illiberal tendencies that undermine judicial independence. One might have wished that the Court addresses more directly the situation in Poland. However, the upcoming infringement proceedings against Poland for introducing amendments to the retirement of ordinary judges⁴⁾Case C-192/18, Commission v. Poland, pending. might be a better procedural setting for such an endeavor than the preliminary ruling procedure in this case, which, ultimately, is only about the interpretation of Union law. The infringement action also opens the possibility for serious financial sanctions, Article 260 (2) TFEU. European liberal constitutionalism has more teeth than many thought and some hoped.

The judgment in the LM case was expected as the first (and so far the only) opportunity for the CJEU to assess the consequences of the systemic changes restricting judicial independence in Poland. It hinges on the horizontal aspect of the changes – verifying the state of the rule of law by courts of the other Member States. In the case, in which the European Arrest Warrant (EAW) was issued by a Polish judicial authority against a person prosecuted for a drug related crime, the defendant argued before an Irish court that due to the reforms of the Polish judiciary there is a risk of denial of justice if he is transferred to Poland. By deciding it the CJEU drew red lines but arguably established no adequate consequences of crossing them. The Luxemburg court focused on the protection of individuals, leaving the issue of systemic consequences to the Council acting on the basis of Article 7 TEU.

The Irish question was based on the CJEU’s case law related to the protection of fundamental rights in the context of mutual recognition of judgments in criminal matters (Aranyosi). According to this case, if the court taking the decision on extradition on the basis of an EAW possesses evidence of systemic or generalised deficiencies in the protection of fundamental right in the issuing Member State, it should postpone the execution and assess whether the individual concerned will be exposed to a real risk of an inhuman or degrading treatment because of the conditions during detention. The LM judgment followed this path and based its answer on a similar pattern: if the court executing a EAW from another Member State possesses the information that there is a real risk of a breach of the fundamental right to fair trial due to systemic or generalised deficiencies concerning the independence of the issuing Member State’s judiciary, it shall assess whether the person incurs such a risk if he is surrendered to that State (individual assessment) (para 79).

It can be argued that the individual assessment required by the Aranyosi judgment is not the proper test in the LM case due to three reasons. Firstly, regular control reverses the logic of the mutual trust developed by the CJEU. Secondly, there is a substantial difference between fundamental rights and the independence of judiciary. Infringements of the latter require other legal mechanisms of protection. Thirdly, the Polish institutional changes affecting judicial independence may influence all 26 EU acts providing for mutual recognition of judgments. A broader perspective should be taken.

Regular mutual control contrary to the spirit of mutual trust

According to the CJEU the principle of mutual trust has a fundamental importance and “requires (…) each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law” (opinion 2/13, para 191). But in para 69 of the LM judgment the Court seems to introduce an obligation of a regular control to be pursued by the executing court when the issuing member state has been subject of a (well) reasoned proposal adopted by the Commission pursuant to Article 7(1) TEU based on actions impairing the independence of national courts. Maybe the CJEU treated this obligation as a tool of pressure on the member state restricting the independence of judiciary contrary to the recommendations of the Commission – applied until the decision on the basis of Article 7 TEU is taken. But a regular control of judicial decisions from other member state reverses the logic of mutual trust and can impair it in the long term. It would be better from the perspective of mutual trust if a decision of a member state to restrict the independence of the courts (assessed as systemic deficiencies) implies a suspension of participation in all legal acts based on mutual trust in the administration of justice.

Substantial differences between fundamental rights and the independence of judiciary

There is a substantial difference between fundamental rights and the independence of judiciary. Both values are certainly interconnected: the independence of judiciary is in particular a part of the right to fair trial. But it is not limited to this aspect. Fundamental rights are entitlements of individuals and it is therefore possible to verify whether they are ensured in individual situations. The independence of judiciary is important in an individual case, but it also remains a key element of the state’s system, indispensable to ensure the right balance between public and private interests. In the EU, it is also guarantees securing the effective legal protection in the fields covered by Union law. It is important especially if the executive power in a member state openly declares the protection of its own nationals and ignores the European citizenship context. For example, the in case of a child abduction to another state the principle established in the Hague convention and regulation Brussels II bis is that the authority shall order the return of the child forthwith except in exceptional cases. But Polish government treats children which have a Polish parent as Polish children (ignoring the parent of other nationality) and does not hide the wish that they stay in Poland. A law on the central authority in family matters was recently adopted to enable the Ministry of Justice to supervise judicial proceedings in child abduction cases. It provides i.a. for the right of the Ministry to inquire courts about pending cases and for the obligation of the courts to answer them immediately. The purpose of such a supervision is clear from the title of a Ministry’s leaflet – “Stop to transferring Polish children abroad” and from the information on the Ministry of Justice website: “Under current law Ministry of Justice has not had possibilities of efficient supervision on such cases. (…) It is time to finish with it. State must protect Polish children”.

Individual assessment often not feasible in European judicial area

The Irish question relates only to the EAW, but a broader perspective shall be taken as the restriction of independence of judiciary has a potential impact on all the acts providing for mutual recognition of judgments – in criminal (10 framework decisions and 2 directives) and civil matters (14 regulations). The level of integration in the field of judicial cooperation is so high that the judgments of one country are treated as judicial decisions of another member state. For example, in civil cases the majority of judgments is automatically recognised and enforceable in the other member states. In all the EU acts on mutual recognition the review of jurisdiction of another MS or of the content of the judgment to be recognized is prohibited. In some legal instruments, there are even no legal mechanisms allowing to refuse recognition/execution (for example in case of maintenance or Article 42 of 2201/2003 regulation related to child return decisions).

Conclusions

In the LM case the CJEU could have stated that the European area of justice is based on a high level of mutual trust in the administration of justice, but at the same time on the responsibility of MSs to ensure independence of the courts. Such an obligation was recently confirmed by the CJEU in the case Associação Sindical dos Juízes Portugueses, para 37. In this case the judicial independence was derived mainly from Articles 2, 4 (3) and 19 TEU, while Article 47 of the Charter was treated only as a subsidiary source. The LM judgment takes Article 2 TEU as a starting point (para 35), repeating the statements of the Associação judgment (paras 51-54) and confirming the importance of judicial independence in the context of the EAW (paras 55-58). But these general statements do not influence the result of the LM case. In the answer given to the Irish court judicial independence is reduced to the right of an individual to an independent court as a part of a right to a fair trial (paras 59-60 and subs.). It is a step back in comparison to the Associação judgment.

A breach of the obligation to ensure independence of the courts should logically result in suspending the participation of a given MS in this EU policy not (only) because the individual right can be impaired but because of the protection of other member states and the EU. It is probable that in the majority of cases Polish judges will resist the political influence. But the courts in other member states will never know whether it actually is the case. They would have to make embarrassing investigations about the substantial issues of the cases and of the division of powers in Poland. It can contravene the spirit of mutual trust between the courts and often will be impossible in practice.

The long-awaited Celmer judgment has pinned down quite a few scholars to their computers, despite the hot summer days. I am grateful to my co-bloggers at this symposium for their insights, on which I can heavily build. In my post, I will not repeat what has already been said. I will first focus more closely on the conceptualization of judicial independence by CJEU and then I will address some broader repercussions of the Celmer judgment.

In a nutshell, I argue that despite several conceptual problems in CJEU’s understanding of judicial independence, it showed a healthy dose of judicial statesmanship in Celmer. As neither the preliminary reference procedure nor the fundamental right to the fair trial are good “vehicles” for addressing the Polish structural judicial reforms, there is a limit what the CJEU could do. The foundations of judicial independence are political and thus the real constitutional moment will be the combo of the next Polish parliamentary and presidential elections.

CJEU’s conception(s) of judicial independence

In contrast to the suggestion by the referring Irish High Court, the Celmer judgment confirmed the applicability of the Aranyosi two-prong test in full. As a result, the national court, which has been seized by the EAW, must not only (1) evaluate in abstracto whether there are systemic and generalized threats to the independence of the requesting state’s judiciary, but also (2) conduct a concrete review by determining whether that structural deficiency would negatively affect the rights of the particular individual after being sent back to the deficient requesting state.

The perils of the application of the second prong have already been discussed by my fellow co-bloggers (especially here and here). I will focus on the first prong of this test, which raises, perhaps counterintuitively, several conceptual concerns (see also here).

To sum up, the Celmer judgment, in conceptualizing judicial independence, heavily builds on the ASJP judgment. Celmer emphasises the crucial role of judicial independence (Celmer, §§ 48 & 53-54) and discusses its external and internal aspects (Celmer, §§ 63-67). The external aspects “presupposes that the court concerned exercises its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever” (Celmer, § 63), while the internal aspect “is linked to impartiality and seeks to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings” (Celmer, § 65). These two aspects require guarantees against removal from office and adequate judicial salaries (Celmer, § 64) as well as clear rules on the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members (Celmer, § 66). Interestingly, the CJEU adds, without any reference to the prior case law, that judicial independence also requires safeguards against the (mis)use of disciplining judges as a system of political control of the content of judicial decisions (Celmer, § 67).

This part of the Celmer judgment reveals several vexing issues. First of all, it shows that the CJEU struggles in merging its earlier conceptualization of judicial independence (developed in the wholly different context under Article 267 TFEU as an implicit definitional criterion of “the court or tribunal” that can submit a preliminary reference, where the CJEU relaxed the independence standard to such an extent that AG Colomer lamented that even “a question referred for a preliminary ruling by Sancho Panza as governor of the island of Barataria would be accepted”) with its more recent independence conceptualization developed in cases based on the substantive provisions of the EU directives (C‑506/04 Wilson, C‑175/11 D. and A., C‑222/13 TDC etc.) and the TFEU/Charter (ASJF). Unless the CJEU does manage to merge these two conceptualizations into one workable standard, it can be easily criticized for cherry-picking.

Second, the Grand Chamber ignores the ECtHR’s case law on judicial independence, which is by far more developed. This is a pity, because it could have learned from it (as well as from its mistakes). Third, the CJEU mixes up judicial independence and judicial impartiality (to be fair, this a common problem of the Strasbourg case law as well). Fourth and relatedly, the CJEU does not distinguish between the threats to judicial independence coming from outside the judiciary (e.g. from the minister of justice) and the threats to judicial independence coming from within the judiciary (e.g. from court presidents who may or may not be the “transmission belts” of the executive). The former is in the Strasbourg case law as well as in recent judicial independence literature referred to as external independence, while the latter as internal independence. The misleading use of the terms external and internal independence by the CJEU will likely cause a lot of troubles in future, as it is not clear how to operationalize the threats coming from court presidents (this point has been raised also by Stanisław Biernat) or disciplinary chambers (composed primarily by judges) – both being central issues in the upcoming infringement proceedings against Poland.

All of this brings chaos into the CJEU’s concept(s) of judicial independence. In my opinion, the CJEU should unify its definition of judicial independence. Ideally, the CJEU would need more non-Polish judicial independence cases (like ASJP) to develop its judicial independence case law further before it applies them to the Polish scenario. If it does not get them, it should look elsewhere, either to the Strasbourg case law or to other sources. Developing the judicial independence principle from scratch and on the extremely sensitive cases is a dangerous path.

Be careful what you wish for

Some commentators take for granted that the whole Polish judiciary suffers from such structural deficiencies that independence of all Polish judges is compromised, and criticize the CJEU for holding so. However, drawing the red lines is not as easy as it seems at first glance, and the lack of solid and sufficiently nuanced CJEU’s case law is not the only problem.

First, despite abundant literature on the topic, there is no generally accepted definition of judicial independence, even within EU. To name just a few examples, the right to a legal judge, so deeply embedded in the German legal culture, is alien to many Member States. Travelling among branches, cavalierly exercised by French conseillers d’État, would be considered unconstitutional in most CEE countries. The same applies to the secondment of German judges to the state ministries of justice. Judicial councils, so revered by the Council of Europe and the European Commission, not only do not exist in many Member States, but in some Member States (such as Germany) are even considered to be incompatible with the democratic principle (and, thus, according to some scholars, would violate the Eternity clause). In other countries, such as Spain, the judicial council is dominated by political appointees.

Second, too stringent judicial independence standards might hit hard also other CEE countries. A similar ministry of justice model of court administration that PiS wants to reinstall in Poland operates in Czechia. Attempts to get rid of Chief Justices and lower court presidents are also widespread in the region. Political leaders in the CEE region ousted (or attempted to oust) not only András Baka, Andrzej Rzepliński, and Małgorzata Gersdorf, but also Chief Justices in Croatia, Czechia, and Slovakia.¹⁾David Kosař and Katarína Šipulová, ‘The Strasbourg Court Meets Abusive Constitutionalism: Baka v. Hungary and the Rule of Law’, 10 Hague Journal on the Rule of Law 83 (2018). When it comes to lower court presidents, each Slovak minister of justice (since 1998) who stayed in the office for two or more years replaced more than 25% of all court presidents.²⁾Samuel Spáč and David Kosař, ‘Court Presidents in Slovakia: From Transmission Belts to Transmission Belts?’ (unpublished manuscript, 2018). Three of them replaced more than 50% court presidents, which is much more than PiS (sic!). Similarly, as this blog reported, the Chief Prosecutor wields excessive powers over the judiciary not only in Poland, but also in Bulgaria. To be sure, I have no problems with erasing these pernicious practices. However, we must be ready to apply the same standard to all Member States instead of going just after Poland. Double standards would heavily undermine the legitimacy of all actions of the EU institutions and cause lasting deleterious effects.

To make things even more complicated, many measures criticized in Poland may actually work in other contexts. For instance, inclusion of lay judges to the disciplinary panels in Czechia is generally considered a positive measure, which increased public confidence in the Czech judiciary. A special disciplinary court, only loosely attached to the Supreme Court, has been operating for more than a decade in Slovakia, with mixed results, but who knows whether a different model would have worked better. Finally, CEE countries have also witnessed the abuse of judicial independence by judges who became the law onto itself.³⁾David Kosař, Perils of Judicial Self-Government (CUP 2016). It is all about the context. Tricky, right?

Therefore, the CJEU is not in an easy position. It has to navigate between the Scylla of being toothless and the Charybdis of “throwing the baby out with the bathwater”. One lesson is that the CJEU will have to draw the red lines in the upcoming infringement procedure regarding the new retirement scheme (or more appropriately, the new retention scheme) for Polish judges, as well as the infringement procedure regarding the Polish Supreme Court, very carefully. Most likely, the cumulative effect of the measures adopted by the Polish government will play a central role in these cases. The second lesson is that we need as much empirical evidence of the abuse of the new mechanisms (such as revised disciplinary chambers) as possible. The third lesson is unfortunately the bad news – designing domestic judicial institutions by international/supranational courts is tricky and sometimes even futile.

After many years, I came to the conclusion that almost every model of court administration can be abused and the foundations of judicial independence are primarily political. In many Member States political leaders are capable to affect judicial independence, but they are not willing to do so, because they are constrained by the elites, which in turn results in a culture of judicial independence. French presidents do not sit on the Conseil constitutionnel, even though in theory they can. Likewise, the acting French president does not attend the meetings of the Conseil d’État, German and Austrian ministers of justice do not exploit their powers vis-à-vis the judiciary to pursue their political agenda, and no Taoiseach (prime minister) in Ireland attempted to pack the courts with his or her protégés, even though the executive firmly controls the appointment process. This culture of respect to judicial independence cannot be established in Poland by the CJEU judgments alone. The Polish people will have to speak out as well (on this see below).

Virtues of decentralization of judicial independence assessment

As several commentators already mentioned, the CJEU – by adopting a two-prong Aranyosi test – decentralized the assessment of the state of judicial independence in Poland. It provided guidance, but left the ultimate decision to national courts. While this “is not an unproblematic endeavour”, it has three advantages.

First, the pace of changes to the court administration in Poland is so quick that the CJEU simply cannot react to these changes, at least not in the preliminary reference procedure. It would have to chase the moving target. It is thus much better to trust the national courts to assess the conditions at the moment when the extradition takes place (see the stress on the “properly updated” information in Celmer, § 61). Second, it diffuses pressure on Poland. It allows national courts to bring their own perspective and fine-tune the CJEU’s judicial independence principles. Perhaps even more importantly, it nudges them to dig out deeper in the Polish judicial reforms and their repercussions. Instead of one big blow to PiS by CJEU (which so many commentators wished for), it opts for “death by a thousand blows”.

Third, it is a politically savvy move (or act of judicial statesmanship if you want it). While “PiS bashing” by the EU institution can be perceived as a form of top-down imperialism that the CEE population increasingly resent and that PiS could easily exploit politically, the “peer pressure” by Ireland and other EU Member States (especially if judges from both the “new” and “old” Member States join the choir) will cause troubles to PiS. It will be difficult for PiS to explain this to Polish voters (who may still care about their country’s reputation abroad) and even more difficult to use it in the PiS political campaign. In other words, the “anti-EU card” plays well in CEE elections recently, whereas the “anti-Ireland card” has little appeal to the voters.

On constitutional moments

I respectfully do not share the view that the Celmer case had the potential to become a constitutional moment. First, I agree with Learned Hand that “the society so riven that the spirit of moderation is gone, no court can save”.⁴⁾Learned Hand, The Contribution of an Independent Judiciary to Civilization, in The Spirit of Liberty 155, 164 (3d edition, enlarged 1960). For a supranational court, it is an even more daunting task. As Matej Avbelj suggested, such expectations would be too high. Second, constitutional moments require mass democratic mobilization that results in deep, broad, and decisive support for constitutional change. I have not seen this happening – neither in Poland nor on the EU-wide level. Third, it is too EU-centred a view. The stakes are much higher for Poland than for the EU. The message of Learned Hand is that no court can save an increasingly polarized political community that refuses to save itself. The key question for me is whether Poland indeed refuses to save itself. This brings me to my conclusion.

What is next?

The real constitutional moment thus will be the combo of the next Polish parliamentary and presidential elections. Unless something extraordinary happens, the former will take part in 2019 and the latter in 2020. Should the Polish people re-elect PiS and Andrzej Duda, Kaczyński’s constitutional revolution will succeed as he practices a perverse variation on the theory of partisan entrenchment. Kaczyński’s version is based on the premise that the party that temporarily controls the presidency and the legislature can stock the courts with new judges (of ordinary courts) and justices (of the constitutional court) who have views on key constitutional issues roughly similar to those of the party leader. This shifts the position of the Constitutional Court as well as of the Supreme Court and changes the complexion of the lower courts, which, in turn, eventually affects constitutional doctrine. If enough new judges are appointed in a relatively short period of time (which is actually happening in Poland), changes will occur more quickly, producing a constitutional revolution. Put differently, if PiS and Andrzej Duda win again, reversing the recent interferences into the judiciary will be very difficult, if not impossible, in future. Should both PiS and Duda lose, a healing of the wounds may take place. [I do not dare to speculate about the remaining scenarios that would result in a very complicated “cohabitation”.]

The million-dollar question is whether more CJEU’s pressure hurts or helps PiS (and Duda). My guess is that it helps them, if they can credibly portray it as selective pressure. I have argued elsewhere that when facing with politically sensitive cases like Celmer, supranational and international courts should strive for a persuasive judgment that is firmly embedded in the pre-existing case law, instead of being overly creative and artificially stretching the treaty/directive provisions.⁵⁾David Kosař and Katarína Šipulová, ‘The Strasbourg Court Meets Abusive Constitutionalism: Baka v. Hungary and the Rule of Law’, 10 Hague Journal on the Rule of Law 83 (2018) In my opinion, the ECtHR failed to do so in Baka. The CJEU did well on this count in Celmer. I sincerely hope that the CJEU’s judges will not evade their responsibility to adopt “the posture of statesmanship”⁶⁾Philip Selznick, Leadership in Administration: A Sociological Interpretation 134 (1957). in the upcoming infringement cases either. The show must go on!

We, the undersigned, have learnt that Chief Justice of the Supreme Court of Poland Professor Małgorzata Gersdorf has had her constitutionally guaranteed term of office of six years prematurely terminated by a new statute on the Supreme Court rushed through the Polish Parliament and signed by President Andrzej Duda on 26 July 2018.

We also understand that the Chief Justice vigorously protests this unconstitutional act of forcing her into retirement half-way through her constitutionally defined 6-year term of office.

Such a politically motivated action is not only contrary to an express provision of the Constitution of the Republic of Poland (Article 183 (3)) but also constitutes a blatant violation of European standards on judicial independence which Polish authorities are under an obligation to respect.

We firmly hold the view that Professor Małgorzata Gersdorf is the only lawful and legitimate incumbent of the office of Chief Justice until 30 April 2020, i.e. until the end of her constitutionally designated term of office.

—

WOJCIECH SADURSKI, Challis Professor of Jurisprudence at the University of Sydney and Professor in the Centre for Europe, University of Warsaw.

LAURENT PECH, Professor of European Law, Jean Monnet Chair of European Public Law (2014-17) and Head of the Law and Politics Department at Middlesex University London

BRUCE ACKERMAN, Sterling Professor of Law and Political Science, Yale University

ALBERTO ALEMANNO, Jean Monnet Professor of EU Law, HEC Paris and Global Professor of Law, NYU School of Law in Paris

PETRA BÁRD, Visiting Professor, Central European University

LASZLO BRUSZT, Professor of Political Sciences, Central European University

TOM GERALD DALY, MLS Fellow, Melbourne Law School and Associate Director, Edinburgh Centre for Constitutional Law

GRÁINNE DE BÚRCA, Florence Ellinwood Allen Professor of Law, NYU Law School

GÁBOR HALMAI, Professor and Chair of Comparative Constitutional Law, European University Institute, Florence

R. DANIEL KELEMEN, Professor of Political Science and Law, Rutgers University

DIMITRY KOCHENOV, Professor of EU Constitutional Law at the Department of European and Economic Law, University of Groningen

TOMASZ TADEUSZ KONCEWICZ, Professor of European and Comparative Law, Director of the Department of European and Comparative Law, University of Gdansk

MARTIN KRYGIER, Gordon Samuels Professor of Law and Social Theory, University of New South Wales; Recurrent visiting Professor, School of Social Sciences, Institute of Philosophy and Sociology, Polish Academy of Science

MARCIN MATCZAK, Professor of theory and philosophy of law at the University of Warsaw, Faculty of Law and Administration

STEVE PEERS, Professor of EU Law & Human Rights Law, University of Essex

VLAD PERJU, Professor of Law, Boston College Law School and Director of the Clough Center for the Study of Constitutional Democracy, Boston College

KIM LANE SCHEPPELE, Laurance S. Rockefeller Professor of Sociology and International Affairs, Princeton University and President, Law and Society Association 2017-2019

JUSTINE N. STEFANELLI, Maurice Wohl Senior Research Fellow in European Law, Bingham Centre for the Rule of Law

MAXIMILIAN STEINBEIS, Founder and Editor of Verfassungsblog

NEIL WALKER, Regius Professor of Public Law and the Law of Nature and Nations, The University of Edinburgh

The rule of law crisis has been taking place in Poland since 2015 when the newly elected right-wing PiS government (Law and Justice) decided to radically restructure the justice system. The justice system reforms were initiated in December 2015 with the new law on the functioning of the Constitutional Tribunal, which after a period of controversies, also involving the European Commission and the Venice Commission, produced a constitutional Tribunal consisting of party loyalists and thus entirely disabled as an independent institution. The aim of the PiS government has been to carry out a radical exchange of political elites in key positions of the state (including the judges). The narrative for this radical change has been alleged pathologies of the Third Republic (which is a moniker to describe Poland after 1989). These pathologies are often framed by the PiS as resulting from “grey networks” of former functionaries of the communist secret services and their liberal dissidents who were they agents. In a sense, this is a Polish version of the “deep state” narrative, in which the “swamp” needs to be dried out with radical methods and without consideration for institutions such as rule of law.

After the Constitutional Tribunal has been turned into an appendix of the ruling party, the next step was to restructure the ordinary courts, the National Council of the Judiciary and the Supreme Court, which was undertaken all at once through the law in 2017 but with a number of amendments in 2018. One of the more controversial aspects of the law was the decreasing of the mandatory retirement age for the Supreme Court judges from 70 to 65 years (and for the female judges to 60 years) effective on July 4, 2018. As a result, 27 of 72 judges of the Supreme Court have been forced to retire, including the First President of the Supreme Court Malgorzta Gersdorf, even though according to the Polish constitution she should stay on office until 2020. All judges older than 65 wishing to continue their tenure were allowed to file an application with the President of Poland who might or might not accept an “extended” tenure. The problem is however that the 6-year tenure of the Supreme Court judges is stipulated in the article 183 of the Polish constitution, which for the critics of the controversial law is a further proof of its lacking constitutionality. The Fist President of the Supreme Court Gersdorf declared that she intends to serve at the Supreme Court despite the new law and numerous demonstrations supporting the independence of the Supreme Court took place in various Polish cities.

The current controversies resemble the conflict over the Constitutional Tribunal in 2015-216 to some extent. However, the Supreme Court took new steps on August 2, when it referred five questions to the Court of Justice of the EU (CJEU) and requested a preliminary ruling. All five questions relate (more or less directly) to the principles of (1) independence of the courts and (2) the judicial independence under the circumstances of the rule of law crisis in Poland and thus have a potential of becoming a key aspect in the Polish rule of law crisis.

The preliminary ruling can be requested by any court or tribunal of an EU member state regarding an interpretation of the European Union law. The case of the Polish Supreme Court is however an explosive issue, since the Court simultaneously decided to apply a protective measure and suspended the application of the provisions of the law determining the new regulation on retirement. Also, it requested an accelerated proceeding of the CJEU due to “the seriousness of the situation”. The first question of the Supreme Court refers to the interpretation of the EU treaties regarding the indelibility of judges (Art. 2, 4, para. 3, Art. 19, para. 2 TEU and Art. 267 TFEU) and Charter of Fundamental Rights of the EU (Art. 47, which provides for right to an effective remedy and to a fair trial). The second question of the Supreme Court refers to the dependence of the tenure of a judge on the decision by an executive organ (in this case, the Polish President who can but does not have to accept a “prolonged” tenure). The third question concerns the EU regulation (directive 2000/78) on the prohibition of discrimination on grounds of age. The fourth question refers possibilities of how a national court in a situation such as that of the Supreme Court should ensure the EU prohibition of discrimination on grounds of age, while the fifth question concerns the obligations of the Supreme Court as an EU court to apply protective measures. With regard to the last question, the Supreme Court reverted to the Polish Code of Civil Procedure (Art. 4) as well as to the TEU (Art. 3) and the hitherto rulings of the CJEU. The questions touch upon the same matter as does the lawsuit of the European Commission against Poland from July 2018 based on Art. 258 TFUE with regard to the same law on the Supreme Court.

For legal purists some of the questions of the Supreme Court are formulated in a suboptimal manner and might lack relevance. The first question seems to be framed too vaguely, as its connection to the material EU law is not evident at the first glace. The Supreme Court seems to assume with the first question that the principle of the indelibility of judges is violated, whenever the retirement age of the judges is lowered against their will. This is a problematic framing and would require a more precise argument linked more clearly to the current situation in Poland. Only the second question relates to the new law on the functioning of the ordinary courts, the National Council of the Judiciary and the Supreme Court and justifies the request for the preliminary ruling of the CJEU, in particular with reference to Art. 47 of the Charter of Fundamental Rights of the EU. The problem of vagueness applies also to the fourth question, with which the Supreme Court conjures a hypothetical situation with an involvement of a national court. Hence, it is possible that the CJEU will ignore the fourth question altogether or reframe it in a way that it would become more relevant with regard to the case at hand.

Still, the questions of the Supreme Court can have a fundamental impact both for Poland and the EU, as they relate to the EU as a legal community and touch upon the crucial relationship between the national law and the EU law. Should the CJEU accept the questions, it could generate legal protection for the judges of the Polish Supreme Court (and further courts under political pressure in other EU countries) and strengthen the independent judiciary in the current rule of law crisis in Poland.

How could the CJEU proceed in this case? The first and the second question could be merged and treated as one issue by the CJEU, as the second question appears to be more relevant. According to the law on the functioning of the ordinary courts, the National Council of the Judiciary and the Supreme Court judges in forced retirement (that is, older than 65 years) may file for a continued tenure with the President of the Polish Republic. In the opinion of the Supreme Court, this regulation makes the Supreme Court dependent on an executive body, which in turn violates the principles of court independence and the judicial independence, in particular in the view of the hitherto rulings of the CJEU and the European Court of Human Rights (ECHR).

In this sense, the second question is closely connected with the line of CJEU rulings with regard to the rule of law and the judicial independence, which has become visible in recent years. Should the CJEU accept the second question of the Supreme Court (also possibly with reference to the fourth question), it can strengthen and amend its arguments used in the cases LM (C-216/18 PPU), Associação Sindical dos Juízes Portugueses (C 64/16) and Wilson (C-506/04). In particular, in the case Wilson the CJEU followed an interpretation which could become decisive for the questions of the Polish Supreme Court. In the case Wilson the CJEU framed the concept of the judicial independence both in internal and external aspects. The internal aspect of the judicial independence “is linked to impartiality […which] requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law” (52). The external aspect “presumes that the body is protected against external intervention or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them” (51). With regard to the questions of the Polish Supreme Court, the external aspect of the case Wilson could play a particularly relevant role, as “the essential freedom from such external factors requires certain guarantees […], such as guarantees against removal from office”. (51).

With the third question, the Supreme Court refers explicitly to the case Commission v. Hungary (C-286/12). In this ruling, the CJEU finds that “by adopting a national scheme requiring compulsory retirement of judges, prosecutors and notaries when they reach the age of 62 – which gives rise to a difference in treatment on grounds of age which is not proportionate as regards the objectives pursued”, Hungary violated the directive 2000/78/EC. At the first glance, it looks like the Supreme Court would seek a clarification of an already ruled case and thus act groundlessly. However, it appears that the Supreme Court expects the CJEU to react directly to the Polish case and apply the directive 2000/78/EC explicitly to the Polish law on the functioning of the ordinary courts, the National Council of the Judiciary and the Supreme Court.

The politically most significant aspect of the Polish questions is however the decision of the Supreme Court to suspend the application of the law in question. This temporary injunction is not provided for by the Polish law in such or similar cases, which, as expected, provoked vehement reactions from the Polish government. The Polish law might not include protective measures of this kind but the Supreme Court is a court on the EU territory and can thus refer to the rulings of the CJEU in similar cases, e.g. Factortame (C-213/89) or in joint cases Zuckerfabrik Süderdithmarschen AG (C-143/88) and Zuckerfabrik Soest GmbH (C-92/89). Since the CJEU ruled on a limited number of cases on a suspension of enforcement of a national measure and the expectation that this measure would generate political controversies in Poland, the Supreme Court reverted to this measure explicitly in the fifth question. This question will certainly be essential for how the crisis of rule of law will further develop in Poland.

There have been various reactions in Poland to the request of preliminary ruling by the Supreme Court. Should the CJEU accept the questions (all or some of them) and declare de facto its jurisdiction, it might have explosive consequences for the PiS government. The government critical newspaper Gazeta Wyborcza called the request for preliminary ruling a nuclear weapon of the Supreme Court. The representatives of the PiS government heavily criticized the suspension of the application of the law at hand, while the Presidential Office spoke about lacking legal grounds for such suspension. One of the vice-ministers of justice Michal Wojcik argued in the process that the Supreme Court revolts against the state, which fits the narrative of the ruling party, which excludes the courts from the category of state institutions. The chairman of the PiS Jaroslaw Kaczynski reaffirmed the will of the ruling party to carry on with the “cleansing” the courts, while the government-controlled TV ran propaganda materials on alleged corruption and arrogance of the judges. With this newest development, the crisis of the rule of law in Poland reaches a new stage, in which the political issue of legitimacy is played out against the issue of legality (resembling Carl Schmitt’s ideas) and in which the CJEU has a chance of becoming a key player.

On 2 August 2018, the Polish Supreme Court has referred questions to the European Court of Justice about whether or not the forced retirement of most of its senior judges and other infringements of judicial independence are compatible with EU law. That decision is a landmark step in the serious constitutional crisis in Poland that has been going on for several years. The Supreme Court attempts to defend itself against its subordination to the legislative and executive authorities, requesting that the CJEU express its view on the EU standards of irremovability of judges as element of the independence of the judiciary. Among many problems arising in connection with the discussed matter, only one issue will be presented below, which, however, is of fundamental importance and therefore deserves consideration first: Is the SC’s preliminary reference  to the CJEU admissible?

Several statements of the politicians connected to the Law and Justice Party (PiS) indicate, that the first and main allegations of the Polish Government will concern the fact that the interpretation of EU law that is sought by the SC is inadmissible as it is irrelevant to the resolution of the dispute in the main proceedings.

The preliminary questions were referred by the enlarged composition of the SC, competent to examine the legal issue presented by the bench of three judges.  According to the Act on the Supreme Court, if, while hearing cassation or another appeal, the SC has serious doubts as regards the interpretation of law, it may adjourn the hearing of the case and submit the question of law for adjudication to the enlarged composition of that Court consisting of seven judges. The main proceedings relate to the coordination of social security systems stipulated in Regulation 883/2004, mainly the determination of the appropriate legislation in the case of Polish citizen who pursued an activity as an employed person in Slovakia and at the same time conducted his business activities in Poland.

The SC’s questions

The SC decided that, before proceeding with the substantive examination of the main case, it was necessary to explain some issues in view of EU law. The purpose of the expected decision  of the CJEU is to clarify the legal status of the two judges, members of the panel, adjudicating the main proceedings. Both of the judges were 65 years of age or older and according to the newly amended Act on the Supreme Court shall retire unless they submit a declaration of will to remain on their positions and present a health certificate. In order to remain at their positions, the judges have to obtain the consent of the President of the Republic.

The SC referred five questions for a preliminary ruling. The first two concern the principle of the irremovability of judges (Articles 2, 4(3), 19(1) TEU, 267 TFEU and 47 of the Charter of Fundamental Rights), which the SC considers to be infringed as the national law lowers the retirement age of judges against their will and makes the continuation of their position dependent on the consent of the executive. The third question concerns prohibition of discrimination on grounds of age (Articles 2 and 6 para. 1 of the Council Directive 2000/78). The last two questions relate to ensuring the effectiveness of EU law by the national courts that are obliged to set aside national provisions being contrary to the EU prohibition of discrimination on grounds of age. Furthermore, the SC has decided to apply interim measures by suspending the application of three provisions of amended Act on the Supreme Court.

It can be concluded that the motive for the preliminary reference was to obtain guidance  from the CJEU as to whether the SC can rule on the substance of the main case with a EU element in a special situation: when the composition of the SC court and the legitimacy of some judges would be incompatible with provisions of the new national law the consistence of which with EU law is in doubt. The judgment of the CJEU would clarify these doubts as a result of the interpretation of the relevant provisions of EU law (the Treaties and the Charter). Depending on the response, the SC in its current composition may or may not be able to proceed with the main case.

Presumed Relevance

The position of the CJEU towards the admissibility of preliminary references may be found in numerous judgments:  It is solely for the national court to determine both the need for a preliminary ruling in order to enable it to deliver its judgment, and the relevance of the questions which it submits to the CJEU. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling. It follows that questions referred by a national court enjoy a presumption of relevance. This presumption may be however rebutted.  The CJEU may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, judgment in Melloni, C399/11, EU:C:2013:107, para. 29 or Gauweiler, C-62/14, ECLI:EU:C:2015:400, para. 25 and the case-law cited).

The case law of the CJEU has evolved towards the recognition of a broader relevance of the preliminary questions to the purpose of the main action. The Court has recently applied a wide concept of the phrase ‘give judgment’ within the meaning of Article 267(2) TFEU since only a liberal interpretation of that term would make it possible to prevent many procedural questions from being regarded as inadmissible and thereby being barred to be subject of interpretation by the CJEU. That concept must therefore be understood as encompassing the whole of the procedure leading to the judgment of the referring court, in order to enable the CJEU to interpret all procedural provisions of EU law that the referring court is required to apply in order to render its judgment. In other words, that concept covers the entire process of creating the judgment, including even issues relating to the responsibility for the costs of proceedings (see, judgment in Weryński, C-283/09, ECLI:EU:C:2011:85, para.s 41 and 42; Fahnenbrock, C-226/13, EU:C:2015:383, s30; Pebros, C-511/14, ECLI:EU:C:2016:448,  para. 28). The Court also held, that it has the power to explain to the national court points of EU law which may help to solve a problem of jurisdiction (see, judgment in Bozzetti, 179/84, ECLI:EU:C:1985:306;  para. 18; SEIM, C‑446/93, ECLI:EU:C:1996:10,  para. 33; IN.CO.GE, C-10/97, ECLI:EU:C:1998:498,  para. 15).

In the cases cited above, the preliminary questions concerning the procedural matters have a somewhat remote but essential link to the fact and purpose of the main action, that the referring court is required to apply in order to give judgment.  Article 267 TFEU extends to cases where a question is raised by the national court or tribunal itself which considers that a decision thereon by the CJEU is “necessary to enable it to give judgment” (see, judgement Salonia, 126/80, ECLI:EU:C:1981:136,  para. 7).

It should be noted that in previous judgments the CJEU has considered also the independence of national courts. However, these issues remained in connection with the subject of the main proceedings. Thus, for example in Wilson (C-506/04, ECLI:EU:C:2006:587) the problem of independence and its elements occurred in the context of rules governing the composition of bodies competent to hear appeal proceedings.  In Associação Sindical dos Juízes Portugueses (C-64/16, ECLI:EU:C:2018:117) the issue was whether the salary reduction measures infringe the principle of judicial independence of national judges.

A functional connection

It should be observed, that the reference of the Polish SC does not have substantial relevance  in the traditional sense of the term to the main proceedings concerned with the coordination of the social security systems. This does not mean, however, that there is no such link, but it deviates from typical situations assessed so far by the CJEU as part of the examination of preliminary references’ admissibility before adjudicating on the merits.

The link between the preliminary references and the substance of the main proceedings is about confirming the ability of the national judges to hear the case where EU law shall be (even potentially) applied. Therefore, it is not a connection between the content of the questions referred and the subject of the main proceedings. It is a close relationship of a different kind that can be described as functional. The judgement of the CJEU will determine the power  of the national judges to adjudicate on the merits of the case.

Press reports indicate that the Polish Government will rely on the case Falciola (C-286/88, ECLI:EU:C:1990:33), where the CJEU declared the reference concerning the impartiality of the Italian judges inadmissible – a case on the Italian law about compensation for damages caused in the exercise of judicial functions and the civil liability of the judiciary which, according to the national court, seemed to compromise the impartiality of the judges. The CJEU found the case inadmissible since “it is clear from the actual wording of the order for reference that the tribunal is in doubt only as to the possible psychological reactions of certain Italian judges as a result of the enactment of the Italian Law (…) Consequently, the preliminary questions submitted to the Court do not involve an interpretation of Community law objectively required in order to settle the dispute in the main action”. It shall be emphasized that the preliminary reference brought by the Polish SC differs from the case Falciola since it relates to legal position of the Polish judges rather to their “psychological reactions” to the amended Act on the Supreme Court.

A Union of values

The issue of the admissibility of the preliminary references regarding the independence of the national judiciary and irremovability of judges should be considered in the light of the current state of EU law considerably shaped  by the latest innovative case law of the CJEU (e.g. Associação Sindical dos Juízes Portugueses, C-64/16, ECLI:EU:C:2018:117, Achmea, C-284/16, ECLI:EU:C:2018:158; LM, C-216/18 PPU, ECLI:EU:C:2018:586).

Under Article 2 TEU the Union is founded on values, such as the rule of law, that are common to all Member States. Pursuant to Article 19(1) TEU, in the legal order of the EU, judicial review is also exercised by national courts. These courts discharge, in cooperation with the CJEU (Article 267 TFEU), common tasks, which serve to ensure respect for the law in the interpretation and application of the Treaties. One of the court’s features is independence. The independence of national judges, in which jurisdiction fall the application of EU law, and elements of that independence, irremovability and prohibition of interference by other authorities, are thus regarded as elements of the fundamental right to fair trial and to an effective remedy (Article 47 CFR). The independence of the Member State’s courts  has become, in the light of the above cited judgements of the CJEU, a constitutional principle of the EU. Only independent courts can provide effective legal protection in areas where EU law is applied, i.e. referring preliminary questions, participating in cooperation in civil matters, as well as, in criminal matters (e.g. EAW procedure). Therefore, doubts as to the independence of the national court, in particular noticed by the court itself whose situation has changed adversely as a result of legislative changes in a Member State, can be effectively raised in the preliminary ruling procedure to assess (indirectly) whether national law ensures such independence.

In this situation, it should be assumed that the SC’s preliminary reference is relevant to the  main action, although this is a new type of relevance. Assessing the legal status of the SC judges as members of the adjudicating panel is a prerequisite for the proper settlement of the main case. Therefore, there are fair reasons to believe that the reference of the Polish Supreme Court is admissible.