In an opinion delivered on Thursday, the Advocate General of the Court of Justice of the EU, Athanasios Rantos, expressed doubts about whether the mechanism of expressing consent by the National Judicial Council for the continuation of the post by Polish judges after reaching retirement age offers sufficient guarantees of independence.
Under Polish law, judges who wish to continue their duties after reaching retirement age are required to notify the National Council of the Judiciary. The letter of intent must be submitted within the legally stipulated period, in the event of non-compliance the application will be declared inadmissible. The National Council for the Judiciary may agree to continue to hold the office of judge if this is justified, inter alia, by the interests of the judiciary or a compelling social interest.
The Chamber of Extraordinary Audit and Public Affairs of the Supreme Court asked the CJEU whether this solution violates the principle of irremovability and independence of judges as enshrined in the Treaty on European Union.
CJEU Advocate General Rantos immediately noted in his opinion presented on Thursday that the request for a preliminary ruling raises the question of whether the Extraordinary Control Chamber has the status of a “judicial body” within the meaning of the Treaty on the Functioning of the European Union.
According to the Advocate General, the concept of “court” with jurisdiction to refer questions to the Court for a preliminary ruling is of a “functional” nature, which is mainly due to the lack of hierarchical subordination to the administration of the requesting authority and not to the people sitting on it. It follows that any irregularity in the appointment of the members of the jury panel can only deprive the body of its status as a ‘court’ in that sense if it jeopardizes the very capacity of that body to adjudicate independently.
Turning next to the questions asked, the Advocate General recalled that the case law of the CJEU allows Member States to provide for the involvement of a non-judicial authority in decisions on, inter alia, the appointment of judges or the renewal of their active employ.
Therefore, Rantos concluded that “the circumstance in which the National Council for the Judiciary has the right to authorize or withhold the possible further holding of the office of judge is not in itself sufficient to establish the existence of a violation of the principle to set”. of judicial independence.”
However, he made a reservation that as regards the substantive legal conditions and procedural rules, the criteria on which “decisions on the continuation of the office of judge are based are too vague and unverifiable”.
Rantos’ doubts are also raised by the fact that Polish law does not provide for a deadline within which the national court register is obliged to adopt a resolution on this matter.
In view of all the essential factual and legal elements relating both to the nature of the National Council for the Judiciary and to the way in which this body fulfills the role assigned to it, the principle of irremovability and independence of judges as formulated in the Convention on the Judiciary European Union opposes national legislation which makes the effectiveness of the statement conditional on a judge’s will to continue to hold the office of judge after reaching retirement age, with the consent of a body which has been shown not to be independent of the legislature or the executive, which makes its decisions on the basis of unclear and difficult to verify criteria
concluded the Advocate General of the CJEU.
As regards the exclusion of a late advance directive to continue serving as a judge, clear and predictable deadlines for submitting that declaration of intent are objective formal requirements that can contribute to ensuring legal certainty and objectivity of the proceedings in question as a whole. The six-month period provided for by Polish law, which is determined by the judge’s birthday, is long enough to allow the judge to decide in full knowledge of the facts whether he or she can declare that he or she wishes to continue his office
– added.
The Opinion of the Advocate General is an introduction to the judgment. The CJEU may agree, and usually do, but it may also give a very different verdict.
kk/PAP
Source: wPolityce