Amendments to KRS legislation may infringe EU law - EU court

A lack of effective control over decisions made by the judicial body that nominates Poland’s judges might have infringed European law, the Court of Justice of the European Union (CJEU) said on Tuesday.

The court’s ruling could call into question the legitimacy of some of the appointments to Poland’s top courts, and give support to the country’s courts if they wish to challenge the appointments.

The ruling could also add further friction to a dispute between Warsaw and Brussels over adherence to the rule of law in the EU’s biggest post-communist country.

Poland’s ruling conservative Law and Justice (PiS) party have made a number of changes to the country’s judicial system since taking power in 2015. The party claims they are needed to improve the courts’ efficiency. Critics say the party wants to tighten its grip over the judiciary; a claim which PiS denies.

The overhaul, according to critics, has effectively banned candidates for top judicial positions from questioning in court decisions made by the National Council of the Judiciary (KRS).

“Should the national court come to the conclusion that the adoption of the 2019 legislative amendments infringed EU law, the principle of the primacy of that right requires that court to refrain from complying with those amendments,” the CJEU said in a statement.

In 2018, the KRS decided not to present to the Polish president, an ally of the ruling party, proposals for the appointment of five people to the position of judges in the Supreme Court.

Since the candidates appealed against the decision, the law on the KRS was changed in 2019 making it impossible to lodge appeals against KRS decisions concerning appointments to the Supreme Court.

The 2019 reform also discontinued pending appeals thereby "de facto depriving the referring court of its jurisdiction to rule on that type of appeal," the CJEU said.

In response, Paweł Stryna, the head of the KRS, said the ruling “does not change much” because the right for candidates to appeal its decisions already exists.

"The CJEU indicates that that there should be the possibility to appeal the Council’s resolutions concerning competition for Supreme Court posts,” he said. “Such measures already exist in Polish law. After all, the resolutions of the KRS are subject to appeals to the Supreme Court, which are examined by the Extraordinary Control and Public Affairs Chamber of the Supreme Court."