Poland's Supreme Court law violates EU law - CJEU advocate general

A Polish law introduced in order to exclude the possibility for legal review of the National Council of the Judiciary’s assessment of judicial candidates to the Supreme Court violates EU law, an EU court's advocate general has stated in his opinion.

The matter was referred to the Court of Justice of the European Union (CJEU) by Poland's Supreme Administrative Court after Poland changed in 2019 a provision of the law on the National Council of the Judiciary (KRS), which is now worded as follows: "There shall be no right of appeal in individual cases regarding the appointment of Supreme Court Judges."

The same law also states that "proceedings in cases concerning appeals against [KRS] resolutions in individual cases regarding the appointment of Supreme Court Judges, which have been initiated but not concluded before this law comes into force, shall be discontinued by operation of law."

Advocate General Evgeni Tanchev in his Thursday-issued opinion wrote that due to the "specific circumstances arising in Poland, judicial review of appointment procedures by a court whose independence is beyond doubt, is indispensable under Article 19(1) TEU in order to maintain the appearance of independence of the judges appointed in these procedures."

"This is notably because of the rapid changes in Polish legislative provisions governing judicial review of the KRS’s (National Council of the Judiciary) selection procedures and decisions. Those changes give rise to reasonable doubts as to whether the appointment procedure is currently oriented towards the selection of internally independent candidates, rather than politically convenient ones, for judicial office at such an important and systemic institution as the Supreme Court, the court of last instance," wrote the advocate general.

The advocate general’s opinion is not binding on the Court of Justice. It is the role of the advocates general to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date, the CJEU wrote on its webpage.