WB and others

On 16 November 2021, the Grand Chamber of the Court of Justice rendered its decision in joined cases C‑748/19 to C‑754/19 concerning the independence of the judiciary in Poland.

The present requests for a preliminary ruling were made by the Regional Court of Warsaw in connection with the examination of seven criminal cases assigned to its Tenth Division. In the first place, the referring court has doubts as to whether the composition of the adjudicating panels called upon to rule on those cases is in line with the second subparagraph of Article 19(1) TEU, having regard to the presence in those panels of a judge seconded in accordance with a decision of the Minister for Justice pursuant to Article 77 § 1 of the Law on the organisation of the ordinary courts. The Court explained that through such a procedure, the Minister of Justice has an influence over the composition of criminal courts by way of secondment. The minister can also terminate a judge secondment without the need to explain his decision. Such a system therefore creates an incentive for seconded judges to give a ruling in accordance with the wishes of the Minister of Justice, even if those wishes are not explicitly expressed, which would ultimately infringe the right of the accused person to a fair trial, that right being one of the expressions of the principle of effective judicial protection.

Therefore the referring court asked the Court of Justice whether Article 19(1) TEU and Article 2 TEU should be interpreted as meaning that the requirements of effective judicial protection, including the independence of the judiciary, and the requirements arising from the presumption of innocence are infringed in the present case.

Secondly, the referring Cour asked whether the same requirements refered to in question 1 are breached, where the parties can lodge an extraordinary appeal against a judgment handed down in court proceedings such as those of the present case and where the appeal decisions by the Supreme Court are not subject to appeal under national law while national law imposes a dubious procedure for the allocation of cases of appeal.

Thridly, the referring court further asked what is the effect of a judgment handed down in court proceedings such as those described in the first question, and of a judgment handed down in proceedings before the polish supreme court if the person referred to in the second question participates in the handing-down of that judgment. Finally, the referring court asked whether EU law makes the effects of the judgments referred to in third question conditional upon whether the court has ruled in favor of or against the accused person.

To answer these questions, the Court called upon the underlying logic behind Articles 2 and 19 TEU and the principle of independence and the necessity to protect judges against any external interventions while rendering Justice. The Court recalled its previous jurisprudence on the independence of the judiciary in Poland, especially in the context of the first question, since it ruled that questions 2 to 4 were inadmissible due to their hypothetical nature. Thus the Court focused mainly on the nomination procedure of judges. In the Court’s view, the second subparagraph of Article 19(1) TEU, read in the light of Article 2 TEU, and Article 6(1) and (2) of Directive 2016/343 must be interpreted as precluding provisions of national legislation pursuant to which the Minister for Justice of a Member State may, on the basis of criteria which have not been made public, second a judge to a higher criminal court for a fixed or indefinite period and may, at any time, by way of a decision which does not contain a statement of reasons, terminate that secondment, irrespective of whether that secondment is for a fixed or indefinite period.