Those Who Live in Glass Houses….

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The European Commission launched an infringement procedure against Poland over measures affecting the judiciary a day after the publication in the Polish Official Journal of the Law on the Ordinary Courts Organization on 28 July 2017. Though the infringement procedure is formally distinct from the ongoing ‘Rule of Law Dialogue’ and the recommendations issued just a few days before commencement of such procedure, it comes under the latter’s penumbra; both form part and parcel of the Commission Press Release (IP-17-2205). If the concern was ‘The Rule of Law,’ at least in some respects there is more bang than buck. The President of Poland blocked the most controversial parts of the new judicial regime in Poland, so that the infringement procedure was left with just two violations.    

The first concerns a different retirement age for male and female judges. It is not clear if this distinction in the Polish law is by design or inertia but the infringement seems clear: what is sauce for Sabena (RIP) cabin attendant geese should be sauce for judicial ganders. But important as any form of gender discrimination is, this item in the Polish legislation does not directly concern the more troublesome aspects of political control over the judiciary and its independence. Should Poland not correct this anomaly, it should be an easy case for the Court.

The second item in the infringement procedure is far more serious. In the Letter of Formal Notice (the first stage in infringement procedures) the Commission raises concerns ‘…that by giving the Minister of Justice the discretionary power to prolong the mandate of judges who have reached retirement age, as well as dismiss and appoint Court Presidents, the independence of the Polish Courts will be undermined’ (id.), allegedly contravening a combination of Article 19(1) of the TEU and Article 47 of the EU Charter of Fundamental Rights – a legal basis which is creative but not specious.

If indeed the prolongation of the mandate of a judge reaching retirement age rests in the hands of a Minister, the government of which he or she is part and acts and/or legislation issuing from which might be subject to judicial scrutiny by said judge, it may well consciously or otherwise impact, for example, his or her conduct prior to retirement or, no less importantly, give the appearance of lack of independence. I think this is indeed a serious matter impinging on the independence and appearance of independence of the judiciary. It is one thing to have scrutiny and approval of judges by democratic bodies at the moment of appointment. But once appointed, the independence of the judge from political actors must be as absolute as possible, and this dependency described in the letter of intent clearly compromises such.

But there is an irony in this complaint; some might even think a ticking time bomb. At least on two occasions proposals were put to various Intergovernmental Conferences to amend the Treaties so that the appointment of Judges to the Court of Justice of the European Union should be for a fixed period of time – say nine years – as is undoubtedly the Best Practice in Europe among higher courts where appointments are not until the age of retirement. Ominously in my view, the proposals were rejected. So that now we live under a regime where the prolongation of Members of the Court(s) (Judges and Advocates General) rests in the hands of national politicians whose decisions and legislation may come before such judges.

I am sure one can draw all kinds of Pharisaic distinctions between the Polish law and the European practice. I take cold comfort from the collegial and confidential nature of proceedings as a shield guaranteeing independence and the appearance of independence. 

There is clearly no such shield in the case of Advocates General. The old hands among you will remember from years past at least one much commented upon Opinion of an AG which gave the appearance of being compromised by this political dependence. AGs do not give Opinions in cases where ‘their’ Member State is a defendant in a direct action. But they frequently do in Preliminary References implicating directly or indirectly same. Far be it for me to impugn the integrity of any AG, present or past. But in this area appearances are as important as actual practice.

As regards judges, the shield, too, is far from a perfect answer to the appearance of independence. (This is often given as a reason why the European Court cannot entertain the idea of dissenting opinions lest judges be exposed to undue pressure or appear to be.) Leaks apart, in most cases the Court follows the outcome proposed by the Juge Rapporteur (though often with modified reasoning) which, given the concerns that are the subject of the infringement procedure, may result in a delicate situation, especially in chambers of three.

Also, recent practice (of 20 years or so) has seen Presidents serving for long terms. By not resubmitting their own national serving as President, a Member State can effectively terminate the mandate of the President of the Court.  

Thus, in the case of AGs egregiously and the Court as a whole and its President more obliquely, the situation is at its core cut from the same soiled cloth as is the situation in Poland about which the Commission rightly has taken action.

Hopefully Poland will correct this anomaly too in response to the infringement procedure before it winds its way to the Court. I would not like to be in the shoes of the Advocate General and the European judges should they ever be called upon to adjudicate the complaint, each one of them having already been or potentially could be in the future subject to a renewal process resting in the hands of politicians of the executive branch of their Member State – politicians whose actions they may have been called upon to pronounce in the past and may be called to pronounce upon in the future.

Be that as it may, in its forthcoming recommendations about its own future the Court should well consider proposing fixed-term appointments and rid itself of this cloud.


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Raj Krishna says

November 12, 2017

This is a bit scary. Poland needs to correct this anomaly as soon as possible. Further I too believe in that Court should itself consider proposing fixed-term appointments.

David Heilbron Price says

November 15, 2017

If the Polish case comes to the ECJ, the public will observe not only the Pharasaic whitewashing of the outside of tombs but remark on the dead men's bones inside (Matt 23). Why did the ECJ not have a more impartial system for separating judges from State interest and therefore political nomination?
To remedy the situation, one has to analyze the origin of the practice and malpractice. Historically, Robert Schuman saw the European Coal and Steel Community (Paris Treaty signed 18 April 1951) as one of several Communities, each in different sectors. (We had the premature Defence Community and the successful Customs Union, the EEC, and the nuclear security and energy Community, Euratom in 1957).
The original Schumanian concept was that all these should be within a framework of the Human Rights Convention that defined who Europeans and European States were (signed November 1950). And originally the Council of Europe was called the European Union -- by the French and others, but not by the British.
Thus the Council of Europe could supply the judges for the first Economic Community and the others later. The Council of Europe system in article 38 on of its Convention emphasizes impartiality and a specific term of nine years.
Three candidates are proposed by each Member State. The final number of judges is equal to the number of States. National bias is also curtailed by the specification that there can be more than one judge from a State.
The Assembly itself chooses the judges. It thus acts like a Grand Jury where a jury of representative peers of the citizens acts as the judge of the judges. That reinforces the supranational concept of justice. (Assembly members were in principle elected by parliaments.)
Where did this go wrong for the ECJ? Briefly, the 1952 Eden Plan proposed a system where supranational authorities of the Coal and Steel and Defence/ Political Communities would be suppressed in favour of more intergovernmental control. Free elections to the supranational Assemblies, required by the Community treaties, would be held in check in favour of delegates organized by governments. This led to the Community setting up its own Court of Justice. The Eden Plan created an inevitable division between Communities and the Council of Europe, and a Silent War broke out that lasted decades.
However the Jury concept of judge control was not written into the Coal and Steel Treaty -- it was assumed. When the Gaullists took power the idea of supranational control of judges went out the window.
This background explains why the Court did not figure in the early drafts of the Schuman Declaration, written mainly by Paul Reuter, Schuman's Jurisconsult at the Foreign Ministry. (See his account in "Robert Schuman, Jalonneur de la Paix mondiale", pp 141 ff). Schuman wanted Reuter to become a judge as he was also co-author of the treaty itself. Reuter was reluctant to do so as the impartiality he saw as necessary meant cutting social contacts for him and his family.
De Gaulle has long gone. Now is high time to bring some reconciliation and improvement of Europe's justice system.
D Price

David Heilbron Price says

November 15, 2017

Correction: last sentence, the fifth paragraph. Para should read:
Three candidates are proposed by each Member State. The final number of judges is equal to the number of States. National bias is also curtailed by the specification that a Member State can nominate one judge from another State.