THE DEFINITION OF NATIONAL COURT WITHIN THE MEANING OF EUROPEAN UNION LAW. CONSIDERATIONS IN THE CONTEXT OF THE POLISH REFORM OF THE JUDICIAL SYSTEM (original) (raw)

The position of the judge in Poland within the judicial system

2020

The purpose of the article is to present the fundamental rules and regulations constituting the position of the judge in Poland, which finds its basis first of all in the regulations of the basic law interpreted over the years by the Constitutional Court, but now – in the norms of international law. Moreover, the author included his thoughts on the issues of the legitimization of judicial power and its relationship with the legislative and the executive. He also referred to the ongoing discussions on the status of the National Council of the Judiciary as a constitutionally-established body, whose task is to guarantee the independence of courts and the independence of judges in Poland. Furthermore, the article discusses the procedure and criteria of appointing a candidate to the position of a judge to different levels of the judiciary. It also deals with the basic elements guaranteeing the effectiveness of the principles of the independence of the judiciary such as neutrality, irremo...

Judiciary Saga in Poland: An Affair Torn between European Standards and ECtHR Criteria

9 Polish Rev. Int'l & Eur. L. 39 (2020) , 2020

Judicial independence is a cornerstone of contemporary constitutional systems within European legal orders that Poland, among many other European States, codified the principle at a constitutional level through Article 173 of the Constitution of the Republic of Poland. Nonetheless, the concrete implementation of the theoretical framework remains a bone of contention between the national States and the main international actors. The latter faction, based on the acknowledgement that no single political model could ideally comply with the principle of the separation of powers and secure complete independence of the judiciary, has developed an impressive number of legal tools that are part of a more diffuse European trend of interpretation, which should be labelled as European standard or European corpus aiming at preserving the judiciary order from outward interferences by the legislative and executive powers. In Poland, after the extensive victory earned by the Law and Justice (PIS) party in the Parliamentary election of 2015, the executive branch propelled a series of interlock reforms with the aim of reshuffling the whole judicial asset of the country. In the first place, the way forward was marked by a compound diatribe concerning the Constitutional Tribunal, and the essence of the dispute concerned the mandate’s legitimacy of three sitting judges after the Court’s reinterpretation of the K 34/15 ruling that ended up on 2.12.2015 with the election of five new judges appointed ex novo by the ruling party. Afterwards, the attention shifted towards the rethinking of the National Council of Judiciary (KRS), a mixed judicial body guardian of the independence of the judiciary, asserting, firstly, the unconstitutionality of its statute and, subsequently, planning a new method of appointment for the judicial members previously elected by the judiciary itself. Ultimately, as a closing step, the spotlight turned in the direction of the Supreme Courts judges, where the most spectacular sweep was the provision aimed at lowering the retirement age for the sitting judges on a scheme similar to the proposal made by the Hungarian government in 2011, where voices were raised, respectively, by the Hungarian Constitutional Court, the European Court of Justice and the European Court of Human Rights, and where, regretfully, the judicial independence standard played a minor role in the Courts’ reasoning. This concluding phase convinced the Commission to launch an expedited procedure against Poland before the Court of Justice, thus forcing the Polish government to retracts previous law through the adoption of a repealing law on 17.12.2018; in any event, as predicted earlier by the Opinion delivered by the AG Tanchev in Case C-619/18, the ECJ epilogue released on 24.6.2019, dissimilar to the one reached in the Hungarian case, was the heaviest ‘contrariness to EU law’.

Two Faces of the Polish Supreme Court After "Reforms" of the Judiciary System in Poland: The Question of Judicial Independence and Appointments

European Papers, 2020

The present Insight compares the decisions of two chambers of the Polish Supreme Court regarding the domestic enforcement, under the terms laid down in the Polish Constitution, of a judgment of the Court of Justice, the independence of the judicial branch and the consequences of a judicial appointment. The starting point for the analysis is an overview of recent reforms of judiciary in Poland and the judgment of the Court of Justice in A.K. (Indépendance de la chambre disciplinaire de la Cour suprême) [GC] (judgement of 19 November 2019, joined cases C-585/18, C-624/18 and C-625/18). The first discussed ruling of the Supreme Court aimed to fully enforce that judgment of the Court of Justice, whereas the second sought to limit its actual impact.

The Impact of EU law on National Judiciaries: Polish Administrative Courts and their Participation in the Process of Legal Integration in the EU

German Law Journal, 2011

Since May 2004 Polish administrative courts have passed a great deal of judgments in which the law of the European Union (formerly European Community law) has played either the main role or a subsidiary role in the proceedings. This article seeks to examine how the above-mentioned courts comply with the expectations which are put on them by EU law and how they participate in the process of legal integration within the EU. In this context, the author scrutinizes how the national judiciary adjudicating in the administrative law area understands, interprets, employs and applies the systemic principles of EU law such as: supremacy, and (in) direct effect and effectiveness. In addition, the participation of national courts in the process of a dialogue with the Court of Justice of the European Union through the preliminary ruling procedure is captured. The analysis is not aimed at being exhaustive and focuses solely on the total impact of EU law on the national judiciary and the general t...

The Court of Justice of the European Union in the Case Law of the Polish Constitutional Court: The Current Breakdown in View of Polish Constitutional Jurisprudence Pre-2016

Hague Journal on the Rule of Law

The current crisis in the relationship between the Polish Constitutional Court and the Court of Justice of the European Union (ECJ) is of crucial significance for the process of regional integration based on the values of liberal democracy taking place in the EU. The constitutional crisis in Poland that began in the end of 2015 has challenged the systemic position of the Polish Constitutional Court. It resulted in a new model of constitutional adjudication, and in this new model the Constitutional Court, stripped of its counter-majoritarian power, cannot be perceived as the guardian of liberal democracy. This article postulates that the assessment of the present case law of the Polish Constitutional Court in European matters is made through the prism of the Constitutional Court’s jurisprudence pre-2016 (i.e. before the constitutional crisis). Based on that assumption, the current reversal in the case law of the Polish Constitutional Court concerning the ECJ is analysed and assessed....

The “International” Rule of Law in the Polish Administrative Court’s Jurisprudence

Central European journal of comparative law, 2023

This study analyses the jurisprudence of Polish administrative courts, referring to the concept of the "international" rule of law, and thus, to the concept interpreted by the courts based on sources of law binding on Poland adopted at the supranational level (international agreements and law created by the European Union). The following jurisprudence issues emerge: 1) international and EU legal bases for the protection of the rule of law and the resulting meaning of this concept; 2) international versus national approach to the rule of law; 3) the rule of law-principle or value; 4) normative sources (national and supranational) of the general obligation of administrative courts to implement the international rule of law; 5) the order to implement it as an element determining the jurisdiction of administrative courts and the pattern of control exercised by these courts. In this context, it was stated, inter alia, that according to the jurisprudence of administrative courts, the 'international' rule of law primarily implies effective judicial protection of individual rights, guaranteed by independent courts, impartial and irremovable judges who have been duly appointed.

The Polish "muzzle" law, violation of EU primacy, independence, impartiality and private life of judges

INTEULM, 2023

The present paper is based on the Polish muzzle law which once again paved the way for a new new infringement procedure against Poland. It is once again a sentence which shows the struggle of the European Commission against Poland. This sentence is also based on the latest judgments of the past, as well as enhances the role of the CJEU as a protagonist that protects the rights deriving from the EU law.

Poland: Current Debates on the Supervision over the Administrative Activity of the Common Courts

European Public Law, vol. 20, issue 3, 2014

This article examines the institution of the supervision over the administrative activity of the courts of general jurisdiction (the so-called common courts) in Poland. This kind of supervision is performed in Poland by the Minister of Justice, judges seconded to the Ministry, as well as the presidents of the courts. The author considers the basic constitutional principles referring to the status of the judiciary and draws the reader's attention to the discussion on the current regulations concerning such supervision. The problem, first of all, lies in the ambiguous wording of the statutory regulations, which makes it difficult to clearly distinguish administrative tasks in a strict sense from duties connected with the dispensation of justice. Despite the friendly attitude of the Constitutional Tribunal towards the supervisory competences of the Minister of Justice, the author argues, like many scholars and judges in Poland, that the administrative activity of the common courts should instead be controlled by judicial organs (i.e., the First President of the Supreme Court on his own or with the cooperation of the National Council of the Judiciary). At the same time, the author is convinced on the necessity of pending general debates concerning the competence of executive power towards the judiciary in future.

Shaping the Relationship Between the Polish Constitution and European Union Law in the Adjudication of the Constitutional Tribunal

Przegląd Prawa Konstytucyjnego

In the article, the issue of the relationship between the Polish Constitution and European Union law is analysed from the perspective of its shaping in the adjudication of the Constitutional Tribunal. Firstly, the constitutional regulations that define the relationship between the Constitution and EU law will be analysed. This part of the article also includes the issues relating to the legal basis of the most commonly used instrument that shapes this relationship – the EU-friendly interpretation of the Constitution. Secondly, the contexts in which the Constitutional Tribunal refers to EU law are examined. The case study that is undertaken focuses on the instruments that prevent conflicts between EU law and the Constitution, inter alia legislative and interpretative instruments. The application of these methods in recent controversial judgments Ref. no. P 20/07 and Ref. no. K 3/21 concerning the relationship between the Polish Constitution and the EU law will be analysed.