Advocate General Bobek: EU law precludes the Polish practice of secondment of judges to higher courts that may be terminated at any moment at the discretion of the Minister of Justice, who is simultaneously the General Prosecutor

(Source: Court of Justice of the EU)

In the context of seven criminal cases pending before it, the Sąd Okręgowy w Warszawie
(Regional Court of Warsaw, Poland) decided to seek the guidance of the Court of Justice on the
compatibility with EU law of certain provisions of national law which grant the Minister for
Justice/General Prosecutor the power to second judges to higher courts for an indeterminate
period of time and, at any moment, may terminate that secondment at his own discretion. In
particular, the referring court takes the view that those provisions may infringe the requirement of
independence of the national judiciary that follows from Article 19(1) TEU, read in conjunction
with Article 2 TEU.

Specifically, that court points out that each of the judicial panels destined to hear the respective
case at issue in the main proceedings is composed of the referring judge as President, and two
other judges. In each of the cases, one of the ‘other’ judges is a judge seconded from a lower court
by decision of the Minister for Justice/General Prosecutor (‘the seconded judges’). Furthermore,
some of the seconded judges also hold the position of ‘disciplinary agent’ attached to the Rzecznik
Dyscyplinarny Sędziów Sądów Powszechnych (Disciplinary Officer for Ordinary Court Judges).

In today’s Opinion, Advocate General Michal Bobek first rejects arguments that the requests for
preliminary rulings are inadmissible, as they have been submitted by a single judge – the President
of the judicial panel hearing the criminal cases at issue – and not by the panel itself. He points out
that, if the body making the request is a national body acting in a judicial capacity, it is not for the
Court to verify compliance with all procedural rules of national law. Therefore, the referring court is
a ‘court or tribunal’ for the purposes of Article 267 TFEU.

Full Press Release

88/2021 : 20 May 2021 – Opinions of the Advocate General in joined cases C-748/19,C-754/19

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