An EU Advocate General found that removing a judge from cases without justification breaches EU law and “creates a risk” of undue interference.
Judge Removed From Cases Without Explanation
The opinion from Advocate General Dean Spielmann concerns preliminary questions referred to the Court of Justice of the European Union (CJEU) by the Warsaw District Court, which sought clarification regarding the transparency and correctness of the Random Case Allocation System (SLPS).
The case involves a situation where two appeals were randomly assigned to one judge via SLPS in a court of second instance in 2024. The judge was subsequently transferred to a different division of the same court, after which the District Court Board dismissed her from handling 100 previously assigned cases, including the two appeals, without providing a justification. This decision was made at the judge’s request, with her consent.
Opaque Algorithm and Uneven Workload
The cases were returned to the SLPS pool at the request of the division’s chairman and reallocated to other judges, with the majority – 56 cases – assigned to a single judge. Other judges received few or no cases. The judge appealed the decision, citing an uneven workload, but her complaint was dismissed.
Concerns Over Independence and Transparency
The judge questioned whether the court could be considered independent, impartial, and established by law under EU law if a judge assigned to a case was designated by SLPS under questionable circumstances regarding the process’s correctness and transparency. She emphasized that the previous judge was arbitrarily removed, and the new judge was selected by a system created by the executive branch (the Ministry of Justice).
She noted that the SLPS algorithm is opaque, the system could lead to an unequal distribution of cases, there is a risk of manipulation and errors in the allocation, and there is no effective appeal mechanism to challenge allocation decisions.
Risk of “Unwarranted Interference”
The Advocate General concluded on Thursday that removing a judge from cases without justification was inconsistent with EU law. He argued that the lack of criteria and a duty to justify such a decision could create a risk of arbitrariness and unwarranted interference in case allocation. The judge’s consent is irrelevant, as it may have been influenced by pressure from superiors, their expectations, or collusion.
SLPS System Assessment
Regarding SLPS, the Advocate General found that using a random case allocation system is not objectionable in itself – provided it is based on transparent, objective, and pre-defined rules. However, he stated that the lack of publication of the SLPS source code does not provide grounds to claim irregularities, as publishing the algorithm and draw reports is sufficient to guarantee the system’s transparency.
The involvement of the Minister of Justice in creating the system and defining allocation rules appears to be organizational in nature and does not raise concerns about influencing the allocation process.
Verification of Case Allocation
Finally, the Advocate General stated that EU law does not require the correctness of case allocation to a judge to be necessarily verified at their request. However, such a review should be possible either at the request of a party or, in cases of serious doubt, ex officio.
Advocate General opinions precede CJEU judgments, serving as proposed resolutions. Judges usually uphold the position adopted by the Advocate Generals, but this is not binding.
