The “Independence Test”: ECJ Rulings Strike a Blow to Neojudges

Two new rulings from the European Court of Justice establish that the irregular appointment process of judges can be sufficient grounds to challenge their impartiality and independence within the Polish Supreme Court.

The Impact of Judicial Appointments

The European Court of Justice has determined that irregularities in a judge’s appointment—specifically when the process suggests undue influence from other branches of government—can be enough to question that judge’s impartiality. The case centers on appointments to the Supreme Court made through the National Council of the Judiciary, which was restructured during the PiS administration in 2017.

According to the ECJ, when the severity and nature of these procedural flaws create a risk that judicial independence was compromised by political authorities, it serves as a basis for disqualifying a judge’s neutrality.

Origins of the Dispute

The legal battle began in 2018 when Waldemar Żurek, then a regional judge in Kraków, was transferred to a different department without his consent by the court’s president. His appeals eventually reached the Supreme Court, where he challenged the validity of the appointments of the judges presiding over his case.

The matter grew complex as the composition of the Supreme Court’s Civil Chamber shifted due to retirements. Subsequent appointments by the First President of the Supreme Court, Małgorzata Manowska, led to a “mixed” panel consisting of both correctly and incorrectly appointed judges, prompting the referral of prejudicial questions to the ECJ.

Expert Legal Assessment

Advocate General Tamara Ćapeta suggested that the case had become moot due to Żurek’s resignation, noting that the court should not issue hypothetical opinions. However, she emphasized that if the case were to proceed, EU law precludes “mixed” benches from being considered impartial and independent.

The Advocate General further clarified that while decisions regarding the internal organization of a court might be legally flawed if made by an irregularly appointed official, such a defect does not automatically invalidate every subsequent ruling or composition decision made by that body.