The second target: common courts

As a second step the parliamentary majority targeted the ordinary courts. Under the slogan of “giving the justice system back to the Polish people”, the Parlia-ment voted on a set of laws on the OCO, the SC (terminating the mandates of all current judges of the SC) and the NCJ (nomination of new judges under the influence of the parliamentary majority)¹¹. Because of a veto of the Polish Presi-dent two important laws will not come into force (the law concerning the SC and

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8 CT Judgement of 16 March 2017, Kp 1/17 (reporting judge Muszyński).

9 CT Judgement of 20 June 2017, K 5/17 (reporting judge Muszyński).

10 CT Order of 21 March 2017, K 23/16 (reporting judge Muszyński).

11 For details see Commission Recommendation (EU) 2017/5320 of 26 July 2017 regard-ing the rule of law in Poland complementary to Commission Recommendations (EU) 2016/1374 and (EU) 2017/146.

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the law on the NCJ). Therefore the most important changes to the judicial sys-tem at the moment arise from the law on the OCO. Apart from this, members of Law & Justice are applying some non-legislative means in order to discredit the judicial branch.

First of all, judges are the object of large-scale anti-judge propaganda in the official public media with intensive public criticism of the rulings. The Minister of Justice issues public statements undermining the reputation of the judicial sys-tem and threatens judges with disciplinary proceedings for directly applying the Constitution (which is debated among jurists as a remedy for effective constitu-tional control after the takeover of the CT). Cases of demotion of judges by the Minister of Justice have happened with regard to judges who issue rulings with which the authorities do not agree. The Minister of Justice also withheld nomina-tions for judges which led to over 500 vacancies for judges’ posinomina-tions. Those vacancies are waiting for changes in the system of nomination of judges.

A range of changes which impact on the judicial system is provided by the law on the OCO. Firstly, a change took place in the management system of ordinary courts. The administrative directors of courts have been subordinated directly to the Minister of Justice with the exclusion of any influence whatsoever of presi-dents of courts on the choice of court director. Also the possibility of dismissal of a court director by the Minister of Justice at any time is provided (e.g. for finan-cial reasons).

Secondly, the new law on the OCO stipulates that the appointment of the Court Presidents will be made by the Minister of Justice, (with the judges’ council being merely informed of the appointment, without having any influence on that choice), with the possibility of his/her dismissal at any time (only an objection of the NCJ will be required) with the application of very general criteria; and for six months from the entry into force of those provisions without any criteria and without the participation of the NCJ. However, up to the moment of the Presi-dent’s veto on the Act on the NCJ the assumption was that also the parliamen-tary majority would have an influence on the composition of this panel.

Thirdly, a kind of “Hungarian” method is applied to the judges of the ordinary courts. The law on the OCO stipulates that the retirement regime applicable to ordinary judges will be reduced from 67 to 60 for female judges and from 67 to 65 for male judges. The Minister of Justice will be granted the power to decide on the extension of judicial mandates (until the age of 70) on the basis of general and vague criteria. That would make the judges dependent on the almost discre-tionary decision of the Minister of Justice.

! 152! ! 5. The standard of independence in EU Law

In EU Law the concept of judicial independence has been made sufficiently pre-cise in the case law of the CJEU, most often in the context of the definition of a

“court” for the sake of preliminary ruling proceedings in Art. 267 TFEU. Firstly, an independent court is one which is acting as a third party in relation to the authori-ty which adopted the contested decision¹². The CJEU believes further that the concept of independence has two aspects – external and internal. External inde-pendence presumes that the body is protected against external intervention or pressure liable to jeopardise the independent judgement of its members as re-gards proceedings before them¹³. That essential freedom from such external factors requires certain guarantees sufficient to protect the person of those who have the task of adjudicating in a dispute, such as guarantees against removal from office¹⁴. The external aspect presumes also that the court exercises its functions wholly autonomously, without being subject to any hierarchical con-straint or subordinated to any other body and without taking orders or instruc-tions from any source whatsoever¹⁵.

The second aspect, which is internal, is linked to impartiality and seeks to ensure an even playing field for the parties to the proceedings and their respective inter-ests with regard to the subject matter of those proceedings. That aspect requires objectivity¹⁶ and the absence of any interest in the outcome of the proceedings, apart from the strict application of the rule of law. As stated by the CJEU, those guarantees of independence and impartiality require rules, particularly as re-gards the composition of the body and the appointment, length of service and the grounds for abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it¹⁷.

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12 Case C-24/92 Pierre Corbiau v Administration des contributions, ECLI:EU:C:1993:118, para 15.

13 Case C-103/97 Josef Köllensperger GmbH & Co. KG and Atzwanger AG v Gemeinde-verband Bezirkskrankenhaus Schwaz, ECLI:EU:C:1999:52, para 21.

14 Joined Cases C-9/97 and C-118/97 Raija-Liisa Jokela and Laura Pitkäranta, ECLI:EU:C:1998:497, para 20.

15 Joined Cases C-58/13 and C-59/13 Angelo Alberto Torresi & Pierfrancesco Torresi v Consiglio dell’Ordine degli Avvocati di Macerata, EU:C:2014:2088, para 22.

16 Case C-407/98 Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist, ECLI:EU:C:2000:367, para 32.

17 Case Köllensperger and Atzwanger, paras 20 to 23.

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From the Polish perspective, it seems that what is also important is the decision of the CJEU concerning the Hungarian European Data Protection Supervisor¹⁸, the mandate of which the legislator of that country shortened whilst ignoring the guarantees concerning the full run of the mandate, which once again was to ensure the independence of that national body of other national government bodies. This case relates to another aspect of the discussed issue, i.e. whether the declaration of the existence of a specific breach is necessary in order to declare a breach of the standard of independence, or whether it is sufficient that there just exists a risk of a breach of the standard. The CJEU states that “the mere risk that the State scrutinising authorities could exercise a political influ-ence over the decisions of the supervisory authorities is enough to hinder the latter in the independent performance of their tasks”¹⁹.