You cannot automatically turn off a faulty judge. The key opinion of the spokesman of the CJEU
Dean SPIELMANN, Rzernik General of the Court of Justice of the European Union, issued another important opinion in the Polish case (reference number C-521/21). Let us remind you that nAnd the beginning Kwioletnia decided that it could be omitted or considered a non -judgment of the Chamber of Extraordinary Control and Public Affairs of the Supreme Court. Now he referred to the status of judges nominated by a defectively shaped National Council of the Judiciary (KRS).
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Case from the Poznań court
In today's case, one of the parties to the civil proceedings submitted an application to exclude the judge examining the case. She claimed that her appointment was unlawful, because the candidacy for the judge's office was recommended by the National Court Register, whose independence from legislative and executive power was questioned as a result of the reform carried out in 2017.
In addition, relevant national law provides the examination of the legality of the appointment of a judge to the exclusive jurisdiction of the Chamber of Extraordinary Control and Public Affairs of the Polish Supreme Court, consisting only of persons appointed to the office of a judge of the Recommendation of the National Court Register.
Court District Poznań – Old Town The examination of the application for exclusion asked the Court of Justice with two questions. In one, it is about whether the nominated judge as part of the procedure described above can be considered a court previously established under the Act within the meaning of the Union's law. If this is not the case, this court wants to find out what procedural consequences should be drawn from this fact. The point is whether the EU subjects are not knocking up, that the examination of the law of the appointment only suffered from the Supreme Court, whether the court can ex officio exclude a judge appointed by the defective National Court Register, whether the court may omit the judgment of the costentitative tribunal regarding these issues. These practical issues concern the second question, and according to the courts asking, they are all affirmative. The Ombudsman also joined this case.
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What spokesman of the CJEU said
Dean Spielmann General Ombudsman stated in his opinion that neither participation in the KRS nomination process, nor no candidates, who have not been recommended to appoint an effective appeal – regardless of whether these factors are considered separately or together – He cannot automatically lead to the conclusion that a given common court judge is not a court previously established under the Act.
The general spokesman proposed that Each specific case should be considered separately, taking into account the legal and factual context and other factors related to the special situation of each of the judges interested or adjudicating warehouses. The solution he proposed should guarantee effective respect for the principles of independence and impartiality, as well as social trust in the judiciary.
Spielmann noticed that the rate of the case is high, because at the request of the National Court Register about 3,000 judges have been established so far. The Ombudsman also reminded that under Union law, each national court must be entitled to independently assess the correctness of the nominational process of judges. The principle of priority of Union law requires that the National Court to withdraw from the application of national provisions and omit the rulings of the Constitutional Court, which do not allow it.
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In connection with National courts should be able to exclude by virtue of law a judge who does not meet the requirements of independence and impartialitywhich are inherent in the concept of a court previously established under the Act. However, it includes determining specific ways of implementing this requirement, respecting the national legal framework and the principles arising from the Union's law.
The opinion of the General Ombudsman does not bind the Court of Justice of the EU. Is a proposal to settle for judges, which they most often use, but they can also issue a sentence other than proposed by spokesmen. Therefore, the CJEU will speak in this matter. Usually, however, the CJEU includes the opinion of the spokesperson.
