The cases were initiated by requests for preliminary ruling lodged by the Supreme Court sitting as the Labour and Social Insurance Chamber. This chamber, contrary to the Supreme Court Act, registered cases handled by judges of the Supreme Court and the Supreme Administrative Court, who had originally retired at the age of 65 pursuant to provisions of the Supreme Court Act of 8 December 2017, and subsequently, by operation of Art.2(1) of the Amended Supreme Court Act of 26 November 2018, were brought back to active duty and their service was considered to have been uninterrupted. At present, they demand that the Court rule that their service relation of judge in active service was not changed, on 4 July 2018, into a relation of a retired judge.

Cases like the ones lodged by Supreme Court judges pursuant to the Supreme Court Act should be reviewed by the Disciplinary Chamber of the Supreme Court. Consequently, the judicial formations in the Labour and Social Insurance Chamber referred questions for preliminary ruling to the Court of Justice of the European Union, in which they intend to establish whether the Disciplinary Chamber of the Supreme Court is an independent court in the meaning of EU law, and if it is not – whether in such situation the Labour and Social Insurance Chamber, contrary to national law, may review cases brought by Supreme Court judges which fall under the exclusive competence of the Disciplinary Chamber. Doubts of the referring court are connected with the fact that the Supreme Court Disciplinary Chamber judges were appointed by the President of the Republic of Poland at the motion of the National Council of the Judiciary, whose judges-members had been elected by the Polish Sejm, and not directly by judges.

The hearing on 19 March 2019 was attended by the Plenipotentiary of the Republic of Poland, plenipotentiaries of the European Commission, plenipotentiaries of the EFTA Surveillance Authority and plenipotentiaries of the parties to the proceedings before the referring court  – prosecutors of the National Public Prosecutor’s Office and plenipotentiaries of judges. At the hearing, the Plenipotentiary of the Republic of Poland reiterated fully his position presented in writing that a preliminary ruling in response to questions of the referring court is not admissible. The plenipotentiary pointed out that in view of the unambiguous wording of Art. 2(1) of the Amended Law, at present no doubts are raised with reference to the matter that the applicants – Supreme Court and Supreme Administrative Court judges – had been restored to active service and that their service is considered uninterrupted, hence they have no legal interest in obtaining a declaratory judgement, which confirms the legal situation that raises no doubts. The Plenipotentiary of the Republic of Poland also drew attention to the fact that questions referred for a preliminary ruling are admissible only if the response is necessary for handing down a ruling on a dispute pending before the referring court. The Plenipotentiary of the Republic of Poland also presented additional arguments in support of the recognition that Disciplinary Chamber judges provided with very high guarantees of independence and that there are no doubts that the Disciplinary Chamber, in light of the existing case law of the Court of Justice, can be recognised as an independent court in the meaning of European law.

Combined cases C-585/18, C-624/18 and C-625/18 are reviewed in an accelerated procedure. The Advocate General announced that he will present his opinion on 23 May 2019. The date when the ruling ending the case will be given has not been officially announced, but it is expected in June 2019.

 

MFA Press Office

Photo Tymon Markowski / MSZ