Europe’s highest court has indicated there is no reason to question the legitimacy of Polish judges simply because they were appointed in the communist era.
Instead, in a legal opinion published on Thursday, advocate general Michal Bobek accused Poland’s supreme court of making “unsubstantiated insinuations” about certain judges by “wrapping up a certain political vision of the world as a legal argument”.
He was less concerned with three judges flagged in the reference but expressed “serious doubts” about the legitimacy of the applicant judge and Poland’s supreme court, which is currently under scrutiny by the Court of Justice of the European Union (CJEU).
Thursday’s opinion from Luxembourg, which CJEU judges are free to disregard in their final ruling, is the latest twist in a long-running battle between Warsaw’s national conservative Law and Justice (PiS) government and European institutions.
The latter – along with PiS rivals in Poland – accuse the government of endangering the rule of law with reforms that have undermined judicial independence and allowed it to appoint political allies to the courts.
PiS insists the reforms were necessary to streamline the courts system and sideline encrusted, cronyistic structures dating back to the communist era.
This was the focus of the reference to the CJEU. In it Poland’s supreme court asked whether it was required to examine the independence of three judges behind a contested mortgage ruling – in particular one appointed in the communist era.
‘Puzzled’
The advocate general said he was “puzzled” by both the starting point and conclusions of the reference, which provided no information as to identity, motive or even influence of the persons or institutions capable of influencing the judge in question.
“No ‘motive, means and opportunity’ can be detected with regard to a potential lack of independence of the three judges in question in the present case,” he argued. “[The] court appears to focus closely on one specific issue viewed in clinical isolation, and on that basis establishes a false contradiction at a very high level of abstraction.”
In his opinion, the advocate general said the sound legal basis of judgments mattered, not the manner of a judge’s appointment.
“The mere fact that some judges were appointed to judicial office for the first time during the [communist] era is not an element capable, in itself, of calling into question their independence today,” he argued.
He also took issue with the PiS government’s campaign to root out communist-era cronyism that it insists is a pernicious force in modern Polish life, saying “the constitutional moment where any such measures could be legitimately envisaged has, in my view, long since passed”.
In his final opinion the advocate general said it was possible for the supreme court to examine a judge’s independence, but only “where a genuine and serious doubt arises”.
He noted an “almost Biblical twist” to the reference, given it was “submitted by a judge whose own recent appointment to his judicial office is heavily contested. It is said to have been irregular and vitiated by a flagrant breach of national law”.
Next Thursday another ruling is due from the Luxembourg court in the complex legal battle between Poland and the EU on its judicial reforms.
