Case: C-824/18. A. K. - A.B. and others v Krajowa Rada Sądownictwa an others.

Descriptors: Judge's appointment and judicial independence.

In the case, the Polish National Council of the Judiciary (hereinafter, PNCJ), whose members have been appointed by the Diet and not by their counterparts, decides to propose the candidacy of seven judges to fill the existing vacancies in the Supreme Court. The proposal is challenged before the contentious order by five non-proposed magistrates, but their appeals are dismissed and considered ineffective based on a Law that stipulates, among other requirements, the need for all participants in the process to challenge the Decision. All this in a political and judicial context, in which the vacancies of the Supreme Court were originated in the approval of a Law that anticipated the retirement age of the judges, unless expressly extended and, in any case, optional by the President of the Republic.

For all these reasons, the appellants interpret that there is a violation of the right to effective judicial protection, judicial independence and equal access to the judicial career, meaning that articles 2, 4.1, 9.1, 19.1, 267 TUE have been violated, as well as article 47.1 of the Charter; inasmuch as neither its appointment process nor its judicial control are in accordance with the Principles and Rights recognized in the Treaties of the Union.

In this way, the ordinary court submits several preliminary questions to the CJEU to determine whether the fact of having approved a national law that nullifies the ability to present an effective appeal in the framework of an appointment procedure for a judicial position; or the imposition of a dismissal without its resolution, preventing the knowledge of the preliminary question already interposed before the Court.

The CJEU, in its judgment, answered this question (Third question for preliminary ruling), considering that effectively the deprivation of said capacity would imply a violation of Article 267 TFEU but also in general of Article 19.1 TEU. A preservation of the right to effective judicial protection that, according to the Court's jurisprudence, requires the guarantee of the principle of independence of the jurisdictional bodies regarding, among others, their composition, the appointment procedure and the mandate’s duration. An independence that, furthermore, the Court tells us must be assessed in the light of the national legal-factual context (paragraph 129). It is very relevant as the Court intends to establish the principle of primacy of EU law, recognizing the national judge's ability to fail to apply the law in case it considers that it is contrary to articles 267 TFEU or 19.1 TUE, an end that the sender court must verify the conformity of the set of pertinent elements that the judgment indicates (paragraph 150).

In the same sense, the Court also decided that the firmness of a contested appointment implies that the appeal does not have legal effects and that, in this case, Article 19. 1 TFEU would also be contravened.

Read the decision