CONCURRING OPINION OF JUDGE WOJTYCZEK

In the instant case, I have certain reservations concerning the Court’s reasoning.

1. Under the Polish Constitution, the key element of the procedure for the appointment of judges is the motion to appoint specific persons to judicial positions, presented to the President of the Republic by the National Council of the Judiciary. The President of the Republic cannot appoint anyone to a judicial position without a valid motion of the National Council of the Judiciary. If this motion is invalid, then the appointment procedure is incompatible with the domestic law.

I note in this context that, in the instant case, as in Guðmundur Andri Ástráðsson v. Iceland ([GC], no. 26374/18, § 254, 1 December 2020), the domestic courts established a certain number of breaches of the domestic law. More precisely, as rightly stated by the Court in paragraph 347 of the present judgment:

“In that context, it is to be recalled that NCJ resolution no. 330/2018 recommending seven new judges for appointment to the Civil Chamber of the Supreme Court was subject to judicial review by the Supreme Administrative Court which, on 6 May 2021, gave judgment quashing that resolution (see paragraphs 49-52, 165-169 and 323 above).”

Moreover, in the relevant judgment (6 May 2021, II GOK 2/18), the Supreme Administrative Court endorsed the position of the Supreme Court expressed in the judgment of 5 December 2019, III PO 7/18 (see paragraphs 52 and 110), which established further breaches of domestic law.

Even if – unlike the situation in Guðmundur Andri Ástráðsson, cited above, – the compatibility of these two judgments with domestic law is disputed, under the Convention there are no sufficient reasons, in my view, to call into question the interpretation of the domestic law, established by the Supreme Administrative Court , in connection with the specific question of validity of the NCJ motion. The above-mentioned judgment of the Supreme Administrative Court is a sufficient premise upon which to conclude that the appointment procedure was in breach of domestic legal rules and that the rules breached are of a fundamental importance for that procedure (as explained by the domestic courts).

2. The reasoning contains considerations concerning the issue of compliance with domestic law in paragraphs 306-351. As summarised in paragraph 349, the Court has found two sets of breaches of domestic legal rules:

“The Court has established that, on two counts, there was a manifest breach of the domestic law which adversely affected the fundamental rules of procedure for the appointment of judges to the Civil Chamber of the Supreme Court. First, the appointment was made upon a recommendation of the NCJ, as established under the 2017 Amending Act, a body which no longer offered sufficient guarantees of independence from the legislative or executive powers. Second, the Polish legislature intervened in the process of appointments by extinguishing the effects of the pending judicial review of NCJ resolution no. 330/2018, and the President of Poland, despite the fact that the implementation of that resolution – whereby seven judges of the Civil Chamber had been recommended for appointment, including those who had dealt with the applicant company’s case – had been stayed by the Supreme Administrative Court and that the legal validity of that resolution was yet to be determined by that court, appointed them to judicial office in manifest disregard for the rule of law.”

The approach adopted calls for a few remarks. Firstly, as in the case of Reczkowicz v. Poland (no. 43447/19, 22 July 2021), it is still not clear which specific legal rules pertaining to the composition of the NCJ have been breached (compare my concurring opinion in Reczkowicz , ibid.). I note, in this context, that concerning the second issue, the Court – following the Polish Supreme Court – identifies with much greater precision the specific domestic legal rules which have been breached (see paragraphs 327-328). Secondly, if the rules breached are not identified with precision, then it is simply impossible to address the question whether the breaches of the domestic law pertained to a fundamental rule of the procedure for appointing judges. In fact, in paragraphs 336-348, the Court does not really reflect upon the nature and importance of the legal rules breached but rather restates once again the deficiencies of the appointment procedure already established. Thirdly, the Court seems to lay the emphasis on the importance of the interim measures decided by the administrative court and the obligation to comply with them, whereas the Supreme Court identified more important problems at that stage, connected with the substantive issues and the fact that the legal existence of the NCJ’s resolution no. 331/2018, which included the motion for his [i.e. the candidate’s] appointment, was not permanent (decision of the Supreme Court, 21 May 2019, III CZP 25/19, summarised in paragraph 149 of the reasoning). Fourthly, as explained above, the most important legal issue is the invalidity of resolution no. 330/2018. This point, despite its fundamental importance explained above, is mentioned only – somewhat en passant – in paragraph 323 in fine and in paragraph 348. Fifthly, and more generally, a breach of domestic law which requires 45 paragraphs of the Court’s own reasoning and numerous references to European Union case-law appears less flagrant (compare my concurring opinion in Reczkowicz , cited above).

3. The reasoning states the following in paragraph 310:

“The Court’s task in the present case is therefore not to resolve the existing conflict of opinions as to the application and interpretation of the domestic law or to substitute itself for the national courts in their assessment of the applicable provisions, but to review, in the light of the above principles, whether the Polish courts in their respective rulings struck the requisite balance between the various interests at stake and whether, in carrying out that exercise and reaching their conclusions, they had due regard to, and respect for, the Convention standards required of a ‘tribunal established by law’ (see Reczkowicz , cited above, § 231).”

In my view, there is no other option for the Court than to express a position, taking into account the Convention standards, in the existing conflict of opinions as to the application and interpretation of the domestic law, and the Court should not hide the fact that it is actually doing so.

4. In paragraphs 332-334, the Court, without providing arguments, declares Article 6 applicable to judicial proceedings in which unsuccessful candidates for judicial positions tried to invalidate the appointment motion. This issue would have deserved more thorough consideration in the light of the Court’s rich case law (see, in particular, Revel and Mora v. France (dec.), no. 171/03, 15 November 2005; Tencheva‑Rafailova v. Bulgaria (dec.), no. 13885/04, 5 January 2010; Fiume v. Italy , no. 20774/05, § 35, 30 June 2009; Majski v. Croatia (no. 2) , no. 16924/08, § 50, 19 July 2011; Juričić v. Croatia , no. 58222/09, 26 July 2011; Tsanova-Gecheva v. Bulgaria , no. 43800/12, § 84, 15 September 2015; F.G. v. Greece (dec.), 58740/11, 25 April 2017; and Frezadou v. Greece , no. 2683/12, 8 November 2018).

5. The judgment tries to give some guidance to the parties to domestic judicial proceedings and to domestic authorities concerning other cases connected with the reforms of the judiciary in Poland (compare my concurring opinion in Reczkowicz , cited above). On the one hand, the Court states in paragraph 364:

“As already noted above, the Court’s conclusions regarding the incompatibility of the judicial appointment procedure involving the NCJ with the requirements of an ‘independent and impartial tribunal established by law’ under Article 6 § 1 of the Convention will have consequences for its assessment of similar complaints in other pending or future cases (see paragraph 227 above). The deficiencies of that procedure as identified in the present case in respect of the newly appointed judges of the Supreme Court’s Civil Chamber, and in Reczkowicz (cited above) in respect of the Disciplinary Chamber of that court, and in Dolińska-Ficek and Ozimek (cited above) in respect of the Chamber of Extraordinary Review and Public Affairs have already adversely affected existing appointments and are capable of systematically affecting the future appointments of judges, not only to the other chambers of the Supreme Court but also to the ordinary, military and administrative courts (see also paragraphs 127 and 142 above).”

This suggests that all domestic judgments rendered with the participation of judges appointed upon the motion of the NCJ created in 2018 may be considered in breach of Article 6.

On the other hand, the Court further states the following in paragraph 365:

“As regards the legal and practical consequences for final judgments already delivered by formations of judges appointed upon the NCJ’s recommendation and the effects of such judgments in the Polish legal order, the Court at this stage would note that one of the possibilities to be contemplated by the respondent State is to is to incorporate into the necessary general measures the Supreme Court’s conclusions regarding the application of its interpretative resolution of 23 January 2020 in respect of the Supreme Court and other courts and the judgments given by the respective court formations (see paragraph 127 above).”

This suggests a case-by-case approach to judgments rendered by judges appointed to ordinary or administrative courts upon the motion of the NCJ created in 2018. If I understand these general guidelines correctly, the validity of ordinary court judgments and of administrative court judgments – rendered with the participation of such judges – has to be assessed on a case-by-case basis and their participation will not necessarily entail a breach of Article 6.

Such an approach would be further confirmed by Guðmundur Andri Ástráðsson (cited above, § 222, emphasis added):

“It goes without saying that the higher a tribunal is placed in the judicial hierarchy, the more demanding t he applicable selection criteria should be.”

In any event, it would have been preferable to explain the position of the Court on these questions in a clearer manner.

6. Finally, I note that the Court may join the issue of effectiveness of possible remedies to the merits of the case. Such an approach is justified when the question of effectiveness of remedies is intrinsically linked to the substantive legal issues belonging to the merits.

In the instant case, the Court decided to join to the merits the issue of the effectiveness of the constitutional complaint as a possible remedy to be exhausted. However, the question of the effectiveness of the constitutional complaint does not depend upon the merits of the case and is actually dealt with in considerations that are independent from other matters (paragraphs 319-320). It would therefore have been preferable to follow the usual structure of judgments and to deal with the issue of exhaustion of remedies separately, as a preliminary question.

[1] The translation is based on the English version of the judgment published on the Constitutional Court’s website, edited by the Court’s Registry:

Trybunał Konstytucyjny: Ocena zgodności z Konstytucją RP wybranych przepisów Traktatu o Unii Europejskiej (trybunal.gov.pl)

[2] Pursuant to section 20 of the 2017 Act on Supreme Court the powers of the First President of the Supreme Court are limited with regard to the Disciplinary Chamber. They are either exercised by the President of the Disciplinary Chamber (i.e. the President of the Supreme Court who directs the work of that Chamber) or by the First President of the Supreme Court in agreement with the President of the Disciplinary Chamber.

[3] Paragraphs 2-6 added by the 2019 Amending Act

[4] The translation is based on the English version of the judgment published on the Supreme Court’s website, edited by the Court’s Registry: http://www.sn.pl/aktualnosci/SiteAssets/Lists/Komunikaty_o_sprawach/AllItems/III-PO-0007_18_English.pdf

[5] The translation is based on the English version of the judgment published on the Supreme Court website, edited by the Registry of the Court:

http://www.sn.pl/aktualnosci/SiteAssets/Lists/Wydarzenia/AllItems/BSA%20I-4110-1_20_English.pdf

[6] Section 11(3) and (4) in conjunction with section 13(1) an (2) as well as section 11(2) in conjunction with section 12(1) of the 2011 Act on the NCJ (see paragraph 98 above).

[7] The translation is based on the text available on the Constitutional Court’s website, edited by the Court’s Registry.

[8] Adopted by participants from European countries and two judges’ international associations, meeting in Strasbourg on 8-10 July 1998 (meeting organised under the auspices of the Council of Europe), endorsed by the meeting of the Presidents of the Supreme Courts of Central and Eastern European countries in Kyiv on 12-14 October 1998, and again by judges and representatives from Ministries of Justice from 25 European countries, meeting in Lisbon on 8-10 April 1999.

[9] For the legislative process and the President’s proposal regarding amendments see paragraphs 8 and 10 above.

[10] Editorial note: see paragraph 195 above.

[11] The 2019 Amending Act, see paragraph 105 above.