EU law requirements of an independent and impartial tribunal previously established by law: judgment of the CJEU in the case of W.Ż.

In the case of W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment) (C-487/19, 6.10.2021) the CJEU ruled on the transfer without consent of a judge of an ordinary Polish court. It held that the order by which the Chamber of Extraordinary Control and Public Affairs of the Polish Supreme Court, ruling at last instance and sitting as a single judge, dismissed the action of that judge must be declared null and void if the appointment of the single judge concerned took place in clear breach of fundamental rules concerning the establishment and functioning of the judicial system at stake.

In the case at hand, the President of the Republic had appointed the single judge concerned despite a decision by the Supreme Administrative Court ordering that the effects of the resolution of the National Council of the Judiciary recommending the appointment of this judge be suspended pending a preliminary ruling of the CJEU.

Among other things, the CJEU referred to the case-law of the European Court of Human Rights concerning in particular the right of members of the judiciary to protection from arbitrary transfer (§ 116), the concept of a “tribunal established by law”, the process of appointing judges (§§ 124-125), the requirement that the organisation of the judicial system does not depend on the discretion of the executive (§ 129) and the need to preserve the integrity of the appointment of judges as a way to avoid reasonable doubt in the minds of individuals as to the independence and the impartiality of the judges concerned (§ 130). In Dolińska-Ficek and Ozimek, the European Court of Human Rights “fully subscribed” to the CJEU’s reasoning (§ 328).

The CJEU also recalled that by virtue of Article 52(3) of the EU-Charter, it must ensure that the interpretation which it gives to the second paragraph of Article 47 of the EU-Charter (right to effective judicial protection) safeguards a level of protection which does not fall below the level of protection established in Article 6 § 1 of the Convention (right to a fair trial), as interpreted by the European Court of Human Rights (§ 123). However, there is no explicit inquiry or demonstration by the CJEU on whether the Convention level of protection has been respected in the present case.

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