In the case of Krajowa Rada Sądownictwa (C-718/21, 21.12.2023), a Grand Chamber of the CJEU ruled that a request for a preliminary ruling from the Polish Supreme Court (Chamber of Extraordinary Control and Public Affairs, “the CECPA”) was inadmissible, on account of the fact that the panel of judges of the CECPA which submitted that request was not an independent and impartial tribunal previously established by law for the purposes of the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the EU-Charter. This was because of the procedure which had led to the appointment of the three judges composing that panel. Consequently, it did not constitute a “court or tribunal” within the meaning of Article 267 TFEU.

The CJEU insisted that it is alone responsible for interpreting EU law and must consider the issue in the light of its own case-law (§§ 40, 46 and 58). At the same time, it amply relied in its reasoning on the judgment of the ECtHR in the case of Dolińska-Ficek and Ozimek v. Poland, which concerned the dismissal by the CECPA of the appeals against resolutions of the National Council of the Judiciary (“the NCJ”, referred to as the “KRS” by the CJEU) on the non-recommendation of judges to posts at higher courts. It also referred to the judgment of the Polish Supreme Administrative Court of 21 September 2021, which had annulled Resolution No 331/2018 proposing the appointment of some of the judges of the CECPA.

What is noteworthy about this ruling is, first, the convergence between Strasbourg and Luxembourg in considering that the CECPA is not a “tribunal established by law”. According to both European Courts, this is because members of the CECPA were appointed following a procedure characterised by undue influence of the legislative and executive powers on the appointment of judges: the recommendation of candidates for judicial appointment to the CECPA was entrusted to the NCJ, a body that lacked sufficient guarantees of independence from the legislature and the executive. In addition, and in breach of the rule of law and the separation of powers, the members of the CECPA had been appointed by the President of the Republic in spite of a stay of execution which had been decided by the Supreme Administrative Court pending its examination of the lawfulness of the Resolution which had recommended the appointment of the judges concerned. The ECtHR called this an act of “utter disregard for the authority, independence and role of the judiciary” (§ 330).

The importance of that convergence between the two European Courts on principles as fundamental for democratic societies as the rule of law and judicial independence can hardly be overestimated.

Some differences between the reasoning of the ECtHR and the CJEU on these issues should however be noted. The first one relates to the concepts being relied on by the two Courts. In Dolińska-Ficek and Ozimek the ECtHR considered the two main shortcomings mentioned above, i.e. the nomination by a non-independent body and the appointment by the President of the Republic in disregard of a court order, to be sufficiently serious, as such, to impair the very essence of the applicant’s right to a “tribunal established by law” (§ 350).

By contrast, the CJEU saw the problem more as one concerning appearances of independence and impartiality and “reasonable doubts in the minds of individuals as to the imperviousness of the persons concerned and the panel in which they sit with regard to external factors, in particular the direct or indirect influence of the national legislature and executive and their neutrality with respect to the interests before them” (§ 61, 62, 68 and 77).

The explanation for this reliance by the CJEU on appearances and doubts, rather than on the “very essence” of the right to a tribunal, may be found in the fact that here independence and impartiality are considered together by the CJEU, impartiality being the concept for the assessment of which the ECtHR itself relies on appearances and reasonable doubts (e.g. in Morice v. France, §§ 76-78). While there is of course a link between these two notions (see Dolińska-Ficek and Ozimek, §§ 315-316), they nonetheless cover different requirements.

However that may be, one may wonder whether the massive interference of the legislative and executive powers in the appointment of judges, as described in the case at hand, is only a problem of appearances and doubts, or whether it affects the substance of the rights concerned, leaving no room for any possible doubts or mere appearances. In other words, the problem should perhaps not be reduced to one of mere appearances and doubts. Rather, as indicated by the ECtHR, it goes to the heart of the rule of law, the separation of powers and judicial independence. These principles do not only appear to have been ignored in the case at hand. Rather, they were actually disregarded and therefore the very essence of judicial independence was genuinely affected.

Secondly, while the ECtHR saw the two main shortcomings mentioned above, in addition to the absence of adequate legal remedies, as sufficient to support its conclusion of a violation of the right to a tribunal established by law, the CJEU relied on several additional circumstances, such as the extent of the jurisdiction of the CECPA, the adoption by the Polish legislature of a new law limiting the possibility to challenge decisions by the NCJ,  or the annulment by the Supreme Administrative Court of Resolution No 331/2018 (§§ 65-76).

This could be interpreted as suggesting that under EU law the two main shortcomings identified by the ECtHR are not sufficient and require the combination of all mentioned additional circumstances to lead to a conclusion of incompatibility with Article 19(2), second sub-paragraph, TEU, read in the light of Article 47 of the EU-Charter. This, in turn, could be seen as offering a lesser protection of the right to a tribunal established by law.

Should this be the case, and in view of the fact that the Convention represents in this field the minimum protection standard also applicable under EU law (Art. 52(3) of the EU-Charter), the circumstances listed in Dolińska-Ficek and Ozimek should be considered sufficient to deny a national court the status of a “tribunal established by law”.