The Rule of the Courts

The Role of the Courts in the Protection of the Rule of Law and of Fundamental Rights

to the implementation of new appointment procedures with an increased influence of the executive 26 and the creation of a disciplinary chamber that was able to sanction judges even for their judicial decisions. This competence is a clear violation of the independence of the judiciary. 27 The European Court of Justice held, on several occasions, that both the institutional setting which the Polish legislator chose for the new disciplinary chambers and their substantive law competences were not in line with European Union law. In an overall assessment, the selection of judges for the disciplinary chamber raised doubts as to their independence and impartiality so that the Court of Justice issued an interim order on the request of the Commission, whereby the disciplinary chamber was no longer permitted to exercise its functions. 28 The Court later confirmed these findings in its infringement ruling in the main proceedings. 29 Moreover, it is obvious and has been the long-standing case law of the Court that the Member States are not entitled to restrict in any way the right of the national courts to refer their questions to the European Court of Justice. 30 Therefore, it is impossible for the national legislator to reserve the right to refer questions to the CJEU – even in a specific area of law – to a particular judicial entity, because article 267 para. 2 TFEU does not contain any such restriction. 31 Consequently, the judges who are using the preliminary rulings procedure contrary to the restrictions under national law may not be subject to any disciplinary proceedings on account of their referrals to the Court. 32 26 CJEU (GC), 2 March 2021, Case C-824/18 – A.B. and Others; see also Simon , Europe 5/2021, 12. 27 CJEU (GC), 15 July 2021, Case C-791/19 – Commission v. Poland. 28 CJEU (GC), 8 April 2020, Case C-791/19 R – Commission v. Poland; Pech , (2021) 58 CMLRev. 137; Simon/Rigaux , Europe 6/2020, 16. 29 CJEU (GC), 15 July 2021, Case C-791/19 – Commission v. Poland; Simon , Europe 10/2021, 10. 30 CJEU (GC), 2 March 2021, Case C-824/18 – A.B. and Others; Simon , Europe 5/2021, 12. 31 CJEU (GC), 15 July 2021, Case C-791/19 – Commission v. Poland; CJEU, 14 July 2021, Case C-204/21 R – Commission v. Poland; CJEU (GC), 5 June 2023, Case C-204/21 – Commission v. Poland; Britz , NJW 2023, 2819; Rigaux , Europe 8/2023, 19.

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