The Rule of the Courts

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

2. The consequences of the illegal appointment of judges

If the outcome of the conflict between the national constitutional court and the European Court of Justice thus appears obvious from the point of view of European constitutional law, the potential remedies in the concrete cases appear much less clear. A complex question arises when not the fate of a newly established judicial body in its entirety is concerned, but when the recruitment of judges at regular courts and tribunals did not follow a recruitment procedure that is in line with the requirements of the rule of law. Although the appointment of the judges may be valid and effective from the point of view of national law, the breach of the rule of law can negatively affect their activity. The procedure is tainted if the executive or the legislative has a degree of influence in the appointment of the judge which is incompatible with the requirements of the rule of law. 52 The main questions concerning the consequences of the illegal recruitment of judges relate, first, to the individual fate of the official position of the judge in question, and, second, to the effects on his or her judgments. When Polish courts raised these kinds of questions before the European Court of Justice, the court, until now, remained rather guarded in its approach, but tends to reduce the binding force of the decisions in question. Until now, the Court of Justice has not required the Member States to call the position of the improperly appointed judges in question. There is no clear indication whether EU law would require the discharge of sitting judges if they have been appointed in a manner that is contrary to the principles of the rule of law. There are some serious arguments concerning judicial inde pendence and the protection of legal certainty that militate against the dismissal of the judges. A solution pro futuro could lie in the amendment of national procedural law so as to bring the composition of the court in line with the requirements of EU law by way of restructuring the court and its benches as well as the tasks of the illegally appointed judges in general. a) The position of the judge

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52 ECtHR, 22 July 2021, no. 43447/19 – Reczkowicz v. Poland.