Legal status of the Chamber of Extraordinary Review and Public Affairs

After finding the applicant’s claim admissible, the Court decided to apply the criteria set out in the Guðmundur Andri Ástráðsson judgmentFootnote ¹⁵ to assess the irregularities in the judicial appointment process to the Chamber of Extraordinary Review and Public Affairs. In that judgment, the Court developed a threshold test comprising three criteria, taken cumulatively, to assess whether the irregularities are of such gravity as to violate the right to a ‘tribunal established by law’. These criteria are aimed at answering three questions: (1) whether there was a manifest breach of the domestic law that affected the fundamental rules for the appointment of judges; (2) whether the breach had to be assessed in the light of the object and purpose of the requirement of a ‘tribunal established by law’;Footnote ¹⁶ and (3) whether the review conducted by national courts, if any, played a significant role in determining whether such breach amounted to a violation of the right to a ‘tribunal established by law’.

In applying that test to the Chamber of Extraordinary Review and Public Affairs, the Court focused first on the appointment of its members by the ‘new’ National Council of the Judiciary. The Court observed that the procedure for judicial appointments to the Chamber was assessed as contrary to the domestic law in the resolution of the joined Chambers of the Supreme Court from 2020.Footnote ¹⁷ Furthermore, the President of Poland appointed the new Chamber of Extraordinary Review and Public Affairs judges, violating the interim relief ordered by the Supreme Administrative Court in a dispute on the legality of the National Council of the Judiciary’s recommendation for appointments.Footnote ¹⁸ These violations were considered a manifest breach of Polish law in the procedure for appointments of judges to the Chamber.Footnote ¹⁹

Second, the Court stressed that by the 2017 Amending Act,Footnote ²⁰ the Polish judiciary was deprived of the right to elect judicial members of the National Council of the Judiciary. The legislative and executive powers gained a decisive influence on the composition of this institution. The Court assessed this as a breach of domestic law, incompatible with the rule of law, the principle of the separation of powers, and the independence of the judiciary. The gravity of the breaches in the appointment procedure to the Chamber of Extraordinary Review and Public Affairs impaired the essence of the applicant’s right to a ‘tribunal established by law’.Footnote ²¹

Third, the Court did not identify any procedure under Polish law that offered the applicant the possibility to challenge defects in the process of judicial appointments to the Chamber.Footnote ²² Consequently, the Court found that the Chamber did not meet the standard of independence and impartiality.Footnote ²³

Considering all three criteria from the Ástráðsson test as fulfilled, the Court concluded that the Chamber of Extraordinary Review and Public Affairs was not an ‘independent and impartial tribunal established by law’.Footnote ²⁴

Proceedings before the Chamber of Extraordinary Review and Public Affairs

Separately, the Court drew attention to the procedure before the Chamber. Based on statistics presented by the government on the operation of extraordinary appeals in 2018-2022, the Court discovered that most of these remedies were submitted by the Prosecutor General - Minister of Justice.Footnote ²⁵ According to the Court, the merger of these two posts creates a risk that an extraordinary appeal submitted by political actors may, in practice, be a tool of political supervision over court judgments by the executive.Footnote ²⁶ Subsequently, based on the Venice Commission’s critical opinion on the planned ‘reforms’Footnote ²⁷ and equally critical evaluations made by the Group of States against CorruptionFootnote ²⁸ and the Parliamentary Assembly of the Council of Europe,Footnote ²⁹ the Court found that the extraordinary appeal, with a broad and subjective basis, violated the principle of legal certainty.Footnote ³⁰ The time limit to file this remedy – five years from the day the decision appealed has become final – was considered too long.Footnote ³¹ However, its extension to 20 years for the Prosecutor General was viewed as particularly alarming and incompatible with the rule of law, notably standards of legal certainty, res judicata and foreseeability of law.Footnote ³²

Focusing on the factual assumptions of the given case, the Court did not find any reason to contest the final judgment in the applicant’s case.Footnote ³³ Instead, the Court stressed the political character of the extraordinary appeal and stated that there was no reason to adopt this measure between two private individuals.Footnote ³⁴

Adoption of the pilot procedure

Deciding on the application of the pilot judgment procedure, the Court pointed out both the number of issued judgments and incoming cases concerning the judicial reform in Poland. Analysing the origin of the violations of Article 6(1) ECHR, the Court identified three areas that need to be improved. The first and the main one is the procedure for judicial appointments involving the National Council of the Judiciary, as established under the 2017 Amending Act. From the Court’s viewpoint, the ‘new’ judges of the Supreme Court, including those appointed to the Chamber of Extraordinary Review and Public Affairs, do not meet the requirements of an ‘independent tribunal established by law’.Footnote ³⁵ The second area is the legal status of all Chamber of Extraordinary Review and Public Affairs judges,Footnote ³⁶ which the Court considered did not guarantee independence and impartiality.Footnote ³⁷ The third one is the extraordinary remedy, which does not comply with the standards of a fair trial and the principle of legal certainty.Footnote ³⁸

Focusing on the first area, the Court expressed the need: (a) for legislative action guaranteeing the right of the Polish judiciary to elect judicial members of the National Council of the Judiciary; (b) to address the status of all judges appointed in the deficient procedure involving the judicial council as constituted under the 2017 Amending Act and of decisions adopted with their participation; as well as (c) to ensure effective judicial review of the National Council of the Judiciary’s resolutions proposing judicial appointments to the President of Poland, including appointments of the Supreme Court judges.Footnote ³⁹

Drawing attention to the second and the third areas, the Court called for legislative measures to be taken to ensure that the Chamber of Extraordinary Review and Public Affairs satisfies the requirements of an ‘independent and impartial tribunal established by law’.Footnote ⁴⁰ Regarding procedural aspects of the extraordinary appeal, the Court demanded that the State eliminate provisions that allow the arbitrary interpretation of the grounds of the remedy, fresh determination of the case, including the facts, and extended time-limits for lodging the remedy with the Prosecutor General.Footnote ⁴¹ The Court also suggested putting in place safeguards against abuse of process in the extraordinary appeal procedure, in particular, so as to exclude instrumentalisation of that procedure for political reasons.Footnote ⁴²

In my further considerations, I will focus on the first area of improvements suggested by the Court, which is the procedure for judicial appointments involving the National Council of the Judiciary, as established under the 2017 Amending Act.

Principles for the election of members of the National Council of the Judiciary

The most comprehensive measure recommended by the Court is the necessity for new legislation that guarantees the Polish judiciary’s right to elect judicial members of the National Council of the Judiciary.Footnote ⁴⁵ In previous judgments, the Court had formulated this recommendation in another way, stating that at least half of the members of judicial councils should be judges chosen by their peers.Footnote ⁴⁶ A move away from this earlier formula (‘at least half of the members’) to its general version (‘to elect judicial members of the judicial council’) without indicating exact numbers was not explained in Wałęsa v Poland at all. In the latter judgment, the Court referred to the decision of the Committee of Ministers from 2023Footnote ⁴⁷ made in connection with reforms undermining the independence of the judiciary in Poland. From this viewpoint, the formula ‘the right of the Polish judiciary to elect judicial members of the National Council of the Judiciary’, used previously in the Committee of Ministers decisionFootnote ⁴⁸ and repeated by the Court in Wałęsa v Poland, can be understood as a recommendation to restore the rules for the election of the judicial council members that were binding before the 2017 Amending Act.Footnote ⁴⁹ At that time, the Polish judiciary had the right to elect judicial members of the National Council of the Judiciary.Footnote ⁵⁰ However, the Court’s recommendation in paragraph 329 appears baffling, especially in light of the previous remark expressed by the Venice Commission, the Group of States against Corruption, and the Parliamentary Assembly of the Council of Europe, that ‘at least half of the members of the judicial council are judges elected by their peers’.Footnote ⁵¹ If two different formulas are mentioned in the same judgment and the Court uses one of them as a recommendation, its choice ought to be explained. Otherwise, there is a lack of precision. How the formula used by the Court (‘to elect judicial members of the National Council of the Judiciary’) is understood may have a significant impact on future legislation on the composition of the judicial council. There are several possible readings of the judgment in Wałęsa v Poland and options for the Polish legislator on the composition of the judicial council. This freedom of interpretation does not stem from a desire to give Poland space to decide about the composition of the council but rather from a lack of precision in the reasoning of the Court.

Trying to achieve a trade-off, one could understand the two formulas in connection. Reading them together, it follows that the Polish judiciary should have a decisive role in the election of the judicial members of the council. The interpretation could be justified by the Court’s broad analysis of the Polish legal regulation both before and after the 2017 Amending Act. It would also be consistent with the reasoning presented by the Court that the composition of the judicial council should be free from any influence that threatens the impartiality and objectivity of this institution.

Nonetheless, there are a few arguments why the judgement in Wałęsa v Poland should not be understood as a recommendation to restore the set-up from before the coming into force of the 2017 Amending Act. To some extent, the previous model was criticised in legal doctrine as offering judges an entirely decisive role in creating the judicial council.Footnote ⁵² Bearing in mind that the Polish National Council of the Judiciary is composed of 25 members, 15 of whom are judges,Footnote ⁵³ the election of judicial members of the council by judges gave the latter a decisive role in the management of the council empowered with the exclusive right to propose candidates for judicial appointments to the whole judiciary.Footnote ⁵⁴ In practice, while the election system before the amendment promoted judges from the higher courts, the amended version promoted less experienced judges.Footnote ⁵⁵ The disadvantages of this co-optative model had been identified even before the Law and Justice parliamentary election victory in 2015 but had not led to any legislative amendments.Footnote ⁵⁶ The threats of judicial ‘corporativism’ are also identified in the literature of other countries, mainly Central and East-European.Footnote ⁵⁷ Unfortunately, empowering the Sejm in 2017 with the right to elect judicial members of the council was politically motivated. It deprived the National Council of the Judiciary of the prestige, impartiality, and legitimacy of its decisions.Footnote ⁵⁸ Nevertheless, if the election process were based on transparent and objective criteria, not tainted by severe political conflict, and with the realistic participation of judges – e.g. submitting a short list of candidates to the Sejm – it could be assessed as consistent with the rule of law.Footnote ⁵⁹ It could even lead to a greater democratic legitimisation of judicial power.Footnote ⁶⁰ It may be agreed that judges who elect and are accountable only to themselves lose an important part of their democratic legitimacy and oversight.Footnote ⁶¹ The judiciary, as the third State power, needs democratic legitimacy for several reasons, mainly to avoid a noticeable decrease in perceived judicial independence.Footnote ⁶²

From this point of view, the suggestion that judicial members of the National Council of the Judiciary be elected only by their peers seems to be too specific. It does not include different possibilities on how to construct the election process in detail with the participation of legislative or executive power.Footnote ⁶³ The only margin of appreciation left to the legislator concerns rules for the election of judges by their peers. However, even in this possible reading of the judgment, the Court gave requirements concerning the diversity of the judge’s career stages.Footnote ⁶⁴ Undoubtedly, diversification in this field, complemented by other mechanisms like gender balance,Footnote ⁶⁵ can make the election process more objective and the composition of the judicial council more specific. A system of checks and balances within this process based on the participation of different actors from judicial, executive, and legislative powers may enhance the objectivity and professionalism of the appointments.Footnote ⁶⁶ Nevertheless, it is not the rules for the election but how the election is organised in practice that plays a seminal role in the impartial and professional functioning of the judicial council. There is no ideal way to appoint judges to this institution. Any system, including the election of judicial members of the council exclusively by judges, can be misused if it lacks basic cultural standards for all actors taking part in the election process. In other words, even the most diversified and transparent system to appoint new judicial members to the council would be practically harmful to judicial independence, if all participants in that process did not agree to apply the rules fairly and legally.

In Europe, there are various election models for national judiciary councils. Judges are elected to these bodies mostly by their peers.Footnote ⁶⁷ The participation of other state powers, including election by ParliamentFootnote ⁶⁸ or the involvement of executive powerFootnote ⁶⁹ are also solutions that are present in European legal orders. It is debatable, however, how – if at all – the recommendations from Wałęsa v Poland impact the assumptions of these models. Although the judgment is based on the Polish legal order, other jurisdictions should not ignore its findings.Footnote ⁷⁰ The requirements for impartial and professional fulfilment of judicial obligations by the judicial council are the same for all parties to the Convention. Therefore, if such a recommendation is given to one party, but similar inefficiencies or dangers are identified in another legal system, a change in the model of the elections to a council should be considered by the national legislator concerned.Footnote ⁷¹ Nevertheless, total uniformity in the election of judicial members to the judicial council would be undesirable because it would not recognise nuances that are important for a particular legal order based on its evolution and legal culture. No election system would be universally accepted by politicians, let alone academics specialising in this field.Footnote ⁷² For example, the Dutch legal culture is characterised by pragmatism and the ability to achieve consensus.Footnote ⁷³ The same is not true for Western Balkan states, for which legal formalism is more typical.Footnote ⁷⁴ Therefore, it is postulated that the Court should rather stay away from far-reaching pronouncements on the design of judicial councils without analysis of their functioning.Footnote ⁷⁵

The discussion on jurisprudence and legal culture leads to two spheres of judicial independence: de jure (guaranteed by law) and de facto (statistically measured).Footnote ⁷⁶ On the one hand, countries with a high level of de facto judicial independence may receive general recommendations with a broader margin of appreciation in the composition of their judicial councils. This would mean that diversified possibilities of creating judicial councils, including executive and legislative power participation in appointing judicial members, would be permissible. On the other hand, general recommendations would lead to considerable differences between legal systems in the various ways that judicial councils are elected. Following that approach, countries with lower levels of de facto judicial independence would have fewer possibilities in creating their rules on the composition of judicial councils.Footnote ⁷⁷ Nevertheless, a discussion about securing their legal systems from threats from populistic-oriented politicians is also present in countries with a high level of de facto judicial independence.Footnote ⁷⁸ The cultural and legal specificities between national legal orders do not mean that there should be different standards for the election and composition of the national councils of the judiciary. In Wałęsa v Poland, the Court focused on the Polish legal order, and this judgment is binding on Poland. However, the considerations given by the Court about the need to protect national councils of the judiciary from unlawful influence from executive and legislative powers create a common standard for all Council of Europe member states. In my view, regardless of significant differences between legal orders and their legal culture, the Court’s recommendations should be precise enough to limit space for speculation.

Moreover, the composition and election of judicial council members should not disregard the competencies of the particular councils.Footnote ⁷⁹ If, in a given legal order, the judicial council is competent (only) to administrate courts and does not protect or influence judicial status,Footnote ⁸⁰ including appointments, then its composition from the perspective of the rule of law and judicial independence is less significant than in the systems in which this institution has a central position for the structural existence of the whole judiciary (e.g. Poland). However, it is possible that in a particular legal order, values other than judicial independence might play a crucial role in creating a judicial council.Footnote ⁸¹ It should not be taken for granted that the judicial council has to be composed solely of judges, or that they have to constitute the majority or even a part of this institution.Footnote ⁸² If the judicial council is at least partially composed of members with economic, human resources, psychology, IT, or management backgrounds, then such values as their education and professional experience should play a predominant role in the process of their recruitment.

The judgment in Wałęsa v Poland (at least in the maximalist view based on the election of all judicial council members only by judges) seems to limit discussions about various possibilities for electing judicial members to the judicial council. The judgment does not differentiate under what circumstances all the members, or at least half of them, should be elected by judges. Nevertheless, it is clear from Wałęsa v Poland that the election process for the judicial members of the council should not exclude the judiciary. This general conclusion, derived from the judgment, does not imply that there is no margin of appreciation within the boundaries marked by the Court. In practice, members of judicial councils are nominated not only by the judges themselves but by associations of judges, courts, conferences of judges, and different instances or courts they represent.Footnote ⁸³ Any specificities are legally possible on condition that the elections are based on criteria that guarantee independence, separation of powers, fairness, and professionalism.

It is also worth noting that the judgment in the Wałęsa case could spark a debate in those countries where a national judiciary council does not exist.Footnote ⁸⁴ In Germany, judges at the federal level are appointed by the competent Federal Minister and a committee for the selection of judges.Footnote ⁸⁵ At the level of particular states, there are many differences in which the commissions responsible for judicial appointments (die Richterwahlausschüsse) are constructed.Footnote ⁸⁶ The state Minister of Justice plays a predominant role in many of them.Footnote ⁸⁷ Does a more significant role of the executive mean that the legislators in Germany should give more power within judicial appointment procedures to judges themselves? In discussing this topic, such an option did not find considerable approval among German scholars.Footnote ⁸⁸ In my opinion, the recommendations stipulated in Wałęsa v Poland do not apply to countries that do not possess judicial council. Their systems of judicial appointments are considerably different from those of countries like Poland, where the National Council of the Judiciary plays a predominant role in this process.Footnote ⁸⁹ Therefore, the implications of Wałęsa v Poland should be analysed rather in countries with similar judicial appointment procedures to Polish ones.

In July 2024 an amendment to the process of the election of judicial members to the National Council of the Judiciary was introduced.Footnote ⁹⁰ As recommended in Wałęsa v Poland, according to the new legislation judges are to be elected to the judicial council exclusively by their peers. There will be a strict division for judges from every court level and branch, to guarantee plurality and to avoid misrepresentation. However, the 2024 Amendment Act was redirected by the President of Poland to the Constitutional Tribunal and has not yet come into force.Footnote ⁹¹ The judgment of the Tribunal about the conformity of the 2024 law with the Polish Constitution is expected. Besides the President’s unwillingness to restructure the National Council of the Judiciary,Footnote ⁹² his decision to refer the Act to the Constitutional Tribunal was based on the clear differentiation in the statute between the status of the judges appointed before (‘old’ judges) and after (‘new’ judges) the entry into force of the 2017 Amending Act. The group of ‘new’ judges was to be excluded from applying for positions in the judicial council. The Venice Commission criticised this proposal as it lacks an individual evaluation of each judge; they thus deemed it disproportionate.Footnote ⁹³ This critique aligns with the findings of Wałęsa v Poland, where no distinction was made between judges’ rights and obligations, irrespectively of whether they are ‘new’ or ‘old’ judges.

Status of judges appointed in the procedure before the new National Council of the Judiciary

One of the main consequences of the new set-up of the National Council of the Judiciary, according to the 2017 Amendment Act, is the deciding of cases by judgesFootnote ⁹⁴ appointed in a procedure assessed in Wałęsa v Poland as defective.Footnote ⁹⁵ Nevertheless, the defects do not automatically imply that these people are not judges. The President of Poland appointed them based on a judicial council resolution. Although there are opinions among Polish legal scholars questioning the legal status of ‘new’ judges,Footnote ⁹⁶ the act of their appointment cannot be found to be non-existent.Footnote ⁹⁷ In Wałęsa v Poland, there was no conclusion that the appointments of ‘new’ judges were non-existent.Footnote ⁹⁸ The Court found the incompatibility of the judicial appointment procedure with the requirements derived from Article 6(1) ECHR. It formulated recommendations to restore the rule of law within judicial appointments.Footnote ⁹⁹ Moreover, this judgment gives no right to ‘old’ judges appointed before the introduction of the 2017 Amendment Act to withdraw from adjudication within one panel with ‘new’ judges.Footnote ¹⁰⁰ This judgment should not be treated as an automatic approval for the general exclusion of every ‘new’ judge from a particular proceeding. Instead of that, an individual verification in each case is appropriate. This strategy is constantly presented in the Polish Supreme Administrative Court jurisprudence concerning motions for disqualifying ‘new’ judges from a particular proceeding.Footnote ¹⁰¹

The same strategy for an individual assessment of each judicial appointment was confirmed by the Venice Commission in the opinion submitted at the request of the Polish Minister of Justice.Footnote ¹⁰² The Minister pointed out the possibility of assessing all judicial appointments as invalid ex tunc as an option to restore the rule of law within the Polish judiciary. In the view of the Venice Commission, that option would not meet the rule of law standards. Whatever reform is implemented, it cannot jeopardise the functioning of the judicial system as such. The invalidation of all judicial appointments would raise questions regarding the balance of state powers between the legislature and the judiciary. Removing the status of a judge through law would mean that appointees would have no right to judicial review against the invalidation of their appointment. Instead, the invalidation of individual appointments based on the characteristics of each case has been assessed as desirable and proportional.Footnote ¹⁰³ The need for individual verification of every judicial appointment was repeated by the Polish Ombudsman in a letter addressed to the Polish Prime Minister.Footnote ¹⁰⁴

A general assessment of all judicial appointments since the coming into force of the 2017 Amending Act, without consideration of all particularities connected with first or next-time appointments, proceedings in which judges were appointed from outside the judicial system, including the executive power, based on the quality of their adjudication, would be harmful to the whole judicial system.Footnote ¹⁰⁵ It would not reflect all specifics connected with the legal basis for each appointment and the factual characteristics of every candidate who applied for a free judicial position. The general assessment of all judicial appointments in Poland from 2018 onwards would be incompatible with the need to protect judicial independence, which can be easily violated.Footnote ¹⁰⁶ In other words, the identified defectiveness in judicial appointments after the 2017 Amending Act should not lead to the automatic deprivation of the status of judge for all of the ‘new’ judges. Another reason for that is purely pragmatic. It is impossible to question more than 2,000 judicial appointmentsFootnote ¹⁰⁷ without causing severe disruption to the judiciary. For this reason, the vetting process certainly has to be undertaken over a longer period.

Nevertheless, ceasing to question judges’ status does not remove the need to remedy the defects in the appointment of judges identified in Wałęsa v Poland. However, in contrast to the election of the National Council of the Judiciary members, the Court gave no recommendations on how to verify the judicial appointment process. It is stressed only that the status of all judges should be addressed, including decisions adopted with their participation. It is debatable whether this process should be the same for the Supreme Court judges and judges of other court branches.Footnote ¹⁰⁸ Another issue is the distinction between judges appointed before the ‘reform’ and subsequently promoted to a higher position and those appointed during the period of the deficient procedure. It is unclear whether the same rules should be applied to the administrative judges, bearing in mind that the administrative judiciary, unlike the Supreme Court and ordinary (civil and criminal) judiciary, was not structurally reformed within the last eight years.Footnote ¹⁰⁹ Answers to these questions are within the margin of appreciation given to Polish legislator.

Wałęsa v Poland gives no clear answer to this dilemma. If the Court decides to adopt a pilot judgment, its task is to indicate measures to ensure the long-term effectiveness of the ECHR system.Footnote ¹¹⁰ Nevertheless, at least a direction on how to address the review of defective judicial appointments can be deduced from the reasoning put forward by the Court. First of all, there is no doubt that the review should be undertaken. The Court stated clearly that the status of all judges appointed by the deficient procedure should be addressed. That does not mean that the verification procedure has to be identical for district court judges and the Supreme Court, including the Chamber of Extraordinary Review and Public Affairs judges. The Venice Commission expresses the same remark, which accepted individual assessment based on a grouping of similar cases.Footnote ¹¹¹ Second, it should be based on objective and non-political criteria. The need to exclude political influences during the verification appears to be especially challenging, because at least some of the ‘new’ judge appointments were politically motivated. The only way to avoid politics is to focus on the judicial independence of a verified personFootnote ¹¹² and to answer the question of whether he or she was (in)dependent in the process of adjudication. There is no simple answer to this question; only an individual assessment of every judicial appointment and subsequent adjudication can show whether the decisions made by that judge were not politically motivated, lacking explanation, or with grave procedural or substantive errors. Third, the Court stressed the need to preserve legal certainty and foreseeability. Even if it was presented within the extraordinary appeal’s evaluation, the same legal certainty requirements for judgments issued with the participation of ‘new’ judges could be assessed as reasonable. These remarks lead to the conclusion that the most radical solution based on the automatic invalidity of all judgments would not be proportionate to achieve the goals connected with the rule of law restoration.Footnote ¹¹³ Balancing the values and interests of various groups that meet in courts, including the ‘new’ judges, would be a more welcome solution.

The question of how to go through the verification process depends also on the Polish legal order. In this regard, Article 180 paragraph 2 of the Polish Constitution, according to which recalling a judge from office can be done only by virtue of a court judgment and under circumstances specified by law, is worth stressing.Footnote ¹¹⁴ From this perspective, the removal of a judge by the judicial council, even in a new composition, is not legally permissible. The need for judicial participation and control in this process is also stressed in Wałęsa v Poland.Footnote ¹¹⁵ Finally, the last words will belong to a court that has to take into consideration all the above-mentioned criteria of objectivity, legal certainty, and foreseeability of law. This obligation is linked with these aspects of the judgment in Wałęsa v Poland, which correspond to the legal position and structure of the Supreme Court. In practice, it is hardly conceivable that the ‘new’ judges’ verification could be carried out without the involvement of that court, especially when it comes to its judges.

Bearing in mind the referral of the 2024 Amendment Act by the President of Poland to the Constitutional Tribunal, it is worth considering possible ways to restore the rule of law without legislative amendments recommended in Wałęsa v Poland. Unfortunately, the process of defective judicial appointments is still ongoing.Footnote ¹¹⁶ The initiative not to announce new vacancies for judges is more than welcome.Footnote ¹¹⁷ From a long-term perspective, withholding of judicial positions could lead to inefficiencies in the judicial system. The choice between appointing judges through a defective procedure or ceasing to make appointments at all, as a result of which the judicial system could become inefficient, is an example of balancing different values in which the impossibility of lawful judicial appointments should prevail over the threat of (unreasonable) time for case resolution. Unfortunately, it is the only thing that can be done without any legislative action.

Effective judicial review of the National Council of the Judiciary’s resolutions

The last recommendation of the Court with regard to judicial appointment procedure in Poland was to ensure effective judicial review of the judicial council’s resolutions on candidates for the position of judge. Undoubtedly, the judicial review process would be ineffective if any decisions affecting the result of the judicial appointment were outside of the administrative court’s jurisdiction. In my opinion, this recommendation should be understood broadly as a need for effective judicial review of the whole process of a judicial appointment or verification, irrespectively of its future procedural and structural characteristics. A court should have the right to examine all aspects of this process and decide whether it was lawful. A final court’s decision should tackle the core of the case (judicial appointment) being binding for all authorities and parties to the proceedings.

Focusing on the Polish legal order, the process of judicial appointment does not end with the National Council of the Judiciary resolution but with the act of nomination given by the President of Poland,Footnote ¹¹⁸ which is exempted from countersigning by the Prime Minister.Footnote ¹¹⁹ This act has been considered to be of symbolic relevance.Footnote ¹²⁰ Although it was not expressly stated in Wałęsa v Poland, as such, this act is assessed in the jurisprudence of the Court as an act of government (acte de gouvernement), which means that it is not subject to judicial control.Footnote ¹²¹ The recommendation expressed in Wałęsa v Poland follows this reasoning, by expressing the need for effective judicial review of the judicial council’s resolutions that propose judicial appointments to the President of Poland. If a nomination given by the President had only a formal and symbolic nature, then the procedure before the National Council of the Judiciary would play a decisive role in the whole procedure.

In practice, nominations proposing judicial appointments that follow the National Council of the Judiciary’s resolutions for the incumbent President of Poland do not have a purely formal nature.Footnote ¹²² A lack of nomination without any explanation raises questions about its lawfulness and the effectiveness of judicial control limited to the judicial council’s resolutions. The uniform jurisprudence of the Supreme Administrative Court does not allow review of the acts of the President of Poland in this field, as they are actes de gouvernement.Footnote ¹²³ This has already led to legally absurd situations. There was a case in which the National Council of the Judiciary’s resolution was contested before the Supreme Administrative Court, but the President of Poland did not wait for the resolution of this case and nominated a judge based on the contested resolution. Afterwards, the Supreme Administrative Court reversed the resolution and considered that its judgment did not affect the legality of the nomination made by the President of Poland.Footnote ¹²⁴ Therefore, there is no legal instrument that forces the President of Poland to nominate a candidate who was proposed in the resolution of the judicial council or to appeal against an order refusing the nomination.

In fact, it is the President of Poland who plays the decisive role in the process of a judicial appointment, not the National Council of the Judiciary. The recommendation in Wałęsa v Poland about effective judicial review of the judicial council’s resolutions without taking into consideration the (de facto et de jure) role performed by the President of Poland would be insufficient. In my opinion, the presidential nominations should not have the status of actes de gouvernement, because they have decisive character in the judicial appointment process. They determine the final effect of this process and, therefore, should be legally verified by administrative courts. It has been postulated that these acts of the President should be subject to judicial review, but the Supreme Administrative Court has so far not shared this view.Footnote ¹²⁵ According to the case law of the European Court of Justice, the necessity for judicial oversight of decisions that result in legal consequences for judicial appointments remains unquestioned.Footnote ¹²⁶ Wałęsa v Poland is another reason to change this way of thinking and look once again at the process of judicial appointments from the perspective of effective judicial control.

Considering the abovementioned domestic legal context, judicial nominations given by presidents should not always be considered as actes de gouvernement.Footnote ¹²⁷ A decisive role in categorising them as such should be the legal importance of these acts for the outcome of the judicial appointment process.