The Test of Judicial Independence. The Advocate General of the European Court of Justice has issued an opinion in the Gekus case.

The CJEU took up the case following the submission of preliminary questions by the Polish Supreme Court, raised during the consideration of a request for a so-called independence test by Supreme Court judge Jacek Grela, appointed to hear a cassation appeal in a civil case. The request for an independence test was filed by an Irish company, C., which was engaged in a dispute with an Irish citizen, MS, before the Court of Appeal in Warsaw. The dispute concerned the parties' obligations and liability for certain acts performed by them in Poland. The court ordered the defendant to pay the plaintiff a certain amount of money.

MS is seeking to challenge this ruling in the Irish High Court. He argues that his right to a court established by law was violated because the Polish panel that issued the ruling included a judge delegated by the Minister of Justice, which was unlawful.

How Polish rule of law problems impact Irish disputes

The Ministry of Justice also filed a cassation appeal with the Polish Supreme Court. It was to be heard by a three-judge panel, to which Judge Jacek Grela, among others, was appointed. At that time, the plaintiff, company C., filed a motion to conduct a test of Judge Jacek Grela's independence and impartiality. It argued that he was appointed a judge of the Civil Chamber of the Supreme Court based on a resolution of the National Council of the Judiciary, which the Supreme Administrative Court overturned in 2021, noting that appointments made on that basis remain valid. The plaintiff company cited Judge Grela's conduct after his appointment. He, along with two other judges, filed a complaint with the Constitutional Tribunal regarding the constitutionality of, among other things, European regulations insofar as they allow a court to question the effectiveness of a resolution of the National Council of the Judiciary presenting a candidate for judge.

The presiding judge of the Supreme Court bench selected to hear Jacek Grela's independence test petition has doubts whether three of the five judges on the bench meet the requirement of an independent and impartial court established by law, as they were appointed under the same procedure as Judge Grela. And, like him, they are so-called neo-judges.

The CJEU was also asked to indicate what action should be taken if it is established that judges whose participation in resolving the case does not ensure the party’s right to an effective remedy before an independent and impartial court have been appointed to hear the test application.

Advocate General: A neo-judge cannot test another neo-judge

According to Advocate General Nicholas Emiliou, certain deficiencies in the appointment procedure may in themselves indicate that the judges concerned do not meet the requirements of independence and impartiality.

"This is the case when the circumstances of the appointment involved an irregularity of such a nature and gravity that it raises, in the minds of individuals, justified doubts as to the independence and impartiality of the judge in question," the Advocate General believes. "In such cases, the party raising objections in this regard cannot be required to present additional evidence confirming these irregularities," he added.

The Advocate General considered it obvious that in a case in which the adjudicating panel considers the issue of judicial independence of a given judge, the members of that panel cannot themselves be affected by the same problem.

– Therefore, if the independence of a judge is questioned on the basis of an allegedly unlawful appointment procedure, the judges hearing the case cannot be judges appointed under the same procedure.

(or equivalent) procedure. Judges who may fail to maintain or demonstrate the necessary impartiality when considering a case involving judicial independence should be removed from the panel hearing the case.

As Advocate Emiliou pointed out, it is for the internal legal order of the Member State concerned to establish detailed procedural rules that ensure that such a case is heard by a panel that meets the requirements of the right to an effective remedy and a fair trial.

file reference number C-748/23 Gekus