Dealing with ‘fake judges’ under EU Law: Poland as a case study in light of the Court of Justice’s ruling of 26 March 2020 in Simpson and HG

One of the most concrete but also problematic aspects of what may be labelled ‘rule of law backsliding’ is not only the increasing number of bodies masquerading as courts but also the increasing number of individuals masquerading as judges, with the situation in Poland being exhibit A in this respect. This paper will focus on the latter issue in light of the right to a tribunal previously established by law. In EU law, the right to a tribunal established by law is an aspect of the right to a fair trial and is provided for in the first sentence of the second paragraph of Article 47 of the Charter. While there is ample case law concerning the requirements that courts must be independent and impartial, the Court of Justice had not interpreted and applied the term ‘established by law’ to comprehensively review a judicial appointment procedure until its Grand Chamber judgment of 26 March 2020 in Simpson and HG.
While the Court’s ruling does not directly concern a national judicial appointment procedure but rather an irregularity affecting the procedure for the appointment of a judge to the former EU Civil Service Tribunal, this paper contends that the Court of Justice’s reasoning can be extrapolated to the situation where irregularities have affected national judicial appointment procedures and this is indeed what this paper will attempt to do as regards the situation in Poland in light of the Polish Supreme Court’s findings in its resolution of 23 January 2020.
This paper will conclude by assessing the extent to which (if any), individuals appointed to Polish ordinary courts and Supreme Court posts on the basis of the Polish law of 8 December 2017 amending the Law on the National Council of the Judiciary, and the individuals appointed to the Constitutional Tribunal without a legal basis as well as the unlawfully appointed President of the said Tribunal in December 2016, may be considered proper judges or, on the contrary, to borrow from English law, ‘de facto judges’ or ‘usurpers’. In this respect, it will also be submitted that the Polish law of 14 February 2020, informally known as the ‘muzzle law’, cannot constitute a lawful obstacle when it comes to dealing with usurpers and more generally, assessing the lawfulness of any judicial appointment made by the Polish president. Indeed, as a matter of EU law and as made clear by the Court in Simpson and HG, ‘everyone must, in principle, have the possibility of invoking an infringement’ of the fundamental right to an effective remedy before an independent and impartial tribunal previously established by law. This means inter alia that the CJEU but also national courts of EU Member States ‘must be able to check whether an irregularity vitiating the appointment procedure’ in dispute ‘could lead to an infringement of that fundamental right.’

RECONNECT Working paper No. 8