As part of the political battle between the current European Union (EU) institutions and the Republic of Poland, the European Parliament Committee on Civil Liberties, Justice and Home Affairs has recently commissioned a study (hereinafter, the study) on the alleged principle of EU Law primacy and the judgments of the Polish Constitutional Court rejecting such principle.
In the study, several aspects of the Polish judicial reform initiated in 2016 are portrayed as problematic, having caused a confrontation between the Polish Constitutional Court and the Court of Justice of the European Union which serves as background to the EU institutions’ constant political (and financial) aggression on Poland.
This article will compare such aspects to the judicial system in Spain, another EU member state, which is not suffering a permanent siege on behalf of the Brussels authorities. Because the focus is on legal instruments rather than the political arena, the reasons for this peculiar disparity of treatment are not discerned here.
Similarities between the Polish reform and other Western nations, such as Germany (re. extensive rights on behalf of the Minister of Justice to organise courts) or the United States of America (re. merger of the position of Minister of Justice with that of Prosecutor General) are not discussed in detail, either.
Disciplinary proceedings of public prosecutors
Profs. PETERSEN and WASILCZYK first recall that Polish public prosecutors can be subject to disciplinary proceedings initiated by the General Prosecutor’s Office, and that such proceedings can lead to the suspension of a public prosecutor.
In Spain, public prosecutors are regulated through their own Statute, approved in 1981 and further reformed in 2007. According to Article 61 of such Statute, Spanish public prosecutors are also subject to disciplinary responsibility. As per Article 66 thereof, they can also be suspended, as is the case of their Polish colleagues, and even removed from office.
Finally, Article 67 of the Spanish Statute determines that it is the General Prosecutor who will impose a sanction of suspension (same as Poland), while removal is proposed by the same authority, to be confirmed by the Minister of Justice.
Retirement age of judges
As a further item outlined in the study meriting criticism from EU institutions, the retirement age of judges in Poland was lowered to 65 years in 2017.
In Spain, it also used to be 65 years until the end of 1992, when it was increased to 70. However, Article 386.2 of the Organic Law governing the judiciary also enables to retire from 65 on, once more similarly to Poland.
In the case of Poland, judges interested in remaining active from 66 to 70 must request a permission from their National Council of the Judiciary (KRS) to continue their service. That is exactly the case in Spain for judges wishing to retire from 66 to 69, who need to request permission to the Judiciary Power General Council (CGPJ).
Creation of new chambers at the Supreme Court
Also in 2017, a Disciplinary Chamber was created in Poland, in order to be in charge of administering disciplinary proceedings on Supreme Court judges as well as appeals on disciplinary proceedings for all other judges of the ordinary courts.
Such a chamber exists in the Spanish Supreme Court, as well. It is called “Government Chamber” and includes, among its functions, that of administering disciplinary measures on magistrates.
The competence for appeals on disciplinary proceedings for other judges is vested with the Criminal Chamber at the Supreme Court. However, there is no reason to believe that the Criminal Chamber would ensure a higher level of respect for a due process of law than the Disciplinary Chamber.
There is indeed a slight difference between both judicial systems: while in Spain the presiding judge of the Disciplinary Chamber is the Supreme Court Chief Justice, in Poland this function is held by a separate presiding judge. However, in my opinion this in itself poses no risk of a lesser due process of law, since both officers are presumed to exert and to benefit from the same degree of independence. It is rather a matter of organisation and national choice.
Furthermore, PETERSEN and WASILCZYK complain about the creation of an Extraordinary Review and Public Affairs Chambers in the Polish Supreme Court, authorized to overturn case law established by the Supreme Court.
Articles 5bis and 293 of the Spanish Organic Law governing the judiciary also contemplate the existence of an extraordinary review, in the case of the European Court of Human Rights having declared a breach of fundamental rights. On the other hand, Spanish nationals have a way of access to the Spanish Constitutional Court for breach of fundamental rights against a ruling by the Supreme Court.
Once again, the difference between both systems does not allow to conclude that a deficient level of legal guarantee is granted in favour of Polish nationals; if any, they would be entitled to a wider access to an additional instance of judicial review, since both mentioned alternatives within the Spanish system are highly restrictive in practice.
On top of that, the Spanish Constitutional Court has been criticised since its very creation for a disappointing degree of politicisation, albeit this has never been object to monitoring by the European Commission. Only five years after its foundation, the Court showed signs of pleasing the same party which appointed most of its members when it ruled in favour of voluntary abortion, reasoning that Article 15 of the 1978 Constitution could well declare that “all have a right to life”, but the term “all” does not include the child in his mother’s womb.
Just one year later, it again ruled in favour of the socialist government by sanctifying an extremely polemic reform of the judiciary which granted both the executive together with the political majority in the legislature a right, not existing in the Constitution, to frame a left-wing dominance in the CGPJ and ultimately to influence the appointment of magistrates. This is further discussed in the next section.
Appointment of judges
The study points to newly elected judges to the Supreme Court on the proposal of the KRS as a further source of concern.
In Spain, it is also the CGPJ, the body corresponding to the Polish KRS, that appoints magistrates. Both nations, therefore, have chosen to follow the rule that magistrates are elected by their peers, so that the independence of the judiciary be preserved – as opposed to countries like Germany, where it is the executive power (the Federal Minister of Justice at federal level or the Länder Ministers of Justice) that appoints all the more relevant members of the judiciary.
The Spanish Constitution of 1978 provides indeed that most members of the CGPJ (12 out of 21) are co-opted, while only 8 are elected by the legislative power, 4 of them by each of the two houses of parliament. The Supreme Court Chief Justice, a 21st member of the CGPJ and presiding over it, is also appointed by the CGPJ , thereby strengthening the majority of self-elected judicial officials over those with a higher politicised nature.
Therefore, the balance of power within the CGPJ should almost be 2/3 (13 out of 21) for judges elected by the judiciary, versus close to 1/3 (8 out of 21) elected by the legislative power, where the majority typically tends to be rather coincidental to that of the executive.
The system for appointing KRS members grants a majority close to that of the Spanish Constitution for its CGPJ. Out of 25 members, 15 are elected by the judiciary (also close to 2/3), while the minority consisting of the other 10 are chosen by parliament (6) and by the executive (4), reflecting a similar balance in Warsaw and in Madrid.
More interestingly, most of the successive reforms of the Spanish judiciary have been quite disloyal to the prevision in the 1978 Constitution for the appointment of CGPJ members – and this including the rather pro-governmental intervention by the Constitutional Court which has been pointed out in the previous section.
Three years after the Spanish socialist party’s seize of power in 1982, a law was enacted so that all members of the CGPJ would be chosen by parliament. This (1) tends to replicate the same political majority represented by the executive and the legislative, (2) undermines the independence of the judiciary as a power in the legal framework of the nation, (3) violates the very wording of the Constitution despite the Constitutional Court’s contradictory ruling of 1986, and (4) risks transforming the Spanish judiciary nature into a “clerical” one, quite subordinated to the executive power, as has been described in Germany.
Along the almost four decades since that attack on the judiciary’s independence until now, no infringement procedure has been raised by the European Commission or by any of the other EU institutions as a potential breach of the rule of law in Spain.
In comparison to Poland’s real 15 KRS members elected by the judiciary, the 21 out of 21 politically elected CGPJ members in Spain (and similarly in Germany) shine out as contrary to the independence of magistrates proclaimed by the Brussels hierarchy.
Appointment of a Disciplinary Prosecutor
Finally, the co-authors of the study signal that the President of the Republic and the Minister of Justice can appoint a special Disciplinary Prosecutor on a case-by-case basis for disciplinary proceedings involving judges.
Disciplinary proceedings involving judges is regulated in Spain under the above mentioned Organic Law governing the judiciary. According to its Article 423, the General Prosecutor’s Office can also initiate disciplinary proceedings against judges.
The General Prosecutor in Spain is appointed by the executive power and, pursuant to Article 2 of its Statute, acts according to the principle of hierarchical dependence, as opposed to the principle of independence of all judges and magistrates.
Therefore, there is once more no substantive difference between this judicial feature and that of Poland.
 Niels PETERSEN and Patrick WASILCZYK, The Primacy of EU Law and Polish Constitutional Law Judgment, Brussels, 2022.