Opinions & Speeches

Dear Mrs. President, Dear Guests, Dear Judges,

Thank you for your invitation to speak at this year’s General Assembly of Judges of the Supreme Court.

I am satisfied that I could celebrate with you the 100^th anniversary of the Supreme Court last year! Dear Mrs. President, I would like to use this opportunity to thank you once again for your participation and speech at the recent reporting General Assembly of Judges of the Supreme Administrative Court, all your visits and speeches to Judges of the Supreme Administrative Court during your term of office on the position of the First President of the Supreme Court.

Annual general assemblies of the highest courts are an excellent opportunity to enter into dialogue, exchange thoughts and opinions about significant matters concerning the position of the judiciary and of the judicature of Polish courts. Such meetings should be a feast of judges and a feast of justice to reflect on our constitutional mission which, following the idea of the authors of the Basic Law, is not to serve the rulers, but the ruled ones by restoring law and justice to them.

However, our meeting takes place in a situation which could be described as a “judgment day” – we are witnessing a statutory reform of the constitutional body – the Supreme Court, the comprehensiveness of which changes its system and functioning to an unprecedented extent in the history of this institution in a free Poland - the institution which has seemed a stable and permanent component of the constitutional landscape to many generation of judges performing their service in the name of the Republic of Poland after the year 1989. As you may know, the new Act on the Supreme Court will enter into force in ten days or so, the day after the 21^st anniversary of the enactment of the Constitution, with its provisions applying to the Supreme Administrative Court accordingly. The fact that there is no complex, exhaustive and completely separate regulation on the system of administrative courts may raise certain doubts as to the extent the new provisions are to apply. It is certain that the new system of the Supreme Court will indirectly determine the position of the Supreme Administrative Court as the constitutional body of the judicial power in practice.

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In the current situation of constitutional crisis, administrative courts have a particular position due to the function of the “controller of the state” assessing the legality of actions of the public administration, i.e. of the executive power. Such scope of jurisdiction of the administrative courts hinders them from speaking in political matters, which does not mean that judges of the administrative courts fail to recognize legal problems (including those of a constitutional and legal nature) which are related to the prepared and implemented amendments to the statutes concerning the judiciary.

The opinion of the Supreme Administrative Court on the amendment to the Act on the National Council of the Judiciary clearly indicates that the arguments concerning the hierarchy of power or the stronger mandate of the legislative power are not justified as the judicial power is equivalent to the remaining ones in the Polish constitutional order and it cannot be determined which of them is less or more legitimate.

I am aware of the fact that the currently implemented changes refer to the system of administrative courts to a limited extent only. As President of the Supreme Court has advised me recently, our, as she said, “current policy will fulfil the hopes placed in it, while the specific inactivity will be rewarded in the haste of current matters and events”. I would like to remind that contrary to the Supreme Administrative Court the Supreme Court has the constitutional right to express opinions on draft statutes and other normative acts based on which courts adjudicate and operate, and other statutes in case it finds it appropriate. Thus, the Supreme Court has been given a broad space to speak on matters concerning the parliamentary legislation. Unfortunately, the new Act on the Supreme Court deprives it from this useful right.

On the other hand, the Supreme Administrative Court does not have such a right, it may merely inform the President of the Republic of Poland and the National Council of the Judiciary about the activity of administrative courts and make the President of the Council of Ministers aware of the problems related to the functioning of the public administration as a result of the matters examined by the administrative courts.

As I have already said, and I still uphold my opinion, the speeches made by you, Mrs. First President, have played a fundamental role in building the legal argument to justify that the current concept of the Constitutional Tribunal and of the Supreme Court must be defended, as supported by the overwhelming majority of the community of lawyers and of the Polish society. The best proof of that is the recent publication “The activity of the First President of the Supreme Court in defending the rule of law in Poland in the years 2015-2017”.

Over the last 2 years, the Supreme Court has referred to legal arguments only, while defending itself against being involved in political disputes, which reflects the maturity and independence of our legal culture.

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Nevertheless, the nature of the changes made in the judiciary stirs controversy among judges from Warsaw to Dublin. This controversy has recently been shared by the Irish High Court by deciding to refer a question for a preliminary ruling to the Court of Justice of the EU just a week or so ago and by suspending the decision on the extradition of a Polish citizen based on the European Arrest Warrant, claiming that the arrested individual may not count on a fair trial in a country in which the Minister of Justice also holds the position of the Prosecutor General and is actively involved in the supervision over presidents of courts. Suspending the extradition, the Irish Court stated that it would be necessary to receive a ruling of the Court of Justice of the EU on the impartiality of the Polish judiciary before taking the final decision.

The Irish judge was of the opinion that in the light of the cumulation of legislative amendments concerning the highest courts it was dubious whether Poland would still follow the rule of law, with its courts being impartial.

This situation means that the implemented reforms undermine the credibility of Polish courts as actors of the European dialogue between courts.

In the recent White Paper on the Polish judiciary, it has been concluded, quite correctly, that “each and every country has specific constitutional solutions embedded in its history and legal traditions, while such a diversity is protected by the Treaties of the European Union”.

Thus, the above means that the constitutional identity of the Polish judiciary is protected in this way, by the legislation created in cooperation with the executive power, being its sub-constitutional implementation, must not be contrary thereto. Being components of the rule of law, the independence of courts and the impartiality of judges are thus protected by the Treaties.

The Court of Justice emphasizes that private entities must be able to benefit from the effective judicial protection of their rights, while this right is one of the general principles of the law of the European Union, resulting from common constitutional traditions of the Member States and now confirmed in the Charter of Fundamental Rights.

That is of key importance for the functioning of Poland in the space of freedom, security and justice of the European Union which strives to guarantee it.

Any doubts related to the lack of independence of the judiciary will be related to the failure to follow the principle of mutual confidence, loyal cooperation – the principles which constitute a “cornerstone” and a basis for cooperation between the Member States, and above all for the direct cooperation of competent bodies of the judiciary and of the interior, inter alia to mutually acknowledge courts’ decisions.

Although the mentioned policy of the European Union mainly refers to civil, commercial and penal courts, administrative courts must also follow the rulings of the Court of Justice of the European Union in their adjudicating activity, in terms of assessing the implementation of the European law, due to which the opinion of the Luxembourg Court is very important for the Supreme Administrative Court and administrative courts as well.

It should be expected that the Court of Justice of the European Union may assess to which extent the reforms of the Polish judiciary pose a threat to the implementation of cooperation between courts of the Member States of the European Union.

That is all the more probable as in the recent judgment of 27 February 2018 in case C-64/16 Associação Sindical dos Juízes Portugueses vs Tribunal de Contas, the Court of Justice of the European Union based its response to the question for a preliminary ruling referred by the Portuguese Supreme Administrative Court on the assessment of whether the cut in the remunerations of judges of the Court of Auditors infringes upon the rule of judicial impartiality. The Court specified among others that the impartiality of judges is necessary both on the EU level and on the level of the Member States, and is of fundamental importance for the correct functioning of cooperation between national court and the Court of Justice.

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Let me summarize my speech my commenting on the adjudicating activity of the Supreme Court during the last year, as reflected in the published Report. Above all, the effectiveness of the proceedings and the average waiting time to have a case examined of slightly more than half a year from the receipt date of the case should be admired. The management of new incoming cases should also be appreciated. As the Supreme Court has continued to do for several years now, the Supreme Administrative Court has also managed to examine more cases than it received in 2017.

Your rulings are of great importance for administrative courts – in 2017, the judicature of the Supreme Court was referred to by the Supreme Administrative Court in over 1300 judgments, mainly in cases falling under the competences of the General Administrative Law Chamber and of the Financial Law Chamber.

The Supreme Administrative Court referred to the judicature of the Supreme Court in 9 resolutions of the 20 resolutions taken by extended panels of judges.

In terms of the cases examined by the Supreme Administrative Court, the rulings of the Supreme Court concerning the Gambling Act of 19 November 2009 are particularly interesting:

 - the judgment of 30 March 2017, V CSK 419/16, deciding on the matter of whether the failure to notify provisions not being technical provisions is an illegal act subject to compensation for damage (the ruling refers to the judgment of the Court of Justice of the European Union in case C-303/15 M and S, issued based on the question for a preliminary ruling referred by the District Court in Łódź);

- the resolution of 7 Judges of the Supreme Court of 19 January 2017 was passed in the Penal Law Chamber (I KZP 17/16), concerning the problem of fiscal and penal liability for carrying out a gambling activity contrary to the requirements of the Gambling Act, in which the Supreme Court indicated, by referring to the principle of the direct application of the EU law, that the Union norm resulting from Directive 98/34/EC establishing the notification procedure of technical provisions excludes the possibility to apply it in the case concerning an offence against the organization of gambling and lotteries, as stated in Article 14(1) of the Gambling Act in its original wording due to the failure to notify it.

The rulings concerning the socially important matter of privatisation in relation to the application of the decree on the ownership and use of land in the capital city of Warsaw (resolution of 7 Judges of the Supreme Court of 19 April 2017, III CZP 84/16) are equally important, or the matter of collective water supply and sewerage collection – certainly, the resolution of the Supreme Court of 22 June 2017 (III SZP 2/16) defining the connection to the water-supply system in the meaning of the Act on collective water supply and collective sewerage collection may be useful for administrative courts.

As the Supreme Administrative Court, the Supreme Court also referred to the supranational instrument of judicial dialogue last year, being the preliminary ruling procedure before the Court of Justice of the European Union, and actively used the case law of this Court.

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I do hope that despite the constitutionally controversial recent reforms of the judiciary, each and every judge will ultimately adjudicate in each case in accordance with his or her conscience while being aware of the performed service and internal impartiality. I do hope that the sense of duty, obligation and responsibility changes the conscience and the way the service is performed, including the service of the judge, either in a court hall or in a collegial body as the National Council of the Judiciary.

Let me congratulate you on the huge amount of work performed by you, Dear Judges, judge assistants and employees of the court administration during the last year regardless of unfavourable system-based circumstances.

The judicial activity reflected in the Report on the activities of the Supreme Court in the year 2017 and the non-judicial activity, including the activities for the implementation of the rule of law, evoke respect, but also give rise to questions about the future condition of the oldest judicial body of the courts and tribunals of the Republic of Poland – the body of the judiciary, and of justice which should and will hopefully remain a refuge of power and stability of the Republic of Poland.

Thank you for your attention.