Prawo do zaskarżenia decyzji administracyjnej Krajowej Rady Sądownictwa o odmowie powołania na stanowisko sędziego Sądu Najwyższego – opinia Rzecznika Generalnego Trybunału Sprawiedliwości Unii Europejskiej - Andrzej Świątkowski (Autor) (2021)
https://palestra.pl/pl/czasopismo/wydanie/4-2021
Oryginalny artykuł naukowy
The powers of the National Council of the Judiciary (NCJ) include, inter alia, examining applications and assessing candidates for the positions of judges of the Supreme Court, and submitting to the President of the Republic of Poland applications for judges to be appointed to serve on the Supreme Court. After the recent amendment to the regulations, the legislator revoked the right of persons applying for the position of a Supreme Court judge to appeal against NCJ resolutions unfavorable for them to the Supreme Administrative Court. Therefore, the same court asked the CJEU whether the change was consistent with the provisions of European law. The Advocate General of the CJEU presented a legal opinion in case C-824/18 concerning the deprivation of the right to appeal against a resolution of the NCJ, which is in fact an administrative decision refusing to recommend a person for the position of a Supreme Court judge. After a detailed analysis of the disputed cases from the period of the reform of the judiciary implemented by the state and political authorities, the AG came to the conclusion that the Polish legislator changed the national regulations in order to allow the proceedings initiated by the European Commission for failure of the Republic of Poland to discharge its obligations as a Member State and to in order for referrals for preliminary rulings made by Polish EU courts to the CJEU to become redundant, despite the injunction issued by the Supreme Administrative Court suspending the enforcement of the decision issued by the President of the Republic of Poland, appointing only the candidates recommended by the new NCJ to the positions of Supreme Court judges. When adopting the Act of 26 April 2019 on Amendments to the Act on the NCJ, the Polish legislator ignored the rulings of the Constitutional Tribunal which indicate that administrative decisions of the NCJ regarding the selection of candidates for the positions of Supreme Court judges should be subject to judicial review. The fact that the Polish legislator deprived EU national courts adjudicating in the Republic of Poland of the right to make referrals for preliminary rulings to the CJEU is in conflict with the principle of loyalty in EU law. The limitation and deprivation of the courts adjudicating in the European Union of the possibility of dialogue and the use of procedural and legal measures regulated by EU law is a sufficient signal that the independence of courts in a Member State has been undermined. In the event of a breach of the rule of law, the relevant provisions of EU law can be directly applied by national courts. The obstacles created by national
Keywords: nauki o polityce i administracji