On November 16, 2021, the Court of Justice of the European Union (CJEU) ruled, in Joined Cases C-748/19 to C-754/19, that EU law precludes Poland’s regime which allows the Minister for Justice to second judges to higher criminal courts, as well as to terminate their secondments without any explanation. According to a CJEU press release, the CJEU held that the secondments should provide the necessary guarantees to prevent political control over the judicial decisions. The press release explained that under the Polish law, the Minister for Justice, who is also the Public Prosecutor General, may second judges based on criteria that are not officially known. Furthermore, the minister can terminate the secondment without stating the reasons. The CJEU stated that, as per the Article 19(1) of the Treaty on European Union, the independence of the judiciary should be maintained, and the secondment of the judges should provide the necessary guarantees. The CJEU ruled that, in order to avoid arbitrariness and to prevent doubts concerning judges’ independence, the criteria for secondment must be known in advance and must include a statement of reasons. The CJEU also held that it should be possible to legally challenge the termination of secondment decisions.
The CJEU, noting that the minister is also the Public Prosecutor General and therefore in criminal cases the minister has power over both the public prosecutor and the seconded judges, stated that it is reasonable for individuals to have doubts about the impartiality of the seconded judges. Lastly, the CJEU expressed that, the fact that seconded judges who take part in the proceedings brought against judges and other deputies taking part in the proceedings are also appointed by the minister, may give rise to reasonable doubts in the minds of individuals. The CJEU expressed that the practice explained above may jeopardize the independence and impartiality of judges, and therefore the presumption of innocence. Accordingly, the CJEU ruled that such facts show the high degree of power possessed by the minister and that such power is not “compatible with the obligation to comply with the requirement of independence.”