Appointment of supreme court judges by a body elected by the Parliament. Illegal operation of the court and lack of impartiality and independence
JUDGMENT
Advance Pharma SP. Z O.O v. Poland 03.02.2022 (app. no. 1469/20)
SUMMARY
The case concerned a complaint brought by the applicant company that the Civil Chamber of the
Supreme Court, which had decided on a case concerning it, had not been a “tribunal established by
law” and had lacked impartiality and independence.
It complained in particular that the Civil Chamber of the Supreme Court had been composed of
judges appointed by the President of Poland on the recommendation of the National Council of the
Judiciary (“the NCJ”), the constitutional organ in Poland which safeguards the independence of
courts and judges and which has been the subject of controversy since the entry into force of new
legislation providing, among other things, that its judicial members are no longer elected by judges
but by the Sejm (the lower house of Parliament).
The case is one of 94 currently pending applications against Poland, mostly lodged in 2018-2022,
concerning various aspects of the reorganisation of the Polish judicial system initiated in 2017*. To
date, the Court has delivered four judgments, three of which are final. As in previous cases, the
Court emphasised that its task was not to assess the legitimacy of the reorganisation of the Polish
judiciary as a whole, but to determine whether, and if so how, the changes had affected the
applicant company’s rights under Article 6 § 1 of the Convention.
The Court found that the procedure for appointing judges to the Civil Chamber of the Supreme Court
had been unduly influenced by the legislative and executive powers. That amounted to a
fundamental irregularity that adversely affected the whole process and compromised the legitimacy
of the Civil Chamber of the Supreme Court, which had examined the applicant company’s case. The
Civil Chamber was not therefore an “independent and impartial tribunal established by law” within
the meaning of the European Convention.
The judgment resembles closely that of Reczkowicz v. Poland (no. 43447/19) of 22 July 2021 and
Dolińska-Ficek and Ozimek v. Poland (nos. 49868/19 and 57511/19) of 8 November 2021 regarding
the other Chambers of the Supreme Court. As in the latter case, an additional manifest breach of
domestic law was also found in this judgment because the President of Poland had carried out
judicial appointments despite a final court order staying the implementation of the NCJ’s resolutions
recommending judges to the Supreme Court.
The Court found that the violation of the applicant company’s rights originated in the amendments
to Polish legislation which deprived the Polish judiciary of the right to elect judicial members of the
NCJ and enabled the executive and the legislature to interfere directly or indirectly in the judicial appointment procedure, thus systematically compromising the legitimacy of a court composed of the judges appointed in that way.
It was an inescapable conclusion that the continued operation of the NCJ as constituted by the 2017
Amending Act and its involvement in the judicial appointments procedure perpetuated the systemic
dysfunction established by the Court and might lead to further aggravation of the rule of law crisis in
Poland. Therefore, rapid action on the part of the Polish State to remedy this is required.
It falls upon the State of Poland to draw the necessary conclusions from this judgment and to take
appropriate measures in order to resolve the problems at the root of the violations found by the
Court and to prevent similar violations from taking place in the future.
PROVISION
Article 6 par. 1
PRINCIPAL FACTS
The applicant, Advance Pharma sp. z o.o, is a limited liability company registered in Warsaw that
distributed a dietary supplement intended for men wishing to enhance their sexual performance.
The sale of that supplement was the sole source of income for the company, which in 2010
amounted to 20 million Polish zlotys (approximately 4.8 million euros).
In 2010 the product was withdrawn from the market following checks by the National
Pharmaceutical Institute in which some samples of the product were found to contain an active
molecule not allowed in dietary supplements and not listed on the product’s label. The applicant
company suspended its activities and appealed against the Main Pharmaceutical Inspector’s decision
to withdraw the product from the market. In the course of the appellate proceedings, the
administrative courts quashed that decision finding that the Inspector had failed to establish
whether the supplement had been a dietary supplement or a medicinal product and that the
decision had been given in breach of domestic law.
The applicant company, which in the meantime had destroyed its stocks of the supplement,
instituted a claim for damages in tort against the State in 2014. The courts notably found that the
applicant company had destroyed the supplement on its own initiative; the Inspector had only
ordered its withdrawal from the market. Moreover, the company had not proven that it had been
prevented from reintroducing the supplement once it had been made compliant with the relevant
regulations. The applicant company had therefore failed to prove the causal link between the
damages sought and the Inspector’s action.
After failing at two levels of jurisdiction, the applicant company lodged a cassation appeal with the
Supreme Court. The panel of three judges of the Civil Chamber of the Supreme Court, which
examined – and dismissed – the appeal, was entirely composed of judges newly appointed through
the procedure involving the new National Council of the Judiciary (NCJ) established in 2018.
Relying on Article 6 § 1 (right to a fair hearing), the applicant company complained that the
formation of the Civil Chamber of the Supreme Court, which had examined its appeal, had not been
a “tribunal established by law” because it was composed of judges recommended by the NCJ, a body
which had not offered any guarantees of independence or impartiality. It alleged that the entire
appointment procedure of the three judges that had heard its case had been neither transparent nor
independent and had not been subject to judicial review. It referred in particular to proceedings
before the Court of Justice of the European Union which ended in a ruling of 19 November 2019 and
rulings by the Polish Supreme Court and the Supreme Administrative Court finding that the judges of
the Supreme Court appointed in the procedure involving the NCJ were not a court constituted in
accordance with domestic law.
It also complained that the President of Poland had initiated the appointment of the judges
recommended by the NCJ without the requisite countersignature of the Prime Minister.
THE DECISION OF THE COURT…
Article 6 § 1
The Court examined the case in the light of the criteria laid down by the Grand Chamber of the Court
in the case of Guðmundur Andri Ástráðsson v. Iceland (no. 26374/18) of December 2020 and also
applied in Reczkowicz v. Poland (no. 43447/19) of July 2021 and in Dolińska-Ficek and Ozimek v. Poland (nos. 49868/19 and 57511/19) of November 2021.
First, the Court established that there had been a manifest breach of domestic law which adversely
affected the fundamental rules of procedure for the appointment of judges to the Civil Chamber of
the Supreme Court. That was because the NCJ, as established under the Amending Act on the NCJ of
8 December 2017, did not provide sufficient guarantees of independence from the legislative or
executive powers.
The Court then went on to find that the President of Poland’s appointment of the judges
recommended by the NCJ (resolution no. 330/2018) to the Civil Chamber, notwithstanding the ruling
of the Supreme Administrative Court of 27 September 2018 suspending the NCJ’s resolution,
amounted to another manifest breach of the domestic law. As in Dolińska-Ficek and Ozimek,
deliberate disregard of a binding judicial decision and interference with the course of justice in order
to minimise the validity of a pending judicial review of the appointment of judges could only be
characterised as blatant defiance of the rule of law. In light of the above, the Court did not find it
necessary to determine whether there was also a separate breach of the domestic law resulting
from the fact that the President’s announcement of vacant positions in the Supreme Court had been
made without the Prime Minister’s countersignature.
The Court found that a procedure for appointing judges which was unduly influenced by the
legislative and executive powers was in itself incompatible with Article 6 § 1 of the Convention and,
as such, compromised the legitimacy of the Civil Chamber of the Supreme Court. The applicant
company’s right to a “tribunal established by law” had been impaired.
In coming to this conclusion, the Court referred in particular to rulings by the Polish Supreme Court
finding that the judges of the Supreme Court appointed in the procedure involving the NCJ were not
a court constituted in accordance with domestic law. The Court considered that those rulings were
based on convincing arguments, including a thorough and careful evaluation of the relevant Polish law from the perspective of the Convention’s fundamental standards and of EU law. It also took into
account rulings of the Court of Justice of the European Union, as well as multiple reports and
assessments by European and international institutions.
The Court concluded that the formation of the Civil Chamber of the Supreme Court, which had
examined the applicant company’s case, was not a “tribunal established by law”. There had
therefore been a violation of Article 6 § 1 of the Convention.
As regards the question whether the same irregularities also compromised the independence and
impartiality of the Civil Chamber of the Supreme Court, the Court held that it was linked with the
same underlying problem of the inherently deficient procedure for judicial appointments and that it
had already been answered in its examination of the complaint alleging that that chamber lacked
attributes of a “tribunal established by law”. It did not therefore require further examination.
Article 46 (binding force and execution of judgments)
When the Court finds a breach of the Convention, the State has a legal obligation to select, subject
to supervision by the Committee of Ministers, the general and/or, if appropriate, individual
measures to be adopted in its domestic legal order to put an end to the violation found by the Court
and to redress the situation.
The violation of the applicant company’s rights originated in the amendments to Polish legislation
which deprived the Polish judiciary of the right to elect judicial members of the NCJ and enabled the
executive and the legislature to interfere directly or indirectly in the judicial appointment procedure,
thus systematically compromising the legitimacy of a court composed of the judges appointed in
that way. In this situation and in the interests of the rule of law and the principles of the separation
of powers and the independence of the judiciary, rapid action on the part of the Polish State to
remedy this is required.
The Court refrained from giving any specific indications as to the type of individual and/or general
measures that might be taken in order to remedy the situation and limited its considerations to
general guidance. It was, however, an inescapable conclusion that the continued operation of the
NCJ as constituted by the 2017 Amending Act and its involvement in the judicial appointments
procedure perpetuated the systemic dysfunction established by the Court and might in the future
result in potentially multiple violations of the right to an “independent and impartial tribunal
established by law”, thus leading to further aggravation of the rule of law crisis in Poland. One of the
possibilities to be contemplated by the Polish State is to is to incorporate into the necessary general
measures the conclusions of the Supreme Court’s interpretative resolution of 23 January 2020
regarding its application to the judgments of the Supreme Court and the ordinary courts.
It therefore falls upon the State of Poland to draw the necessary conclusions from this judgment and
to take any individual or general measures as appropriate in order to resolve the problems at the
root of the violation found by the Court and to prevent similar violations from taking place in the
future.
Just satisfaction (Article 41)
The Court did not discern any causal link between the violation found and the pecuniary damage
alleged, and rejected that claim. However, it held that Poland was to pay the applicant company
15,000 euros (EUR) in respect of non-pecuniary damage and EUR 3,000 in respect of costs and
expenses.
Separate opinions
Judge Wojtyczek expressed a concurring opinion. This opinion is annexed to the judgment
