A. Court of Justice : EU judicial independence decentralized : A.K.

Abstract

The judgment in A.K. and others v. Sad Najwyższy was eagerly awaited as another red line for the EU rule of law. It provided a test for assessing the independence of national courts in their capacity as EU courts. In contrast to a bold stance by the Advocate General, the ECJ demonstrated sensible self-restraint. It did not prescribe ready-made institutional solutions aimed at securing judicial independence. It thus avoided the risk of a judge-made harmonization of domestic judicial organization based on scant and indeterminate Treaty provisions on the matter. Under the ECJ’s test, the referring court was to weigh and compare the relevance of legal and factual circumstances that enhance or impair the public appearance of independence of the brand new Supreme Court Disciplinary Chamber. At the same time, the ECJ shouldered the referring court with a difficult task to make a discretionary assessment of the anti-constitutional legislation altering the judicial organization in Poland – the task that the Supreme Court’s extended formation subsequently delegated to the rank-and-file judges of lower courts.