Organisation of the internal functioning of the State's judiciary and the principle of subsidiarity and respect for Member States' competences. Critical remarks in the light of the ruling of the CJEU of 16 November 2021 in Joined Cases C-748/19 to C-754/19 (on the question of the secondment of judges to higher courts within the domestic judicial system in Poland by the Minister of Justice)

Abstract

The article examines the division of competences between the European Union and its Member States in the light of the judgment of the Court of Justice of the European Union (CJEU) in joined cases C-748/19 to C-754/19. The analysis focuses on two closely interrelated issues: the delegation of judges from first-instance courts to higher courts by the Polish Minister of Justice and the admissibility of preliminary references submitted by national courts under Article 267 TFEU. The paper reconstructs the reasoning of both the CJEU and the Polish Government, arguing that the secondment of judges essentially belongs to the sphere of internal administrative management of the judiciary, which falls within the exclusive competence of the Member States. It is submitted that, in the case at hand, the CJEU exceeded the limits of its conferred powers by accepting a hypothetical preliminary reference and by intervening in the internal organisation of the Polish judiciary without a clear cross-border element. The article formulates critical remarks regarding the systemic coherence of the judgment with the Court’s previous case law and proposes de lege ferenda changes to Polish criminal procedure on the submission of preliminary references in order to enhance legal certainty while remaining in line with EU standards of the rule of law.