T his work is dedicated to an analysis of the importance of the request for preliminary ruling sent by the Warsaw Bar Association Disciplinary Court in the Case C-55/20. Due to the nature of the case, CJEU’s ruling will be important both for the assessment of the admissibility of the questions by an bar association’s disciplinary court, as well as the assessment of the extent of the protection of lawyers’ independence guaranteed by the EU law.
Because of that the ruling will have a great impact on the interpretation and application of the law regulating the provision of legal services in the EU. In particular, it will have an impact on the understanding of minimal standards stemming from the rule of law principle, institutional guarantees of lawyers’ independence, and the understanding of the function of bar associations disciplinary courts. The work is also dedicated to the analysis of the status of barristers’ disciplinary chambers and their judicial independence, which in turn relate to the issues important in the context of providing legal services in the European Union, in particular: the role and function of lawyers in safeguarding the rule of law, the significance of lawyers’ independence, and the function and role of lawyers’ associations.
An important aspect of the analysis is an assessment of the possibility of applying the provisions of Chapter III of the Directive 2006/123/EC of the European Parliament and European Council of 12 December 2006. Applying the provisions of the Directive to cases involving the provision of legal services would mean that a disciplinary proceeding of a bar association is regulated by the provisions of the Charter of The Fundamental Rights of the European Union and its guarantees. In consequence, the ruling will be important to all lawyers conducting their professional activity in the EU.
The importance of the case and the ruling the CJEUOn 4 February 2020, case C-55/20 was registered before the Court of Justice of the European Union (CJEU). For the four questions submitted by the Warsaw Bar Association Disciplinary Court (WDC) see http://curia.europa.eu/juris/document/document.jsf?text=&docid=227148&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=12851166.will give reaches far beyond their specific subject matter. The importance of the case pertains to concepts of a more general nature, constituting the fundamental framework for the advocate practice in the European Union, in particular: the role of lawyers in implementing the rule of law, the role and importance of lawyers’ independenceSee Hon. Justice Michael Kirby AC AMG, “Independence of the legal profession: Global and regional challenges”, www.hcourt.gov.au/assets/publiocations/speeches/former-justice/kirbyj_20mar05.html; The Independence of the Legal Profession. Threats to the bastion of the free and democratic society. A report by the IBA’s Presidential Task Force on the Independence of the Legal Profession, September 2016; R.W. Gordon, The independence of lawyers, “Boston University Law Review”, vol. 68.1., Yale Law School Legal Scholarship Repository. Faculty Scholarship Series 1988, passim; W. Wilson, The lawyer and the community, in: The Papers of Woodrow Wilson, 1976, p. 66; L. Brandeis, The opportunity in the law, in: L. Brandeis, Business – A Profession, p. 337., the role of lawyers’ self-government, the institutional guarantees of lawyers’ role in the light of the rule of law, and the applicability of EU law to issues regarding the legal guarantees of lawyers’ independence. Moreover, the case concerns measures safeguarding i.a. lawyers’ independence, the role and status of the Bar Association disciplinary court, the competence of said court to submit preliminary questions, the applicability of the Charter of Fundamental Rights to bar disciplinary proceedings, and the extent of the right of public authorities, especially the Minister for Justice and the Public Prosecutor General, to actively influence bar disciplinary proceedings, the model of public authorities’ review of the final and binding rulings of Bar Association Disciplinary Courts. Never before has a Bar Association disciplinary court submitted preliminary questions to the CJEU. Therefore, the subject case is of a unique character. The CJEU’s ruling on the procedural permissibility of a Bar Association disciplinary court submitting such questions, as well as on the merits, will effectively shape the interpretation of EU law and the scope of protection of lawyers’ independence.
The case in point touches upon many issues relating to the current constitutional crisis in Poland, which places the preliminary questions in a wider socio-political context. It is worth emphasizing that the components of judicial independence have recently been the subject of CJEU’s rulings in a number of cases regarding PolandSee CJEU judgment of 19.11.2019 in the joined cases C-585/18, C-624/18 and C-625/18 A.K. v Krajowa Rada Sądownictwa (C 585/18), and CP (C 624/18), DO (C 625/18) v Sąd Najwyższy  ECLI:EU:C:2019:982.. Nevertheless, the CJEU’s ruling on said questions is universal in nature, as it delineates the EU law standards pertaining to the judiciary as a separate and autonomous branch of government and thus the procedural standards of disciplinary appeals before common courts.
Regarding the procedural right to submit preliminary questions, the central questions of the case concern the standard of disciplinary procedure and the legal status of the Bar Association disciplinary court, in particular whether such a body competent to examine advocates’ disciplinary cases is indeed a court within the meaning of Article 267 of the Treaty on the Functioning of the European Union (TFEU). The legal framework applicable to the aforementioned issue is set forth in the Polish Advocate Profession Act of 26 May 1982 (APA). With regard to disciplinary proceedings, the APA provides for the establishment of permanent bodies competent to examine advocates’ disciplinary cases: disciplinary courts, as well as the applicable procedure of appointing the judges of said courts. Furthermore, the APA sets forth the principle of independence of disciplinary courts from other bodies of the bar self-government and public authorities, as well as the principle of independence of disciplinary judges.
Before delving into a deeper reflection on the admissibility of preliminary questions, it is worthwhile to remind about their general importance. The first issue of general importance that needs to be remembered is that even if the questions are rejected by the court, this would by no means signify a misjudgment or incompetence on the part of the referring courtE. Łętowska, Czego uczą odpowiedzi na pytania prejudycjalne dotyczące polskiego wymiaru sprawiedliwości? [eng. What do the answers to the preliminary questions concerning the Polish justice system teach us?], “Palestra” 2020/5, pp. 30–45).. Some of the most important judgments in international legal history, such as Marbury v Madison,5 U.S. (1 Cranch) 137 (1803). were actually decided against the appellant. The fact that Marbury v Madison was decided against the appellant did not prevent the case from establishing the principle of judicial review of legislature in the US, allowing American courts to check if statutes are not contrary to the US Constitution. Similarly in Europe, the Associação Sindical dos Juízes Portugueses v Tribunal de Contas caseCase C-64/16, Associacao Sindical dos Juízes Portugueses v Tribunal de Contas  ECLI:EU:C:2018:117, which concerned a legislation reducing the salaries of Portuguese judges, was decided against the appellants. Nevertheless, the case established an important principle that the CJEU can review if the executive’s involvement in changing the judicial system is not contrary to EU law. This case enablrf the subsequent cases concerning Poland to be broughtE. Łętowska, Czego uczą odpowiedzi....
This shows that the very act of submitting preliminary questions, even ones that are later held to be inadmissible, has an intrinsic value. This is because, as shown above, submitting such questions enables a better understanding of the law (thanks to the clarification of the relevant aspect of law by the court, e.g. the CJEU), and may even, from time to time, lead to a fundamental legal principle being established.
Nevertheless, it has to be noted that the cases examined by disciplinary courts are contentious. Disciplinary courts act on a party’s request rather than ex officio. They are obligated to apply the relevant legal provisions and their rulings are binding and enforceable. With regard to the substantive powers of disciplinary courts, they include the power to impute liability on advocates, foreign advocates or advocate trainees for disciplinary offences and administer a disciplinary punishment, i.e. disbarment or prohibiting foreign lawyers from providing legal assistance in Poland. Undoubtedly, disciplinary proceedings before such courts are repressive in nature, which justifies the applicability of constitutional and conventional guarantees provided for criminal liability. Disciplinary courts act within a two-instance model, the first instance being the disciplinary courts of regional bar associations and the second instance – the Higher Disciplinary Court. Generally speaking, there are no ordinary legal remedies that can be lodged before an ordinary court.
Potential recognition of the body competent to examine advocates’ disciplinary cases as a court within the meaning of Article 267 TFEU will determine the character of all disciplinary authorities within the EU legal framework. The legal foundations of such a ruling should delineate the constitutive elements of bar disciplinary proceedings, irrespective of the particular national legislations of Member States.
The qualification of disciplinary courts as courts within the meaning of Article 267 TFEU will enable widening of the scope of applicable legal and institutional guarantees with regard to the protection of lawyers’ independence. In a longer perspective this independence constitutes an essential element of the system of rule of law and constitutional democracy, within which independent lawyers serve a fundamental role, as well as delineate the scope of said role itself It is worthwhile to note Justice M. Kirby’s observation that “where there is no independent legal profession there can be no independent judiciary, no rule of law, no justice, no democracy and no freedom”, as cited in The Independence of the Legal Profession. Threats... .
The second general issue is the applicability of Chapter III of the Services Directive, including Article 10(6), to bar disciplinary proceedings. An affirmative ruling on the applicability of the Services Directive to said proceedings would justify the conclusion that they are within the scope of EU law and enables the application of EU law to internal matters. With regard to lawyers, the EU element is related to the potentially cross-border character of their profession, reflected in the fact that their clients may be persons – whether natural or legal – from other Member States. The reasoning behind the preliminary questions rightly articulates that the EU principle of freedom to provide services may require that national law provides the same standard for citizens of a given Member State as would be applicable under EU law to a citizen of another Member State. As legal services in Poland can be provided by either Polish or foreign lawyers, disciplinary proceedings must guarantee the same standards for both groups. Any form of discrimination or privilege would therefore constitute a breach of the principles of EU law described above. Consequently, the ruling on this preliminary question is of great importance not only for Polish lawyers, but also lawyers from other Member States who offer or consider offering their legal services in Poland. Nevertheless, it is crucial for the scope of protection of their clients, as they may be citizens of other Member States.
The third general issue is determining the relevant minimum standards of the procedure before a disciplinary court. An affirmative ruling on the applicability of the Services Directive to bar disciplinary proceedings would enable applying the guarantees set forth in the Charter of Fundamental Rights, i.e. Article 47 of the Charter, to said proceedings, thus triggering the obligation resulting from EU law that the proceedings be shaped in such a manner as to meet the requirements of due process. Moreover, it will enable the application of the standards said forth in the European Convention of Human Rights and the respective case law of the European Court of Human Rights.
The remaining aspects of the preliminary questions are closely connected with the current legal situation in Poland, i.e. with the question of the lawfulness of the amendments to national regulations pertaining to the Supreme Court and ordinary courts, which came in effect within the last four years. Although said issues, being related to the Polish legal system, are somewhat of a local character, they become universal when placed in context of the ever-growing risk to the rule of law. Undoubtedly, any risk or breach of law related to the guarantees of judicial independence constitutes in itself a risk to the rule of law See T. Bingham, The Rule of Law, London 2020, p. 24. . Therefore, the assessment of the legality of Polish national law in this regard is important for all Member States.
As regards the issues related to the status of the Disciplinary Chamber of the Supreme Court, i.e. whether said body meets the requirements of an independent court within the meaning of EU law, the following are of importance:
(i) prior rulings of the CJEU regarding the Polish judiciary (cases C-585/18; C-624/18, C-625/18) and
(ii) CJEU’s statement on the interim measures of 8 April 2020 (case C-791/19).
Doubts pertaining to the independence of the Disciplinary Chambers of the Supreme Court should be assessed with particular regard to the guarantees of advocates’ independence and the applicable model of bar disciplinary proceedings. It is also worth mentioning that as regards judicial disciplinary proceedings, the CJEU’s ruling of 8 April 2020 (case C-791/19) Commission v the Republic of Poland stated that: “under Article 19(1) TEU, every Member State shall guarantee that the system of disciplinary measures applicable to judges of national courts, being part of that state’s system of appellate measures within the spheres covered by EU law, is consistent with the principle of judicial independence, including by guaranteeing that rulings and decisions issued in disciplinary proceedings against said judges are reviewed by a body which itself meets the requirements inherently associated with effective judicial protection, including the requirement of independence”.
The aforementioned statement provides that under Article 19(1) TEU, every Member State should guarantee that the system of legal measures applicable to disciplinary proceedings respects the principle of judicial independence. Hence, every Member State is obligated to guarantee that the system of bar disciplinary measures and the related appellate measures respects the above-mentioned principle. This is due to the fact that under Article 10(6) of the Services Directive, authorities examining disciplinary cases regarding advocates issue rulings on issues within a sphere covered by EU law.
The effectiveness of the legal guarantees of advocates’ independence is inherently intertwined with the model of applicable disciplinary proceedings. Therefore, the CJEU’s ruling on the issues set forth in questions 3 and 4 will effectively determine the mandatory guidelines to be observed by public authorities when hearing an appeal lodged from a disciplinary court’s ruling, the aim of which is to prevent the unauthorized interference with the sphere of lawyers’ independence.
However, it needs to be remembered that the key issues raised in the referral for a preliminary ruling are not only concerned with ensuring that free movement of services is not impeded by national measures concerning disciplinary proceeding in a certain profession, but are of a greater importance: they relate to the legal guarantees of lawyers’ independence and their role in the furtherance of the principle of rule of law. From a legal professional’s perspective they are thus of utmost importance. In the words of Justice Michael Kirby AC: “independence is not provided for the benefit or protection of judges or lawyers as such. Nor is it intended to shield them from being held accountable in the performance of their professional duties and to the general law. Instead, its purpose is the protection of the people, affording them an independent legal profession as ‘...the bulwark of a free and democratic society’ J. Debeljak, Judicial Independence in the Modern Democratic State (1999) 74 Reform 35, at 38. ”. “Professional independence is both a duty and a privilege, because it serves as a guarantee of due process for the public. Fundamental principles of democracy, such as the separation of powers and the core principle of judicial autonomy, would not have much meaning in the absence of an independent legal profession entrusted with the duty of assisting the courts, acting as ‘an instrument in the administration of justice, an officer of the legal system, and a co-minister of justice’ J Debeljak, Judicial Independence..., at 38. . A truly independent legal profession can assist society in its efforts to protect and enforce its citizens’ legitimate rights against political institutions or intrusions of private parties. The duty of a lawyer, and the duty of the bars a whole, is to serve the rule of law and the wider public interest. The independence of the legal profession enables lawyers to fulfil this function by acting for the benefit, and in the legitimate interest of, the client and society as a whole, without fear of abusive prosecution, and free from improper influence of any kind. A strong and independent legal profession can also serve as a mechanism for political accountability” The Independence of the Legal Profession. Threats..., p. 5. See also T. Bingham, The Rule of Law. .
Therefore, it seems clear that the merits of the case may be argued based on other legal authorities For the most helpful suggestions providing us with the perspective described below we would like to thank Mrs Britta Kynast. .
Article 2 TEU provides that “the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”
The CJEU has acknowledged the role of lawyers in and for the justice system since its AM & S judgment Case C-155/79, AM & S Europe Limited v Commission of the European Communities  ECLI:EU:C:1982:157, followed e.g. by case C-550/07 P, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission  ECLI:EU:C:2010:512. .
The independence of bars could, therefore, be part of the shared constitutional traditions in all Member States enshrined in Article 2 TEU. What is more, Article 2 TEU places a strong emphasis on the protection of the rule of law. There may be no effective protection of the rule of law if there is no access to a professional defence, which may only be provided by an independent advocate. Impeding the independence of advocates is equivalent to impeding the rule of law, as it creates a systemic bias in favour of the state having access to legal professionals, as opposed to individuals having this access impeded by the possibility of their lawyers being repressed for providing strong defence in cases in which the state has a strong interest.
Another legal authority which supports the standpoint that the Disciplinary Chamber of the Supreme Court should be bypassed is Article 19 TEU. It provides that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”
Again, the same argument comes to play: there is no “effective legal protection” when citizens do not have independent lawyers on their side. If there is a possibility of lawyers being repressed for providing strong defence in cases the state has a strong interest in, there is no access to effective legal protection See also case C-506/04 Graham J. Wilson v Ordre des avocats du barreau de Luxembourg  ECLI:EU:C:2006:587. .
Article 47 of the Charter of Fundamental Rights of the EU, which should be read in conjunction with Article 19 TEU, further supports such perspective. It provides that “everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.” It is important to notice that the citizen has the right to be “advised, defended and represented”. Moreover, preliminary rulings (“every national court is also a EU court”) are often only possible because of the facts and arguments which are presented by a lawyer.
In conclusion, the WDC’s decision to make a referral for a preliminary ruling to the CJEU should be viewed as highly justified. Even if the CJEU holds that the submitted questions were in fact inadmissible, submitting the questions will allow for a clarification of an important aspect of EU law pertaining to the independence of the legal profession and professional disciplinary chambers. As many times before in the legal history, thanks to a referral for a preliminary ruling an important legal principle may be developed.