New position on muzzling law – privacy of judges and prosecutors must be protected

The President of the Polish SA, Miroslaw Wróblewski, has changed the procedural position of the previous President of the Polish SA in proceedings before the Supreme Administrative Court in a case proceeding from the Ombudsman's complaint concerning the provisions of the Muzzling Act ordering judges and prosecutors to disclose their membership of associations. In his new position, the President of the Polish SA stresses the need to protect the privacy of judges and prosecutors.

The entire law has been challenged by the Court of Justice of the European Union, which ruled in the Grand Chamber on 5 June 2021 (Case C-204/21, Commission v Republic of Poland) that Poland breached EU law through the muzzling law and the disciplinary system for judges. The entire law has been challenged by the Court of Justice of the European Union, which ruled in the Grand Chamber on 5 June 2021 (Case C-204/21, Commission v Republic of Poland) that Poland breached EU law through the muzzling law and the disciplinary system for judges.

In the proceedings before the administrative court, the President of the Personal Data Protection Office had previously taken the position (mark DS.523.1470.2020) that there were no grounds for challenging the obligation imposed on judges and prosecutors to submit declarations of membership in organisations. In view of this, it argued that the Ombudsman's complaint was not justified. The Provincial Administrative Court accepted the Polish SA's arguments; however, the Ombudsman filed a cassation complaint with the Supreme Administrative Court in this case.

Previously, the President of the Polish SA reiterated its position. Now, however, the new President - Miroslaw Wróblewski, has changed it, justifying it with a new CJEU judgment, as well as the judgment of the European Court of Human Rights of 22 February 2024 in the case of Kaczmarek v Poland (16974/14).

The judgment ‘referring directly to the above-mentioned national provisions which are the basis of the challenged decision of the President of the Polish SA and at the same time assessing them in terms of their compliance with EU law, is of significant legal relevance to the present case.

The judgments of the CJEU, as well as the judgments of the European Court of Human Rights, confirm ‘the correctness of the Ombudsman's position expressed in the aforementioned cassation complaint of 10 May 2021. (...). Indeed, in their light, the Ombudsman's position regarding the breach by both the Voivodship Administrative Court and the Authority of Article 6(1)(c) and (e) GDPR in conjunction with Article 6(3) GDPR in the present case is justified. Article 6(3) GDPR in fine provides that Union law or Member State law must serve a public interest objective and be proportionate to the legitimate aim pursued”.

According to Miroslaw Wróblewski, the key point in the present case is that the EU legislator did not stop, with regard to the provision of national law which is to form the basis for the processing of personal data in relation to Article 6(1)(c) GDPR, at the formal requirement of its enactment and validity. Such a national provision must meet qualitative criteria, i.e. serve a public interest purpose and be proportionate to the legitimate aim pursued. Moreover, as the GDPR states, in the case of processing referred to in Article 6(1)(e) of the GDPR, it must be necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. Therefore, as the Ombudsman noted, the Voivodship Administrative Court should take into account and apply the qualitative requirements of necessity and proportionality under European Union law in particular.

Basing the decision on a national provision that does not specify the purpose of the processing of data obtained through the aforementioned declarations of membership in, inter alia, associations or societies, including their public accessibility in the Public Information Bulletin, as well as the storage period of the accessed data, was insufficient.

In view of the above, the President of the Polish SA considered that he could not sustain the aforementioned position presented earlier by the data protection authority, both in the contested decision of 6 April 2020, the reply to the Ombudsman's complaint addressed to the Administrative Court and the reply to the cassation complaint.

The pleading of the President of the Polish SA sent to the Supreme Administrative Court on 22 May 2024 is available below.