Judgment of the Court (Grand Chamber) of 5 June 2023. – European Commission v Republic of Poland
(Case C-204/21) 1
(Failure of a Member State to fulfil obligations – Second subparagraph of Article 19(1) TEU – Article 47 of the Charter of Fundamental Rights of the European Union ‐ Rule of law – Effective legal protection in the fields covered by EU law – Independence of judges – Article 267 TFEU – Possibility of making a reference to the Court for a preliminary ruling – Primacy of EU law – Jurisdiction in relation to the lifting of the immunity from criminal prosecution of judges and in the field of employment law, social security and retirement of judges of the Sąd Najwyższy (Supreme Court, Poland) conferred on the Disciplinary Chamber of that court – National courts prohibited from calling into question the legitimacy of the constitutional courts and bodies or from establishing or assessing the lawfulness of the appointment of judges or their judicial powers – Verification by a judge of compliance with certain requirements relating to the existence of an independent and impartial tribunal previously established by the law classified as a ‘disciplinary offence’ – Exclusive jurisdiction to examine questions relating to the lack of independence of a court or judge conferred on the Extraordinary Review and Public Affairs Chamber of the Sąd Najwyższy (Supreme Court) – Articles 7 and 8 of the Charter of Fundamental Rights – Rights to privacy and the protection of personal data – Regulation (EU) 2016/679 – Article 6(1), first subparagraph, points (c) and (e), and Article 6(3), second subparagraph – Article 9(1) – Sensitive data – National legislation requiring judges to make a declaration as to whether they belong to associations, foundations or political parties, and to the positions held within those associations, foundations or political parties, and providing for the placing online of the data contained in those declarations)
Language of the case: Polish.
Parties
Applicant: European Commission (represented by K. Herrmann and P.J.O. Van Nuffel, acting as Agents)
Defendant: Republic of Poland (represented by B. Majczyna, J. Sawicka, K. Straś and S. Żyrek, acting as Agents)
Interveners in support of the applicant: Kingdom of Belgium (represented by M. Jacobs, C. Pochet and L. Van den Broeck, acting as Agents), Kingdom of Denmark (represented initially by V. Pasternak Jørgensen, M. Søndahl Wolff and L. Teilgård, and subsequently by J.F. Kronborg, V. Pasternak Jørgensen and M. Søndahl Wolff, acting as Agents), Kingdom of the Netherlands (represented by M.K. Bulterman, J. Langer, A.M. de Ree and C.S. Schillemans, acting as Agents), Republic of Finland (represented by H. Leppo, acting as Agent), Kingdom of Sweden (represented by H. Eklinder, C. Meyer-Seitz, A. Runeskjöld, M. Salborn Hodgson, R. Shahsavan Eriksson, H. Shev and O. Simonsson, acting as Agents)
Operative part of the judgment
The Court:
Declares that by conferring on the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court, Poland), whose independence and impartiality are not guaranteed, jurisdiction to hear and determine cases having a direct impact on the status of judges and trainee judges and the performance of their office, such as, on the one hand, applications for authorisation to initiate criminal proceedings against judges and trainee judges or to detain them and, on the other hand, cases relating to employment and social security law that concern judges of the Sąd Najwyższy (Supreme Court) and cases relating to the compulsory retirement of those judges, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU;
Declares that by adopting and maintaining in force points 2 and 3 of Article 107(1) of the ustawa – Prawo o ustroju sądów powszechnych (Law relating to the organisation of the ordinary courts) of 27 July 2001, as amended by the ustawa o zmianie ustawy – Prawo o ustroju sądów powszechnych, ustawy o Sądzie Najwyższym oraz niektórych innych ustaw (Law amending the Law relating to the organisation of the ordinary courts, the Law on the Supreme Court and certain other laws) of 20 December 2019, and of points 1 to 3 of Article 72(1) of the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017, as amended by that law of 20 December 2019, which allow the examination of compliance with the EU requirements relating to an independent and impartial tribunal previously established by law to be classified as a disciplinary offence, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, and under Article 267 TFEU;
Declares that by adopting and maintaining in force Article 42a(1) and (2) and Article 55(4) of the Law relating to the organisation of the ordinary courts, as amended by the abovementioned law of 20 December 2019, Article 26(3) and Article 29(2) and (3) of the Law on the Supreme Court, as amended by that law of 20 December 2019, Article 5(1a) and (1b) of the ustawa – Prawo o ustroju sądów administracyjnych (Law relating to the organisation of the administrative courts) of 25 July 2002, as amended by the law of 20 December 2019, and Article 8 of the law of 20 December 2019, prohibiting any national court from verifying compliance with the requirements stemming from EU law relating to the guarantee of an independent and impartial tribunal previously established by law, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter of Fundamental Rights, and under the principle of the primacy of EU law;
Declares that by adopting and maintaining in force Article 26(2) and (4) to (6) and Article 82(2) to (5) of the Law on the Supreme Court, as amended by the abovementioned law of 20 December 2019, and Article 10 of the law of 20 December 2019, which establish the exclusive jurisdiction of the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Extraordinary Review and Public Affairs Chamber) of the Sąd Najwyższy (Supreme Court) to examine complaints and questions of law concerning the lack of independence of a court or a judge, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, and under Article 267 TFEU and the principle of the primacy of EU law;
Declares that by adopting and maintaining in force Article 88a of the amended Law relating to the organisation of the ordinary courts, as amended by the law of 20 December 2019, Article 45(3) of the Law on the Supreme Court, as amended by the law of 20 December 2019, and Article 8(2) of the Law relating to the organisation of the administrative courts, as amended by the law of 20 December 2019, the Republic of Poland has infringed the right to respect for private life and the right to protection of personal data, guaranteed by Article 7 and Article 8(1) of the Charter of Fundamental Rights and by points (c) and (e) of the first subparagraph of Article 6(1), Article 6(3) and Article 9(1) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);
Dismisses the action as to the remainder;
Orders the Republic of Poland to bear its own costs and to pay those incurred by the European Commission, including those relating to the proceedings for interim relief;
Orders the Kingdom of Belgium, the Kingdom of Denmark, the Kingdom of the Netherlands, the Republic of Finland, and the Kingdom of Sweden to bear their own costs.
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1 OJ C 252, 28.6.2021.