Provisional text
ORDER OF THE COURT (Tenth Chamber)
9 January 2024 (*)
(Reference for a preliminary ruling – Article 53(2) of the Rules of Procedure of the Court of Justice – Article 267 TFEU – Legal questions raised by the First President of a Supreme Court – No dispute before the referring court – Manifest inadmissibility)
In Case C‑658/22,
REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Najwyższy (Supreme Court, Poland), made by decision of 2 September 2021, received at the Court on 19 October 2022, as part of its referral by its First President;
intervening party:
Prokurator Generalny,
THE COURT (Tenth Chamber),
composed of Z. Csehi, President of the Chamber, I. Jarukaitis (Rapporteur) and D. Gratsias, Judges,
Advocate General: A. Rantos,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– the Prokurator Generalny, by R. Hernand,
– the Polish Government, by B. Majczyna and S. Żyrek, acting as Agents,
– the Danish Government, by M.P.B. Jespersen, J.F. Kronborg and C.A.‑S. Maertens, acting as Agents,
– the Netherlands Government, by M.K. Bulterman and J. Langer, acting as Agents,
– the Swedish Government, by A. Runeskjöld and H. Shev, acting as Agents,
– the European Commission, by K. Herrmann and P.J.O. Van Nuffel, acting as Agents,
having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 53(2) of the Rules of Procedure of the Court of Justice,
makes the following
Order
1 This request for a preliminary ruling concerns the interpretation of Article 2, Article 6(1) and (3) and the second subparagraph of Article 19(1) TEU, read in combination with Article 267 TFEU and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2 The request has been made in the context of the examination of legal questions raised by the First President of the Sąd Najwyższy (Supreme Court, Poland) to the Civil Chamber (full composition) of that court concerning the effects of a finding that clauses included in loan agreements denominated in, or indexed to, foreign currency were abusive.
Polish law
The Constitution
3 Article 144(2) and (3) of the Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland; ‘the Constitution’) provides:
‘2. Official acts of the President of the Republic [of Poland (‘the President of the Republic’)] shall require, for their validity, the countersignature of the Prime Minister who accepts responsibility therefor before the Sejm [(Lower Chamber of the Polish Parliament, Poland)].
3. The provisions of paragraph 2 above shall not apply in the following cases:
…
(17) the appointment of judges;
…’
4 Under Article 179 of the Constitution, the President of the Republic is to appoint judges, on a proposal from the Krajowa Rada Sądownictwa [(National Council of the Judiciary, Poland) (‘the KRS’)], for an indefinite period.
5 Article 187 of the Constitution states:
‘1. The [KRS] shall be composed of:
(1) the First President of the [Sąd Najwyższy (Supreme Court)], the Minister for Justice, the President of the [Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland)] and a person designated by the President of the Republic,
(2) 15 elected members from among the judges of the [Sąd Najwyższy (Supreme Court)], the ordinary courts, the administrative courts and the military courts,
(3) four members elected by [the Lower Chamber of the Polish Parliament] from among the members [of the Lower Chamber] and two members elected by the Senate from among the senators.
…’
The Law on the Supreme Court
6 Article 29(2) and (3) of the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 (Dz. U. of 2018, item 5), 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 ordinary courts, the Law on the Supreme Court and certain other laws) of 20 December 2019 (Dz. U. of 2020, item 190) (‘Law on the Supreme Court’), states:
‘2. In the context of the activities of the [Sąd Najwyższy (Supreme Court)] or its bodies, it shall not be permissible to call into question the legitimacy of the [courts], the constitutional bodies of the State or the bodies responsible for reviewing and protecting the law.
3. The [Sąd Najwyższy (Supreme Court)] or other executive authority cannot determine or assess the lawfulness of the appointment of a judge or of the authority to perform tasks relating to the administration of justice that derives from that appointment.’
7 Article 72(1) of the Law on the Supreme Court is worded as follows:
‘A judge of the [Sąd Najwyższy (Supreme Court)] shall be accountable, at the disciplinary level, for breaches of professional obligations (disciplinary faults), including in cases of:
…
(3) acts calling into question the existence of the employment relationship of a judge, the effectiveness of the appointment of a judge or the legitimacy of a constitutional body of the Republic of Poland;
…’
8 Article 83(1) of that law provides:
‘If, in the case-law of ordinary courts, military courts or the Sąd Najwyższy (Supreme Court), discrepancies arise in the interpretation of legal provisions on which their decision is based, the First President or the President of the Sąd Najwyższy (Supreme Court) may, with a view to ensuring the homogeneity of the case-law, refer a legal issue to the Sąd Najwyższy (Supreme Court) sitting with seven judges or in another corresponding composition.’
9 Article 85(1) of that law is worded as follows:
‘The [Prokurator Generalny (Prosecutor General, Poland)] is informed of the holding of the session of the Sąd Najwyższy (Supreme Court) in full composition or of the session of the chamber or combined chambers.’
10 The first sentence of Article 87(1) of the Law on the Supreme Court provides:
‘The decisions of the Sąd Najwyższy (Supreme Court) in full composition, of the combined chambers or of the full court acquire the force of a legal principle upon their adoption.’
11 Article 88 of that law provides:
‘1. If a composition of the Sąd Najwyższy (Supreme Court) intends to abandon a decision that has acquired the force of a legal principle, it shall refer the legal issue raised to a composition composed of all the members of the chamber.
2. The abandonment of a decision which has acquired the force of a legal principle adopted by a chamber, the combined chambers or the full court of the Sąd Najwyższy (Supreme Court) shall require the adoption of a new decision by resolution of the chamber concerned, of the combined chambers or the full court of the Sąd Najwyższy (Supreme Court), respectively.
3. If the composition of a chamber of the Sąd Najwyższy (Supreme Court) intends to abandon a decision which has acquired the force of a legal principle adopted by another chamber, the decision shall be taken by a resolution of the two chambers of the Sąd Najwyższy (Supreme Court). The chambers may refer the legal issue to the full court of the Sąd Najwyższy (Supreme Court).’
The Law on the KRS
12 The KRS is governed by the ustawa o Krajowej Radzie Sądownictwa (Law on the National Council of the Judiciary) of 12 May 2011 (Dz. U. of 2011, No 126, item 714), as amended, in particular, by the ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw (Law amending the Law on the National Council of the Judiciary and certain other laws) of 8 December 2017 (Dz. U. of 2018, item 3), and by the ustawa o zmianie ustawy – Prawo o ustroju sądów powszechnych oraz niektórych innych ustaw (Law amending the Law on the organisation of ordinary courts and certain other laws) of 20 July 2018 (Dz. U. of 2018, item 1443) (‘Law on the KRS’).
13 Article 37(1) of the Law on the KRS provides:
‘If several candidates have applied for a position as a judge, [the KRS] shall jointly examine and evaluate all the applications submitted. In this situation, [the KRS] shall adopt a resolution comprising its decisions as to the submission of a proposal for appointment to the post of judge, with respect to all candidates.’
14 Article 44(1b) of that law provided:
‘Unless all the participants in the procedure have challenged the resolution referred to in Article 37(1), in individual cases concerning the appointment to the post of judge of the [Sąd Najwyższy (Supreme Court)], that resolution shall become final in the part containing the decision to submit the proposal for appointment to the post of judge of the [Sąd Najwyższy (Supreme Court)] and in the part comprising the decision not to submit the proposal for appointment to the post of judge to that court for participants in the procedure who did not lodge an appeal.
…’
15 Under Article 3 of the ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz ustawy – Prawo o ustroju sądów administracyjnych (Law amending the Law on the National Council of the Judiciary and the Law on the organisation of administrative litigation) of 26 April 2019 (Dz. U. of 2019, item 914), which entered into force on 23 May 2019, ‘proceedings in cases concerning appeals against [the KRS’s] resolutions in individual cases concerning the appointment to the post of judge of the [Sąd Najwyższy (Supreme Court)], which have been filed and not yet judged before the entry into force of that law, shall be discontinued by operation of law’.
The dispute in the main proceedings and the questions referred for a preliminary ruling
16 On 29 January 2021, the First President of the Sąd Najwyższy (Supreme Court) referred, in accordance with Article 83(1) of the Law on the Supreme Court, the matter to the Civil Chamber (full composition) of that court in order for it to respond to various legal questions relating to the consequences arising from a finding that clauses relating to the determination of the exchange rate stipulated in loan agreements denominated in a foreign currency or indexed to it were abusive.
17 The Civil Chamber (full composition) of the Sąd Najwyższy (Supreme Court) examined those questions during its session of 2 September 2021, in which 21 judges participated, 7 of whom had been appointed by the President of the Republic on 10 October 2018 on the basis of two resolutions, No 330/18 and No 331/18, taken by the KRS on 28 August 2018 (‘the resolutions of 28 August 2018’).
18 In view of the participation of those judges in that session, the majority of the members making up the full composition expressed doubts about the lawfulness of that session’s composition and its status as an independent, impartial tribunal.
19 According to the Civil Chamber (full composition) of the Sąd Najwyższy (Supreme Court), which is the referring court, the legislative modifications which took place within the framework of the reform of the judicial system are likely to suggest that the legislature has acted with the aim of preventing any possibility of ensuring effective judicial control of the resolutions of 28 August 2018.
20 The referring court states, in this regard, that Article 44(1b) of the Law on the KRS provides that, in individual cases concerning appointment to the post of judge of the Sąd Najwyższy (Supreme Court), unless all the participants in the procedure have challenged the resolution comprising the KRS’s decisions concerning the submission of a proposal for appointment to the post of judge, that resolution becomes final for the part of that resolution containing the decision to submit the proposal for appointment and for the part containing the decision not to submit such a proposal, as regards participants in the procedure who did not lodge an appeal.
21 The referring court states that the resolutions of 28 August 2018, which contained in particular the proposals for appointment of the seven judges of the Civil Chamber of the Sąd Najwyższy (Supreme Court) appointed on 10 October 2018, were challenged before the Naczelny Sąd Administracyjny (Supreme Administrative Court), which, by decisions of 27 September 2018, suspended their implementation.
22 It observes that, in spite of that suspension, the President of the Republic appointed the candidates proposed by the KRS and that, moreover, Article 3 of the Law amending the Law on the National Council of the Judiciary and the Law on the organisation of administrative litigation, referred to in paragraph 15 of this order, provided that proceedings in cases concerning appeals against the KRS’s resolutions, in individual cases concerning the appointment to the post of judge of the Sąd Najwyższy (Supreme Court), which have been filed and not yet judged before the entry into force of that law, that is to say by 23 May 2019, are to be discontinued by operation of law.
23 The referring court states that, following the judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions) (C‑824/18, EU:C:2021:153), the Naczelny Sąd Administracyjny (Supreme Administrative Court), which had not declared that there was no need to adjudicate on the appeals directed against the resolutions of 28 August 2018, annulled, by judgment of 6 May 2021, those resolutions in their part containing the proposal for appointment of the candidates to the post of judge at the Sąd Najwyższy (Supreme Court).
24 It submits that it follows that the President of the Republic acted unlawfully by appointing judges in spite of the appeal lodged before the Naczelny Sąd Administracyjny (Supreme Administrative Court) against the resolutions of 28 August 2018, and whilst the proceeding leading to the annulment of those resolutions, which deprives those appointments of their legal basis, since Article 179 of the Constitution provides that judges are to be appointed by the President of the Republic on the proposal of the KRS, was pending.
25 In those circumstances, it wonders, by its first question, whether a composition of the Sąd Najwyższy (Supreme Court) can be qualified as an independent, impartial tribunal if certain members making up that composition were appointed without the announcement by the President of the Republic of the judicial vacancies having been countersigned by the Prime Minister, if the procedure prior to the appointment of those members was carried out without complying with the principles of transparency and integrity and if the appointment of those members by the President of the Republic took place in spite of the appeal lodged against the resolutions of 28 August 2018 before the Naczelny Sąd Administracyjny (Supreme Administrative Court) of the decision to suspend the implementation, and then, of the annulment decision taken by that court, mentioned, respectively, in paragraphs 21 and 23 of this order.
26 As regards the second question referred, the referring court notes the introduction, by the Law amending the Law relating to the organisation of ordinary courts, the Law on the Supreme Court and certain other laws referred to in paragraph 6 of this order, in the Law on the Supreme Court, of a new Article 29(2) and (3), prohibiting the Sąd Najwyższy (Supreme Court), on pain of disciplinary penalties, from assessing the lawfulness of judges’ appointment or their authority to perform tasks relating to the administration of justice. It harbours doubts as to the compatibility of such a prohibition with EU law and whether the respect owed to the constitutional identity of the Member States may justify it.
27 The reasons which led the referring court to ask the third question referred relate to the fact that, based on the findings arising from the judgment of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982), the Sąd Najwyższy (Supreme Court), adopted, on 23 January 2020, in a session which included the Civil Chamber, the Criminal Chamber and the Labour and Social Security Chamber of that court, a resolution which acquired the force of a legal principle, which found, in particular, that the composition of a court comprising judges appointed on a proposal from the KRS made according to the terms determined by the Law amending the Law on the National Council of the Judiciary and certain other laws, referred to in paragraph 12 of this order, was unlawful. That resolution was declared unconstitutional in a judgment of 20 April 2020 rendered by the Trybunał Konstytucyjny (Constitutional Court, Poland) which, in an order of 21 April 2020, ruled, moreover, that the Sąd Najwyższy (Supreme Court) had no jurisdiction to proceed, by way of resolution, with a rewriting of the law such as to modify the normative framework of the organisation of justice and to control the exercise by the President of the Republic of the competence conferred on him by Article 179 of the Constitution.
28 According to the referring court, the case-law of the Trybunał Konstytucyjny (Constitutional Court) deprives the parties to a judicial proceeding of the possibility of contesting the lawfulness of the composition of a court, constitutes an interference in the exercise of judicial activity and cannot bind that court since it emanates from a court itself unlawfully composed.
29 In those circumstances the Sąd Najwyższy (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Must Article 2, Article 6(1) and (3), and the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the [Charter] and Article 267 TFEU, be interpreted as meaning that a court of last instance of a Member State (the Sąd Najwyższy (Supreme Court)) whose composition includes persons appointed to the post of judge in breach of the fundamental rules of law of the Member State applicable to judicial appointments to the Sąd Najwyższy (Supreme Court) is not an independent, impartial tribunal previously established by law and providing effective legal protection to individuals in areas covered by EU law, where:
(a) the President of the Republic announcing judicial vacancies in the Sąd Najwyższy (Supreme Court) without the prior countersignature of the Prime Minister;
(b) pre-appointment proceedings being conducted without regard to the principles of transparency and fairness by a national body [(the KRS)] which, given the circumstances surrounding the selection of its judges, and the manner in which it operates, does not meet the requirements of a constitutional body upholding the independence of the courts and of judges;
(c) the [President of the Republic] handing out letters of appointment to the post of judge of the Sąd Najwyższy (Supreme Court) despite the fact that the resolution of the KRS, which includes the proposal for appointment to the post of judge, was previously challenged before the competent national court (namely the Naczelny Sąd Administracyjny (Supreme Administrative Court)), that the Naczelny Sąd Administracyjny (Supreme Administrative Court) suspended the implementation of that resolution under national law, and whilst the appeal proceedings were still pending, after which proceedings the Naczelny Sąd Administracyjny (Supreme Administrative Court) validly set aside the challenged resolution of the KRS due to its unlawfulness, permanently removing it from the legal order, thereby depriving the appointment to the post of judge of the Sąd Najwyższy (Supreme Court) of the basis required by Article 179 of the Constitution, which basis consists of a proposal by the KRS for appointment to the post of judge?
(2) Must Article 2, Article 6(1) and (3), and the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the [Charter] and Article 267 TFEU, be interpreted as precluding the application of national laws such as Article 29(2) and (3), Article 26(3), and Article 72(1), (2) and (3) of [the Law on the Supreme Court], in so far as those laws prohibit judges of the Sąd Najwyższy (Supreme Court), on pain of the disciplinary penalty of dismissal, from determining or assessing the lawfulness of a judge’s appointment or his or her resulting authority to perform judicial tasks as well as from assessing in substantive terms proposals to exclude a judge based on those grounds, assuming that that prohibition were to be justified by the need for the European Union to respect the constitutional identity of the Member States?
(3) Must Article 2 and Article 4(2) and (3) TEU, read in conjunction with Article 19 TEU and Article 267 TFEU, be interpreted as meaning that a judgment of the constitutional court of a Member State[, namely the Trybunał Konstytucyjny (Constitutional Court),] declaring a ruling of the national court of last instance [(the Sąd Najwyższy (Supreme Court))] to be unconstitutional cannot constitute an obstacle to assessing the independence or autonomy of that court and determining whether a court is a tribunal established by law within the meaning of EU law, given that, in addition, the ruling of the Sąd Najwyższy (Supreme Court) aimed to implement the judgment of the Court of Justice of the European Union, that the provisions of the [Constitution] and applicable laws (national laws) do not confer upon the constitutional court[, namely the Trybunał Konstytucyjny (Constitutional Court),] the competence to review judicial rulings, including resolutions resolving discrepancies in the interpretation of legal provisions adopted pursuant to Article 83 of the [Law on the Supreme Court] and, furthermore, that the Trybunał Konstytucyjny (Constitutional Court), due to the manner in which it is currently constituted, is not a tribunal established by law within the meaning of Article 6(1) of the [Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950]?’
Admissibility of the request for a preliminary ruling
30 Under Article 53(2) of the Rules of Procedure of the Court, where a request or an application is manifestly inadmissible, the Court may, after hearing the Advocate General, at any time give a decision by reasoned order without taking further steps in the proceedings.
31 It is appropriate to apply that provision in the present case.
32 To that end, it should be borne in mind that, according to the Court’s settled case-law, the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them. The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute (judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 44 and the case-law cited).
33 As is apparent from the actual wording of Article 267 TFEU, the question referred for a preliminary ruling must be ‘necessary’ to enable the referring court to ‘give judgment’ in the case before it (judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 45 and the case-law cited).
34 The Court has thus repeatedly held that it is clear from both the wording and the scheme of Article 267 TFEU that a national court or tribunal is not empowered to bring a matter before the Court by way of a request for a preliminary ruling unless a case is pending before it in which it is called upon to give a decision which is capable of taking account of the preliminary ruling (judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 46 and the case-law cited).
35 In the present case, it is apparent from the order for reference that no dispute is pending before the Civil Chamber (full composition) of the Sąd Najwyższy (Supreme Court). As follows from the national provisions referred to by the referring court and, in particular from Article 83(1) and Article 87(1) of the Law on the Supreme Court, when it is hearing legal questions raised by the First President, on the basis of the former of those two articles, in order to put an end to differences of interpretation between the lower courts, that composition is to rule by a general decision which acquires the force of a legal principle, without being called upon to resolve any dispute between the parties.
36 By letter of 25 October 2022, the referring court further clarified that, in the context of that procedure, it was not possible to identify ‘parties to the dispute’ and that the status of ‘party’ was not recognised neither to the First President nor to the Prosecutor General.
37 Admittedly, by letter of 19 May 2023, the referring court stated that, under the Law on the Supreme Court, the Prosecutor General had been informed of the date of the session of the Civil Chamber (full composition) of the Sąd Najwyższy (Supreme Court), referred to in paragraph 17 of this order, and had attended it.
38 However, the fact remains that the main proceedings aim not to resolve a dispute between opposing parties, but to obtain a general decision having the force of a legal principle.
39 Under those circumstances, the request for a preliminary ruling made in the context of that procedure is not necessary for the effective resolution of an actual dispute between parties.
40 It follows that that request is manifestly inadmissible.
Costs
41 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Tenth Chamber) hereby orders:
The request for a preliminary ruling made by the Sąd Najwyższy (Supreme Court, Poland), by decision of 2 September 2021, is manifestly inadmissible.
[Signatures]