Request for a preliminary ruling from the Sąd Najwyższy (Poland) lodged on 6 December 2023 – C. Limited v M.S.
(Case C-748/23, Gekus 1 )
Language of the case: Polish
Referring court
Sąd Najwyższy
Parties to the main proceedings
Appellant: C. Limited
Respondent: M.S.
Questions referred
Must the second subparagraph of Article 19(1) TEU, interpreted in light of Article 47 of the Charter of Fundamental Rights, be understood as meaning that the circumstances of a judicial appointment may in and of themselves indicate that a judge fails to meet the requirements of independence and impartiality if those circumstances result in a court being constituted in a manner that violates an individual’s right to a tribunal or, alternatively, that the failure to meet those requirements is determined by the judge’s passive acceptance (by continuing to give rulings) of irregularities in the procedure by which he or she was appointed, resulting in a court being constituted in a manner that violates an individual’s right to a tribunal?
Must the second subparagraph of Article 19(1) TEU, interpreted in light of Article 47 of the Charter of Fundamental Rights, be understood as meaning that the test to determine whether a judge of the Sąd Najwyższy (Supreme Court, Poland) is impartial cannot be conducted by judges whose participation – due to the fact that they were appointed as Supreme Court judges on a proposal of the Krajowa Rada Sądownictwa (National Council of the Judiciary) constituted in accordance with the procedure set out in the ustawa z dnia 8 grudnia 2017 r. o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw (Law of 8 December 2017 amending the Law on the National Council of the Judiciary and certain other laws, Dziennik Ustaw (Journal of Laws) of 2018, item 3) – violates an individual’s right to a tribunal?
If the second question is answered in the affirmative, must the second subparagraph of Article 19(1) TEU, interpreted in light of Article 47 of the Charter of Fundamental Rights, be interpreted as meaning that the Supreme Court is obliged not to include such judges in the panel conducting the impartiality test and, as a last resort, disapply the national provision providing for a panel of five judges in such cases, whereby the case should be heard by another panel provided for by national law which does not include such judges?
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1 The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.