JUDGMENT OF THE COURT (Grand Chamber)
9 January 2024 (*) (i)
(Reference for a preliminary ruling – Article 267 TFEU – Possibility for the referring court to take account of the preliminary ruling of the Court – Interpretation sought by the referring court necessary to enable it to give judgment – Independence of the judiciary – Conditions for the appointment of judges of the ordinary courts – Possibility of challenging an order which has definitively ruled on a request for the grant of protective measures – Possibility of removing a judge from a panel of judges of the court – Inadmissibility of the requests for a preliminary ruling)
In Joined Cases C‑181/21 and C‑269/21,
REQUESTS for a preliminary ruling under Article 267 TFEU from the Sąd Okręgowy w Katowicach (Regional Court, Katowice, Poland) and from the Sąd Okręgowy w Krakowie (Regional Court, Kraków, Poland), made by decisions of 18 March 2021 and 31 March 2021, received at the Court on 23 March 2021 and 27 April 2021 respectively, in the proceedings
G.
v
M.S. (C‑181/21),
intervening parties:
Rzecznik Praw Obywatelskich,
Prokuratura Okręgowa w Katowicach,
and
BC,
DC
v
X (C‑269/21),
intervening parties:
Rzecznik Praw Obywatelskich,
Prokuratura Okręgowa w Krakowie,
THE COURT (Grand Chamber),
composed of K. Lenaerts, President, L. Bay Larsen, Vice-President, A. Arabadjiev, A. Prechal, E. Regan, N. Piçarra, Z. Csehi and O. Spineanu-Matei, Presidents of Chambers, M. Ilešič, L.S. Rossi, I. Jarukaitis (Rapporteur), A. Kumin, N. Jääskinen, I. Ziemele and J. Passer, Judges,
Advocate General: A.M. Collins,
Registrar: M. Siekierzyńska, Administrator,
having regard to the written procedure and further to the hearing on 29 June 2022,
after considering the observations submitted on behalf of:
– the Prokuratura Okręgowa w Katowicach and the Prokuratura Okręgowa w Krakowie, by R. Babiński, S. Bańko, A. Reczka, B. Szyprowski and E. Tkaczewska-Kuk,
– the Rzecznik Praw Obywatelskich, by M. Taborowski, V. Vachev and M. Wróblewski,
– the Polish Government, by B. Majczyna, K. Straś and S. Żyrek, acting as Agents,
– the Danish Government, by J.F. Kronborg and V. Pasternak Jørgensen, acting as Agents,
– the Netherlands Government, by A.M. de Ree and C.S. Schillemans, acting as Agents,
– the European Commission, by K. Herrmann and P.J.O. Van Nuffel, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 15 December 2022,
gives the following
Judgment
1 These requests for a preliminary ruling concern the interpretation of Article 2, Article 6(1) to (3) and the second subparagraph of Article 19(1) TEU, read in combination with Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2 The requests have been made, in Case C‑181/21, in proceedings between a private company and a consumer concerning a debt arising from a credit agreement and, in Case C‑269/21, in proceedings between consumers and a bank concerning a debt and an application for annulment of a credit agreement denominated in foreign currencies.
Legal context
The Constitution
3 Under Article 179 of the Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland; ‘the Constitution’):
‘The President of the Republic shall appoint judges, on a proposal from the Krajowa Rada Sądownictwa [(National Council of the Judiciary, Poland) (“the KRS”)], for an indefinite period.’
4 Under Article 186(1) of the Constitution:
‘The [KRS] shall be the guardian of the independence of the courts and of the judges.’
5 Article 187 of the Constitution provides:
‘1. The [KRS] shall be composed of:
(1) the First President of the [Sąd Najwyższy (Supreme Court, Poland)], 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) fifteen 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 Sejm (Lower Chamber of the Polish Parliament, Poland)] from among the members [of the Lower Chamber] and two members elected by the Senate from among the senators.
…
3. The elected members of the [KRS] shall have a mandate of four years.
4. The organisational structure, the field of activity and procedures for the work of the [KRS] and the procedure by which its members are elected shall be laid down by law.’
The Law on the ordinary courts
6 Under Article 3 of the ustawa Prawo o ustroju sądów powszechnych (Law on the organisation of the ordinary courts) of 27 July 2001 (Dz. U. No 98, item 1070), 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 on the ordinary courts, the Law on the Supreme Court and some other laws) of 20 December 2019 (Dz. U. of 2020, item 190), which entered into force on 14 February 2020 (‘the Law on the ordinary courts’):
‘1. Judges shall put in place judicial self-government.
2. The judicial self-governing bodies are:
(1) the General Assembly of Judges of a sąd apelacyjny (Court of Appeal, Poland);
(2) the General Assembly of Judges of a sąd okręgowy (Regional Court, Poland);
(3) the General Assembly of Judges of a sąd rejonowy (District Court, Poland).’
7 Under Article 24(1) of the Law on the ordinary courts, the Minister for Justice is to appoint the Presidents of the sądy okręgowe (Regional Courts) from among the judges of the sądy apelacyjne (Courts of Appeal), of the sądy okręgowy (Regional Courts) or of the sądy rejonowe (District Courts) for a period of six years according to Article 26 of that law. After appointing the President of a sąd okręgowy (Regional Court), the Minister for Justice is to present him or her to the competent General Assembly of Judges of the sąd okręgowy (Regional Court) concerned.
8 In accordance with Article 29(1) of that law, the College of a sąd apelacyjny (Court of Appeal) is to carry out the tasks provided for by that law and:
‘…
(1a) give opinions on candidates for posts of judges at the sąd apelacyjny (Court of Appeal) concerned …’
9 In accordance with Article 31 of the Law on the ordinary courts, the college of a sąd okręgowy (Regional Court) is to give its opinion, inter alia, on the candidates for the post of judge at the sąd okręgowy (Regional Court) concerned and of the sądy rejonowe (District Courts). Under Article 30(1) of that law, that college is a panel composed, under point (1) of that provision, of the President of the sąd okręgowy (Regional Court) concerned and, under point (2) of that provision, of the Presidents of the sądy rejonowe (District Courts) within the district of that sąd okręgowy (Regional Court); point (2) having entered into force on 14 February 2020. In accordance with Article 30(3) of that law, which also entered into force on 14 February 2020, the representatives of the General Assembly of Judges of a sąd okręgowy (Regional Court) may attend meetings at which that panel must give its opinion on the candidates for the post of judge of that sąd okręgowy (Regional Court), and they have the right to vote only for that sole purpose.
10 In the version in force until 13 February 2020, Article 33 of the Law on the ordinary courts was worded as follows:
‘1. The General Assembly of Judges of the district of a sąd apelacyjny (Court of Appeal) shall consist of the judges of the sąd apelacyjny (Court of Appeal) concerned, the representatives of the judges of the sądy okręgowe (Regional Courts) operating within the district of that sąd apelacyjny (Court of Appeal) …, and representatives of the judges of the sądy rejonowe (District Courts) operating within the district of that sąd apelacyjny (Court of Appeal) …
…’
11 In accordance with Article 35(1) of the Law on the ordinary courts, the General Assembly of Judges of a sąd okręgowy (Regional Court) is to be composed of all the judges of that court. Judges seconded to the office of judge in that court may participate in that assembly, but they do not have the right to vote.
12 Since 14 February 2020, that assembly has been able, in accordance with Article 36(1)(2) of that law, to elect delegates who attend meetings at which the College of the sąd okręgowy (Regional Court) concerned must give its opinion on candidates for a the post of judge of that sąd okręgowy (Regional Court) or judge of a sąd rejonowy (District Court). In accordance with Article 36(2) of that law, those delegates are elected by secret ballot equal in number to the members of the college of that sąd okręgowy (Regional Court).
13 Article 42a of the Law on the ordinary courts provides:
‘1. In the context of the activities of the courts or the organs of the courts, it shall not be permissible to call into question the legitimacy of [the courts], the constitutional organs of the State and the organs responsible for reviewing and protecting the law.
2. An ordinary court or other authority cannot establish or assess the lawfulness of the appointment of a judge or of the power to carry out tasks in relation to the administration of justice that derives from that appointment.’
14 In the version in force until 13 February 2020, Article 55(1) of that law was worded as follows:
‘Judges of the ordinary courts shall be appointed to the post of judge by the President of the Republic of Poland, on a proposal from the [KRS], within one month of the date on which that proposal was sent.’
15 Article 55(1) of that law now provides:
‘A judge of an ordinary court is a person appointed to such a post by the President of the Republic and who has taken an oath before him.’
16 In the version in force until 13 February 2020, Article 58 of the Law on the ordinary courts was worded as follows:
‘1. If more than one application is made for a judicial vacancy, all the applications shall be examined at the same meeting of the assembly.
2. The General Assembly of Appeal Judges or the General Assembly of Regional Judges shall decide on candidates by means of a vote and shall transmit all the applications made, indicating the number of votes obtained, to the President of the sąd apelacyjny (Court of Appeal) or of the sąd okręgowy (Regional Court) concerned, as appropriate.’
17 On 14 February 2020, paragraph 2 of Article 58 was repealed. Paragraph 1 of that article now reads as follows:
‘If more than one application is made for a judicial vacancy, all the applications shall be examined at the same meeting of the College.
…’
The Law on the Supreme Court
18 The ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 (Dz. U. of 2018, item 5) established, in particular, within the Sąd Najwyższy (Supreme Court), the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Extraordinary Review and Public Affairs Chamber, Poland).
19 Under Article 26 of the Law on the Supreme Court, as amended by the Law of 20 December 2019 amending the Law on the ordinary courts, the Law on the Supreme Court and certain other laws:
‘1. The areas of jurisdiction of the [Extraordinary Review and Public Affairs Chamber] include extraordinary complaints, electoral disputes and challenges concerning the validity of national or constitutional referendums, and determination of the validity of elections and referendums, as well as other cases in the field of public law, including disputes relating to the protection of competition, energy, telecommunications and rail transport regulation, and appeals against decisions of the Przewodniczy Krajowej Rady Radiofonii i Telewizji [(President of the National Television and Radio Broadcasting Council, Poland)] as well as complaints concerning the excessive duration of proceedings before ordinary and military courts and the [Sąd Najwyższy (Supreme Court)].
2. The [Extraordinary Review and Public Affairs Chamber] shall have jurisdiction to hear applications or declarations concerning the recusal of a judge or the designation of the court before which proceedings must be conducted, including complaints alleging a lack of independence of the court or the judge. The court dealing with the case shall submit forthwith a request to the President of the [Extraordinary Review and Public Affairs Chamber] so that the case may be dealt with in accordance with the rules laid down in separate provisions. The submission of a request to the President of the [Extraordinary Review and Public Affairs Chamber] shall not stay the ongoing proceedings.
3. The request referred to in paragraph 2 shall not be examined if it concerns the establishment and the assessment of the legality of the appointment of a judge or of his or her authority to carry out judicial functions.
…’
20 Article 29 of the new Law on the Supreme Court provides that judges of the Sąd Najwyższy (Supreme Court) are to be appointed by the President of the Republic acting on a proposal of the KRS.
The Law on the National Council of the Judiciary
21 Under Article 9a of the ustawa o Krajowej Radzie Sądownictwa (Law on the National Council of the Judiciary) of 12 Mai 2011 (Dz. U. of 2011, No 126, item 714), as amended 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):
‘1. The [Sejm (Lower Chamber of the Polish Parliament)] shall elect, from among the judges of the [Sąd Najwyższy (Supreme Court)] and of the ordinary, administrative and military courts, 15 members [of the KRS] for a collective term of four years.
2. In the election referred to in paragraph 1, the [Sejm (Lower Chamber of the Polish Parliament)] shall, as far as possible, take into account the need for representation within [the KRS] of judges from different types and levels of courts.
3. The joint term of office of new members [of the KRS] elected from among the judges shall begin on the day following the day of their election. The members [of the KRS] appointed for the previous term of office shall perform their functions until the day on which the joint term of office of the new members [of the KRS] begins.’
22 The transitional provision contained in Article 6 of the Law amending the Law on the National Council of the Judiciary and certain other laws, which entered into force on 17 January 2018, provides:
‘The term of office of the members [of the KRS] referred to in Article 187(1)(2) of the [Constitution], elected on the basis of provisions now in force, shall continue until the day preceding the term of the new members [of the KRS] without, however, exceeding 90 days from the date of the entry into force of the present law, unless that term has not already expired.’
The Code of Civil Procedure
23 Under Article 48 of the ustawa – Kodeks postępowania cywilnego (Law establishing the Code of Civil Procedure) of 17 November 1964, in the version applicable to the dispute in the main proceedings (‘the Code of Civil Procedure’):
‘1. A judge shall be recused under the law if:
(1) in cases to which he or she is a party or in which he or she has a legal relationship with one of the parties such that the outcome of the proceedings would affect his or her rights or obligations;
…
(5) in cases in which he or she participated, in a lower instance, in the adoption of the contested act, as well as in cases concerning the validity of an act examined by him or her or drafted with his or her participation, as well as in cases where he or she acted as Prokurator [(Public Prosecutor, Poland)];
…’
24 Article 49(1) of the Code of Civil Procedure provides:
‘Irrespective of the grounds set out in Article 48, the court shall, at the request of the judge or of a party, recuse a judge if circumstances exist which are such as to give rise to justifiable doubt as to the impartiality of that judge in the case concerned.’
25 Article 50 of that code provides:
‘1. The parties shall request the recusal of a judge in writing or by means of an oral statement made to the court before which the case concerned is pending, giving reasons for their application.
2. Furthermore, the party who participated in the hearing must prove that the circumstance justifying the recusal occurred or was brought to its attention only subsequently.
3. Until a decision has been made on the application for recusal of a judge:
(1) the judge referred to in that request may continue the proceedings;
(2) no decision or measure putting an end to the proceedings may be made.’
26 Article 365(1) of the Code of Civil Procedure provides:
‘The final judgment shall be binding not only on the parties and the court which delivered it, but also on other courts, other public authorities and public administrative bodies, and other persons in cases covered by the law.’
27 Under Article 367(3) of that code:
‘Courts of second instance shall examine cases with a panel of three judges. In camera, the court shall rule in a single-judge formation, except when it delivers a judgment.’
28 In accordance with Article 379(4) of that code, the proceedings are null and void ‘if the composition of the court hearing the case concerned was unlawful or if a judge automatically recused the case participated in the examination of that case’.
29 Article 401 of that code provides:
‘The resumption of proceedings on grounds of invalidity may be requested:
(1) if an unauthorised person has been a member of the formation of the court or if the judge giving the ruling was automatically recused and the party concerned did not have the opportunity to apply for the recusal of that judge before the judgment had acquired the force of res judicata;
…’
The disputes in the main proceedings and the questions referred for a preliminary ruling
The facts giving rise to Case C‑181/21
30 The dispute in the main proceedings is between a private company and a consumer concerning a debt arising from a credit agreement.
31 That private company brought an action against that consumer for payment of the sum of 16 000 Polish zlotys (PLN) (approximately EUR 3 450), plus interest and procedural costs. The Sąd Rejonowy w Dąbrowie Górniczej (District Court, Dąbrowa Górnicza, Poland) delivered a decision on the substance, in the form of an order for payment. That consumer lodged an objection against that decision. That objection was rejected by an order of that District Court.
32 The same consumer lodged a complaint against that order with the Sąd Okręgowy w Katowicach (Regional Court, Katowice, Poland). A panel of three judges, including Judge A.Z., was appointed to examine that complaint.
33 As regards the circumstances in which Judge A.Z. was appointed to the Sąd Okręgowy w Katowicach (Regional Court, Katowice), it is apparent from the order for reference that that judge, who was then in post at the Sąd Rejonowy w Jaworznie (District Court, Jaworzno, Poland) since 1996, applied to take up a vacant post as a judge at the Sąd Okręgowy w Katowicach (Regional Court, Katowice).
34 Following a preliminary opinion on the application of Judge A.Z. issued by the College of the Sąd Apelacyjny w Katowicach (Court of Appeal, Katowice, Poland), the Assembly of Representatives of Judges of that court refrained from issuing an opinion on that application. On 14 January 2019, that assembly adopted a resolution in which it stated that it would refrain from participating in the procedure for the appointment of judges to vacant posts within that court and in the sądy okręgowe (Regional Courts) of the district of that court, in view of its concerns regarding the status and method of operation of the KRS called upon to play a role in such an appointment procedure.
35 In addition, by a resolution adopted on the same day, the Assembly of Representatives of Judges of the Sąd Apelacyjny w Katowicach (Court of Appeal, Katowice) ordered its President, first, to refrain from transferring applications for vacant judicial posts in that court and in the Sąd Okręgowy w Katowicach (Regional Court, Katowice) until the General Assembly had delivered an opinion on them and, second, to postpone until a later date the agenda for the purpose of preparing the appointment procedures until the doubts relating to the KRS were removed.
36 Despite the abovementioned resolutions, the President of the Sąd Apelacyjny w Katowicach (Court of Appeal, Katowice), who is at the same time the President of the General Assembly of Judges of that court and who was appointed President of that court by the Minister for Justice, followed up on the application of Judge A.Z. The latter was appointed judge at the Sąd Okręgowy w Katowicach (Regional Court, Katowice) by the President of the Republic of Poland.
37 At a closed session held on 18 March 2021, the reporting judge of the panel of judges referred to in paragraph 32 of the present judgment expressed doubts as to the status of that panel of judges as a ‘court’, in view of the circumstances in which Judge A.Z. was appointed to the Sąd Okręgowy w Katowicach (Regional Court, Katowice). It was in that context that that judge referred the matter to the Court of Justice, alone, on the basis of Article 367(3) of the Code of Civil Procedure.
The facts giving rise to Case C‑269/21
38 The dispute in the main proceedings is between consumers and a bank concerning a debt and an application for the cancellation of a credit agreement denominated in foreign currencies.
39 Those consumers brought an action before the Sąd Okręgowy w Krakowie (Regional Court, Kraków) seeking an order that that bank pay, inter alia, PLN 104 537 (approximately EUR 22 540) and the retroactive cancellation of the credit agreement concerned, relying on the judgment of 3 October 2019, Dziubak (C‑260/18, EU:C:2019:819). They also requested the grant of protective measures consisting, inter alia, in allowing them to suspend the monthly payments to be made under that credit agreement until a final judgment had been delivered in the main proceedings.
40 The handling of that dispute and of that request for protective measures was entrusted to a panel of judges in a single-judge formation of the Sąd Okręgowy w Krakowie (Regional Court, Kraków), which is the referring court in that case.
41 By order of 9 October 2020, that court granted that application.
42 That bank lodged an objection against that order. A panel of three judges sitting within the Sąd Okręgowy w Krakowie (Regional Court, Kraków) was appointed to examine that complaint. One of the members of that panel of judges is Judge A.T., who was also appointed as the reporting judge and who chaired that panel of judges. That latter panel amended that order and dismissed the application for protective measures in its entirety. Since such a decision was no longer open to appeal, the case was then sent back to the referring court for a ruling in the main proceedings.
43 As regards the circumstances surrounding the appointment of Judge A.T. to the Sąd Okręgowy w Krakowie (Regional Court, Kraków), it is apparent from the order for reference that that judge, then in post at the Sąd Rejonowy dla Krakówa-Krowodrzy w Krakowie (District Court for Kraków-Krowodrza in Kraków, Poland) since 2009, applied for a vacant post as a judge at the Sąd Okręgowy w Krakowie (Regional Court, Kraków). That judge was the only candidate for that post. The referring court states that many judges of the sądy rejonowe (District Courts) no longer participate in those competitions despite their extensive experience, on the ground that the procedure for appointing judges of the ordinary courts no longer complies with the Constitution, in particular because the decisions of the KRS, which has become highly politicised, are no longer based on objective criteria and favour candidates supported by court presidents, who have been appointed by the Minister for Justice.
44 The Kolegium Sądu Okręgowego w Krakowie (College of the Regional Court, Kraków, Poland) gave its opinion on the candidacy of Judge A.T. at a hearing on 1 June 2020.
45 The referring court states, in that regard, that the majority of the members of that college are the presidents of the Sąd Okręgowy w Krakowie (Regional Court, Kraków) and of the sądy rejonowe (District Courts), whose appointment is directly influenced by the Minister for Justice. It adds that Judge A.T.’s application was not submitted to the opinion of the General Assembly of Judges of the Sąd Okręgowy w Krakowie (Regional Court, Kraków), given that the Polish legislature has eliminated all actual influence of judicial self-government on the process of appointing judges in Poland. Indeed, as from 14 February 2020 and, in particular, following the entry into force, after amendment, of Article 58 of the Law on the ordinary courts, the opinion of that assembly is no longer required.
46 On 7 July 2020, the KRS adopted a resolution recommending the appointment of Judge A.T. to the post of judge at the Sąd Okręgowy w Krakowie (Regional Court, Kraków). On 4 February 2021, the President of the Republic of Poland made that appointment.
47 The circumstances of that appointment lead the referring court to have doubts as to the compliance with EU law of the composition of the panel of three judges, referred to in paragraph 42 of the present judgment, which ruled on the complaint lodged by the bank brought against its order of 9 October 2020 and, consequently, as to the validity of the decision adopted by that panel of judges. The referring court asks, in that context, whether it is bound by the order of that panel of judges which annulled the protective measures that it had adopted or whether a new panel of judges, not including Judge A.T., should be designated according to the system of random allocation of cases to re-examine that complaint.
The grounds of the references for a preliminary ruling and the questions referred in Cases C‑181/21 and C‑269/21
48 The referring courts observe, in essence, that, unlike other cases brought before the Court of Justice to date, Cases C‑181/21 and C‑269/21 concern appointments to judicial posts within the ordinary courts, and not within the Sąd Najwyższy (Supreme Court).
49 They refer, in that regard, to a number of developments, linked to the recent judicial reforms in Poland, concerning the composition of the KRS and the judicial self-governing bodies and their respective roles in the process of appointment to such posts as well as the judicial review of the legality of those appointments. Those various factors lead the referring courts to call into question the status of ‘court’, within the meaning, in particular, of EU law, of panels of judges composed of judges appointed at the end of such a process.
50 In those circumstances the Sąd Okręgowy w Katowicach (Regional Court, Katowice) and the Sąd Okręgowy w Krakowie (Regional Court, Kraków) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling, which are formulated in almost identical terms in Cases C‑181/21 and C‑269/21:
‘(1) Must Articles 2 and 19(1) [TEU] and Article 6(1) to (3) TEU, read in conjunction with Article 47 of the [Charter], be interpreted as meaning that:
(a) where a court includes in its composition a person appointed to a judicial post in that court as a result of a procedure which does not provide for the participation of judicial self-governing bodies, which bodies are appointed largely independently of the executive and the legislature, in a situation where, in the light of the constitutional acquis of the Member State, the participation of a judicial self-governing body meeting those requirements in the judicial appointment procedure is necessary, that court is not a tribunal established by law within the meaning of European Union law, having regard to the institutional and structural context and given that:
– there was a requirement for an assembly of judges to give an opinion on the candidate’s suitability for the judicial post, which requirement was deliberately disregarded contrary to national law and the position of that judicial self-governing body [(Case C‑181/21) or that];
there was a requirement for the college of that court – a body that was composed in such a way that most of its members were appointed by a representative of the executive, namely the Minister for Justice, and the Prokurator Generalny (Prosecutor General, Poland) – to give an opinion on candidates’ suitability for the judicial post [(Case C‑269/21)],
– the current [KRS], which was elected contrary to Polish constitutional and statutory provisions, is not an independent body and no representatives of the judiciary were elected to it independently of the executive and the legislature, and therefore no motion for appointment to the post of judge was effectively lodged as required under national law;
– the participants in the competition for appointment to the post had no right of appeal to a court within the meaning of Articles 2 and 19(1) TEU and Article 6(1) to (3) TEU, read in conjunction with Article 47 of the Charter;
(b) where a court includes in its composition a person appointed to a judicial post in that court as a result of a procedure which is subject to arbitrary interference by the executive and omits the participation of judicial self-governing bodies, which bodies are appointed largely independently of the executive and the legislature, or of another body ensuring an objective assessment of the candidate, in view of the fact that the participation of judicial self-governing bodies or of another body independent of the executive and the legislature which ensures an objective assessment of the candidate in the judicial appointment procedure is, in the context of the European legal tradition which is rooted in the aforementioned provisions of the TEU and the Charter and which underpins a union of law such as the European Union, necessary to ensure that the national court guarantees the required level of effective judicial protection in cases governed by European Union law, and consequently that the principles of separation and balance of powers and of the rule of law are safeguarded, that court does not satisfy the requirements of an independent tribunal established by law?
(2) Must Article 2 and Article 19(1) TEU, read in conjunction with Article 47 of the Charter, be interpreted as meaning that, where a court includes in its composition a person appointed in the circumstances described [in Question 1] above:
(a) those provisions preclude the application of provisions of national law which place the review of the lawfulness of the appointment of such a person to a judicial post within the exclusive jurisdiction of the [Extraordinary Review and Public Affairs Chamber] which is composed exclusively of persons appointed to judicial posts in the circumstances described in point 1 above and which provisions of national law also require that any objections concerning the appointment to a judicial post be disregarded, having regard to the institutional and systemic context;
(b) those provisions require, in order to ensure the effectiveness of European Union law, provisions of national law to be interpreted in a manner that allows a court to exclude, of its own motion, such a person from hearing the case on the basis of the rules, applicable by analogy, which govern the exclusion of a judge who is incapable of deciding cases (iudex inhabilis)?’
Procedure before the Court
The joinder of Cases C‑181/21 and C‑269/21
51 By decisions of 5 May 2021, the President of the Court of Justice joined Cases C‑181/21 and C‑269/21 for the purposes of the oral and written procedure and the judgment.
The application for an expedited procedure
52 The referring courts have requested that the present references for preliminary rulings be dealt with under an expedited procedure pursuant to Article 105 of the Rules of Procedure of the Court of Justice. In support of their claims, they argued that the application of that procedure is justified in the light of the fact that at least several hundred persons sit within the ordinary courts and deliver an increasing number of decisions there, whereas, in their view, those persons were appointed to the post of judge in such a court ‘in flagrant breach of the rules of Polish law governing the appointment of judges’. In those circumstances, it is necessary to answer the questions referred as soon as possible in order to dispel – in the interests of individuals, the sound administration of justice and legal certainty – the doubts as to the functioning of the ordinary courts in which the two judges sit whose appointment is at issue in the present cases in the light of the requirements relating to an independent and impartial tribunal previously established by law.
53 Article 105(1) of the Rules of Procedure provides that, at the request of the referring court or tribunal or, exceptionally, of his own motion, the President of the Court may decide, after hearing the Judge-Rapporteur and the Advocate General, that a reference for a preliminary ruling is to be determined pursuant to an expedited procedure where the nature of the case requires that it be dealt with within a short time.
54 It must be borne in mind that such an expedited procedure is a procedural instrument intended to address matters of exceptional urgency (judgment of 21 December 2021, Randstad Italia, C‑497/20, EU:C:2021:1037, paragraph 37 and the case-law cited).
55 In the present case, the President of the Court decided, on 5 May 2021, after hearing the Judge-Rapporteur and the Advocate General, that it was not appropriate to grant the requests referred to in paragraph 52 above. The fact that the questions referred relate to the functioning of the ordinary courts in which a large number of judges sit such as those whose appointment is at issue in the present cases does not constitute a reason establishing exceptional urgency, which is nevertheless necessary in order to justify an expedited procedure. The same is true of the fact that a significant number of litigants are potentially concerned by the decisions taken on a daily basis by the judges whose appointments are called into question in those cases. Lastly, the sensitive nature of those questions does not in itself mean that they must be dealt with within a short time, within the meaning of Article 105(1) of the Rules of Procedure.
The jurisdiction of the Court
56 The Polish Government, supported at the hearing by the Prokuratura Okręgowa w Katowicach (Regional Prosecutor, Katowice, Poland) and by the Prokuratura Okręgowa w Krakowie (Regional Prosecutor, Kraków, Poland), submits, in essence, that issues relating to the judicial organisation of the Member States, such as those raised by the questions referred, fall within the exclusive competence of the Member States and not within the material scope of EU law.
57 In that regard, it follows from settled case-law that, although it is true that the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law and that that may be the case, in particular, as regards national rules relating to the adoption of decisions appointing judges and, where applicable, rules relating to the judicial review that applies in the context of such appointment procedures (judgment of 22 March 2022, Prokurator Generalny (Disciplinary Chamber of the Supreme Court – Appointment), C‑508/19, EU:C:2022:201, paragraph 56 and the case-law cited).
58 Moreover, it is clear from the wording of the questions referred that they concern the interpretation not of Polish law but of the provisions of EU law to which they refer.
59 It follows that the Court has jurisdiction to rule on the present requests for a preliminary ruling.
Admissibility of the requests for a preliminary ruling
60 In Case C‑181/21, the Polish Government disputes the admissibility of the request for a preliminary ruling, claiming in particular, in essence, that only the panel of three judges which is responsible for the case in the main proceedings, and not a judge of that panel acting alone, had jurisdiction to refer to the Court of Justice the questions raised in that case.
61 In Case C‑269/21, that government submits that, under Polish procedural rules, the referring court in that case does not have jurisdiction to review the legality of the panel of three judges which issued the order definitively ruling on the application for protective measures made by the applicants in the main proceedings and, in particular, the lawfulness of the appointment of Judge A.T. who sat on that panel of judges. Supported by the Commission at the hearing before the Court, the Polish Government is of the view that, in those circumstances, an answer from the Court to the questions referred by that referring court is not necessary in order to resolve the dispute in the main proceedings.
62 In that regard, the Court has repeatedly pointed out that 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 and that 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 22 March 2022, Prokurator Generalny (Disciplinary Chamber of the Supreme Court – Appointment), C‑508/19, EU:C:2022:201, paragraph 60 and the case-law cited).
63 As is apparent from the very wording of Article 267 TFEU, the preliminary ruling sought must be ‘necessary’ to enable the referring court to ‘give judgment’ in the case before it (judgment of 22 March 2022, Prokurator Generalny (Disciplinary Chamber of the Supreme Court – Appointment), C‑508/19, EU:C:2022:201, paragraph 61 and the case-law cited).
64 The Court has thus pointed out that it is apparent 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 reference 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 22 March 2022, Prokurator Generalny (Disciplinary Chamber of the Supreme Court – Appointment), C‑508/19, EU:C:2022:201, paragraph 62 and the case-law cited).
65 In such proceedings, there must therefore be a connecting factor between that dispute and the provisions of EU law whose interpretation is sought, by virtue of which that interpretation is objectively required for the decision to be taken by the referring court (judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 48 and the case-law cited).
66 In the present case, as regards Case C‑181/21, it should be noted at the outset that, as is apparent from the request for a preliminary ruling made in that case, that request was made to the Court by the reporting judge in the case in the main proceedings within a panel of three judges. That reporting judge has doubts as to the compliance of the composition of that panel of judges with, in particular, Article 19(1) TEU and Article 47 of the Charter, on account of the presence in that panel of Judge A.Z., who was appointed in accordance with the procedure in force following the reforms of the Polish judicial system.
67 By his questions, that reporting judge thus seeks to ascertain whether a judge, who is a member of the same panel of judges as himself in the case in the main proceedings and who was appointed in certain specific circumstances, meets the requirements inherent in an independent and impartial tribunal previously established by law, within the meaning of EU law.
68 In that regard, it is true that every court is obliged to verify whether, in its composition, it constitutes an independent and impartial tribunal previously established by law, within the meaning, in particular, of the second subparagraph of Article 19(1) TEU, where a serious doubt arises on that point, that verification being necessary for the confidence which the courts in a democratic society must inspire in those subject to their jurisdiction (judgments of 26 March 2020, Review Simpson v Council and HG v Commission, C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232, paragraph 57, and of 5 June 2023, Commission v Poland (Independence and private life of judges), C‑204/21, EU:C:2023:442, paragraph 129 and the case-law cited).
69 The fact remains that the necessity, within the meaning of Article 267 TFEU, of the interpretation sought from the Court for a preliminary ruling means that the national judge who, like the referring judge in Case C‑181/21, decides to make a reference to the Court for a preliminary ruling must be able, alone, to infer the consequences of that interpretation by assessing, in the light of that interpretation, the lawfulness of the appointment of another judge to the same panel of judges and, where appropriate, by recusal of the latter.
70 It is not apparent either from the order for reference or from the documents before the Court in Case C‑181/21 that, under the rules of national law, the judge which made the reference for a preliminary ruling in that case could, alone, act in that way.
71 Thus, it does not appear that that judge could, alone, take into consideration any answers which the Court might give to his questions.
72 The interpretation of the provisions of EU law sought in Case C‑181/21 does not therefore meet an objective need linked to a decision which the referring judge might take, alone, in the case in the main proceedings.
73 Consequently, the request for a preliminary ruling in Case C‑181/21 must be regarded as seeking the formulation of advisory opinions on general or hypothetical questions, within the meaning of the case-law cited in paragraph 62 of the present judgment, and is therefore inadmissible.
74 As regards Case C‑269/21, it should be noted that, in the request for a preliminary ruling made in that case, the referring court itself states that the order made by the panel of three judges of the Sąd Okręgowy w Krakowie (Regional Court, Kraków) which amended its own decision and rejected the application for protective measures made by the consumers concerned is no longer subject to appeal. However, the referring court invokes the legal uncertainty which would surround this order due to doubts concerning the regularity of the composition of the panel of judges which issued it due to the presence, on that panel, of Judge A.T. That being said, the referring court does not put forward any provision of Polish procedural law which would confer on it the competence to carry out, moreover in a single-judge formation, an examination of the conformity, in particular with EU law, of a definitive order given on such a request by a panel of three judges.
75 It is also apparent from the documents before the Court that the application for the grant of protective measures in the case in the main proceedings was definitively decided by an order which, under Article 365 of the Code of Civil Procedure, is binding on the referring judge and that that judge does not have competence to ‘recuse’ a judge forming part of the panel of judges which made that order or to call that order into question.
76 In the light of the factors set out in paragraphs 74 and 75 above, it does not appear that the referring court in Case C‑269/21 has jurisdiction, under the rules of national law, to assess the legality, in the light, in particular, of EU law, of the panel of three judges which made the order definitively ruling on the application for protective measures and, in particular, the conditions for the appointment of Judge A.T., and to call into question, where appropriate, that order.
77 It is apparent from those factors that the panel of three judges including Judge A.T., who amended the order of the referring court at first instance, dismissed the application for the grant of protective measures by the applicants in the main proceedings in its entirety. The handling of that request, submitted by those parties in parallel with their action on the substance, was therefore definitively closed.
78 Accordingly, the questions referred in Case C‑269/21 relate intrinsically to a stage in the procedure in the case in the main proceedings which has been definitively closed and is separate from the main proceedings, which remain the only stage pending before the referring court (see, by analogy, judgment of 22 March 2022, Prokurator Generalny (Disciplinary Chamber of the Supreme Court – Appointment), C‑508/19, EU:C:2022:201, paragraph 71 and the case-law cited). They do not therefore correspond to an objective need inherent in the resolution of that dispute, but seek to obtain from the Court a general assessment, disconnected from the requirements of that dispute, of the procedure for the appointment of ordinary judges in Poland.
79 It follows that those questions fall outside the scope of the Court’s judicial function under Article 267 TFEU (see, by analogy, judgment of 22 March 2022, Prokurator Generalny (Disciplinary Chamber of the Supreme Court – Appointment), C‑508/19, EU:C:2022:201, paragraph 82 and the case-law cited).
80 In those circumstances, it must be held that the request for a preliminary ruling in Case C‑269/21 is also inadmissible.
81 In the light of all the foregoing considerations, the present requests for a preliminary ruling are inadmissible.
Costs
82 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring courts, the decision on costs is a matter for those courts. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Grand Chamber) hereby rules:
The requests for a preliminary ruling made by the Sąd Okręgowy w Katowicach (Regional Court, Katowice, Poland), by decision of 18 March 2021, and by the Sąd Okręgowy w Krakowie (Regional Court, Kraków, Poland), by decision of 31 March 2021, are inadmissible.
[Signatures]
i The wording of the title of this document has been amended since it was first put online.