Request for a preliminary ruling from the Sąd Najwyższy (Poland) lodged on 7 February 2024 – X.Y.

(Case C-103/24, Zastępca Rzecznika Dyscyplinarnego)

Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings

Applicant: X.Y.

Other party to the proceedings: Zastępca Rzecznika Dyscyplinarnego przy Sądzie Okręgowym w Piotrkowie Trybunalskim

Questions referred

Must the second subparagraph of Article 19(1) of the Treaty on European Union, read in conjunction with the first and second paragraphs of Article 47 of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that:

the national Supreme Court, in special proceedings initiated by a party by way of an application to examine whether a judge of the Supreme Court – assigned to the panel hearing a disciplinary case against an ordinary court judge – fulfils the requirements of independence and impartiality, is obliged to examine of its own motion whether the panel drawn by lot from among all judges of the Supreme Court is also a tribunal ‘previously established by law’;

if the application to examine whether a judge of the Supreme Court fulfils the requirements of independence and impartiality is based on the plea that the judge in question was appointed to his or her position under a (fundamentally) flawed appointment procedure, then a panel of five judges drawn by lot from among all judges of the Supreme Court may not include Supreme Court judges who were appointed under the same flawed appointment procedure, since such a Supreme Court panel cannot be considered an independent and impartial tribunal previously established by law;

If the answer to the question presented in point I(2) above is in the affirmative:

Is the irregular composition of the entire panel – in a case to examine whether a judge fulfils the requirements of independence and impartiality – affected, in the context of the second subparagraph of Article 19(1) of the Treaty on European Union and Article 47 [first and second paragraphs] of the Charter of Fundamental Rights of the European Union, by the fact that out of the five-judge panel only two judges were appointed to their positions of Supreme Court judges under a (fundamentally) flawed appointment procedure, that is to say, is it nevertheless possible to continue the proceedings and to give a ruling, since the issue of flawed appointment to the position of Supreme Court judge does not affect the majority of the judges in the selected panel?

If the answer to the question presented in point II is that where the five-judge panel required by national law includes two or even one improperly appointed Supreme Court judge, such a court is not a tribunal within the meaning of the second paragraph of Article 19(1) of the Treaty on European Union and Article 47 of the Charter of Fundamental Rights of the European Union, in so far as the appointment process is fundamentally flawed:

In order to safeguard the right of the parties to have their case heard within a reasonable time within the meaning of the second subparagraph of Article 19(1) of the Treaty on European Union and Article 47 of the Charter of Fundamental Rights of the European Union, is it permissible for an application to examine fulfilment of the requirements of independence and impartiality by a judge of the Supreme Court (appointed to hear a disciplinary case against an ordinary court judge) to be heard by a court consisting of a single judge (the judge-rapporteur), whose appointment to the position of Supreme Court judge is not flawed, as an application to exclude a judge of the Supreme Court under the general rules?

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