Action brought on 17 July 2023 – European Commission v Republic of Poland

(Case C-448/23)

Language of the case: Polish

Parties

Applicant: European Commission (represented by: C. Ladenburger, P.J.O. Van Nuffel and K. Herrmann, acting as Agents)

Defendant: Republic of Poland

Form of order sought

The applicant claims that the Court should:

declare that, in the light of the interpretation of the Constitution of the Republic of Poland made by the Trybunał Konstytucyjny (Constitutional Court, Poland) in its judgments of 14 July (Case P 7/20) and of 7 October 2021 (Case K 3/21), the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) of the Treaty on European Union;

declare that, in the light of the interpretation of the Constitution of the Republic of Poland made by the Trybunał Konstytucyjny (Constitutional Court) in its judgments of 14 July (Case P 7/20) and of 7 October 2021 (Case K 3/21), the Republic of Poland has failed to fulfil its obligations under the general principles of autonomy, primacy, effectiveness and uniform application of EU law and the principle of the binding effect of judgments of the Court of Justice;

declare that, since the Trybunał Konstytucyjny (Constitutional Court) does not satisfy the requirements of an independent and impartial tribunal previously established by law as a result of irregularities in the procedures for the appointment of three judges to that court in December 2015 and in the procedure for the appointment of its President in December 2016, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU;

order the Republic of Poland to pay the costs.

Pleas in law and main arguments

By the first and second pleas in law, the Commission challenges two judgments of the Trybunał Konstytucyjny (Constitutional Court) of the Republic of Poland (‘the Constitutional Court’) of 7 October 2021 (Case K 3/21) and of 14 July 2021 (Case P 7/20). Those judicial decisions result in an infringement of different, but not unrelated obligations imposed on Poland by the EU treaties. The first plea concerns the infringement by the aforementioned judgments of the Constitutional Court of the second subparagraph of Article 19(1) TEU, as interpreted by the Court of Justice of the European Union, in particular in the judgments of 2 March 2021, A.B. and Others (Appointment of Judges to the Supreme Court – Actions), C-824/18, EU:C:2021:153, and of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C-487/19, EU:C:2021:798, because the Constitutional Court interpreted the Constitution of the Republic of Poland in relation to the EU law requirements of effective judicial protection by an independent and impartial tribunal previously established by law too narrowly, incorrectly, and in a manner that manifestly disregards the case-law of the Court of Justice of the European Union. The second plea concerns the infringement by those judgments of the Constitutional Court of the principles of primacy, autonomy, effectiveness and uniform application of EU law and the binding effect of judicial decisions of the Court of Justice of the European Union, as the Constitutional Court, in those judgments, unilaterally disregarded the principles of primacy and effectiveness of Articles 2, 4(3) and 19(1) TEU and Article 279 TFEU, as consistently interpreted and applied by the Court of Justice of the European Union, and ordered all Polish authorities to disapply those Treaty provisions.

By the third plea, the Commission argues that the Constitutional Court no longer offers the guarantees of an independent and impartial tribunal previously established by law for the purposes of the second subparagraph of Article 19(1) TEU, in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, (i) as a result of manifest irregularities in the appointments to judicial positions at the Constitutional Court in December 2015 in flagrant breach of Polish constitutional law and (ii) as a result of irregularities in the procedure for the election of the President of the Constitutional Court in December 2016. Each of those irregularities gives rise, in the light of the activities of the Constitutional Court composed of persons appointed in this way, to reasonable doubts in the minds of individuals as to the impartiality of the Constitutional Court and its imperviousness to external factors.

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