Request for a preliminary ruling from the Sąd Najwyższy (Poland) lodged on 6 February 2024 - X.Y.

(Case C-96/24, Rzecznik Dyscyplinarny Sądu Najwyższego)

Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings

Applicant: X.Y.

Other parties to the proceedings: Rzecznik Dyscyplinarny Sądu Najwyższego, Prokuratura Krajowa

Questions referred

Must the second subparagraph of Article 19(1) of the Treaty on European Union, read in conjunction with Article 47 [first and second paragraphs] 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 concerned party by way of an application to examine whether a judge of the Supreme Court – assigned to the panel hearing a case to authorise criminal proceedings against a judge of the Supreme Court – fulfils 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 (in a case to authorise criminal proceedings against a judge) is a tribunal ‘previously established by law’ in a situation where domestic law merely requires the examination of the judicial attributes of independence and impartiality;

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, in a case to examine whether a judge of the Supreme Court (assigned to a panel (hearing a case to authorise criminal proceedings against a judge of the Supreme Court) fulfils the requirements of independence and impartiality, a party has demonstrated that, on account of that judge’s participation in a (fundamentally) flawed appointment procedure in respect of that position, the selected panel does not meet the requirements of an independent and impartial tribunal previously established by law, then in order to rule on the application to examine whether that judge of the Supreme Court fulfils the requirements of independence and impartiality, it is no longer necessary to examine the judge’s conduct after his or her appointment to the judicial position and the nature of the case (to authorise criminal proceedings against a judge of the Supreme Court), as prescribed by national law, and, consequently, it is not permissible to dismiss an application to examine whether a judge of the Supreme Court fulfils the requirements of independence and impartiality merely because the applicant has not provided evidence that the judge’s conduct after being appointed undermines his or her independence?

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

Must the second subparagraph of Article 19(1) of the Treaty on European Union, read in conjunction with Article 47 [first and second paragraphs] of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that a judge included in the panel hearing a case to examine whether a judge (assigned to hear a case to authorise criminal proceedings against a judge of the Supreme Court) fulfils the requirements of independence and impartiality may, firstly, file an application to exclude from the panel another judge (or judges) drawn from among all judges of the Supreme Court where that judge was appointed to the position of Supreme Court judge under a (fundamentally) flawed appointment procedure which precludes a court with his or her participation from being considered an independent and impartial tribunal previously established by law, and, secondly, demand that such an application not be heard by a judge who was also appointed to the position of Supreme Court judge under that flawed appointment procedure?

If the application referred to in point II above is dismissed without further consideration (by order of the national court), is it permissible for the judge who filed such an application to refuse to take action in the case to examine whether a judge of the Supreme Court fulfils the requirements of independence and impartiality, or should he or she still participate in giving the relevant ruling, leaving it up to the party concerned to decide whether to appeal against that ruling on the grounds that the party’s right to have the case heard by a court that meets the requirements 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 has been infringed?

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?

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