Provisional text
OPINION OF ADVOCATE GENERAL
COLLINS
delivered on 11 April 2024 (1)
Joined Cases C‑647/21 and C‑648/21
D.K. (C‑647/21)
M.C.,
M.F. (C‑648/21)
joined parties:
Prokuratura Rejonowa w Bytowie,
Prokuratura Okręgowa w Łomży
(Requests for a preliminary ruling from the Sąd Okręgowy w Słupsku (Regional Court of Słupsk, Poland))
(References for a preliminary ruling – Rule of law – Second subparagraph of Article 19(1) TEU – Principles of irremovability of judges and judicial independence – Principle of ‘internal’ judicial independence – Resolution of the College of a national court withdrawing cases from a judge without consent – Transfer of a judge from an appellate to a first instance division of a national court without consent – Absence of procedural safeguards and judicial review under national law – Illegal application of national rules – Primacy of EU law)
Introduction
1. These requests for a preliminary ruling referred by Judge A. N‑B. of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk, Poland) on 20 October 2021 principally concern the scope and the practical application of the concept of ‘internal’ judicial independence as recognised by the second subparagraph of Article 19(1) TEU, notably judicial freedom from undue influence or pressures emanating from within the judiciary.
2. In October 2021, the President of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) transferred Judge A. N‑B. from the sixth criminal division of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk), an appellate instance, to that court’s second criminal division, which hears cases at first instance. Seventy (2) cases assigned to her, including those that give rise to the present requests for a preliminary ruling, were withdrawn from her and reassigned (3) to other judges. (4) Those measures were taken without Judge A. N‑B.’s consent. Since those measures aimed to prevent her from verifying, in the exercise of her appellate jurisdiction, whether the requirement of a tribunal previously established by law had been met in the cases of which she is seised, Judge A. N‑B. considered that they breached the principles of the irremovability of judges and judicial independence. She thus seeks to ascertain whether, pursuant to the second subparagraph of Article 19(1) TEU, Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the principle of the primacy of EU law, the manner in which the members of the College were appointed, her lack of consent to the withdrawal of the cases and the absence of any criteria for that withdrawal entitle her to sit in the cases giving rise to the present requests for a preliminary ruling.
Legal framework – Polish legislation
The Law on the Ordinary Courts
3. Under Article 21(1) of the Ustawa – Prawo o ustroju sądów powszechnych (Law on the organisation of the ordinary courts) of 27 July 2001 (Dziennik Ustaw No 98, item 1070), in the version applicable to the disputes in the main proceedings (‘the Law on the Ordinary Courts’), the bodies of the sąd okręgowy (regional court) are the president of the court, the college of the court and the director of the court.
4. Article 22a of the Law on the Ordinary Courts provides:
‘1. … the president of the sąd okręgowy (regional court) at the regional court, after consulting the college of the regional court, shall establish how activities are to be allocated; this will specify:
(1) the assignment of judges … to divisions of the court;
(2) the scope of judges’ … duties, as well as the manner in which they are to participate in the allocation of cases;
(3) the schedule of duty hours and substitution schedule for judges, …
– taking into account the specialisation of judges … to hear and determine different types of cases, the need to ensure judges … are appropriately distributed among the divisions of the court and that their duties are distributed evenly, as well as the need to ensure that judicial proceedings are conducted efficiently.
…
4. The president of the court may at any time establish, in full or in part, a new way in which activities are to be allocated, where this is justified on the grounds referred to in paragraph 1. …
4a. The transfer of a judge to another division shall require that judge’s consent.
4b. The consent of a judge to the transfer of that judge to another division shall not be required if:
(1) the transfer is to a division which hears and determines cases in the same field;
…
5. A judge or trainee judge whose allocated activities have been changed in a manner resulting in a change in the scope of his or her duties, in particular through a transfer to another division of the court, may appeal to the [Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland) (‘the KRS’)] within seven days of the date of being informed of the new scope of his or her duties. There shall be no right of appeal in the event of:
(1) a transfer to a division which hears and determines cases in the same field;
…
6. The appeal referred to in paragraph 5 shall be lodged through the president of the court who carried out the allocation of activities which is the subject of the appeal. The president of the court shall forward the appeal to the [KRS] within 14 days of its receipt together with a statement of his or her position in the case. The [KRS] shall adopt a resolution upholding or dismissing the judge’s appeal, taking into account the considerations referred to in paragraph 1. The resolution of the [KRS] regarding the appeal referred to in paragraph 5 shall not require justification. The resolution of the [KRS] is not amenable to appeal. Until the resolution is adopted, the judge or trainee judge shall continue to perform his or her existing duties.’
5. Article 30(1) of the Law on the Ordinary Courts provides:
‘The college of the sąd okręgowy (regional court) shall consist of:
(1) the president of the sąd okręgowy (regional court);
(2) the presidents of the sądy rejonowe (district courts) falling within the jurisdiction of the sąd okręgowy (regional court).’
6. Article 47a of that law provides:
‘1. Cases shall be allocated to judges and trainee judges at random according to the specific categories of cases, with the exception of the allocation of cases to a duty judge.
2. Cases within the specific categories shall be allocated equally unless the share has been reduced because of the post held, participation in the allocation of cases of another category, or other reasons provided for by law.’
7. Under Article 47b of that law:
‘1. A change in the composition of the court may take place only where it is impossible for the court to hear and determine the case in its current composition or where there is a lasting obstacle to the court hearing and determining the case in its current composition. The provisions of Article 47a shall apply mutatis mutandis.
…
3. Decisions in the cases referred to in [paragraph 1] shall be taken by the president of the court or by a judge authorised by him or her.
4. A change in the place where a judge serves, or his or her secondment to another court, as well as the end of a secondment, shall not constitute an obstacle to the performance of [procedural] acts in cases allocated at the place where he or she currently serves, or the place where he or she currently performs his or her duties, pending the closure of those cases.
5. The college of the court within whose jurisdiction the new place where the judge serves or the place of his or her secondment falls may, at the request of the judge or of its own motion, release that judge from his or her obligations with regard to hearing and determining cases in whole or in part, in particular because of the considerable distance between that court and the new place where the judge serves or the place of his or her secondment, depending on the state of proceedings in the cases being heard and determined. Before adopting a resolution, the college of the court shall consult the presidents of the competent courts.
6. The provisions of paragraphs 4 and 5 shall apply mutatis mutandis in the event of a transfer to another division of the same court.’
The dispute in the main proceedings and the questions referred for preliminary ruling
8. In Case C‑647/21, the Sąd Rejonowy w B. (District Court of B., Poland) convicted D.K. on 11 December 2020 of a crime under Article 190(1) of the ustawa z dnia 6 czerwca 1997 r. – Kodeks karny (Law of 6 June 1997 on the Criminal Code) and imposed a custodial sentence. (5) In February 2021, D.K’s lawyer appealed the severity of that sentence to the referring court. Judge A. N‑B. was assigned to sit as reporting judge and as president of a single judge formation in that appeal.
9. In Case C‑648/21, M.C. and M.F. were accused of ‘abuse of power by a public official’ pursuant to Article 231(1) of ustawa z dnia 6 czerwca 1997 r. – Kodeks karny (Law of 6 June 1997 on the Criminal Code). (6) In March 2016, the court of first instance convicted M.F. and imposed a custodial sentence. (7) It acquitted M.C. In November 2016, the court of second instance set aside that judgment and referred the case back to the court of first instance for re-examination. In December 2017, the latter court convicted M.C. and M.F of the offences in question. Following a further appeal, in April 2019, the court of second instance acquitted M.C. and upheld M.F.’s conviction. The Prosecutor General (Prokurator Generalny) appealed that judgment to the Sąd Najwyższy (Supreme Court, Poland) on a point of law. In April 2020, the Sąd Najwyższy (Supreme Court) set aside the judgment of the court of second instance and referred the case back to that court for reconsideration on appeal. That case is pending before the Sąd Okręgowy w Słupsku (Regional Court of Słupsk), the appellate division of which was to examine the case in a formation consisting of the President of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk), the reporting judge and President of the formation – Judge A. N‑B. – and a third judge.
10. In an unrelated case, in September 2021, (8) Judge A. N‑B. adopted an order based on the second subparagraph of Article 19(1) TEU, requesting the President of the appellate division of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) to replace the President of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) in the formation assigned to hear that case. That order recited that the fact that the President of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) – who had been appointed to that court on the basis of a resolution of the KRS in its new composition (9) – had been assigned to that formation infringed the right to a tribunal previously established by law pursuant to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, Article 47 of the Charter, Article 45 of the Constitution of the Republic of Poland and the judgment of the European Court of Human Rights (‘the ECtHR’) in Reczkowiczv. Poland. (10)
11. The Vice-President of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) set aside that order on the basis of Article 42a(2) of the Law relating to the organisation of the ordinary courts. According to the referring court, the Vice-President had been appointed as a judge on the basis of a KRS (11) resolution. The Polish Minister for Justice, who was also the Prosecutor General (Prokurator Generalny), thereafter installed him as Vice-President of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk). The referring court has doubts as to whether the Vice-President of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) could have set aside its order in administrative review proceedings since the composition of that court is a judicial matter in which the Vice-President should not have intervened. In any event, the order of the Vice-President of the Court of Justice of 14 July 2021, Commission v Poland, (12) to suspend the application of certain provisions of Polish law, including Article 42a(2) of the Law relating to the organisation of the ordinary courts, deprived the Vice-President of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) of any power to adopt a measure on the basis of that provision.
12. In early October 2021, in another case, Judge A. N‑B. set aside a judgment of a lower court that had been delivered by a judge who had been appointed on the basis of a KRS (13) resolution. (14)
13. On 11 October 2021, the College resolution purporting to withdraw approximately seventy cases from Judge A. N‑B., including the cases that give rise to the present requests for a preliminary ruling, was adopted. That withdrawal was effected without Judge A. N‑B.’s consent and ‘without an ad hoc request as required by law’. Judge A. N‑B. was not served with the College resolution and the President of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) merely informed her that those cases had been withdrawn from her. Judge A. N‑B. is unaware of both the reasons for, and the legal basis of, that resolution. Notwithstanding two requests from her, the President of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) refused to afford Judge A. N‑B. access to the text of the resolution.
14. On 13 October 2021, the President of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) adopted an order (15) to transfer Judge A. N‑B. from the appellate division (16) of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) (17) to the first instance division of that court (‘the order of 13 October 2021’). (18) That order ‘laconically’ refers to the need to ensure the proper functioning of the appellate and first instance divisions of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) and to unspecified correspondence between the President of that court and the President of one of those divisions. On 18 October 2021, the order of the President of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) entered into force and was served on Judge A. N‑B. The order contains no information on any remedies that might be available to enable her to challenge it.
15. In its submissions, the Commission indicated that disciplinary proceedings were also initiated against Judge A. N‑B., and that, from 29 October 2021, she had been suspended from office for at most one month. At the hearing held on 24 January 2024, the Polish Government confirmed the existence of those disciplinary proceedings but was unable to provide any information as to their outcome.
16. The referring court seeks to ascertain whether, in the light of the above circumstances and the judgment in Review Simpson v Council and HG v Commission, (19) the withdrawal from Judge A. N‑B. of the cases giving rise to the present requests for a preliminary ruling breached the second subparagraph of Article 19(1) TEU and Article 47 of the Charter. In the event those provisions had been breached, the referring court asks whether it should disregard the College resolution, with the result that Judge A. N‑B. continues to sit as President of the single judge formation in the case that gave rise to Case C‑647/21 and as reporting judge and president of the three-judge formation in the case that gave rise to Case C‑648/21. The Sąd Okręgowy w Słupsku (Regional Court of Słupsk) thus decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Must the second subparagraph of Article 19(1) TEU, in conjunction with Article 47 of the [Charter], be interpreted as precluding national legislation such as Article 47b(5) and (6) of the Ustawa z dnia 27 lipca 2001 r. – Prawo o ustroju sądów powszechnych (Law of 27 July 2001 on the system of ordinary courts), in conjunction with Articles 30(1) and 24(1) thereof, under which a body of a national court, such as the [C]ollege of a court, has the power to release a judge of that court from the obligation to hear some or all of the cases assigned to him or her, in the case where:
(a) the composition of the College includes, by law, the presidents of courts appointed to those posts by an executive body, such as the Minister for Justice, who is also the Public Prosecutor General;
(b) the judge is released, without his or her consent, from the obligation to hear the cases assigned to him or her;
(c) national law does not lay down any criteria to guide the College of a court when releasing a judge from the obligation to hear the cases assigned to him or her, nor does it lay down any obligation to state reasons and to conduct a judicial review of that release;
(d) some of the members of the College of the court were appointed to the post of judge in circumstances similar to those referred to in the judgment of the Court of Justice of 15 July 2021 in Commission v Poland (Disciplinary regime applicable to judges) (C‑791/19, EU:C:2021:596)?
(2) Must the provisions referred to in Question 1, and also the principle of primacy, be interpreted as empowering (or obliging) a national court hearing a case in criminal proceedings coming within the scope of Directive 2016/343, [(20)] the judge dealing with which has been released from the obligation to hear cases in the manner described in Question 1, and all public bodies, to disregard an act of the College of a court and other acts issued subsequently, such as an order reassigning cases, including the case in the main proceedings, without the consent of the judge who has been released, so that he or she can continue to sit [in the formation] hearing that case?
(3) Must the provisions referred to in Question 1, and also the principle of primacy, be interpreted as requiring the existence in the national legal order, in criminal proceedings coming within the scope of Directive 2016/343, of remedies of the kind which ensure that the parties to the proceedings, such as the defendant in the main proceedings, can secure a review of, and appeal against, decisions such as those referred to in [Question 1], which are intended to bring about a change in the composition of the [formation] hearing the case and consequently to release the judge hitherto assigned to hear the case from the obligation to do so, in the manner described in Question 1?’
The procedure before the Court
17. By decision of 29 November 2021, the President of the Court joined Case C‑647/21 and Case C‑648/21 for the purposes of the written and oral procedure and of the judgment.
18. The referring court sought the expeditious treatment of both requests for a preliminary ruling pursuant to Article 105(1) of the Rules of Procedure of the Court of Justice of the European Union. By decision of 29 November 2021, the President of the Court rejected those requests. He held that the referring court had submitted arguments of a general nature (21) without giving any specific reasons to justify their expeditious treatment. That the cases before the referring court involved criminal proceedings did not constitute such a justification.
19. On 18 October 2022, the Court suspended Joined Cases C‑647/21 and C‑648/21 until it delivered judgment in Joined Cases C‑615/20 and C‑671/20. On 20 July 2023, the Court notified the judgment in YP and Others (Lifting of a judge’s immunity and his or her suspension from duties) (22) to the referring court and requested it to indicate whether it wished to maintain its requests for a preliminary ruling. On the instructions of the President of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk), Judge A. N‑B. replied on 25 September 2023 (23) to inform the Court that the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) wished to maintain the requests for a preliminary ruling in Joined Cases C‑647/21 and C‑648/21.
20. In view of certain perceived ambiguities in Judge A. N‑B.’s reply, the Court sent her a request for clarification (24) pursuant to Article 101(1) of the Rules of Procedure of the Court of Justice. The Court asked, inter alia, whether Judge A. N‑B. continued to sit in the formation seised of the cases that gave rise to the requests for a preliminary ruling in Joined Cases C‑647/21 and C‑648/21, and, if so, in what capacity. Judge A. N‑B. answered that request on 17 October 2023. (25) She confirmed that she was the reporting judge and the president of the formation in the proceedings before the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) in both cases at the time the requests for a preliminary ruling were made on 20 October 2021. The case that gave rise to a request for a preliminary ruling in Case C‑648/21 had been reassigned by order dated 21 October 2021 to another reporting judge who had previously sat in the three-judge formation. (26) On that same date, the composition of the single-judge formation in the case giving rise to the request for a preliminary ruling in Case C‑647/21 was also changed. Judge A. N‑B. confirmed that the proceedings before the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) in the cases that gave rise to the present requests for a preliminary ruling were suspended by virtue of those requests and remain suspended. Judge A. N‑B. also informed the Court that the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) sits in full formation (27) when it rules on the merits of a case (Rozprawa). In other hearings (Posiedzenie) – such as those relating to the cases that gave rise to the requests for a preliminary ruling in Joined Cases C‑647/21 and C‑648/21 – the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) sits in a single-judge formation, the reporting judge presiding.
21. The Prokuratura Rejonowa w Bytowie (District Public Prosecutor’s Office in Bytów), the Prokuratura Okręgowa w Łomży (Regional Public Prosecutor’s Office in Łomża), the Danish, Dutch, Polish and Swedish Governments and the European Commission submitted written observations. Except for the Prokuratura Rejonowa w Bytowie (District Public Prosecutor’s Office in Bytów), the Prokuratura Okręgowa w Łomży (Regional Public Prosecutor’s Office in Łomża) and the Dutch Government, at the hearing on 24 January 2024 the aforementioned parties presented oral argument and replied to the Court’s questions.
The jurisdiction of the Court
Submissions
22. The Danish and Polish Governments and the Commission consider that Article 47 of the Charter does not apply to the cases before the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) that give rise to the present requests for a preliminary ruling. Whilst those questions refer to Directive 2016/343, the Commission observes that they do not seek an interpretation of its provisions.
23. The Prokuratura Rejonowa w Bytowie (District Public Prosecutor’s Office in Bytów) and the Prokuratura Okręgowa w Łomży (Regional Public Prosecutor’s Office in Łomża) submit that the questions referred relate to the withdrawal of cases from a judge. That is a matter of the organisation of justice within a Member State, an exclusive national competence that EU law does not regulate. The Prokuratura Okręgowa w Łomży (Regional Public Prosecutor’s Office in Łomża) further submits that the questions Judge A. N‑B. referred relate to her individual circumstances and are therefore of a personal, not a judicial, character.
Assessment
24. By Article 51(1) thereof, the Charter addresses its provisions to the Member States only when they implement EU law. The cases before the referring court that give rise to Joined Cases C‑647/21 and C‑648/21 are criminal in nature and the second question refers to Directive 2016/343. The referring court does not provide any reasons to explain how an interpretation of that directive might be of any relevance to the determination of the cases pending before it. Nor do the orders for reference indicate that they raise any issue as to the interpretation or the application of a rule of EU law. Nothing in the requests for a preliminary ruling shows that any person relies on the right to an effective remedy enshrined in Article 47 of the Charter or that any person invoking that right relies on a right or a freedom that EU law guarantees. (28)
25. It is settled case-law that while the organisation of justice in the Member States, including the withdrawal and the reassignment of cases, falls within their competence, the exercise of that competence must comply with EU law and, in particular, the second subparagraph of Article 19(1) TEU. (29) Under the second subparagraph of Article 19(1) TEU,Member States must ensure that courts or tribunals liable to rule on the interpretation or application of EU law (30) meet the requirements of effective judicial protection. (31) That provision precludes national provisions on the organisation of justice that reduce the protection of the value of the rule of law. (32) Member States must thus design the organisation of justice in such a way as to ensure that it complies with EU law requirements. These include, in particular, the independence of courts called upon to rule on questions concerning the application or the interpretation of EU law in order to ensure the effective judicial protection of individuals’ rights derived therefrom. (33) It follows that the Court has jurisdiction to interpret EU law in cases that relate to the organisation of a Member State’s judicial system.
26. As regards the Prokuratura Okręgowa w Łomży’s (Regional Public Prosecutor’s Office in Łomża) submissions on the personal nature of the questions referred, it suffices to observe that the YP judgment also involved the jurisdiction of individual judges who had made requests for preliminary rulings. In that judgment, the Court ruled on whether such judges could continue, in accordance with the second subparagraph of Article 19(1) TEU, to examine and rule on criminal cases pending before them. The Court answered the questions referred so as to enable the referring court to resolve, in limine litis, procedural issues that related to those individual judges’ jurisdiction to hear and determine cases before them. (34)
27. For all of these reasons, I advise the Court that, save in so far as concerns the interpretation of Article 47 of the Charter, it has jurisdiction to rule on the present requests for a preliminary ruling.
The admissibility of the questions referred
28. The Prokuratura Rejonowa w Bytowie (District Public Prosecutor’s Office in Bytów) and the Prokuratura Okręgowa w Łomży (Regional Public Prosecutor’s Office in Łomża) contest the admissibility of the present requests for a preliminary ruling. The cases had been withdrawn from Judge A. N‑B. on 18 October 2021 and were thereafter reassigned to (an)other judge(s). On 20 October 2021, Judge A. N‑B. had no jurisdiction to make any requests for a preliminary ruling since at that time she was neither seised of the national proceedings out of which those references arose nor did she sit in the relevant formations of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk). The questions referred are, accordingly, hypothetical, since any answers to them are unnecessary to decide the criminal proceedings pending before that court. The independence and the impartiality of the judge(s) to whom those cases were reassigned is not in issue. The Prokuratura Rejonowa w Bytowie (District Public Prosecutor’s Office in Bytów) and the Prokuratura Okręgowa w Łomży (Regional Public Prosecutor’s Office in Łomża) also submit that the present requests for a preliminary ruling do not satisfy the requirements of Article 94(a) and (b) of the Rules of Procedure of the Court of Justice.
29. The Commission considers that the third question, which concerns the remedies available to the parties to the proceedings before the referring court, is inadmissible as it is both hypothetical and does not engage any preliminary issue that must be resolved in limine litis. At the hearing, the Polish Government submitted that the referring court’s questions are admissible. (35)
30. It is opportune to address the admissibility of the third question that the Commission has raised first.
31. There is no indication in the requests for a preliminary ruling that any of the parties in the proceedings in the cases giving rise to Joined Cases C‑647/21 and C‑648/21 objected to or sought to review the College resolution that purported to withdraw those cases from Judge A. N‑B. Nor is it apparent from the file before the Court that those parties were in any way prevented or hindered from taking such an objection or seeking such review. I conclude from this that the referring court’s third question is hypothetical and is, therefore, inadmissible.
32. As for the admissibility of the first and second questions, I observe that the conditions for the admissibility of a request for a preliminary ruling must be met throughout those proceedings. (36) By Article 100(1) of its Rules of Procedure, the Court remains seised of a request for a preliminary ruling for as long as the court that made that request has not withdrawn it. In accordance with Article 100(2) of the Rules of Procedure, the Court may, at any time, declare that the conditions for the exercise of its jurisdiction are no longer met.
33. It is settled case-law that questions on the interpretation of EU law that a national court refers pursuant to Article 267 TFEU enjoy a presumption of relevance. In the context of the cooperation between the Court and the national courts which that provision mandates, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling to enable it to deliver judgment and the relevance of the questions that it submits to the Court. It is, however, clear from both the text and the scheme of Article 267 TFEU that a national court may not request a preliminary ruling unless a case is pending before it in which it is called upon to give a decision that is capable of taking account of the Court’s response. The Court does not issue advisory opinions on general or hypothetical questions. A request for a preliminary ruling must thus be necessary for the effective resolution of a dispute before the referring court or in order to resolve a preliminary issue of EU, or national procedural law, in limine litis. (37)
34. From the extensive correspondence between the Court and the referring court (38) it appears that, as a matter of Polish law, Judge A. N‑B. was seised of the proceedings before the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) in the cases that gave rise to Joined Cases C‑647/21 and C‑648/21 at the time she made the present requests for a preliminary ruling on 20 October 2021, as a consequence of which those proceedings were suspended. (39) That court has not withdrawn the requests for a preliminary ruling despite the College resolution purporting to withdraw the cases out of which they arise from Judge A. N‑B. and their reassignment to other judges. I therefore advise that the Court was seised of the requests for a preliminary ruling by the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) on 20 October 2021 and remains seised of them at the time of writing pursuant to Article 100(1) of the Rules of Procedure.
35. As regards the objection that the Court’s answer is unnecessary to resolve the criminal cases that gave rise to the present requests for a preliminary ruling, it is not apparent whether those criminal cases have any substantive connection to EU law as would require the referring court to apply that law in order to rule on their merits. (40) The apparent absence of a connecting factor between those criminal cases and EU law may not always resolve that issue. The Court has emphasised that it may be necessary for it to answer questions in order to provide referring courts with an interpretation of EU law that enables the latter to resolve procedural questions of national law, thereby enabling them to rule on the substance of pending disputes. (41) I therefore agree with the Polish Government’s observation at the hearing that an answer from the Court is objectively required to enable the referring court to decide in limine litis on a procedural matter prior to ruling on the substance of the cases before it. (42)
36. In paragraph 69 of the G judgment, the Court held that the necessity, for the purposes of Article 267 TFEU, of the interpretation of EU law sought from the Court requires that the referring court ‘be able, of its own motion, to infer the consequences of that interpretation’. In the case that gave rise to the request for a preliminary ruling in Case C‑269/21, the reporting judge, who sat in a three-judge formation, sought to ascertain whether another judge in that formation met the requirements inherent in an independent and impartial tribunal previously established by law, within the meaning of EU law. The Court held that the interpretation of EU law the referring court sought was unnecessary to enable it to adjudicate upon the proceedings before it and that the request for a preliminary ruling was accordingly inadmissible as the reporting judge of a three-judge formation, sitting alone, could not take the Court’s answers into consideration. The Court in effect held that the individual judge who had made the request for a preliminary ruling in Case C‑269/21 did not have jurisdiction to recuse another judge sitting in the same formation. (43)
37. The facts underlying the G judgment are readily distinguishable from those that give rise to the present requests for a preliminary ruling. Judge A. N‑B. does not seek the recusal of any of the other members of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk). As point 35 of the present Opinion indicates, the referring court seeks guidance to resolve in limine litis the procedural difficulties that arise from the College resolution to prevent Judge A. N‑B. from hearing and determining cases that had been assigned to, and were in fact pending before, her. (44) Such a check is an essential procedural requirement that the referring court is entitled to verify of its own motion. (45)
38. I further observe that the Court’s answer will bind the referring court, including the judge(s) before whom the cases giving rise to the present references for a preliminary ruling are pending, and the judicial bodies of the referring court with the power to determine and to modify the composition of its formations. (46) Depending upon the Court’s answer to the first and second questions, the referring court may, in accordance with the second subparagraph of Article 19(1) TEU and the principle of primacy of EU law, be required to disapply the College resolution, thereby ensuring that Judge A. N‑B. will sit in the pending criminal cases. (47) In the alternative, the judge(s) to whom those cases have since been assigned may have jurisdiction to examine them.
39. None of parties to the proceedings before the Court disputes the admissibility of the request for a preliminary ruling in Case C‑648/21 (48) on the ground that only a three-judge formation of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk), and not Judge A. N‑B. acting alone, had jurisdiction under national law to make that request. (49) For the sake of completeness, it may be observed that, in her reply of 17 October 2023 to the Court’s request for clarification, Judge A. N‑B. confirmed that, in her capacity as reporting judge and president of the three-judge formation, she had jurisdiction as a matter of Polish law to request the preliminary ruling in Case C‑648/21. (50)
40. I therefore advise the Court to dismiss the various objections to the admissibility of the first and second questions. For the reasons given in points 30 and 31 of the present Opinion, I am of the view that the third question is inadmissible.
Substance
41. By its first and second questions, which it is convenient to examine together, the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) seeks to ascertain whether the second subparagraph of Article 19(1) TEU and the principle of the primacy of EU law preclude the College from withdrawing the cases that gave rise to Joined Cases C‑647/21 and C‑648/21 from Judge A. N‑B. and reassigning them to (an)other judge(s). The first question refers to the manner in which the College was appointed, Judge A. N‑B.’s absence of consent to the withdrawal of the cases from her and the lack of any criteria for such withdrawal under Polish law. The questions do not specifically address the issue of Judge A. N‑B.’s transfer from the sixth (appellate) to the second (first instance) division of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk).
42. The facts and the observations in the requests for a preliminary ruling indicate that the transfer of Judge A. N‑B. (51), and the subsequent withdrawal of seventy cases then assigned to her, were measures taken in response to her attempts to verify the compliance with the second subparagraph of Article 19(1) TEU of the nomination of certain judges. (52) The Polish Government confirmed at the hearing that it draws that inference from those facts and observations. That government also considers that those measures were not taken in the interest of the proper administration of justice. (53)
43. It is also the case that, almost simultaneously, disciplinary proceedings were initiated against Judge A. N‑B. From the information available to the Court, it is impossible to conclude that the transfer of Judge A. N‑B. from the appellate to the first instance division of the same court, and the withdrawal of cases from her, took place in the context of a formal disciplinary procedure. It is thus a matter for the referring court to determine whether the transfer of Judge A. N‑B. and the withdrawal of cases from her in fact constituted a disguised, and thus illegal, disciplinary measure.
44. Given their contemporaneous character and their apparent common objective, I suggest that, in order to provide a useful answer to the referring court, it is necessary to examine the transfer of Judge A. N‑B., with the withdrawal of cases from her, together. (54)
45. The requirement that courts are independent, which is inherent in the task of adjudication, is a constituent of the right to effective judicial protection and is of fundamental importance to the EU legal order. (55) In order to fulfil that requirement a court must exercise its functions autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions. (56) The principle of judicial independence requires rules to be drawn up to dispel any reasonable doubt, in the minds of individuals, as to the imperviousness of the judges to external factors, in particular to any direct or indirect influence of the legislature or executive liable to have an effect on their decisions. (57) EU law thus places considerable emphasis on the necessity to shield the judicial arm of the State from pressure from its executive or its legislative arms. In order to dispel any such reasonable doubt as to the imperviousness of the judges to any direct or indirect influence liable to have an effect on their decisions, equal emphasis must be placed on protecting individual judges from undue influence or pressure from within the judiciary. (58)
46. The various forms of declaration or oaths that judges take to adjudicate in full independence would be meaningless if, when carrying out that function, they are at risk of being put under pressure by their colleagues, in particular those charged with responsibility to preside over formations and/or to assign cases. Pressure of this kind can range from the informal, through to the transfer of judges (as appears to have happened here), to the assignment and re-assignment of cases (as also appears to have taken place in this case), to the initiation and pursuit of disciplinary proceedings (as may have occurred here). Such behaviour on the part of fellow judges is more than merely unethical – it is just as illegal for judges to put their colleagues under pressure in the execution of their functions as it is for the members of the executive or the legislature to do so. These observations apply with equal force in circumstances where judges are put under pressure by their colleagues as a result of discharging their duty to speak out in public on matters that pertain to the organisation of the legal system and the exercise of judicial power. (59)
47. Support for this position exists in the case-law of both the European Court of Human Rights (‘the ECtHR’) and that of the Court. In its judgment in Parlov-Tkalčić v. Croatia, the ECtHR held that ‘judicial independence demands that individual judges be free not only from undue influences outside the judiciary, but also from within. This internal judicial independence requires that they be free from directives or pressures from … fellow judges or those who have administrative responsibilities in the court such as the president of the court or the president of a division in the court … The absence of sufficient safeguards securing the independence of judges within the judiciary and, in particular, vis-à-vis their judicial superiors, may lead the [ECtHR] to conclude that an applicant’s doubts as to the (independence and) impartiality of a court may be said to have been objectively justified …’ (60)
48. In the W.Ż. judgment, (61) the Court emphasised the need for procedural guarantees or safeguards to ensure internal judicial independence and the right to challenge measures that may impinge on that independence. (62) It considered that the transfer of a judge, without his or her consent, to another court or between two divisions of the same court has, like a disciplinary regime, the potential to undermine the principles of the irremovability of judges and of judicial independence. Such transfers may also be a means to exercise control over the content of judicial decisions. They are not only liable to affect the scope of activities allocated to judges and the handling of cases entrusted to them, but also to have significant consequences on their lives and careers and, thus, to have effects similar to disciplinary sanctions. (63) The Court thus held that the rules and principles that govern a disciplinary regime applicable to judges must also govern such transfers. (64)
49. It follows that rules on the transfer of judges without their consent must be defined in advance in a clear and transparent manner so as to avoid any arbitrariness and/or risk of manipulation. (65) Such transfers may be ordered on legitimate grounds only, including those relating to the distribution of available resources to further the proper administration of justice. Such decisions must contain an appropriate statement of reasons and be open to challenge in accordance with a procedure that fully safeguards the rights enshrined in Articles 47 and 48 of the Charter, in particular the rights of the defence. Since similar ‘chilling’ effects may result from the transfer of judges and the withdrawal of cases from a judge without his or her consent, the rules and principles applicable to such transfers and to any disciplinary regime apply equally (66) to the non-consensual withdrawal of cases from a judge. (67)
50. It appears from the requests for a preliminary ruling and the parties’ written and oral submissions that Polish law on the non-consensual transfer of judges and withdrawal of cases does not comply with the aforementioned rules and principles. (68) The manner whereby the College and the President of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) applied provisions of Polish law to Judge A. N‑B. further undermined those rules and principles. The shortcomings identified thus appear to be of both a systemic and an individual nature.
51. At the hearing, in reply to questions put by the Court, the Polish Government confirmed that Article 22a of the Law relating to the organisation of the ordinary courts governs changes in a judge’s duties, including the transfer of a judge to another division of a court. By Article 22a(1) and (4a) of that law, such changes require the consent of the judge in question to take effect. There is also a right of appeal to the KRS against such decisions. (69)
52. Article 22a(4b)(1) of the Law relating to the organisation of the ordinary courts excludes the requirement of consent in the event where the ‘transfer is to a division which hears and determines cases in the same field’. Article 22a(5)(1) of that law excludes a judge’s right of appeal in the event of a ‘transfer to a division which hears and determines cases in the same field’. (70) Those provisions permit the non-consensual transfer of judges in certain circumstances. They do not provide for an appeal or review procedure that fully safeguards the rights enshrined in Articles 47 and 48 of the Charter, in particular the rights of the defence. (71) Since provisions such as Article 22a(4b)(1) and Article 22a(5)(1) of the Law relating to the organisation of the ordinary courts have the potential to expose judges to untoward pressure from within the judiciary, they infringe, in my view, the second subparagraph of Article 19(1) TEU and the principles of the irremovability of judges and of judicial independence.
53. As for the transfer of Judge A. N‑B. from the appellate to the first instance division of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk), the reference in the order of 13 October 2021 to the need to ensure the proper functioning of the appellate and first instance divisions and to unspecified correspondence between the President of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) and the President of one of its divisions is brief and vague. Given the potential negative impact of that transfer decision on both Judge A. N‑B.’s exercise of her judicial powers in an independent manner and on her career, such a succinct explanation falls far short of a valid statement of reasons. (72) The necessity of that transfer in the interest of the sound administration of justice required the provision of objective and verifiable reasons, notably in the light of the contemporaneous transfer of another judge from the first instance division to the appellate division of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk).
54. So far as the College resolution and the non-consensual withdrawal of cases from Judge A. N‑B. are concerned, the Polish Government confirmed at the hearing that, pursuant to Article 47b of the Law relating to the organisation of the ordinary courts, in principle, a judge continues to be seised of cases pending before him or her notwithstanding his or her transfer to a different place or secondment. That rule appears to respect the principle of the irremovability of judges. In accordance with Article 47b(5) and (6) of the Law relating to the organisation of the ordinary courts, cases may nevertheless be withdrawn from a judge in the event of his or her transfer to another place or secondment either at the judge’s request or at the motion of the college of that court. (73)
55. In my view, the second subparagraph of Article 19(1) TEU and the principles of the irremovability of judges and of judicial independence preclude provisions such as Article 47b(5) and (6) of the Law relating to the organisation of the ordinary courts. Those provisions appear to permit the arbitrary and unfettered removal of cases ex officio (74) from a judge without his or her consent (75) and without recourse to any appeal or review procedure that fully safeguards the rights enshrined in Articles 47 and 48 of the Charter. (76) In addition to operating in an unforeseeable and non-transparent manner to the detriment of judicial independence and the irremovability of judges, at the hearing the Polish Government confirmed that there is no obligation under Polish law to provide reasons to remove cases from judges pursuant to Article 47b(5) and (6) of the Law relating to the organisation of the ordinary courts.
56. Subject to verification by the referring court, it appears that the College resolution to remove cases from Judge A. N‑B. was adopted prior to her transfer from the appellate to the first instance division of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk). Should that prove to be the case, the College resolution may have been adopted in breach of Article 47b(5) and (6) of the Law relating to the organisation of the ordinary courts, which permit the removal of cases from a judge following, but not before, a transfer. The reasons for the adoption of the College resolution are also unknown, at least formally. (77) Judge A. N‑B. was not, moreover, transferred to a different place or seconded from the Sąd Okręgowy w Słupsku (Regional Court of Słupsk), which also appears to be contrary to Polish law. If demonstrated to the satisfaction of the referring court, those breaches of Polish law have the consequence of infringing the second subparagraph of Article 19(1) TEU, provided that that court takes the view that those breaches were of such a nature as to expose Judge A. N‑B. (78) to undue influence or to pressure from within the judiciary. (79) Given the shortcomings of the provisions of Polish law (80) as described in points 50 to 56 of the present Opinion, and their arbitrary application in the context of the facts that gave rise to the present requests for a preliminary ruling, I consider, as the Commission indicated in its written submissions, that there is no need for the Court to examine the manner of the College’s appointment in the instant proceedings.
57. In the light of the direct effect of the second subparagraph of Article 19(1) TEU, (81) and in order to ensure the primacy of EU law, I advise that the Court rule that the relevant judicial bodies must disapply the order of 13 October 2021 of the President of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) to transfer Judge A. N‑B. from the appellate division of that court to the first instance division and that she must be transferred back to the appellate division. (82) The College of the Sąd Okręgowy w Słupsku (Regional Court of Słupsk) and all judicial bodies with the power to designate and to modify the composition of formations of that court must disapply the College resolution in the cases that gave rise to Joined Cases C‑647/21 and C‑648/21 (83) and take the steps necessary to reassign those cases to Judge A. N‑B. (84)
Conclusion
58. In the light of the foregoing considerations, I propose that the Court answer the questions referred by the Sąd Okręgowy w Słupsku (Regional Court of Słupsk, Poland) as follows:
The second subparagraph of Article 19(1) TEU and the principles of the irremovability of judges, judicial independence and the primacy of EU law must be interpreted:
– first, as precluding provisions of national law that permit the non-consensual transfer of judges coupled with the lack of an appeal or a review procedure against such a decision that fully safeguards the rights enshrined in Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, in particular the rights of the defence;
– second, as requiring in such circumstances the relevant judicial bodies of a national court to disapply an order of the President of that court to transfer a judge from an appellate division of that court to a first instance division and to transfer that judge back to the appellate division;
– third, as precluding provisions of national law that permit the arbitrary and unfettered removal of cases ex officio from a judge without his or her consent and without any appeal or a review procedure against that decision that fully safeguards the rights enshrined in Articles 47 and 48 of the Charter, in particular the rights of the defence;
– fourth, in the event such a removal has taken place, as requiring the formations of the national court to which cases have been reassigned to disregard that reassignment, and the judicial bodies with power to designate and to modify the composition of the formations of that national court to assign those cases to the formation initially seised of them.