Case C‑718/21
L.G.
v
Krajowa Rada Sądownictwa
(Request for a preliminary ruling from the Sąd Najwyższy)
Judgment of the Court (Grand Chamber) of 21 December 2023
(Reference for a preliminary ruling – Article 267 TFEU – Concept of ‘court or tribunal’ – Criteria – Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Chamber of Extraordinary Control and Public Affairs) of the Sąd Najwyższy (Supreme Court, Poland) – Reference for a preliminary ruling from an adjudicating panel which does not have the status of an independent and impartial tribunal previously established by law – Inadmissibility)
1. Questions referred for a preliminary ruling – Reference to the Court – National court or tribunal within the meaning of Article 267 TFEU – Concept – Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Chamber of Extraordinary Control and Public Affairs) of the Sąd Najwyższy (Supreme Court, Poland) – Adjudicating panel of that chamber which, because of the manner in which the judges sitting on that panel were appointed, does not have the status of an independent and impartial tribunal previously established by law – Not included
(Art. 19(1), second subpara., TEU; Art. 267 TFEU; Charter of Fundamental Rights of the European Union, Art. 47)
(see paragraphs 58, 63-70, 73-78)
2. EU law – Principles – Right to effective judicial protection – Right to an independent and impartial tribunal previously established by law – Scope
(Charter of Fundamental Rights of the European Union, Art. 47, second para.)
(see paragraphs 59, 60, 64)
Résumé
By letter of 30 December 2020, L.G., a judge within the Sąd Okręgowy w K. (Regional Court, K., Poland), notified the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland) (‘the KRS’) of his wish to continue to perform his duties beyond the normal retirement age. The KRS having declared that there was no need to rule on the application, because the time limit for lodging it had expired, L.G. brought an action before the referring body. Having doubts as to whether a piece of national legislation which (i) makes the effectiveness of such a declaration by a judge subject to the authorisation of the KRS and (ii) lays down an absolute time limit in respect of that declaration is in line with the second subparagraph of Article 19(1) TEU, that body has made a reference to the Court of Justice for a preliminary ruling.
In this instance, the referring body is composed of three judges of the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Chamber of Extraordinary Control and Public Affairs; ‘the Chamber of Extraordinary Control’), established within the Sąd Najwyższy (Supreme Court, Poland) in connection with the recent reforms of the Polish judicial system. (1) Those three judges were appointed to that chamber on the basis of Resolution No 331/2018, adopted by the KRS on 28 August 2018 (‘Resolution No 331/2018’).
However, that resolution was annulled by a judgment handed down by the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland) on 21 September 2021. (2) In addition, in its judgment of 8 November 2021, Dolińska-Ficek and Ozimek v. Poland (‘the judgment in Dolińska-Ficek and Ozimek v. Poland’), (3) the European Court of Human Rights (‘the ECtHR’) found a breach of the requirement of a ‘tribunal established by law’ laid down in Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, (4) due to the process which, on the basis of Resolution No 331/2018, had led to the appointment of the members of two three-judge adjudicating panels of the Chamber of Extraordinary Control.
In its judgment, the Court, sitting as the Grand Chamber, declares the request for a preliminary ruling inadmissible on the ground that the referring body does not constitute a ‘court or tribunal’ within the meaning of Article 267 TFEU.
Findings of the Court
The Court begins by recalling that, in order to determine whether a body making a reference is a ‘court or tribunal’ within the meaning of Article 267 TFEU, the Court takes account of a number of factors, such as, inter alia, whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. In that regard, the Court has already noted that the Supreme Court as such meets those requirements and has stated that, in so far as a request for a preliminary ruling emanates from a national court or tribunal, it must be presumed that that court or tribunal satisfies those requirements, irrespective of its actual composition. In the context of a preliminary ruling procedure, it is not for the Court of Justice, in view of the distribution of functions between itself and the national courts, to determine whether the order for reference was made in accordance with the rules of national law governing the organisation of the courts and their procedure.
However, that presumption may be rebutted where a final judicial decision handed down by a court or tribunal of a Member State or an international court or tribunal leads to the conclusion that the judge constituting the referring court is not an independent and impartial tribunal previously established by law for the purposes of the second subparagraph of Article 19(1) TEU, read in the light of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). (5)
In that regard, the Court notes that the judgment in Dolińska-Ficek and Ozimek v. Poland of the ECtHR and the judgment of 21 September 2021 of the Supreme Administrative Court are final and relate specifically to the circumstances in which judges of the Chamber of Extraordinary Control were appointed on the basis of Resolution No 331/2018.
More specifically, in the judgment in Dolińska-Ficek and Ozimek v. Poland the ECtHR found, in essence, that the appointments of the members of the adjudicating panels of the Chamber of Extraordinary Control concerned had been made in manifest breach of fundamental national rules governing the procedure for the appointment of judges. While it is true that, of the six judges making up the adjudicating panels of the Chamber of Extraordinary Control at issue in the cases which gave rise to that judgment, only one of them sits within the referring body, it is nevertheless clear from the grounds of that judgment that the assessments made by the ECtHR apply without distinction to all the judges of the Chamber of Extraordinary Control who were appointed to that chamber in similar circumstances and, in particular, on the basis of Resolution No 331/2018.
In addition, in the judgment of 21 September 2021, the Supreme Administrative Court annulled Resolution No 331/2018 by relying, inter alia, on findings and assessments that largely overlap with those set out in the judgment in Dolińska-Ficek and Ozimek v. Poland.
In the light of the findings and assessments arising from those two judgments and from its own case-law, the Court examines whether the presumption that the requirements of a ‘court or tribunal’ within the meaning of Article 267 TFEU are met must be held to be rebutted with regard to the referring body.
In that regard, the Court emphasises, in the first place, that the judges making up the referring body were appointed to the Chamber of Extraordinary Control on a proposal from the KRS – that is to say, from a body where, following recent legislative amendments, (6) 23 of its 25 members have been designated by the executive and the legislature or are members of those branches of government. Admittedly, the fact that a body, such as the KRS, which is involved in the procedure for the appointment of judges is, for the most part, made up of members chosen by the legislature cannot, in itself, give rise to any doubt as to the status of that body as a tribunal previously established by law or the independence of the judges appointed at the end of that procedure. However, the situation is different where that fact, combined with other relevant factors and the conditions under which those choices were made, leads to such doubts being raised. The legislative amendments concerning the KRS were made at the same time as the adoption of a substantial reform of the Supreme Court, including, in particular, the creation, within that court, of two new chambers and the lowering of the retirement age of judges of that court. Those amendments therefore came at a time when it was expected that numerous judicial posts at the Supreme Court declared vacant or newly created would soon be available to be filled.
In the second place, the Chamber of Extraordinary Control thus created ex nihilo was assigned jurisdiction over particularly sensitive matters, such as electoral disputes and proceedings relating to the holding of referendums, as well as extraordinary appeals enabling final decisions of the ordinary courts or other chambers of the Supreme Court to be set aside.
In the third place, in parallel with the legislative amendments referred to above, the rules concerning the judicial remedies available against resolutions of the KRS proposing candidates for appointment to judicial posts at the Supreme Court were substantially amended, thereby undermining the effectiveness of such remedies. In that regard, the Court of Justice has also emphasised that the restrictions introduced by those amendments concerned only appeals brought against resolutions of the KRS relating to applications for judicial posts at the Supreme Court, whereas the resolutions of the KRS relating to applications for judicial posts in other national courts remained subject to the general system of judicial review previously in force. (7)
In the fourth place, the Court of Justice has also already held in the judgment in W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment) (8) that, when the member of the Chamber of Extraordinary Control concerned by the case which gave rise to that judgment was appointed on the basis of Resolution No 331/2018, the Supreme Administrative Court, before which an action for annulment of that resolution had been brought, had ordered, on 27 September 2018, that the effects of that resolution be suspended. Those circumstances also pertain as regards the appointment of the three members sitting within the referring body. Thus the fact that the President of the Republic of Poland made the appointments at issue, as a matter of urgency and without waiting to take cognisance of the grounds of the order of 27 September 2018, on the basis of Resolution No 331/2018, even though that resolution had been suspended by that order, seriously undermined the principle of the separation of powers which characterises the operation of the rule of law.
In the fifth place, although the action for annulment of Resolution No 331/2018 had been brought before the Supreme Administrative Court and that court had stayed the proceedings pending the judgment of the Court of Justice in A.B. and Others, (9) the Polish legislature adopted a law providing for, inter alia, the exclusion of any future appeal against resolutions of the KRS proposing the appointment of judges to the Supreme Court and for the discontinuation of pending appeals of that nature. (10) As regards the amendments thus introduced by that law, the Court of Justice has already held that, particularly when viewed in conjunction with a set of other contextual factors, those amendments are such as to suggest that the Polish legislature acted with the specific intention of preventing any possibility of exercising judicial review of the resolutions concerned. (11)
In the sixth and last place, the Court explains that, while, admittedly, the effects of the judgment of 21 September 2021 of the Supreme Administrative Court referred to above do not relate to the validity and effectiveness of the presidential acts of appointment to the judicial posts concerned, the fact remains that the act by which the KRS puts forward a candidate for appointment to a judicial post at the Supreme Court is an essential condition for that candidate to be appointed to such a post by the President of the Republic of Poland.
In conclusion, the Court rules that the consequence of all the factors – both systemic and circumstantial – referred to above, which characterised the appointment, within the Chamber of Extraordinary Control, of the three judges constituting the referring body, is that that body does not have the status of an independent and impartial tribunal previously established by law for the purposes of the second subparagraph of Article 19(1) TEU, read in the light of the second paragraph of Article 47 of the Charter, with the result that that panel does not constitute a ‘court or tribunal’ within the meaning of Article 267 TFEU. Those factors are such as to give rise to reasonable doubts in the minds of individuals as to the imperviousness of the persons concerned and the adjudicating panel on which they sit with regard to external factors, in particular the direct or indirect influence of the national legislature and executive, and their neutrality with respect to the interests before them. Those factors are thus capable of leading to a lack of appearance of independence or impartiality on the part of those judges and of that body, which is likely to undermine the trust which justice in a democratic society governed by the rule of law must inspire in those individuals.