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Judgment of the Court (Grand Chamber) of 15 July 2021 – European Commission v Republic of Poland

(Case C-791/19) 1

(Failure of a Member State to fulfil obligations – Disciplinary regime applicable to judges – Rule of law – Independence of judges – Effective legal protection in the fields covered by Union law – Second subparagraph of Article 19(1) TEU – Article 47 of the Charter of Fundamental Rights of the European Union – Disciplinary offences resulting from the content of judicial decisions – Independent disciplinary courts or tribunals established by law – Respect for reasonable time and the rights of the defence in disciplinary proceedings – Article 267 TFEU – Restriction of the right of national courts to submit requests for a preliminary ruling to the Court of Justice and of their obligation to do so)

Language of the case: Polish

Parties

Applicant: European Commission (represented: initially by K. Banks, S.L. Kalėda and H. Krämer, and subsequently by K. Banks, S.L. Kalėda and P.J.O. Van Nuffel, acting as Agents)

Defendant: Republic of Poland (represented by: B. Majczyna, D. Kupczak, S. Żyrek, A. Dalkowska and A. Gołaszewska, acting as Agents)

Interveners in support of the applicant: Kingdom of Belgium (represented by: C. Pochet, M. Jacobs and L. Van den Broeck, acting as Agents), Kingdom of Denmark (represented: initially by M. Wolff, M. Jespersen and J. Nymann-Lindegren and subsequently by M. Wolff and J. Nymann-Lindegren, acting as Agents), Kingdom of the Netherlands (represented by: M.K. Bulterman and J. Langer, acting as Agents), Republic of Finland (represented by: M. Pere and H. Leppo, acting as Agents), and Kingdom of Sweden (represented by: C. Meyer-Seitz, H. Shev, A. Falk, J. Lundberg and H. Eklinder, acting as Agents)

Operative part of the judgment

The Court:

Declares that:

– by failing to guarantee the independence and impartiality of the Izba Dyscyplinarna (Disciplinary Chamber) of the Sąd Najwyższy (Supreme Court, Poland), which is responsible for reviewing decisions issued in disciplinary proceedings against judges (Article 3(5), Article 27 and Article 73 § 1 of the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017, in the consolidated version published in the Dziennik Ustaw Rzeczypospolitej Polskiej of 2019 (item 825), read in conjunction with Article 9a of the ustawa o Krajowej Radzie Sądownictwa (Law on the National Council of the Judiciary) of 12 May 2011, as amended by the ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw (Law amending the Law on the National Council of the Judiciary and certain other laws) of 8 December 2017);

– by allowing the content of judicial decisions to be classified as a disciplinary offence involving judges of the ordinary courts (Article 107 § 1 of the ustawa – Prawo o ustroju sądów powszechnych (Law on the organisation of the ordinary courts) of 27 July 2001, in the version resulting from the successive amendments published in the Dziennik Ustaw Rzeczypospolitej Polskiej of 2019 (items 52, 55, 60, 125, 1469 and 1495), and Article 97 §§ 1 and 3 of the Law on the Supreme Court, in the consolidated version published in the Dziennik Ustaw Rzeczypospolitej Polskiej of 2019 (item 825));

– by conferring on the President of the Izba Dyscyplinarna (Disciplinary Chamber) of the Sąd Najwyższy (Supreme Court) the discretionary power to designate the disciplinary tribunal with jurisdiction at first instance in cases concerning judges of the ordinary courts (Article 110 § 3 and Article 114 § 7 of the Law on the organisation of the ordinary courts, in the version resulting from the successive amendments published in the Dziennik Ustaw Rzeczypospolitej Polskiej of 2019 (items 52, 55, 60, 125, 1469 and 1495)) and, therefore, by failing to guarantee that disciplinary cases are examined by a tribunal ‘established by law’; and

– by failing to guarantee that disciplinary cases against judges of the ordinary courts are examined within a reasonable time (second sentence of Article 112b § 5 of the Law on the organisation of the ordinary courts), and by providing that actions relating to the appointment of defence counsel and the taking up of the defence by that counsel do not have a suspensory effect on the course of the disciplinary proceedings (Article 113a of that law) and that the disciplinary tribunal is to conduct the proceedings despite the justified absence of the notified accused judge or his or her defence counsel (Article 115a § 3 of the same law) and, therefore, by failing to guarantee respect for the rights of defence of accused judges of the ordinary courts,

the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU;

Declares that, by allowing the right of courts and tribunals to submit requests for a preliminary ruling to the Court of Justice of the European Union to be restricted by the possibility of triggering disciplinary proceedings, the Republic of Poland has failed to fulfil its obligations under the second and third paragraphs of Article 267 TFEU;

Orders the Republic of Poland to bear its own costs and to pay those incurred by the European Commission, including those relating to the proceedings for interim relief;

Orders the Kingdom of Belgium, the Kingdom of Denmark, the Kingdom of the Netherlands, the Republic of Finland, and the Kingdom of Sweden to bear their own costs.

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1 OJ C 413, 9.12.2019.