Provisional text
OPINION OF ADVOCATE GENERAL
SPIELMANN
delivered on 29 April 2025 (1)
Case C‑521/21
MJ
v
AA
intervening parties
Rzecznik Praw Obywatelskich,
Prokurator Prokuratury Okręgowej w Poznaniu
(Request for a preliminary ruling from the Sąd Rejonowy Poznań – Stare Miasto w Poznaniu (District Court, Poznań – Stare Miasto, Poznań, Poland))
( Reference for a preliminary ruling – Rule of law – Independence of justice – Article 19(1) TEU – Prohibition on national courts questioning the legitimacy of the constitutional courts and bodies or establishing or assessing the legality of the appointment of judges or their judicial powers – Need for verification, by a court hearing an application for the exclusion of a judge, of compliance with certain requirements relating to the existence of a tribunal previously established by law – Appointment of judges of the ordinary courts – Lack of independence of the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland) – Right to an effective remedy of candidates for a post as judge – Judge not constituting an independent and impartial tribunal previously established by law – Possibility of excluding a judge on the panel of judges )
I. Introduction
1. The present case concerns the exclusion of a judge of the ordinary courts, because of the circumstances of her appointment. It raises two main questions put to the Court by the Sąd Rejonowy Poznań-Stare Miasto w Poznaniu (District Court, Poznań – Stare Miasto, Poznań, Poland). The first question relates to the impact that any procedural defects may have on the validity of that appointment, since the candidature of the judge concerned had been recommended by the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland; ‘the KRS’) in its new composition, while candidates’ right of appeal was limited to the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Chamber of Extraordinary Control and Public Affairs, Poland) of the Sąd Najwyższy (Supreme Court, Poland), composed of judges who were themselves appointed on a proposal of the KRS in its new composition.
2. The second question concerns the conclusions which the referring court might draw from such an examination of the regularity of the appointment. More specifically, it seeks to determine whether, under EU law, the court hearing the application for exclusion is authorised to assess the legality of the appointment and, where appropriate, to draw the necessary procedural conclusions.
3. The present request for a preliminary ruling forms part of a wider context, namely the application of the case-law on the independence of justice and the guarantee of a ‘tribunal previously established by law’, especially with respect to judges of the ordinary courts. The importance of that issue is enhanced by the fact that it might potentially concern a large number of judges, thus raising questions as to legal certainty and public confidence in the judicial system.
II. Legal framework
A. European Union law
4. The second subparagraph of Article 19(1) TEU and the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) are relevant in the present case.
B. Polish law
1. The Constitution
5. Pursuant to Article 179 of the Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland; ‘the Constitution’):
‘Judges shall be appointed for an indefinite period by the President of the Republic on a proposal of the [KRS].’
6. According to Article 186(1) of the Constitution:
‘The [KRS] shall safeguard the independence of courts and judges.’
7. Article 187 of the Constitution provides:
‘1. The [KRS] shall be composed of:
(1) the First President of the Sąd Najwyższy [Supreme Court], the Minister for Justice, the President of the Naczelny Sąd Administracyjny [Supreme Administrative Court, Poland] and an individual appointed by the President of the Republic,
(2) 15 members elected from among the judges of the Sąd Najwyższy [Supreme Court], the ordinary courts, the administrative courts and the military courts,
(3) 4 members elected by the Sejm [Lower House, Poland] from among its Deputies and two members elected by the Senate from among its Senators.
…
3. The term of office of those elected as members [of the KRS] shall be four years.
4. The organisational structure, the scope of activity and procedures for work of the [KRS] and the manner of electing its members shall be specified by statute.’
2. The Law on the KRS
8. According to Article 9a of the ustawa o Krajowej Radzie Sądownictwa (Law on the National Council of the Judiciary (KRS)), of 12 May 2011 (Dz. U. 2011, item 714), 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 (KRS) and certain other laws), of 8 December 2017 (Dz. U. of 2018, item 3) (‘the Law on the KRS’):
‘1. The Sejm [Lower House] shall elect, from among the judges of the Sąd Najwyższy [Supreme Court], the ordinary courts, the administrative courts and the military courts, 15 members [of the KRS] for a common term of office of 4 years.
2. In carrying out the election referred to in paragraph 1, the Sejm [Lower House] shall take account, so far as possible, of the need for judges from the different types and levels of courts to be represented within the [KRS].
3. The common term of office of the new members [of the KRS], elected from among the judges, shall commence on the day following their election. The outgoing members [of the KRS] shall remain in office until the day on which the common term of office of the new members [of the KRS] commences.’
9. Article 44 of the Law on the KRS, paragraph 1b of which was introduced by the ustawa o zmianie ustawy - Prawo o ustroju sądów powszechnych oraz niektórych innych ustaw (Law on the organisation of the ordinary courts and certain other laws) of 20 July 2018 (Dz. U. of 2018, item 1443), provided:
‘1. A participant in the proceedings may bring an action before the Sąd Najwyższy [Supreme Court] on the ground of the illegality of the resolution [of the KRS], unless separate provisions provide otherwise. …
1a. In individual cases concerning the appointment to the post of judge of the Sąd Najwyższy [Supreme Court], an action may be brought before the Naczelny Sąd Administracyjny [Supreme Administrative Court]. In such cases, an action may not be brought before the Sąd Najwyższy [Supreme Court]. The action before the Naczelny Sąd Administracyjny [Supreme Administrative Court] cannot be based on a ground alleging inappropriate assessment of candidates’ respect for the criteria taken into account when a decision was taken about the submission of the proposal for appointment to the post of judge of the Sąd Najwyższy [Supreme Court].
1b. If all the participants in the proceedings have not contested the resolution referred to in Article 37(1) in the individual cases concerning the appointment to the post of judge of the Sąd Najwyższy [Supreme Court], that resolution shall become final, for the part containing the decision to submit the proposal for appointment to the post of judge of the Sąd Najwyższy [Supreme Court] and for the part containing the decision not to submit a proposal for appointment to the post of judge of that court, as regards the participants who did not bring an action.
2. The action shall be lodged through the Przewodniczący [President of the KRS] within two weeks from notification of the resolution together with the grounds on which it is based. …’
3. The Law on the Supreme Court
10. The ustawa o Sądzie Najwyższym (Law on the Supreme Court), of 8 December 2017 (Dz. U. of 2018, item 5; ‘the Law on the Supreme Court’) established, in particular, within the Sąd Najwyższy (Supreme Court), the Chamber of Extraordinary Control and Public Affairs.
11. According to Article 26 of the Law on the Supreme Court, as amended by the ustawa o zmianie ustawy – Prawo o ustroju sądów powszechnych, ustawy o Sądzie Najwyższym oraz niektórych innych ustaw (Law amending the Law on the ordinary courts, the Law on the Supreme Court and certain other laws), of 20 December 2019 (Dz. U. 2020, item 190):
‘§ 1. The [Chamber of Extraordinary Control and Public Affairs] shall have jurisdiction to hear extraordinary actions, electoral disputes and challenges to the validity of a national referendum or a constitutional referendum, to declare the validity of elections and referenda, other cases governed by public law, including actions relating to the protection of competition, energy regulation, telecommunications and transport by rail, and also actions against decisions of the Przewodniczący Krajowej Rady Radiofonii i Telewizji [President of the National Broadcasting Council, Poland] or challenging the excessive length of proceedings before the ordinary and military courts and likewise before the Sąd Najwyższy [Supreme Court].
§ 2. The Chamber of Extraordinary Control and Public Affairs shall have jurisdiction to hear applications or declarations relating to the exclusion of a judge or the designation of the court before which the proceedings must be brought, including complaints alleging lack of independence on the part of the court or the judge. The court before which the case is brought shall immediately submit a request to the President of the Chamber of Extraordinary Control and Public Affairs so that it may be dealt with in accordance with the rules laid down by separate provisions. The submission of a request to the President of the Chamber of Extraordinary Control and Public Affairs does not suspend the ongoing proceedings.
§ 3. The request referred to in paragraph 2 shall not be examined if it relates to the declaration and assessment of the lawfulness of the appointment of a judge or whether he or she can properly exercise judicial functions.
…’
4. The Code of Civil Procedure
12. Under Article 47 of the ustawa – Kodeks postępowania cywilnego (Law introducing the Code of Civil Procedure), of 17 November 1964 (Dz. U. 1964, No 43, item 296), in the version applicable to the main proceedings (‘the Code of Civil Procedure’):
Ԥ 1. At first instance, the court shall adjudicate sitting as a single judge, unless a specific provision provides otherwise.
…
§ 3. Orders without a hearing shall be made by a single judge.
…’
13. In accordance with Article 48 of the Code of Civil Procedure:
Ԥ 1. A judge shall be excluded by law:
(1) in cases in which he or she is a party or in which he or she has a legal relationship with one of the parties such that the outcome of the proceedings would have an impact on his or her rights or obligations;
…
(5) in cases in which he or she participated, in a lower court, in the adoption of the contested act, and likewise in cases concerning the validity of an act examined by him or her or drafted with his or her participation and also in cases in which he or she acted as prokurator [Public Prosecutor, Poland];
…’
14. Article 49 of the Code of Civil Procedure states:
‘Notwithstanding the reasons set out in Article 48, the court shall exclude a judge, upon application by the latter or by a party, if an existing circumstance gives rise to a legitimate doubt as to the impartiality of the judge in the case in question.’
15. Article 50 of that code provides:
Ԥ 1. The parties shall seek the exclusion of the judge in writing or by oral declaration made to the court before which the case is pending, stating the grounds on which their application is based.
§ 2. In addition, a party who has participated in the hearing must prove that the circumstance justifying the exclusion did not arise or was not brought to his or her attention until afterwards.
§ 3. Pending a decision on the application for exclusion of a judge:
(1) the judge concerned by the application may continue with the proceedings;
(2) no decision or measure closing the proceedings may be pronounced.’
III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court of Justice
16. The main proceedings have their origin in a dispute between two natural persons over a debt resulting from a contract for the supply of services that was concluded by the parties in the context of their respective business activities. The applicant sought, inter alia, compensation from the defendant, as provided for in Article 6(1) of Directive 2011/7/EU. (2)
17. By letter of 21 May 2021, the defendant in the main proceedings requested that Judge S.C., who was hearing the case in the main proceedings, be excluded. He claimed that that judge had not been validly appointed to the post of judge, since the resolution relating to her appointment had been adopted by the KRS, the constitutionality of which had been disputed by the Naczelny Sąd Administracyjny (Supreme Administrative Court).
18. The judge hearing the case in the main proceedings declared, in connection with the application for her exclusion, that, in her view, there was no circumstance such as to give rise to doubts about her impartiality and that there was no reason to prevent her from examining the case.
19. Examination of the application for exclusion was assigned to the referring court, sitting as a single judge.
20. In that context, the referring court questions certain aspects of the appointment of Judge S.C. More precisely, it states that Judge S.C. was appointed by the President of the Republic of Poland as a judge of the Sąd Rejonowy Poznań-Stare Miasto w Poznaniu (District Court, Poznań – Stare Miasto, Poznań), on a proposal of the KRS in its new composition.
21. In that regard, it states that three candidatures for that post were submitted, including that of S.C., Principal Assistant Judge at the Sąd Okręgowy w Poznaniu (Regional Court, Poznań, Poland) since 2016. On 21 September 2018, the college of that regional court issued a favourable opinion concerning Judge S.C. and, on 24 September 2018, the Assembly of Representatives of the Judges of the District Courts of that regional court also issued a favourable opinion on the candidature of that judge.
22. By Resolution No 611/2018 of 4 December 2018, the KRS proposed to the President of the Republic of Poland that Judge S.C should be appointed, but did not propose that the other two candidates should be appointed. The candidates who were not proposed did not lodge an appeal against that resolution on the basis of Article 44(1) of the Law on the KRS. On 14 March 2019, the President of the Republic of Poland decided to appoint S.C. to the post of judge.
23. Against that background, the referring court has doubts as to the compatibility with EU law, first, of the procedure for the appointment of the judge in question, having regard, in particular, to the composition and the role of the KRS in that process and to the absence of an effective right of appeal by the participants in that process, and, second, of the provisions of national law which place the review of the legality of the appointment of a judge within the exclusive jurisdiction of the Chamber of Extraordinary Control and Public Affairs.
24. In those circumstances, the Sąd Rejonowy Poznań – Stare Miasto w Poznaniu (District Court, Poznań – Stare Miasto, Poznań) decided to stay the proceedings and to submit the following questions to the Court of Justice for a preliminary ruling:
(1) ‘Must [Article 2 and Article 19(1) TEU] and Article 6(1) to (3) TEU, read in conjunction with Article 47 of the [Charter], be interpreted as meaning that a court is not a tribunal established by law, within the meaning of EU law, where it includes in its composition a person appointed to a judicial post in that court as a result of a procedure in which:
(a) the person to be appointed to the post by the President of the Republic of Poland was selected by the current [KRS], which was elected contrary to Polish constitutional and statutory provisions, is not an independent body and no representatives of the judiciary were elected to it independently of the executive and the legislature and, therefore, no motion for appointment to a judicial post as provided for under national law was effectively lodged;
(b) the participants in the competition for appointment to the post had no right of appeal to a court within the meaning of [Article] 2 and [Article19(1)] TEU and Article 6(1) to (3) TEU, read in conjunction with Article 47 of the [Charter]?
(2) Must Article 2 and Article 19(1) TEU, read in conjunction with Article 47 of the Charter, be interpreted as meaning that, where a court includes in its composition a person appointed in the circumstances described in [the first question]:
(a) those provisions preclude the application of provisions of national law which place the review of the lawfulness of the appointment of such a person to a judicial post within the exclusive jurisdiction of [the Chamber of Extraordinary Control and Public affairs] composed exclusively of persons appointed to judicial posts in the circumstances described in [the first question] and which provisions of national law also require that any objections concerning the appointment to a judicial post be disregarded, taking into account the institutional and systemic context;
(b) those provisions require, in order to ensure the effectiveness of EU law, provisions of national law to be interpreted in a manner that allows a court to exclude, of its own motion, such a person from hearing the case on the basis of the rules, applicable by analogy, which govern the exclusion of a judge who is incapable of deciding cases (judex inhabilis);
(c) those provisions require the national court, in order to apply EU law and achieve the effet utile, to disregard a judgment of the national constitutional court in so far as that judgment declares it incompatible with national law to hear a motion for the exclusion of a judge on the ground that the appointment of that judge was defective and did not comply with EU law requirements of an independent and impartial tribunal previously established by law within the meaning of Article 19(1) TEU, read in conjunction with Article 47 of the Charter;
(d) those provisions require the national court, in order to apply EU law and achieve the effet utile, to disregard a judgment of the national constitutional court if it prevents the implementation of an order of the Court of Justice of the European Union granting interim measures, which orders the suspension of the application of national legislation that prevents national courts from examining whether there is compliance with EU requirements concerning an independent and impartial tribunal previously established by law within the meaning of Article 19(1) TEU, read in conjunction with Article 47 of the Charter?’
25. Written observations were lodged by the Prokurator Prokuratury Okręgowej w Poznaniu (Regional Public Prosecutor’s Office, Poznań; ‘the Regional Public Prosecutor’s Office’), by the Rzecznik Praw Obywatelskich (Ombudsman, Poland; ‘the Ombudsman’), by the Polish, Belgian, Danish, Netherlands, Finnish, and Swedish Governments and by the European Commission. The defendant in the main proceedings, AA, the Polish Government, the Ombudsman and the Commission submitted oral arguments at the hearing on 7 January 2025.
IV. Analysis
A. Competence and admissibility
26. The Regional Public Prosecutor’s Office maintains that the request for a preliminary ruling is inadmissible, (3) on the ground that it relates to the organisation of justice, an area that does not fall within the competence of the European Union, and that the request therefore lacks a connection with EU law. It submits that the referring court does not demonstrate how the judge concerned lacks independence or was appointed in an irregular manner, thus rendering the question hypothetical. It asserts, moreover, that, in the context of the reference for a preliminary ruling, it is not the role of the Court of Justice to rule on the conformity of national law with EU law, or to interpret it. It adds that the referring court did not comply with Article 94 of the Rules of Procedure of the Court of Justice, as it did not explain why the interpretation of EU law is necessary or how it relates to the national legislation.
27. In my view, the arguments put forward by the Regional Public Prosecutor’s Office must be rejected on the basis of settled case-law on the matter.
28. As regards, in the first place, the argument that the Member States have exclusive competence for questions relating to the organisation of justice and that the Court does not have jurisdiction to rule on references for a preliminary ruling concerning the appointment of national judges, it should be borne in mind that, according to settled case-law, although the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law and that that may be the case, in particular, as regards national rules relating to the adoption of decisions appointing judges and, where applicable, rules relating to the judicial review that applies in the context of such appointment decisions. (4)
29. Therefore, in so far as the questions submitted by the referring court concern, in essence, the scope of the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, (5) vis-à-vis the procedure for the appointment of Judge S.C., such an interpretation falls within the jurisdiction of the Court under Article 267 TFEU. (6)
30. As regards, in the second place, the argument that the referring court has not found any specific circumstance of such a kind as to suggest that the judge to whom the application for exclusion refers does not offer a guarantee of independence or that her appointment was irregular, I consider that that argument is ineffective, since the referring court’s request relates specifically to whether the national regulations governing the appointment of the judge that are at issue in the main proceedings are compatible with the second subparagraph of Article 19(1) TEU.
31. As regards, in the third place, the argument that the referring court did not comply with the obligations arising under Article 94 of the Rules of Procedure of the Court of Justice, to my mind it must also be rejected. The request for a preliminary ruling contains all the necessary information, in particular the wording of the national provisions applicable in the case, the reasons that prompted the referring court to ask the Court about the interpretations of the provisions of EU law referred to in the questions and the relationship which the referring court establishes between those provisions and the national rules in question. I therefore consider that the Court has all the elements necessary to give a ruling on the two questions referred.
B. The questions referred for a preliminary ruling
1. The first question
(a) Subject matter of the first question
32. By its first question, the referring court asks whether a judge may be considered to be an independent tribunal established by law when he or she was appointed following an appointment procedure having two characteristics: first, his or her candidature was recommended by the new KRS, established following the reform of the Law on the KRS; second, the candidates for that appointment had a right of judicial appeal only to the Chamber of Extraordinary Control and Public Affairs.
33. It should be borne in mind, at the outset, that it will ultimately be for the referring court to rule, in the light of all the principles identified by the relevant case-law of the Court and after having made the assessments required for that purpose, on whether all the conditions in which the judge in question was appointed are such as to lead to the conclusion that she is an independent and impartial tribunal previously established by law within the meaning of EU law. (7) However, that does not prevent the Court, in the framework of the judicial cooperation provided for by Article 267 TFEU and on the basis of the material in the case file, from providing the national courts with an interpretation of EU law which may enlighten them as to the effects of one or other of its provisions. (8)
(b) Criteria established in the case-law: independence and ‘tribunal previously established by law’
34. I consider that, in order to determine whether, in the main proceedings, the judge concerned meets the requirements of independence and a tribunal previously established by law, it is important first of all to describe the way in which the Court assesses that question, the criteria which it applies, the method which it employs and the way in which, thus far, its case-law has dealt with the elements relating to the composition of the KRS and the absence of a remedy for unsuccessful candidates. In that regard, it is also necessary to take into consideration the relevant case-law of the European Court of Human Rights (‘the ECtHR’). (9)
35. I note, in the first place, that it has consistently been held in the case-law of both the Court of Justice and the ECtHR that the right to a tribunal established by law also covers the procedure for the appointment of judges. (10) As regards the criterion of assessment of the effects which an irregularity in the appointment may have on respect for the guarantee of a tribunal established by law, it is not sufficient to refer to any irregularity whatsoever. It is necessary to focus on the nature and degree of gravity of the irregularity. Thus, the Court has accepted that an irregularity committed during the appointment of judges within the judicial system concerned entails an infringement of the first sentence of the second paragraph of Article 47 of the Charter, particularly when that irregularity is of such a kind and of such gravity as to create a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the appointment process and thus give rise to a reasonable doubt in the minds of individuals as to the independence and impartiality of the judge or judges concerned, which is the case when what is at issue are fundamental rules forming an integral part of the establishment and functioning of that judicial system. (11)
36. In accordance with that criterion, the irregularity must relate to the rules governing the appointment procedure and be of such a kind and of such gravity that it may give rise to a real risk of arbitrariness on the part of the public authorities – and in particular of the executive – of such a kind as to undermine the confidence of individuals in the independence and impartiality of justice.
37. In that regard, and as stated in point 35 above, the Court emphasises the need to ascertain whether the integrity of the outcome of the appointment process has been undermined, thus giving rise to legitimate doubt in the minds of individuals as to the independence and impartiality of the judge or judges concerned. That approach, in my view, suggests that the gravity of the irregularity of the appointment procedure cannot be assessed solely in a purely objective and abstract manner. It is also necessary to look at the situation from the viewpoint of private individuals, in order to determine whether that irregularity is of such a kind as to erode their confidence in the independence and impartiality of the judge concerned. Furthermore, as is apparent from the judgment in W.Ż., concerning the independence of the courts in the Republic of Poland, the Court proceeds in two stages: first, it ascertains whether there has been a breach of a fundamental rule, then whether that breach undermined the integrity of the appointment of the judge, giving rise to a real risk of interference by the executive. (12)
38. In the second place, the guarantee of a ‘tribunal previously established by law’ is closely related to the requirement of independence. (13) Admittedly, from a strictly logical viewpoint, the condition that there must be a tribunal previously established by law precedes the examination of its independence. (14) However, despite not constituting identical guarantees in the architecture of a fair trial, they are, in their essence and their purpose, closely linked. As the ECtHR observed in the judgment in Ástráðsson v. Iceland, those guarantees both seek to maintain the rule of law and the separation of powers, while ensuring public confidence in the judiciary. (15) That interaction between the independence of a court and the requirement that it be ‘established by law’ is found in the case-law of the Court and is reflected, in practice, in the fact that failure to respect the ‘tribunal previously established by law’ criterion may also lead to recognition of a breach of the principle of independence of that court. (16)
39. To my mind, that observation is significant, in that it clarifies, in the third place, the method which the Court follows when determining whether a tribunal is established by law. Whether the particular case before it relates to the independence of a court or to the existence of a tribunal previously established by law, the Court requires that the examination of those guarantees is not confined solely to the rules on the appointment of judges, but that it also takes into account a set of contextual factors relating to the nature and the functioning of the judicial body concerned.
40. Thus, in the judgment in A. K. and Others, the features to be taken into consideration for the purpose of ascertaining the independence of the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court) were not limited to the procedure for the appointment of the members of the KRS, but extended to other features specific to that chamber, such as its jurisdiction, (17) the specific circumstances of its creation, (18) its composition and its nature and its autonomy within the Sąd Najwyższy (Supreme Court). (19)
41. Likewise, in the judgment in W.Ż., the Court refers, among ‘all the conditions in which the appointment of the judge concerned took place, (20) not only to the new composition of the KRS (21) but also to the ‘specific circumstances in which the judge concerned was appointed by the President of the Republic [of Poland] as a judge in the Chamber of Extraordinary Control and Public Affairs’. (22)
42. It follows that the Court took a ‘combination of factors’ approach: (23) a set of factors, taken in isolation, may be insufficient to establish a breach of the guarantee of an ‘independent and impartial tribunal, previously established by law’, whereas a global examination of those factors may give rise to a legitimate doubt in that regard. (24) As demonstrated in points 40 and 41 of this Opinion, in disputes relating to the independence of the courts in Poland, where the KRS is involved in the procedure for the appointment of judges, the Court takes into consideration the factors linked with the composition of that body for the purpose of assessing the existence of doubts as to its independence, but – and this is an essential point – those factors are not sufficient on their own to exhaust the question of the regularity of the appointment of the judge or of the court concerned.
43. In the fourth place, it must be observed that the intention of the national authorities may, where relevant, constitute an additional factor in the global examination of the circumstances relevant to whether a judicial body was ‘previously established by law’. Thus, in the judgment in A. B., the Court indicates that the Polish legislature had the specific intention of preventing any judicial review of the appointments made by the KRS in its new composition, including appointments made in the Sąd Najwyższy (Supreme Court). (25)
44. Having regard, as noted in point 38 of this Opinion, to the interdependence between the requirement of independence and the requirement of a ‘tribunal previously established by law’, it may be accepted that the examination of the real intentions of the national authorities in drafting the legislation on the procedure for the appointment of judges may itself be relevant for the purpose of determining whether the conditions of the appointment of a judge undermined his or her integrity.
(c) The two characteristics challenged in the main proceedings: the new KRS and the absence of an effective remedy
45. Turning now to the examination of the first question referred to the Court in the main proceedings, it is appropriate to compare the principles set out above with the issue raised by the referring court, concerning the two factors that characterise the appointment of the judge concerned: first, the composition and role of the new KRS; and, second, the absence of an effective judicial remedy against the resolution of the KRS for unsuccessful candidates.
46. I shall examine that question in two stages. First, I shall consider whether each of those two factors, taken on its own, permits the conclusion that a judge appointed following such a procedure is not a ‘tribunal previously established by law’. Next, I shall assess whether the combination of those two factors leads to the same conclusion.
47. I must admit that the question to be examined is genuinely complex and that the solution to be proposed to the Court is not immediately obvious. The stakes are considerable. As was emphasised by the Ombudsman, the Polish Government and the Commission at the hearing, approximately 3 000 judges in Poland have been appointed on a proposal of the KRS. Therefore, if it were recognised that a judge might be excluded on the sole ground that the KRS, in its new composition, was involved in the procedure for the appointment of that judge, the effect would be, in practice, that the same would apply to all of those judges, giving rise de facto to an erga omnes impact. That would give rise to a major risk for the continuity of the public service of justice, legal certainty and public confidence in the judiciary.
48. It is indeed tempting to adopt a systematic approach to the determinant role of the KRS, namely the mere fact that the appointment of the judge concerned in the main proceedings was recommended by the new KRS would be sufficient to vitiate his or her capacity as a tribunal previously established by law. Such a clear-cut and radical approach would, on the face of it, undoubtedly provide a uniform and clear answer.
49. However, the concrete reality of a complex judicial system cannot be overlooked. The national court, evolving in that reality and in a demanding legal environment, needs precise guidelines in order to carry out its task. It cannot therefore be sufficient to refer the question to the domestic level without providing genuine guidance. In order to maintain legal certainty and to ensure the stability of the functioning of the courts, it is necessary to develop a nuanced but coherent position, capable, on the one hand, of guaranteeing effective respect for the principles of independence and impartiality and, on the other, of ensuring that public confidence in the judiciary is maintained.
50. As will be explained below, I propose to demonstrate the reasons why, to my mind, neither of the two factors set out in point 45 of this Opinion, taken on its own or together, can automatically lead to the conclusion that the judge concerned is not a ‘tribunal previously established by law’. I consider that it is for the national court to carry out on each occasion an in concreto assessment, taking account of the legal and factual context and of other factors relating to the particular situation of each judge or panel of judges concerned.
(1) The first factor
51. As regards the relevance of the fact that the candidature of the judge concerned was recommended by the new KRS, it should be emphasised that the Court has already noted that the reduction of the ongoing term of office of certain members of the KRS, (26) combined with the fact that the 15 members of that body having the status of judges, who had been previously elected by their peers, were designated by a branch of the legislature, had the consequence that 23 of the 25 members of the KRS, in its new composition, were designated by the executive and the legislature or were members of those branches of government, all in a context in which several positions as judges of the Sąd Najwyższy (Supreme Court) would soon become vacant. (27)
52. In the light of Article 179 of the Constitution, which confers on the KRS a decisive role in the procedure for the appointment of judges of the ordinary courts, the Court considered that the circumstances relating to the composition of the new KRS could give rise to legitimate doubts, in so far as concerns its independence, (28) which inevitably constitutes an essential factor in the examination of the legality of the appointment of the judge concerned.
53. In that regard, the judgment in Openbaar Ministerie, concerning the execution of arrest warrants in Poland pursuant to Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, (29) seems to me to be particularly relevant.
54. In that judgment, the Court examined whether the existence of systemic or generalised interferences with the independence of the judicial authority of the issuing Member State is capable of justifying the refusal by the executing judicial authority to surrender the requested person. The Court accepts that the fact that a body, such as the KRS, involved in the process of the appointment of judges, is composed mainly of members chosen by the legislature does not in itself suffice to cast doubt on the independence of the judges appointed following that process. (30) It thus favours a global approach, pointing out that the situation may be otherwise where that circumstance, combined with other relevant factors and the conditions under which those choices were made, leads to such doubts being raised. (31)
55. In my view, although the Court’s considerations in that case belong to the context of the execution of arrest warrants, they may apply by analogy in the present case, since, in the judgment in Openbaar Ministerie, the Court examines, in essence, whether the principles deriving from the case-law relating to the guarantees of independence and impartiality within the meaning of Article 47 of the Charter also extend to the guarantee of a ‘tribunal previously established by law’ in the context of the execution of a European arrest warrant.
56. I am therefore of the view that, in the context of the present case, the mere fact that a body, such as the KRS, was involved in the procedure for the appointment of the judge concerned does not in itself suffice to give rise to doubts as to the independence of the judges thus appointed.
(2) The second factor
57. As regards the absence of an effective remedy for unsuccessful candidates in the appointment procedure, a two-stage approach is required. First, it must be determined whether the remedy provided for in Article 44 of the Law on the KRS can be regarded as ‘effective’, in spite of the involvement of the KRS in the procedure for the appointment of judges to the Chamber of Extraordinary Control and Public Affairs. Second, if the answer to the first question is in the negative, it must be ascertained whether that absence of a remedy is sufficient, in itself, to conclude that the judge concerned was not a ‘tribunal previously established by law’.
58. As regards the first question, in the judgment in Krajowa Rada Sądownictwa, the Court held that the panel of three judges of the Chamber of Extraordinary Control and Public Affairs from which the request for a preliminary ruling originated did not have the characteristics of an independent and impartial tribunal, previously established by law, within the meaning of the second subparagraph of Article 19(1) TEU, read in the light of the second paragraph of Article 47 of the Charter. Thus, the Court held that that panel did not meet the requirements of the second subparagraph of Article 19(1) TEU in order to be classified as a ‘court or tribunal’ within the meaning of Article 267 TFEU. (32) In reaching that conclusion, the Court took into account all the systemic and factual elements relating to the appointment, within the Chamber of Extraordinary Control and Public Affairs, of the judges composing the referring body. (33) That judgment was followed by several orders, made on the same grounds, declaring inadmissible requests for a preliminary ruling from panels of the Chamber of Extraordinary Control and Public Affairs composed, in whole or in part, of judges appointed under the same conditions. (34)
59. As I observed in my Opinion in AW ‘T’, (35) the finding that the adjudicating chamber of the Chamber of Extraordinary Control and Public Affairs is not a ‘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, is fully transposable to the present case. It is irrelevant that that finding was made in the context of assessing of whether the adjudicating formation of that chamber that had referred the request for a preliminary ruling to the Court was a ‘court or tribunal’ within the meaning of Article 267 TFEU, since the scope of the independence required for that purpose coincides with the scope of the requirement of an independent and impartial tribunal, previously established by law.
60. As confirmed by the referring court in its request for a preliminary ruling, and also by the Polish Government and the Commission (36) at the hearing, all the judges who, at the material time, sat in the Chamber of Extraordinary Control and Public Affairs had been appointed on a proposal of the KRS in its new composition. It follows, subject to the final assessments to be made by the referring court, that, in the main proceedings, the appeal that could be lodged before that chamber could not be considered effective, since it would be lodged before a court whose members (37) did not fulfil the requirements inherent in a tribunal previously established by law.
61. However, it does not seem possible to me to conclude that the absence of an effective remedy before the abovementioned judicial body is sufficient, in itself, to affect the legality of the appointment. The existence of a judicial remedy plays only an ancillary role by comparison with the intrinsic independence of the KRS, since it is intended to allow that independence to be challenged. It would therefore be illogical to consider that the absence of a remedy against the same appointment procedure (that is, the second factor identified by the referring court) would suffice, in itself, to exclude the judge concerned, even though the mere challenge to the independence of the KRS (the first factor stated by the referring court) cannot determine per se whether the legality of the appointment is affected.
(3) The cumulative effect of the two factors
62. It is now necessary to examine whether the combination of those two factors is sufficient to remove from the judge concerned in the main proceedings the status of a ‘tribunal previously established by law’. I do not believe that it is, for a number of reasons, connected with the case-law cited above and with the specific characteristics of the present case.
63. First, as I stated in points 40 and 41 of this Opinion, in the cases relating to the reforms of the Polish judicial system, and more specifically to the question of whether judges or judicial bodies (such as the Disciplinary Chamber or the Chamber of Extraordinary Control and Public Affairs) meet the requirements of independence and impartiality and constitute a ‘tribunal previously established by law’, the Court does not confine itself to examining only the factors relating to the procedure for the appointment of judges. It also refers to ‘other relevant contextual factors which may also contribute to doubts being cast on the independence of the KRS and its role in appointment processes such as those at issue in the main proceedings, and, consequently, on the independence of the judges appointed at the end of such a process’ (38) or to the legal and factual context to which the composition of the new KRS belonged, a context marked in particular by the fact that several positions would soon become vacant within the Sąd Najwyższy (Supreme Court). (39)
64. Applied to the present case, that line of case-law means that, even when considered together, the two factors put forward by the referring court must be assessed in the light of other circumstances of fact and of law. By way of example, it may be necessary to examine the extent to which the candidate eventually selected had, in the light of objective criteria, (40) higher qualifications than those of other unsuccessful candidates. It may also be necessary to determine whether there was any political pressure or to evaluate the public conduct of the judge appointed that might reveal undue external influence. (41) It must then be determined, in the light of all of those factors, whether, on the one hand, a fundamental rule was breached and, on the other, whether that breach undermined the integrity of the appointment of the judge concerned, giving rise to a real risk of interference by the executive.
65. Returning to the case in the main proceedings, it is apparent, by way of example, from the request for a preliminary ruling that, on 21 September 2018, the college of the Sąd Okręgowy w Poznaniu (Regional Court, Poznań) issued an opinion that was favourable to the candidature of Judge S.C. and that on 24 September 2018, the assembly of representatives of the judges of the district courts of the Sąd Okręgowy w Poznaniu (Regional Court, Poznań) also issued a positive opinion concerning her. It will be for the referring court, ultimately, to evaluate the extent to which such a contextual factor must be taken into account.
66. Second, it is true that, in the judgment in A.B., the Court considered that, ‘if the referring court were to conclude that the KRS does not offer sufficient guarantees of independence, the existence of a judicial remedy available to unsuccessful candidates, albeit restricted …, would be necessary in order to help safeguard the process of appointing the judges concerned from direct or indirect influence’. That would make it possible ‘ultimately, to prevent legitimate doubts from arising, in the minds of individuals, as to the independence of the judges appointed at the end of that process’. (42) Must it be inferred, as the referring court proposes, that the presence of the two factors that it mentions necessarily leads to the conclusion that the judge in question is not a ‘tribunal previously established by law’? In my view, that is not the case.
67. First of all, in the actual judgment in A.B., the Court places that conclusion in the context of its global case-law. Thus, it emphasises that the legislative amendments that led to the finding that there was no need to adjudicate in pending cases (initiated to challenge the resolutions of the KRS under the law applicable at the time) and that removed any possibility of pursuing a judicial remedy of that type in the future must be put into perspective with all of the contextual factors referred to in the judgment. (43)
68. Next, the Court emphasises the importance of unsuccessful candidates being able to challenge the resolutions of the KRS where all the relevant factors relating to the appointment process, (44) taken as a whole, are such as to give rise to systemic doubts in the minds of individuals as to the independence and impartiality of judges appointed in that context. (45) The reference to the emergence of a ‘systemic’ doubt underlines the need to ask whether it is appropriate to establish a global context from which it follows that public confidence is being undermined.
69. Last, in A.B., as stated in point 43 of this Opinion, the Court highlights the intentional dimension of the Polish legislature’s decision to amend the rules applicable to resolutions of the KRS concerning appointments to the Sąd Najwyższy (Supreme Court). It considers that those amendments ‘are such as to suggest that, in this case, the Polish legislature has acted with the specific intention of preventing any possibility of exercising judicial review of the appointments made on the basis of those resolutions of the KRS’. (46)
70. That intention constitutes a decisive contextual factor that distinguishes, in particular, the case of the appointment of judges to the Sąd Najwyższy (Supreme Court), as in the judgment in A.B., from that of an appointment to an ordinary court, as in the present case. Unlike the appointment of judges to the Sąd Najwyższy (Supreme Court), examined in the judgment in A.B., where Article 44 of the Law on the KRS had abolished the remedy, that remedy was not formally excluded in the case in the main proceedings. That distinction may prove significant as regards the intention of the legislature, which did not expressly exclude in the main proceedings any possibility of challenge. As is apparent from the discussion in points 58 to 60 of this Opinion, the remedy was maintained on the face of it but rendered ineffective in practice.
71. That conclusion leads me, third, to examine another problem: the assessment of the intention of the national legislature as regards the appointment of judges, both to the Sąd Najwyższy (Supreme Court) and to the other courts, also highlights the possibility of distinguishing, in practice, between those two categories of appointments. In that regard, I note that the Commission argued, in its observations and at the hearing, that the constitutional role and the influence of the Sąd Najwyższy (Supreme Court) justify taking a particular approach, in so far as the risk of interference by the legislature and the executive with that court is more obvious.
72. I recall, however, that the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, makes no distinction between supreme courts and ordinary courts. The fundamental requirements of independence, impartiality and being a tribunal previously established by law apply uniformly to all the courts of the Member States, without consideration of the level of jurisdiction or of the hierarchical rank of the court concerned. (47)
73. Nonetheless, without establishing a difference in the extent of the guarantee of an independent and impartial tribunal, previously established by law, depending on the hierarchical status of the court concerned, consideration of any intentional character in the legislative reform may reveal discrepancies, depending on whether the appointments in question are to posts as judges of the Sąd Najwyższy (Supreme Court) or as judges of the ordinary courts. It might be conceivable that the intention to influence the composition of a court would be easier to detect at the level of the supreme courts, which deal with sensitive issues and are liable to adjudicate on institutional disputes or disputes that are political in the broad sense, whereas the ordinary courts, while being of fundamental importance for everyday justice, are less exposed to concerns of that type. (48)
74. In the light of all of those considerations, the answer to the first question must be that the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, must be interpreted as meaning that, in order to determine whether a court in which a person appointed to the post of judge sits meets the requirement of a ‘tribunal previously established by law’, the competent judicial authority must take into account not only the fact that the candidature of that judge was recommended by the new KRS following its reform, and of the fact that the participants in the appointment procedure had a right of appeal only to the Chamber of Extraordinary Control and Public Affairs, but also of any other relevant circumstance relating to the appointment of that person and capable of affecting the independence and impartiality of the court concerned.
2. The second question
(a) Subject matter of the second question
75. By its second question, the referring court raises, in essence, two aspects linked with the procedure for reviewing the legality of the appointment, to the post of judge, of the person concerned in the main proceedings. The first part of that question, which embodies the first, third and fourth sub-questions, concerns whether it is necessary, and whether it is possible, to disregard the national law that confers on the Chamber of Extraordinary Control and Public Affairs exclusive jurisdiction to adjudicate on the regularity of that appointment, including the judgments of the Trybunał Konstytucyjny (Constitutional Court, Poland) which restrict such verification.
76. The second part, which corresponds to the second sub-question, seeks to ascertain whether the referring court may exclude that person, relying, by analogy, on the national provisions relating to the exclusion of a judge by operation of law where he or she is unable to sit.
(b) The first part, concerning the obligation to disregard certain national provisions and judgments of the Constitutional Court that are contrary to EU law
(1) Brief reminder of the case-law
77. It follows from the case-law that Article 19 TEU, which gives concrete expression to the value of the rule of law affirmed in Article 2 TEU, entrusts the responsibility for ensuring the full application of EU law in all Member States and judicial protection of the rights of individuals under that law to national courts and tribunals and to the Court of Justice. (49)
78. In order for that protection to be guaranteed, every Member State must, in accordance with the second subparagraph of Article 19(1) TEU, ensure that the bodies which are called upon, as ‘courts or tribunals’ within the meaning of EU law, to rule on questions related to the application or interpretation of EU law and thus come within its judicial system in the fields covered by EU law, meet the requirements of effective judicial protection, including, in particular, that of independence. (50)
79. Furthermore, the Court has accepted that, in accordance with the principle of the primacy of EU law, the national court called upon within the exercise of its jurisdiction to apply provisions of EU law is under a duty, where it is unable to interpret national law in compliance with the requirements of EU law, to give full effect to the requirements of EU law in the dispute brought before it, by disapplying, as required, of its own motion, any national rule or practice, even if adopted subsequently, that is contrary to a provision of EU law with direct effect, without it having to request or await the prior setting aside of that national rule or practice by legislative or other constitutional means. (51)
80. As regards, in particular, the preliminary ruling procedure laid down in Article 267 TFEU, the Court has accepted that a judgment delivered in the context of that procedure is binding on the national court as to the interpretation of EU law for the purposes of the decision to be given in the proceedings before it. (52)
81. The national court which has exercised the discretion conferred on it by the second paragraph of Article 267 TFEU must therefore, if necessary, disregard the rulings of a higher national court if it considers, having regard to the interpretation given by the Court, that they are not consistent with EU law, if necessary refusing to apply the national rule requiring it to comply with the decisions of that higher court. (53)
82. It follows from the case-law that that solution is also applicable where an ordinary court is bound, under a rule of national procedure, by a decision of a national constitutional court which it considers to be contrary to EU law. (54)
(2) The reorganisation of jurisdiction
83. In its judgment of 5 June 2023, Commission v Poland (Independence and private life of judges), (55) the Court considered that ‘the fact that the national legislature reorganises the jurisdiction applicable and confers on a single national body jurisdiction to verify compliance with certain essential requirements stemming from the fundamental right to effective judicial protection enshrined in the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, whereas the need for such verification may, depending on the circumstances, be raised before any national court, is, combined with the introduction of the abovementioned prohibitions and disciplinary offences, liable to contribute to weakening even further the effectiveness of the review of observance of that fundamental right, which EU law nevertheless entrusts to all the national courts’. (56)
84. In the main proceedings, the national provisions which assign to the Chamber of Extraordinary Control and Public Affairs exclusive jurisdiction to ascertain the regularity of the appointment of the person concerned to the post of judge, while requiring that any complaints relating to that appointment be rejected without being examined, (57) have the effect of depriving the judges of the ordinary courts of the possibility of determining whether another court is a tribunal previously established by law. Guaranteeing access to an independent and impartial tribunal, previously established by law – and in particular determining whether that tribunal is properly constituted – is at the heart of the right to a fair trial. As I have already observed in my Opinion in AW ‘T’, (58) the national courts must be able to ascertain whether an irregularity vitiating the procedure for the appointment of a judge could give rise to an infringement of the requirements arising from the right to effective judicial protection, within the meaning of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, and, in particular, those relating to access to an independent and impartial tribunal, previously established by law, in circumstances in which compliance with those requirements could give rise to doubts. (59)
85. In the light of the foregoing, it is for the referring court to disapply the domestic provisions that prevent it from examining the lawfulness of the appointment of the judge concerned, in application of the principle of the primacy of EU law.
(3) The impact of the judgments of the Trybunał Konstytucyjny (Constitutional Court)
86. The third and fourth sub-questions seek to determine whether, for the purpose of preserving the practical effect of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, it is necessary to disregard: (a) the judgment whereby the Trybunał Konstytucyjny (Constitutional Court) prohibits the exclusion of an irregularly appointed judge who does not meet the criteria of an independent and impartial tribunal, previously established by law, and (b) the judgment of that court preventing the implementation of an order of the Court of Justice laying down interim measures intended to suspend the national provisions preventing the examination, by the national courts, of compliance with the requirement of an independent and impartial tribunal, previously established by law.
87. As indicated in the request for a preliminary ruling, the third sub-question concerns the judgment of 2 June 2020, P 13/19, delivered by the Trybunał Konstytucyjny (Constitutional Court), in which that court held that Article 49(1) of the Code of Civil Procedure is incompatible with Article 179 of the Constitution, on the ground that it authorises an application for exclusion of a judge owing to circumstances that demonstrate the irregularity of his or her appointment by the President of the Republic, on a proposal of the KRS.
88. As stated in the context of the preceding question, that judgment prevents, de facto, the review of the validity of the procedures for the appointment of judges in the light of the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter. Therefore, and in order to guarantee the primacy and the direct effect of those provisions, the referring court must be able itself to assess the validity of the appointment of the judge concerned. It must therefore disregard a judgment of the Constitutional Court that would prevent it from examining an application for the exclusion of a judge based on the irregularity of his or her appointment, since that irregularity would run counter to the requirement of an independent and impartial tribunal, previously established by law.
89. The fourth sub-question relates to the judgment of 14 July 2021, P 7/20, whereby the Trybunał Konstytucyjny (Constitutional Court) held that the second sentence of Article 4(3) TEU, read in conjunction with Article 279 TFEU, is incompatible with various provisions of the Constitution (Articles 2 and 7, Article 8(1), Article 90(1), in conjunction with Article 4(1) of the Constitution), in so far as, according to that court, the Court of Justice imposes ultra vires obligations on Poland by adopting interim measures relating to the organisation and jurisdiction of the Polish courts, and on the procedure before those courts, and, to that extent, is not subject to the principles of primacy and direct applicability (Article 91(1) to (3) of the Constitution). (60)
90. In that judgment, the Trybunał Konstytucyjny (Constitutional Court) disputes the Court’s jurisdiction to order interim measures under Article 279 TFEU, in particular in order to maintain the independence of the Polish courts. Those interim measures, such as the suspension of the jurisdiction of the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court) in disciplinary proceedings, were specifically intended to ensure the full effect of the second subparagraph of Article 19(1) TEU.
91. In refusing to accept the Court’s jurisdiction to adopt interim measures relating to the organisation and the jurisdiction of the Polish courts, the Trybunał Konstytucyjny (Constitutional Court) radically hinders the review of the legality of appointments of national judges in the light of the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter. Having regard to the case-law referred to in points 78 to 82 of this Opinion, I am of the view that it is for the referring court to take all the necessary measures to ensure, in full, the practical effect of EU law which means disregarding the judgment of the Trybunał Konstytucyjny (Constitutional Court) that prevents the implementation of the orders of the Court relating to interim measures. Failing that, the national courts would be prevented from ascertaining whether the EU requirements on independence and impartiality, and also on a tribunal previously established by law, are duly satisfied.
(c) The second part, concerning the possibility of excluding an irregularly appointed judge
92. By the second part of the second question, the referring court asks, in essence, what measures may be taken to ensure the practical effect of the right to effective judicial protection before an independent and impartial tribunal, previously established by law, within the meaning of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, to preclude the panel of judges being considered not to satisfy those conditions on the sole ground that one of its members was appointed irregularly.
93. The referring court considers that if the judge concerned in the main proceedings cannot be regarded as belonging to a ‘tribunal previously established by law’, that court should draw the inferences, in particular, by denying the judge concerned the right to adjudicate, even though Articles 48 and 49 of the Code of Civil Procedure do not provide for such a ground of exclusion. The question referred therefore amounts to determining whether those provisions, relating to judex inhabilis, may be interpreted in such a way as to allow, by analogy, the exclusion of a judge whose appointment was made at the end of a procedure that did not satisfy the fundamental requirements of independence and impartiality.
94. It should be borne in mind that the guidance which the Court may provide by way of a preliminary ruling is strictly limited to matters of interpretation of EU law, not national law. It is not for the Court to interpret national law, a fortiori to arbitrate between different strands of interpretation of national law that emerge at national level. In particular, it is not for the Court to suggest which of the opposing interpretations of national procedural rules is correct, and which exact rule or route available under national law a referring court must take in order to ensure compliance with EU law. (61) In other words, while under Article 19(1) TEU and the first paragraph of Article 267 TFEU, the Court alone has jurisdiction to interpret EU law, the national courts have exclusive jurisdiction to interpret national law. (62)
95. I therefore think that it is not for the Court, when giving a preliminary ruling, to interpret national law, namely Articles 48 and 49 of the Code of Civil Procedure, and to indicate to the referring court how it must interpret and apply them in the context of the dispute in the main proceedings. (63)
96. The fact nonetheless remains that the second subparagraph of Article 19(1) TEU imposes on the Member States a clear and precise obligation as to the result to be achieved and that obligation is not subject to any condition as regards the independence which must characterise the courts called upon to interpret and apply EU law. (64) That obligation as to the result to be achieved is the natural consequence of the fact that the referring court must, according to the second subparagraph of Article 19(1) TEU, in conjunction with Article 47 of the Charter, have jurisdiction to determine whether a panel of judges or another judge is an independent and impartial tribunal, previously established by law, and to disregard national provisions, even constitutional, or practices that prevent that panel or that judge from effectively exercising that jurisdiction. If an obligation as to the result to be achieved were not placed on the national court, under the second subparagraph of Article 19(1) TEU, in conjunction with Article 47 of the Charter, the content of those provisions would be deprived of its essence.
97. Accordingly, in order to answer the second question, and without prejudice to the actual interpretation of the applicable national provisions, national law must be interpreted and applied in the light of the Member State’s obligation as to the result to be achieved. I consider that that obligation entails the establishment of an effective remedy making it possible to exclude, by operation of law, a judge who does not satisfy the requirements of independence and impartiality that are inherent in a tribunal previously established by law. It is, however, for the competent national court to determine the actual procedures for implementing that requirement, in compliance with the national legal framework and the principles arising from EU law.
V. Conclusion
98. Having regard to the foregoing, I propose the following answers to the questions for a preliminary ruling submitted by the Sąd Rejonowy Poznań-Stare Miasto w Poznaniu (District Court, Poznań – Stare Miasto, Poznań, Poland):
(1) The second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union,
must be interpreted as meaning that, in order to determine whether a court in which a person appointed to the post of judge sits meets the requirement of a ‘tribunal previously established by law’, the competent judicial authority must take into account not only the fact that the candidature of that judge was recommended by the new KRS following its reform, and of the absence of an effective right of appeal for the participants in the appointment procedure, but also of any other relevant circumstance relating to the appointment of that person and capable of affecting the independence and impartiality of the court concerned.
(2) The second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter of Fundamental Rights,
must be interpreted as meaning, first, that it requires the national court to disapply the national provisions, including the interpretation given by the Trybunał Konstytucyjny (Constitutional Court, Poland), which impede the examination of an application for exclusion of a judge based on the manifest irregularity of the procedure for his or her appointment; second, that it requires the national court to take all necessary measures to ensure in full the practical effect of the fundamental right of individuals to effective judicial protection before an independent and impartial tribunal previously established by law, which includes the possibility of excluding by operation of law a judge who does not satisfy those requirements, while assigning to the competent national court the task of determining the actual procedures for implementing that requirement.