Proceedings brought by W.Ż.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2021:798
• Date: 06 October 2021
• Celex Number: 62019CJ0487
• Docket Number: C-487/19

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

6 October 2021 (*)

(Reference for a preliminary ruling – Rule of law – Effective legal protection in the fields covered by EU law – Second subparagraph of Article 19(1) TEU – Principles of the irremovability of judges and judicial independence – Transfer without consent of a judge of an ordinary court – Action – Order of inadmissibility made by a judge of the Sąd Najwyższy (Izba Kontroli Nadzwyczajnej i Spraw Publicznych) (Supreme Court (Chamber of Extraordinary Control and Public Affairs), Poland) – Judge appointed by the President of the Republic of Poland on the basis of a resolution of the National Council of the Judiciary, despite a court decision ordering that the effects of that resolution be suspended pending a preliminary ruling of the Court – Judge not constituting an independent and impartial tribunal previously established by law – Primacy of EU law – Possibility of finding such an order of inadmissibility to be null and void)

In Case C‑487/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Najwyższy (Izba Cywilna) (Supreme Court (Civil Chamber), Poland), made by decision of 21 May 2019, received at the Court on 26 June 2019, in the proceedings brought by

W.Ż.

intervening parties:

Prokurator Generalny zastępowany przez Prokuraturę Krajową, formerly Prokurator Prokuratury Krajowej Bożena Górecka,

Rzecznik Praw Obywatelskich,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Prechal (Rapporteur), M. Vilaras, E. Regan, M. Ilešič, L. Bay Larsen, A. Kumin and N. Wahl, Presidents of Chambers, D. Šváby, S. Rodin, F. Biltgen, K. Jürimäe, C. Lycourgos and N. Jääskinen, Judges,

Advocate General: E. Tanchev,

Registrar: M. Aleksejev, Head of Unit,

having regard to the written procedure and further to the hearing on 22 September 2020,

after considering the observations submitted on behalf of:

– W.Ż., by S. Gregorczyk-Abram and M. Wawrykiewicz, adwokaci,

– the Prokurator Generalny zastępowany przez Prokuraturę Krajową, by R. Hernand, A. Reczka, S. Bańko, B. Górecka and M. Słowińska,

– the Rzecznik Praw Obywatelskich, by P. Filipek and M. Taborowski,

– the Polish Government, by B. Majczyna, S. Żyrek and A. Dalkowska, acting as Agents,

– the European Commission, by K. Herrmann, P. Van Nuffel and H. Krämer, and subsequently by K. Herrmann and P. Van Nuffel, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 15 April 2021,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 2, Article 6(1) and (3) and the second subparagraph of Article 19(1) TEU, Article 267 TFEU and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2 The request has been made in proceedings brought by the judge W.Ż. concerning a resolution by which the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland; ‘the KRS’) declared that there was no need to adjudicate on the challenge brought by W.Ż. against the decision of the President of the Sąd Okręgowy w K. (Regional Court of K., Poland) ordering that W.Ż. be transferred from one division of that court to another (‘the resolution at issue’), against which resolution W.Ż lodged an appeal before the Sąd Najwyższy (Supreme Court, Poland), accompanied by an application for the recusal of all judges sitting in the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Chamber of Extraordinary Control and Public Affairs, Poland) (‘the Chamber of Extraordinary Control and Public Affairs’), which is to examine that appeal.

Polish law

The Constitution

3 According to Article 7 of the Constitution:

‘Public authorities shall act in accordance with and within the limits of the law.’

4 Article 10 of the Constitution provides:

‘1. The system of government of the Republic of Poland shall be based on the separation of and balance between the legislature, executive and judiciary.

2. The Sejm [Lower Chamber of the Polish Parliament] and the Senat [Upper Chamber of the Polish Parliament] shall have legislative authority. The President of the Republic and the Council of Ministers shall have executive authority. The courts and tribunals shall have legislative authority.’

5 Article 45(1) of the Constitution provides:

‘Everyone is entitled to a fair and public hearing, without undue delay, by an independent and impartial tribunal with jurisdiction.’

6 Article 60 of the Constitution provides:

‘Polish citizens enjoying their full rights as citizens shall have the right of access, under equal conditions, to public office.’

7 Under Article 77(2) of the Constitution:

‘Statutes may not bar the recourse by any person to the courts in pursuit of claims alleging infringement of freedoms or rights.’

8 Article 179 of the Constitution provides:

‘Judges shall be appointed for an indefinite period by the President of the Republic on a proposal [of the KRS].’

9 Article 184 of the Constitution provides:

‘The [Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland)] and other administrative courts shall exercise, within the limits which are established by law, control over the performance of public administration. …’

The new Law on the Supreme Court

10 On 20 December 2017, the President of the Republic of Poland signed the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 (Dz. U. of 2018, item 5; ‘the new Law on the Supreme Court’). That law entered into force on 3 April 2018.

11 The new Law on the Supreme Court, inter alia, established the Chamber of Extraordinary Control and Public Affairs within the Sąd Najwyższy (Supreme Court).

12 Under Article 26 of the new Law on the Supreme Court:

‘The areas of jurisdiction of the [Chamber of Extraordinary Control and Public Affairs] include extraordinary complaints, electoral disputes and challenges concerning the validity of national or constitutional referendums, and determination of the validity of elections and referendums, as well as other cases in the field of public law, including disputes relating to the protection of competition, energy regulation, telecommunications and rail transport, and appeals against decisions of the Przewodniczy Krajowej Rady Radiofonii i Telewizji (President of the National Television and Radio Broadcasting Council, Poland) as well as complaints concerning the excessive duration of proceedings before ordinary and military courts and the [Sąd Najwyższy (Supreme Court)].’

13 Article 29 of the new Law on the Supreme Court provides that judges of the Sąd Najwyższy (Supreme Court) are to be appointed by the President of the Republic acting on a proposal of the KRS.

The Law on the KRS

14 The KRS is governed by the ustawa o Krajowej Radzie Sądownictwa (Law on the National Council of the Judiciary) of 12 May 2011 (Dz. U. of 2011, No 126, item 714), as amended, inter alia, 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 (Dz. U. of 2018, item 3), and by the ustawa o zmianie ustawy – Prawo o ustroju sądów powszechnych oraz niektórych innych ustaw (Law amending the Law on the organisation of the ordinary courts and certain other laws) of 20 July 2018 (Dz. U. of 2018, item 1443) (‘the Law on the KRS’).

15 Article 37(1) of the Law on the KRS provides:

‘If several candidates have applied for a single position of judge, [the KRS] shall examine and evaluate all the applications lodged together. In that case, [the KRS] shall adopt a resolution including its decisions for the purposes of presenting one appointment proposal to the position of judge in respect of all candidates.’

16 Under Article 43 of that law:

‘1. A [KRS] resolution shall become final if no appeal lies against it.

2. Unless all the participants in the procedure have challenged the resolution referred to in Article 37(1), that resolution shall become final for the part comprising the decision not to present the proposal for appointment to the office of judge of the participants who did not lodge an appeal, subject to the provisions of Article 44(1b).’

17 Article 44 of the Law on the KRS provided:

‘1. A participant in the procedure may appeal to the [Sąd Najwyższy (Supreme Court)] on the grounds that the [KRS] resolution is unlawful, unless separate provisions provide differently. …

1a. In individual cases concerning appointment to the office of judge of the [Sąd Najwyższy (Supreme Court)], an appeal may be lodged with the [Naczelny Sąd Administracyjny (Supreme Administrative Court)]. In those cases it is not possible to lodge an appeal before the [Sąd Najwyższy (Supreme Court)]. An appeal before the [Naczelny Sąd Administracyjny (Supreme Administrative Court)] may not be based on an allegation that there was an incorrect assessment of the candidates’ fulfilment of the criteria taken into account when making a decision on the presentation of the proposal for appointment to a position of judge of the [Sąd Najwyższy (Supreme Court)].

1b. Unless all the participants in the procedure have challenged the resolution referred to in Article 37(1) in individual cases concerning appointment to the office of judge of the [Sąd Najwyższy (Supreme Court)], that resolution becomes final in the part containing the decision to present the proposal for appointment to the office of judge of the [Sąd Najwyższy (Supreme Court)] and in the part comprising the decision not to present the proposal for appointment to the office of judge to that court for participants in the procedure who did not lodge an appeal.

…

3. The provisions [of the Code of Civil Procedure] … relating to an appeal on a point of law, shall be applicable to proceedings before the [Sąd Najwyższy (Supreme Court)] and the [Naczelny Sąd Administracyjny...