Opinion of Advocate General Tanchev delivered on 17 December 2020.

• Jurisdiction: European Union
• Celex Number: 62018CC0824
• ECLI: ECLI:EU:C:2020:1053
• Date: 17 December 2020
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 17 December 2020(1)

Case C‑824/18

A.B.,

C.D.,

E.F.,

G.H.,

I.J.

v

Krajowa Rada Sądownictwa,

third parties: Rzecznik Praw Obywatelskich,

Prokurator Generalny

(Request for a preliminary ruling from the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland))

(Reference for a preliminary ruling – Articles 2, 4(3) and 19(1) TEU – Article 267 TFEU – Article 47 of the Charter of Fundamental Rights of the European Union – Rule of law – Effective judicial protection – Principle of judicial independence – Procedure for appointing judges of the Polish Supreme Court – Appointment by the President of the Republic of Poland on a proposal by the National Council of the Judiciary – Lack of independence of the National Council of the Judiciary – Ineffective judicial remedy – Judgment of the Constitutional Court repealing the provision on which the jurisdiction of the referring court is based – National law limiting the powers of adjudication of the referring court – Primacy of Union law – Difference in treatment in relation to access to a judicial remedy)

1. As Lord Neuberger, the former President of the UK Supreme Court, aptly put it, ‘Once you deprive people of the right to go to court to challenge the government, you are in a dictatorship’. (2) The removal in Poland of the availability of judicial review in the context of the key constitutional field of judicial independence (3) forms the main focus of the dispute calling for resolution in this case. (4)

2. Indeed, this case raises important issues and will allow the Court to provide significant clarification, both in terms of procedure and substance, notably concerning Article 19(1) TEU. When dealing with the primacy of EU law, I will react to the recent judgment of the Bundesverfassungsgericht (Federal Constitutional Court, Germany, ‘the BVerfG’) in Weiss (2 BvR 859/15), where it ruled, inter alia, that a judgment of the Court of Justice was ultra vires, as well as to a recent order of the Disciplinary Chamber of the Polish Supreme Court which, subsequent to that BVerfG judgment, ruled that a Court of Justice judgment was not binding in the Polish legal order.

3. In the present reference for a preliminary ruling – submitted on 21 November 2018 and supplemented by a new preliminary question by a decision of 26 June 2019 – the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland) seeks an interpretation of Articles 2, 4(3), 6(1) and 19(1) TEU, Article 267 TFEU, Articles 15(1), 20, 21(1), 47 and 52(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) as well as Articles 2(1) and (2)(a), 3(1)(a) and 9(1) of Directive 2000/78/EC. (5)

4. The reference arose in the context of legal proceedings between candidates for judicial office A.B., C.D., E.F., G.H. and I.J., on the one hand, and the Krajowa Rada Sądownictwa (National Council of the Judiciary; ‘the KRS’), on the other, by which those candidates appealed against resolutions where: (i) the KRS decided not to propose to the President of the Republic of Poland (‘the President of the Republic’) their appointment to the position of judge of the Sąd Najwyższy (Supreme Court, Poland; ‘the Supreme Court’); and at the same time, (ii) the KRS proposed the appointment of other candidates to the President of the Republic.

I. Legal framework

5. The KRS is governed by Ustawa z dnia 12 maja 2011 r. o Krajowej Radzie Sądownictwa (Law of 12 May 2011 on the National Council of the Judiciary). In particular, Article 44 of the Law on the KRS provides:

‘1. A participant in the procedure may appeal to the [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 Supreme Court], an appeal may be lodged with the [Supreme Administrative Court]. In those cases it is not possible to appeal to the [Supreme Court]. An appeal to the [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 the [Supreme Court].

1b. If not all the participants in the procedure have challenged the resolution … in individual cases concerning appointment to the office of judge of the [Supreme Court], that resolution becomes final in the part containing the decision to present the proposal for appointment to the [Supreme Court] and in the part comprising the decision not to present the proposal for appointment to the office of judge of the same court for participants in the procedure who did not lodge an appeal.

…

4. In individual cases concerning appointment to the office of judge of the [Supreme Court], the annulment by the [Supreme Administrative Court] of the [KRS] resolution not to present the proposal for appointment to the office of judge of the [Supreme Court] is equivalent to accepting the candidacy of the participant who lodged an appeal in the procedure for the vacant position of judge at the [Supreme Court], for a position for which, on the date of delivery of the [Supreme Administrative Court] judgment, the procedure before the [KRS] has not ended or, in the absence of such a procedure, for the next vacant position of judge in the [Supreme Court] which is the subject of the announcement.’

II. The disputes in the main proceedings and the questions referred for a preliminary ruling

6. The KRS decided, by means of Resolution No 318/2018 of 24 August 2018, not to submit to the President of the Republic a proposal for the appointment of, inter alia, A.B. and C.D. as judges of the Criminal Chamber of the Supreme Court. By means of Resolution No 330/2018 of 28 August 2018, the KRS decided not to submit to the President of the Republic a proposal for the appointment of, inter alia, E.F., G.H. and I.J. as judges of the Civil Chamber of the Supreme Court. Those resolutions also contained proposals for the appointment of other candidates to those positions.

7. The candidates who were not proposed appealed against the above resolutions to the referring court and submitted a request to that court to suspend their execution, which it granted.

8. In relation to the first question referred, the referring court notes, first, that, contrary to the provisions which were formerly applicable, the recently introduced Article 44(1b) of the Law on the KRS provides that in individual cases concerning an appointment as Supreme Court judge, a KRS resolution becomes final not only in the part of that resolution which contains the decision not to propose the appointment of candidates where there has been no appeal by the unsuccessful candidates, but also in the part of that resolution which contains the decision to propose the appointment if not all the participants in the competition procedure have lodged an appeal. However, those participants also include candidates whose appointment was proposed and who, therefore, have no interest in lodging an appeal against such a resolution. The referring court therefore considers that that resolution will de facto always be of a final nature.

9. Secondly, the referring court observes that Article 44(1a) of the Law on the KRS, which defines the function which it is called upon to exercise (review of the competition procedure in question), is based on overly general premisses, since no clear assessment criteria have been established.

10. Thirdly, the referring court states that it follows from Article 44(4) of the Law on the KRS that a consequence of the solution that has been adopted is that, where the referring court annuls a resolution of the KRS to not present a proposal for appointment to the office of judge of the Supreme Court, that merely results in the application of the participant in the proceedings who lodged an appeal being accepted for a vacant position of judge in the Supreme Court where the procedure before the KRS concerning that position has not been completed, and in the absence of such a procedure, for the next vacant position as judge in the Supreme Court.

11. In relation to the second question referred, the referring court also seeks guidance from the Court in order to be able to conduct an assessment as to whether the standard of equal access to public service (which meets general interest objectives) has been met in the present case. In its view, there is a clear difference in the effectiveness of the remedy between procedures for vacant judicial positions in other courts and the procedure concerning such positions at the Supreme Court.

12. It is against that background that the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Should Article 2 TEU, in conjunction with the third sentence of Article 4(3), Articles 6(1) and 19(1) TEU, in conjunction with Article 47 of the Charter and Article 9(1) of Directive 2000/78 and the third paragraph of Article 267 TFEU, be interpreted as meaning that

– an infringement of the rule of law and of the right to an effective remedy and to effective judicial protection occurs in a situation where the national legislature, in granting the right of appeal to a court in individual cases concerning service in the office of judge of the court of last instance of a Member State (the Supreme Court), stipulates that a decision made during the selection procedure preceding the submission of a motion for appointment to the position of judge of [that] court is final and effective where not all parties to the selection procedure have appealed against the decision made with respect to the joint consideration and assessment of all candidates for Supreme Court judges, who also include a...