Judgment of the Court Grand Chamber of 2 March 2021, A.B. and Others Nomination des juges à la Cour suprême – Recours, Case C-824/18

• Date: 02 March 2021
• Year: 2021

3

I. VALUES OF THE EUROPEAN UNION AND FUNDAMENTAL RIGHTS

Judgment of the Court (Grand Chamber) of 2 March 2021, A.B. and Others (Nomination des

juges à la Cour suprême – Recours), Case C-824/18

Link to the complete text of the judgment

Reference for a preliminary ruling – Article 2 and the second subparagraph of Article 19(1) TEU – Rule of

law – Effective judicial protection – Principle of judicial independence – Proced ure for appointment to a

position as judge at the Sąd Najwyższy (Supreme Court, Poland) – Appointment by the President of the

Republic of Poland on the basis of a resolution emanating from the National Council of the Judiciary – Lack

of independence of that council – Lack of effectiveness of the judicial remedy available against such a

resolution – Judgment of the Trybunał Konstytucyjn y (Constitutional Court, Poland) repealing the provision

on which the referring court’s jurisdiction is based – Adoption of legislation declaring the discontinuance

of pending cases by operation of law and precluding in the future any judicial remedy in such cases –

Article 267 TFEU – Option and/or obligation for national courts to make a reference for a preliminary

ruling and to maintain that reference – Article 4(3) TEU – Principle of sincere cooperation ‐ Primacy of EU

law – Power to disapply national provisions which do not comply with EU law

By resolutions adopted in August 2018, the Krajowa Rada Sądownictwa (National Council of the

Judiciary, Poland) (‘the KRS’) decided not to present to the President of the Republic of Poland

proposals for the appointment of five persons (‘the appellants’) to positions as judges at the Sąd

Najwyższy (Supreme Court, Poland) and to put forward other candidates for those positions. The

appellants lodged appeals against these resolutions before the Naczelny Sąd Administracyjny

(Supreme Administrative Court, Poland), the referring court. Such appeals were governed at that time

by the Law on the National Council of the Judiciary (‘the Law on the KRS’), as amended by a law of July

2018. Under those rules, it was provided that unless all the participants in a procedure for

appointment to a position as judge at the Supreme Court challenged the relevant resolution of the

KRS, that resolution became final with respect to the candidate presented for that position, so that

the latter could be appointed by the President of the Republic. Moreover, any annulment of such a

resolution on appeal of a participant not put forward for appointment could not lead to a fresh

assessment of that participant’s situation for the purposes of any assignment of the position

concerned. In addition, under those rules, such an appeal could not be based on an allegation that

there was an incorrect assessment of the candidates’ fulfilment of the criteria taken into account

when a decision on the presentation of the proposal for appointment was made. In its initial request

for a preliminary ruling, the referring court, taking the view that such rules preclude in practice any

effectiveness of the appeal lodged by a participant who has not been put forward for appointment,

decided to refer questions to the Court on whether those rules comply with EU law.

After that initial referral, the Law on the KRS was once again amended, in 2019. Pursuant to that

reform, it became impossible to lodge appeals against decisions of the KRS concerning the proposal

or non-proposal of candidates for appointment to judicial positions at the Supreme Court. Moreover,

that reform declared such still pending appeals to be discontinued by operation of law, de facto

depriving the referring court of its jurisdiction to ru le on that type of appeal and of the possibility of

obtaining an answer to the questions that it had referred to the Court for a preliminary ruling.

Accordingly, in its complementary request for a preliminary ruling, the referring court referred a

question to the Court for a preliminary ruling on whether those new rules are compatible with EU law.

Findings of the Court

In the first place, the Court, sitting as the Grand Chamber, holds, first of all, that both the system of

cooperation between the national courts and the Court of Justice established in Article 267 TFEU and

the principle of sincere cooperation laid down in Article 4(3) TEU preclude legislative amendments,

such as those, cited above, effected in 2019 in Poland, where it is apparent that they have had the

specific effects of preventing the Court from ruling on questions referred for a preliminary ruling such