Opinion of Advocate General Medina delivered on 20 June 2024.

• Jurisdiction: European Union
• Celex Number: 62023CC0197
• ECLI: ECLI:EU:C:2024:533
• Date: 20 June 2024
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

MEDINA

delivered on 20 June 2024 (1)

Case C‑197/23

S. S.A.

v

C. sp. z o.o.,

intervening party:

Prokurator Prokuratury Regionalnej w Warszawie

(Request for a preliminary ruling from the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw, Poland))

(Reference for a preliminary ruling – Rule of law – Article 19(1) TEU – Legal remedies – Effective judicial protection – Independent and impartial tribunal previously established by law – Principle of ‘internal’ judicial independence – National rules governing random allocation of cases to judges – Modification of the formation of the court – Flagrant violation of national rules – Provisions prohibiting a court of second instance from declaring proceedings at first instance invalid)

1. The present reference for a preliminary ruling from the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw, Poland) (2) seeks an interpretation of Article 2, Article 6(1) and (3) and the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). The action in the main proceedings was brought by S. S.A. (‘Company S’) against C. sp. z o.o. (‘Company C’) in relation to a commercial framework agreement.

2. The present case essentially raises two questions. First, the Court is called upon to rule on the question whether the irregular (re)allocation of a specific case to a reporting judge in national proceedings falls within the scope of the second subparagraph of Article 19(1) TEU. In other words, is that irregular (re)allocation capable of undermining the perception of courts and tribunals as independent and impartial, in particular, in a case where that irregular (re)allocation (i) amounts to a ‘flagrant violation’ of the applicable national rules and (ii) cannot be reviewed on appeal by the court of second instance owing to the fact that national provisions explicitly prohibit such a legal remedy? The second related question is whether such an irregularity coupled, in particular, with an absence of judicial review or legal remedy amounts to a breach of the requirements of effective judicial protection before an independent and impartial tribunal previously established by law; that is, whether any and every irregularity in the (re)allocation of a case to a reporting judge could raise doubts in the minds of individuals as to the independence and impartiality of the judge to whom the case has been (re)allocated.

I. Legal framework

A. The Code of Civil Procedure

3. Article 47(1) of the Code of Civil Procedure (3) provides that ‘at first instance, the court shall hear cases in a single-judge formation, unless otherwise provided by a specific provision.’

4. According to Article 379(4) of that code, ‘proceedings shall be invalid … if the composition of the court of trial is contrary to statutory provisions or if the case was heard in the presence of a judge subject to exclusion by operation of law’.

5. Article 386(2) of the Code of Civil Procedure provides that ‘where the proceedings are declared invalid, the court of second instance shall set aside the judgment under appeal, set aside the proceedings in so far as they are invalid and refer the case back to the court of first instance.’

B. The Law on the ordinary courts

6. Article 45 of the Law on the ordinary courts (4) provides as follows:

‘1. A judge or trainee judge may be replaced in his or her duties by a judge or trainee judge of the same court, or by a judge seconded pursuant to Article 77(1) or (8).

2. The replacement referred to in paragraph 1 may be the result of a measure taken by the president of the division or the president of the court, adopted at the request of the judge or trainee judge or of his or her own motion, in order to ensure that the proceedings are conducted in due form.

…’

7. Under Article 47a(1) of the Law on the ordinary courts, ‘cases shall be allocated to judges and trainee judges at random according to the specific categories of cases, with the exception of the allocation of cases to a duty judge’.

8. Article 47b of that law provides:

‘1. A change in the composition of the court may take place only where it is impossible for the court to hear and determine the case in its current composition or where there is a lasting obstacle to the court hearing and determining the case in its current composition. The provisions of Article 47a shall apply mutatis mutandis.

2. If it is necessary to take measures in a case, in particular where this is required by separate provisions or justified on grounds of the proper course of the proceedings, and where the formation of the court to which the case has been allocated cannot do so, measures shall be taken by the formation designated in accordance with the substitution plan and, if measures are not covered by the substitution plan, by the formation designated in accordance with Article 47a.

3. Decisions in the cases referred to in paragraphs 1 and 2 shall be taken by the president of the court or by a judge authorised by him or her.

…’

9. The Law of 20 December 2019 added paragraph 4 to Article 55 of the Law on the ordinary courts, which is worded as follows:

‘Judges may adjudicate in all cases in the place to which they are posted and also in other courts in the cases defined by law (jurisdiction of the judge). The provisions relating to the allocation of cases and to the appointment and modification of the formations of the court shall not limit a judge’s jurisdiction and cannot be a basis for determining that a formation is contrary to the law, that a court is improperly composed or that a person not authorised or competent to adjudicate forms part of that court.’

10. In accordance with Article 8 of the Law of 20 December 2019, Article 55(4) of the Law on the ordinary courts is also to apply to cases begun or terminated before the date of entry into force of the Law of 20 December 2019.

C. 2015 Rules of Procedure

11. Article 43(1) of the 2015 Rules of Procedure (5) provides that ‘cases shall be allocated to reporting judges (judges and trainee judges) at random, according to the distribution of activities established, by an IT tool [(‘the LPS system’) (6)] on the basis of a random number generator, separately for each register, list or other recording device, unless the provisions of this Regulation provide for other allocation rules …’.

12. Under Article 52b of those rules of procedure:

‘1. The substitution table shows the alternates (judges, trainee judges and jurors) for each working day.

2. The duty table indicates the duty judges and trainee judges for each day.

3. The substitution and duty tables shall determine the number of alternate and duty [judges and trainee judges] by period of time, by division or by type of cases allocated to alternate and duty [judges and trainee judges], as well as the order in which substitutions shall be made, and cases allocated to duty [judges and trainee judges] where more than one [judges and trainee judges] are alternates and on duty.

…’

13. Article 52c of the 2015 Rules of Procedure provides:

‘1. In the event of the absence of the reporting judge at the hearing, the president of the division shall cancel the hearing if it is possible to inform the persons concerned, unless the proper course of the proceedings clearly requires that the hearing be held.

2. The case in respect of which the hearing has not been cancelled shall be heard by the alternate judge as provided in the substitution plan for the day in question. If the alternate has been unable make adequate preparations or if the examination of the case by that alternate requires that a substantial part of the procedure be re-opened, the president of the division shall order that the hearing be cancelled. …

…

4. The alternate judge shall have the authority to assign the case examined under paragraph 2 to himself or herself. In this case, the IT tool shall assign him or her one case fewer in the same category.

...’

II. Succinct presentation of the facts and procedure in the main proceedings and the questions referred for a preliminary ruling

14. On 27 April 2018, Company S brought a commercial action before the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland). Company S acts as the assignee of a claim against Company C, which operates in the retail sector. The former seeks an order that the latter pay the sum of 4 572 648 Polish zlotys (PLN) (approximately EUR 1 045 000), corresponding to cash premiums on the turnover achieved in a given accounting year (arrears margins), which it received in the context of a framework agreement concluded with the assignor. According to Company S, the receipt of those premiums was contrary to national competition law.

15. The case was assigned to the 16th Commercial Division of that court and, under the software system for the random allocation of cases, it was allocated to Judge E.T., vice-president of that division, sitting as a single judge.

16. However, on 25 March 2019, the day of the hearing, Judge E.T. being absent on account of leave at her request, the President of the 16th Commercial Division appointed Judge J.K., the judge on duty that day, to hold the hearing, and the case was therefore allocated to her.

17. By judgment of 16 September 2019, delivered by the single judge of the Sąd Okręgowy w Warszawie (Regional Court, Warsaw) composed of Judge J.K., the application made by Company S was dismissed.

18. The latter brought an appeal on 27 October 2019 before the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw), which is the referring court.

19. In that appeal, Company S submits that the proceedings before the court of first instance were invalid under Article 379(4) of the Code of Civil Procedure, on the ground that the adjudicating panel of that court was contrary to the law since it breached the principle of the constant composition...