Opinion of Advocate General Tanchev delivered on 6 May 2021.

• Jurisdiction: European Union
• Celex Number: 62019CC0791
• ECLI: ECLI:EU:C:2021:366
• Date: 06 May 2021
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 6 May 2021(1)

Case C‑791/19

European Commission

v

Republic of Poland

(Failure of a Member State to fulfil obligations – National measures establishing a disciplinary regime for judges – Second subparagraph of Article 19(1) TEU – Rule of law – Judicial independence – Definition of disciplinary offences – Examination by an independent and impartial tribunal established by law – Reasonable time – Rights of the defence – Articles 47 and 48 of the Charter of Fundamental Rights of the European Union – Article 267 TFEU – Impediment to the right of national courts to make a reference for a preliminary ruling)

I. Introduction

1. In the present case, the European Commission has brought proceedings against the Republic of Poland under Article 258 TFEU for failing to fulfil its obligations under the second subparagraph of Article 19(1) TEU and the second and third paragraphs of Article 267 TFEU on account of national measures establishing the new disciplinary regime for the judges of the Sąd Najwyższy (Supreme Court, Poland; ‘the Supreme Court’) and the ordinary courts instituted by legislation adopted in 2017. (2)

2. Specifically, the Commission contends, in substance, that the Republic of Poland has infringed the second subparagraph of Article 19(1) TEU on four grounds regarding: first, the treatment of the content of judicial decisions as a disciplinary offence; second, the lack of independence and impartiality of the Izba Dyscyplinarna Sądu Nawyższego (Disciplinary Chamber of the Supreme Court, Poland; ‘the Disciplinary Chamber’); third, the discretionary power of the President of that chamber to designate the competent court, which prevents disciplinary cases from being decided by a court established by law; and, fourth, the failure to guarantee the examination of disciplinary cases within a reasonable time and the rights of the defence of accused judges, thus taking into account the rights enshrined in Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

3. The Commission also claims that the Republic of Poland has infringed the second and third paragraphs of Article 267 TFEU because the right of national courts to make a reference for a preliminary ruling is limited by the possible initiation of disciplinary proceedings against judges who exercise that right.

4. The present case is situated in the context of the growing number of cases which have been brought before the Court relating to the legislative changes affecting judicial independence in Poland, (3) including the independence of the Disciplinary Chamber, which gave rise to the judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), (4) along with other aspects bearing on the new disciplinary regime for judges, as highlighted in the judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny. (5) As is well known, such changes have attracted widespread international criticism, (6) and triggered the Commission’s reasoned opinion, issued under Article 7(1) TEU, on the rule of law in Poland. (7)

5. Indeed, this case is the third action lodged by the Commission against the Republic of Poland under Article 258 TFEU for alleged infringement of the second subparagraph of Article 19(1) TEU due to those changes. (8) By its first two judgments of 24 June 2019, Commission v Poland (Independence of the Supreme Court) (9) and of 5 November 2019, Commission v Poland (Independence of the ordinary courts), (10) the Court essentially held, in line with my Opinions in those cases, that measures lowering the retirement age of judges of the Supreme Court and the ordinary courts and granting the President of the Republic of Poland (‘the President of the Republic’) and the Minister for Justice discretionary power to extend the active mandate of those judges are incompatible with the Republic of Poland’s obligations under the second subparagraph of Article 19(1) TEU, as they are contrary to the principles of judicial independence and the irremovability of judges guaranteed by that provision.

6. Undoubtedly, this case is of fundamental importance to the Union legal order. Broadly speaking, a disciplinary regime for judges embodies a set of rules that permits judges to be held accountable for serious forms of misconduct and thus contributes to enhancing public confidence in the courts. (11) Yet, there should be sufficient safeguards in place so as not to undermine judicial independence by the threat or imposition of sanctions that may be taken against them. Such a regime, therefore, is linked to the rule of law and, in turn, the functioning and the future of the Union judicial system predicated on the Court of Justice and the national courts.

7. Consequently, this case provides the Court with the opportunity to develop its case-law on the compatibility of measures taken by a Member State concerning the organisation of its justice system, and in particular the disciplinary regime for judges, with the requirements of the second subparagraph of Article 19(1) TEU for ensuring effective judicial protection and respect for the rule of law in the Union legal order. This case also raises some important questions concerning the relationship between the second subparagraph of Article 19(1) TEU and Articles 47 and 48 of the Charter in this context.

8. In this Opinion, I shall set out the reasons why I consider that this action for failure to fulfil obligations should be upheld.

II. Legal framework

A. Union law

9. The second subparagraph of Article 19(1) TEU provides:

‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.’

10. The second and third paragraphs of Article 267 TFEU state:

‘Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.’

B. Polish law

1. The Law on the Supreme Court

11. The changes to Polish law concerning the new disciplinary regime for the judges of the Supreme Court and the ordinary courts at issue in the present case were introduced by the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 (Dz. U. of 2018, item 5, as amended; ‘the Law on the Supreme Court’), which entered into force on 3 April 2018.

12. According to Article 3(4) and (5) of the Law on the Supreme Court, that law respectively established two new chambers within the Supreme Court called the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Chamber of Extraordinary Control and Public Affairs of the Supreme Court, Poland; ‘the Extraordinary Control and Public Affairs Chamber’) and the Disciplinary Chamber.

13. Article 27 of the Law on the Supreme Court states:

‘1. The following cases shall fall within the jurisdiction of the Disciplinary Chamber:

(1) disciplinary proceedings;

(a) involving Supreme Court judges;

(b) examined by the Supreme Court in connection with disciplinary proceedings under the following laws:

…

– the Law of 27 July 2001 on the system of the ordinary courts;

…’

14. Article 73 of the Law on the Supreme Court provides:

‘1. Disciplinary courts in disciplinary cases concerning judges of the Supreme Court shall include:

(1) at first instance – the Supreme Court composed of two judges of the Disciplinary Chamber and one lay judge of the Supreme Court;

(2) at second instance – the Supreme Court composed of three judges of the Disciplinary Chamber and two lay judges of the Supreme Court.’

15. Article 97 of the Law on the Supreme Court states:

‘1. If the Supreme Court detects an obvious violation of the law when examining a case, regardless of its other prerogatives, it shall issue a finding of error to the relevant court. Before issuing a finding of error, it must inform the judge or the judges of the adjudicating panel of the possibility of submitting written explanations within seven days. The detection of an error and the issuance of a finding of error shall not affect the outcome of the case.

…

3. Whenever a finding of error is issued, the Supreme Court may file a request for a disciplinary case to be examined by a disciplinary court. The disciplinary court of first instance shall be the Supreme Court.’

2. The Law on the ordinary courts

16. The disciplinary regime for the judges of the ordinary courts is also regulated by the ustawa – Prawo o ustroju sądów powszechnych (Law on the system of ordinary courts) of 27 July 2001 (Dz. U. of 2001, No 98, item 1070, as amended, in particular, by the Law on the Supreme Court; ‘the Law on the ordinary courts’).

17. Article 107(1) of the Law on the ordinary courts, in the version applicable at the relevant time, (12) states:

‘A judge shall be liable to disciplinary action for professional misconduct, including obvious and gross violations of the law and breach of the dignity of the office (disciplinary offences).’

18. Article 110(3) of the Law on the ordinary courts states:

‘The disciplinary court within whose jurisdiction the judge who is the subject of the disciplinary proceedings holds office shall not hear the cases referred to in paragraph 1(1)(a). The disciplinary court competent to hear the case shall be designated by the President of the Supreme Court directing the work of the Disciplinary Chamber at the request of the disciplinary officer.’

19. Article 112b of the Law on the ordinary courts states:

‘1. The Minister for Justice may appoint a Disciplinary Officer of the Minister for Justice to conduct a specific case concerning a judge. The...