Opinion of Advocate General Collins delivered on 15 December 2022.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:991
• Date: 15 December 2022
• Celex Number: 62021CC0204
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

COLLINS

delivered on 15 December 2022 (1)

Case C‑204/21

European Commission

v

Republic of Poland

(Article 258 TFEU – Failure of a Member State to fulfil obligations – Disciplinary regime applicable to judges – Rule of law – Independence of judges – Effective legal protection in the fields covered by EU law – Second subparagraph of Article 19(1) TEU – Article 47 of the Charter of Fundamental Rights of the European Union – Article 267 TFEU – Review of compliance with EU requirement of being an independent and impartial tribunal – Exclusive jurisdiction of the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Extraordinary Review and Public Affairs Chamber) of the Sąd Najwyższy (Supreme Court, Poland) – Independence of the Izba Dyscyplinarna (Disciplinary Chamber) of the Sąd Najwyższy (Supreme Court) – Right to respect for private life – Right to the protection of personal data – Regulation (EU) 2016/679)

Table of contents

I. Scope of the action

II. Legal context – Polish law

A. The amended Law on the Supreme Court

B. The amended Law on the organisation of the ordinary courts

C. The amended Law on the organisation of the administrative courts

D. The Amending Law – Transitional provisions

III. The pre-litigation procedure

IV. The procedure before the Court

V. Legal context

VI. Legal analysis

A. Second complaint – The exclusive jurisdiction of the Extraordinary Chamber to examine complaints and questions of law concerning the lack of independence of a court or a judge

1. Arguments of the parties

2. Assessment

(a) Admissibility

(b) Substance

B. First complaint – The prohibition on national courts reviewing compliance with the EU law requirement of an effective remedy before an independent and impartial tribunal previously established by law

1. Arguments of the parties

2. Assessment

(a) Admissibility

(b) Substance

(1) Preliminary remarks – The scope of the Commission’s first and second complaints

(2) The right to an effective remedy before an independent and impartial tribunal previously established by law

C. Third complaint – Making examination of compliance with the EU requirements relating to an independent and impartial tribunal previously established by law a disciplinary offence

1. Arguments of the parties

2. Assessment

(a) Preliminary observations on the scope of the Commission’s second and third complaints

(b) Disciplinary proceedings

D. Fourth complaint – The jurisdiction of the Disciplinary Chamber to hear and determine cases having a direct impact on the status of judges and trainee judges and the performance of their office

1. Arguments of the parties

2. Assessment

E. Fifth complaint – Infringement of the fundamental right of judges to respect for their private life and the right to protection of personal data

1. Arguments of the parties

2. Assessment

VII. Costs

VIII. Conclusion

I. Scope of the action

1. This action under Article 258 TFEU arises out of the enactment on 20 December 2019 of the ustawa o zmianie ustawy – Prawo o ustroju sądów powszechnych, ustawy o Sądzie Najwyższym oraz niektórych innych ustaw (Law amending the Law on the organisation of the ordinary courts, the Law on the Supreme Court and certain other laws) (2) (‘the Amending Law’) by the Republic of Poland. In substance, the European Commission contends that certain provisions of the Amending Law infringe 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’), Article 267 TFEU, the principle of primacy of EU law and the right to respect for private life and the right to protection of personal data, guaranteed by Article 7 and Article 8(1) of the Charter and by Article 6(1)(c) and (e), Article 6(3) and Article 9(1) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (3) (‘the GDPR’).

2. The Commission’s action consists of five complaints.

3. The first three complaints, which are connected, allege that the Amending Law limits or excludes the possibility for a national court to ensure that individuals claiming rights under EU law have access to an independent and impartial tribunal previously established by law, thereby infringing the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter and Article 267 TFEU. The first two complaints also claim that the Amending Law infringes the principle of primacy. In cases that relate to the application or the interpretation of EU law, Member States are required to ensure respect for the fundamental right to an effective remedy before an independent and impartial tribunal previously established by law. Where it is alleged that that right has been infringed, individuals must, in principle, be able to bring that complaint before a national court. It follows that, in cases engaging individual rights at EU law, any national court must be able to ascertain an infringement of the right of individuals to have their case heard by an independent and impartial tribunal previously established by law. Any limitation or exclusion of the possibility for a national court to satisfy itself that individuals relying on rights which they derive from EU law have access to an independent and impartial tribunal previously established by law constitutes a breach of the obligations created by the aforementioned provisions. (4)

4. The fourth complaint relates to the jurisdiction the Amending Law conferred on the Izba Dyscyplinarna (Disciplinary Chamber of the Supreme Court, Poland; ‘the Disciplinary Chamber’) of the Sąd Najwyższy (Supreme Court, Poland; ‘the Supreme Court’) (‘the Disciplinary Chamber’) over matters relating to the status of judges. The Commission claims that since the Disciplinary Chamber does not meet the requisite standards of judicial independence and impartiality, the law in question affects the independence of judges whose status is subject to review by the Disciplinary Chamber and thereby infringes the second subparagraph of Article 19(1) TEU.

5. The fifth complaint concerns the obligation the Amending Law imposes on judges to provide information on their public and social activities in associations and non-profit foundations, including membership of a political party, prior to their appointment, and the publication of that information. The Commission considers that those obligations are disproportionate and infringe the right to respect for private life and the right to protection of personal data, guaranteed by Article 7 and Article 8(1) of the Charter and by Article 6(1)(c) and (e), Article 6(3) and Article 9(1) of the GDPR.

II. Legal context – Polish law

A. The amended Law on the Supreme Court

6. The ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 (5) established two new chambers within the Supreme Court: the Disciplinary Chamber and the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (the Extraordinary Review and Public Affairs Chamber; ‘the Extraordinary Chamber’).

7. So far as is relevant to these proceedings, the Amending Law amended the Law on the Supreme Court by inserting paragraphs 2 to 6 into Article 26, point 1a into Article 27(1), paragraph 3 into Article 45, paragraphs 2 to 5 into Article 82 and changing Article 29 and Article 72(1).

8. Article 26(2) to (6) of the amended Law on the Supreme Court provides:

‘2. The [Extraordinary Chamber] shall have jurisdiction to hear applications or declarations concerning the exclusion of a judge or the designation of the court before which proceedings must be conducted, including complaints alleging a lack of independence of the court or the judge. The court dealing with the case shall submit forthwith a request to the President of the [Extraordinary Chamber] so that the case may be dealt with in accordance with the rules laid down in separate provisions. The submission of a request to the President of the [Extraordinary Chamber] shall not stay the ongoing proceedings.

3. The request referred to in paragraph 2 shall not be examined if it concerns the establishment or the assessment of the legality of the appointment of a judge or of his or her authority to carry out judicial functions.

4. The [Extraordinary Chamber] shall have jurisdiction to hear actions for a declaration that final judgments of the [Supreme Court], the ordinary courts, the military courts and the administrative courts, including the [Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland)], are unlawful, if the unlawfulness consists in the calling into question of the status of the person appointed to a judicial post who adjudicated in the case.

5. The provisions relating to a finding that a final judgment is unlawful shall apply mutatis mutandis to the proceedings in the cases referred to in paragraph 4 and the provisions relating to the re-opening of judicial proceedings closed by a final judgment shall apply to criminal cases. It shall not be necessary to establish the probability or occurrence of harm caused by the delivery of the judgment forming the subject matter of the action.

6. An action for a declaration that a final judgment is unlawful, referred to in paragraph 4, may be brought before the [Extraordinary Chamber] without being brought before the court that delivered the contested judgment, even where a party has not exhausted the available remedies, including an extraordinary action before the [Supreme Court].’

9. Article 27(1) of the amended Law on the Supreme Court provides:

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

…

(1a) cases relating to authorisation to initiate criminal proceedings against judges, trainee judges, prosecutors and...