Opinion of Advocate General Collins delivered on 15 December 2022.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:990
• Date: 15 December 2022
• Celex Number: 62021CC0181
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

COLLINS

delivered on 15 December 2022(1)

Joined Cases C‑181/21 and C‑269/21

G.

v

M.S.,

joined parties:

Rzecznik Praw Obywatelskich,

Prokuratura Okręgowa w Katowicach

(Request for a preliminary ruling from the Sąd Okręgowy w Katowicach (Regional Court, Katowice, Poland))

and

BC,

DC

v

X,

joined parties:

Rzecznik Praw Obywatelskich,

Prokuratura Okręgowa w Krakowie

(Request for a preliminary ruling from the Sąd Okręgowy w Krakowie (Regional Court, Kraków, Poland))

(References for a preliminary ruling – Rule of law – Second subparagraph of Article 19(1) TEU – Article 47 of the Charter of Fundamental Rights of the European Union – Appointment of judges to the ordinary courts – Role of judicial self-governing bodies in the appointment of judges – Lack of independence of the Krajowa Rada Sądownictwa (National Council of the Judiciary) – Jurisdiction of the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Extraordinary Review and Public Affairs Chamber of the Sąd Najwyższy (Supreme Court, Poland) – Whether that chamber satisfies the criteria of an independent and impartial tribunal previously established by law)

Table of contents

I. Introduction

II. Legal framework – Polish law

A. The Constitution

B. The Law on the KRS

C. The amended Law on the Supreme Court

D. The Law on the organisation of the ordinary courts

E. The Code of Civil Procedure

III. The facts of the main proceedings and the questions referred for a preliminary ruling

A. Case C181/21

B. Case C269/21

IV. Procedure before the Court

V. Admissibility

A. Observations submitted

B. Analysis

VI. Substance

A. Preliminary observations

B. First question

1. Second factor

2. First factor

3. Third factor

VII. Conclusion

I. Introduction

1. The present requests for a preliminary ruling ask the Court of Justice to rule upon the compatibility with EU law of certain aspects of the recent reform of the Polish judicial system in the novel context of the procedures for the appointment of judges to the ordinary courts in Poland. They seek to ascertain whether a court formation complies with the requirement of prior establishment by law pursuant to 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’), where certain of its members were appointed under a procedure that dispensed with the participation of judicial self-governing bodies on the basis of a resolution of the Krajowa Rada Sądownictwa (National Council of the Judiciary; ‘the KRS’) in its post-2018 composition (2) and where unsuccessful candidates no longer enjoyed a right of appeal to a court that fulfils the requirement of prior establishment by law. The referring courts ask whether EU law precludes the conferral of exclusive jurisdiction on the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Extraordinary Review and Public Affairs Chamber) of the Sąd Najwyższy (Supreme Court, Poland) (‘the Extraordinary Chamber’) to review the legality of judicial appointments to the ordinary courts since that chamber is composed exclusively of judges appointed following a procedure similar to that used to appoint judges to the ordinary courts. According to the referring courts, the Extraordinary Chamber cannot, in any event, examine any objection as to the legality of the appointment of a judge or the authority of that judge to exercise judicial functions. Given the absence of remedies in Polish law to cure the irregular appointment of judges, the referring courts also inquire as to whether they must, in order to ensure the effectiveness of EU law, apply of their own motion national rules on the automatic recusal of judges (iudex inhabilis) by analogy, thereby excluding judges appointed to the ordinary courts under an unlawful procedure from hearing cases.

II. Legal framework – Polish law

A. The Constitution

2. Article 179 of the Constitution of the Republic of Poland provides that the President of the Republic shall, on a proposal of the KRS, appoint judges for an indefinite period. By Article 180(1) thereof, judges are irremovable. Under Article 186(1) of the Constitution of the Republic of Poland, the KRS is the guardian of the independence of the courts and of the judges.

B. The Law on the KRS

3. Article 44(1) of the Law on the KRS provides that ‘a participant in the [appointment procedure to the ordinary courts] may appeal to the [Sąd Najwyższy (Supreme Court)] on the grounds that the [KRS] resolution is unlawful, unless separate provisions provide differently. …’

C. The amended Law on the Supreme Court

4. The ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 (3) established the ‘Izba Dyscyplinarna’ (‘the Disciplinary Chamber’) and the Extraordinary Chamber as chambers within the Sąd Najwyższy (Supreme Court). So far as is relevant to these proceedings, 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; ‘the Amending Law’) (4) inserted paragraphs 2 and 3 into Article 26 of the Law on the Supreme Court with effect from 14 February 2020.

5. Article 26(1) to (3) of the amended Law on the Supreme Court provides as follows:

‘1. The areas of jurisdiction of the [Extraordinary Chamber] include extraordinary complaints, electoral disputes and challenges concerning the validity of national or constitutional referendums, and determination of the validity of elections and referendums, as well as other cases in the field of public law, including disputes relating to the protection of competition, energy regulation, telecommunications and rail transport, and appeals against decisions of the [Przewodniczy Krajowej Rady Radiofonii i Telewizji (President of the National Television and Radio Broadcasting Council, Poland)] as well as complaints concerning the excessive duration of proceedings before ordinary and military courts and the [Sąd Najwyższy (Supreme Court)].

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 that involve 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.’

D. The Law on the organisation of the ordinary courts

6. The Amending Law repealed paragraph 2 of Article 58 of the ustawa – Prawo o ustroju sądów powszechnych (‘the Law on the organisation of the ordinary courts’) of 27 July 2001. (5) It moreover amended paragraph 1 of Article 58 thereof to read as follows:

‘1. If more than one application is made for a judicial vacancy, all the applications shall be examined at the same meeting of the assembly.

…’

7. Before the Amending Law entered into force on 14 February 2020, Article 58 of the Law on the organisation of the ordinary courts provided that:

‘1. If more than one application is made for a judicial vacancy, all the applications shall be examined at the same meeting of the assembly.

2. The general assembly of appeal judges or the general assembly of [sądy okręgowe (regional judges)] shall decide on the candidates by means of a vote and shall transmit all the applications made, indicating the number of votes obtained, to the President of the [sąd apelacyjny (Court of Appeal)] or of the [sąd okręgowy (regional court)], as appropriate.

…

4. The president of the competent court shall submit to [the KRS], by means of the electronic system, the applications assessed in the manner provided for in paragraph 2, together with the assessment of qualifications and the opinion of the panel of the competent court, as well as the information obtained from the head of police of the province or the head of the Warsaw Metropolitan Police, as referred to in paragraph 3, and other documents relating to the procedure in question concerning appointment to the exercise of a judicial function, collected in the electronic system.

…’

E. The Code of Civil Procedure

8. By Article 48 of the ustawa – Kodeks postępowania cywilnego (Law establishing the Code of Civil Procedure) of 17 November 1964 (‘the Code of Civil Procedure’): (6)

‘1. A judge shall be excluded by operation of law:

1) from cases to which he or she is a party or in which he or she has such a legal relationship with one of the parties that the outcome of the case affects his or her rights or obligations;

…

5) from cases in which he or she took part, in a lower instance court, in the issue of the ruling under appeal, as well as from cases concerning the validity of a legal act drafted with his or her participation or reviewed by him or her, and from cases in which he or she acted as a prosecutor.

…’

9. Article 367(3) of the Code of Civil Procedure states that ‘courts of second instance shall examine cases with a panel of three judges. In camera, the court shall rule in a single-judge formation, except when it delivers a judgment’. In accordance with point 4 of Article 379 thereof, proceedings shall be invalid ‘if the composition of the court of trial does not comply with statutory provisions or if the case was heard in the presence of a judge subject to exclusion by operation of law’.

10. Point 1 of Article 401 of the Code of Civil Procedure provides that it is...