Opinion of Advocate General Collins delivered on 15 December 2022.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:986
• Date: 15 December 2022
• Celex Number: 62020CC0615
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

COLLINS

delivered on 15 December 2022 (1)

Joined Cases C‑615/20 and C‑671/20

Prokuratura Okręgowa w Warszawie

v

YP and Others (C‑615/20),

M.M. (C‑671/20)

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

(Reference for a preliminary ruling – Rule of law – Effective judicial protection in the fields covered by EU law – Second subparagraph of Article 19(1) TEU – Article 47 of the Charter of the Fundamental Rights of the European Union – Independence of judges – Authorisation to initiate criminal proceedings against a judge and suspension of that judge’s functions by the Izba Dyscyplinarna (Disciplinary Chamber) of the Sąd Najwyższy (Supreme Court, Poland) – National courts prohibited from examining the legitimacy of courts and tribunals or from assessing the legality of the appointment of judges and judicial powers arising from such an appointment – Primacy of EU law – Duty of sincere cooperation – Principles of legal certainty and the authority of res judicata)

Table of contents

I. Introduction

II. Legal framework – Polish law

A. The Constitution

B. The amended Law on the Supreme Court

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

D. The Law on the KRS

E. The Code of Criminal Procedure

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

A. Case C615/20

B. Case C671/20

IV. Procedure before the Court

V. Assessment

A. Admissibility

B. Substance

1. Preliminary remarks

2. The first, second and third questions in Case C615/20

3. The second question in Case C671/20

4. The fourth question in Case C615/20 and the first, third and fourth questions in Case C671/20

VI. Conclusion

I. Introduction

1. These requests for preliminary rulings again raise issues as to the compatibility with EU law of certain aspects of the recent reform of the Polish judicial system. They concern authorisations granted by the Izba Dyscyplinarna (Disciplinary Chamber) of the Sąd Najwyższy (Supreme Court, Poland) (2) to prosecute and to suspend a judge from office, thereby preventing him or her from ruling on certain criminal cases to which he or she had been assigned. For that purpose, the referring court (3) asks the Court of Justice to interpret Article 2 and the second subparagraph of Article 19(1) TEU, Article 47 of the Charter of Fundamental Rights of the European Union, (4) and the principles of primacy of EU law, sincere cooperation (5) and legal certainty. Should the Court decide that, as a matter of EU law, the Disciplinary Chamber could not lawfully grant those authorisations the referring court seeks to ascertain the consequences that conclusion has for the composition of the court seised of the criminal proceedings.

II. Legal framework – Polish law

A. The Constitution

2. By Article 45(1) of the Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland):

‘Everyone is entitled to a fair and public hearing, without undue delay, by an independent and impartial tribunal with jurisdiction.’

3. Article 144(2) and (3) of the Constitution of the Republic of Poland provides:

‘2. In order to be valid, official acts of the President of the Republic must be countersigned by the President of the Council of Ministers who thereby assumes responsibility before the Sejm [(Lower Chamber of the Polish Parliament)].

3. The provisions of paragraph 2 above shall not apply in the following cases:

…

(17) the appointment of judges;

…’

4. Article 179 of the Constitution of the Republic of Poland is in the following terms:

‘Judges shall be appointed for an indefinite period by the President of the Republic on a proposal [of the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland; “the KRS”)].’

5. According to Article 180(1) of the Constitution of the Republic of Poland, judges are irremovable.

6. Article 181 of the Constitution of the Republic of Poland states:

‘A judge may be held criminally liable or be deprived of liberty only with the prior consent of a court determined by law. A judge may not be detained or arrested, except in the case of apprehension in the commission of an offence if his or her detention is essential to ensure the proper course of proceedings. The president of the court having territorial jurisdiction shall be informed forthwith of the detention and may order the immediate release of the person detained.’

7. Article 187 of the Constitution of the Republic of Poland provides:

‘1. The [KRS] shall be composed as follows:

(1) the First President of the [Sąd Najwyższy (Supreme Court)], the Minister [for] Justice, the President of the [Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland)] and an individual appointed by the President of the Republic,

(2) 15 judges chosen from among the judges of the [Sąd Najwyższy (Supreme Court)], the ordinary courts, the administrative courts and the military courts,

(3) Four members chosen by [the Sejm (Lower House of the Polish Parliament)] from among its Deputies and two members chosen by [the Senat (Upper House of the Polish Parliament)] from among its Senators.

…

3. The term of office of those chosen as members of the [KRS] shall be four years.

4. The organisational structure, the scope of activity and procedures for work of the [KRS], as well as the manner of choosing its members, shall be specified by statute.’

8. Article 190(1) of the Constitution of the Republic of Poland states:

‘The decisions of the [Trybunał Konstytucyjny (Constitutional Court, Poland)] are binding erga omnes and final.’

B. The amended Law on the Supreme Court

9. Article 27(1) of the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 (Dz. U of 2018, item 5) which was amended by the ustawa o zmianie ustawy – Prawo o ustroju sądów powszechnych, ustawy o Sądzie Najwyższym oraz niektórych innych ustaw (Law amending the Law relating to the organisation of the ordinary courts, the Law on the Supreme Court and certain other laws) of 20 December 2019 (Dz. U. of 2020, item 190) (‘the Amending Law’) (‘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 associate prosecutors or to place them in provisional detention.

…’

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

10. Article 41b of the ustawa – Prawo o ustroju sądów powszechnych (Law on the organisation of the ordinary courts) of 27 July 2001 (Dz. U. of 2001, No 98, item 1070) provides:

‘1. The authority competent to examine a complaint or a request concerning the activity of a court shall be the president of the court.

…

3. The authority competent to examine a complaint concerning the activity of the president of a sąd rejonowy (district court), the president of a sąd okręgowy (regional court) or the president of a sąd apelacyjny (court of appeal) shall be, respectively, the president of the sąd okręgowy (regional court), the president of the sąd apelacyjny (court of appeal) and the [KRS].’

11. Article 42a of that law, as amended by the Amending Law (‘the amended Law on the organisation of the ordinary courts’), is as follows:

‘1. In the context of the activities of the courts or the organs of the courts, it shall not be permissible to call into question the legitimacy of the tribunals and courts, the constitutional organs of the State or the organs responsible for reviewing and protecting the law.

2. An ordinary court or other authority cannot establish or assess the legality of the appointment of a judge or of the power to exercise judicial functions that derives from that appointment.’

12. In accordance with Article 47a(1) of that law, cases are to be assigned to judges and trainee judges at random. Under Article 47b(1) of that law, a change in the composition of a court may take place only where it is impossible for that court to examine the case in its current composition or if there is a lasting obstacle to the examination of the case by that court in its current composition. In such a case, the provisions of Article 47a are to apply to the reassignment of the case. Article 47b(3) of that law states that the decision to change the composition of a court is to be taken by the President of that court or by a judge authorised by him or her.

13. Article 80 of the amended Law on the organisation of the ordinary courts provides that:

‘1. Judges may be arrested or be the subject of criminal proceedings only with the authorisation of the disciplinary court that has jurisdiction. This provision does not concern arrest in flagrante delicto, if that arrest is essential in order to ensure the proper conduct of the proceedings. Pending the adoption of a decision authorising the initiation of criminal proceedings against a judge, only urgent measures may be carried out.

…

2c. The disciplinary court shall adopt a decision authorising the initiation of criminal proceedings against a judge if the suspicions against him or her are sufficiently substantiated. The decision shall rule on the authorisation to initiate criminal proceedings against the judge and shall state the reasons on which it is based.

2d. The disciplinary court shall examine the application for authorisation to initiate criminal proceedings against a judge within 14 days of receipt thereof.’

14. By Article 107(1) of that law:

‘A judge shall be accountable, at the disciplinary level, for breach of professional obligations (disciplinary faults), including in cases of:

…

(3) acts calling into question the existence of the employment relationship of a judge, the effectiveness of the appointment of a judge or the legitimacy of a constitutional organ of the Republic of Poland;

…’

15. As set out in Article 110(2a) of the amended Law on the organisation of the...