# C_2022138EN.01001302.xml

| 28.3.2022 | EN | Official Journal of the European Union | C 138/13 |
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28.3.2022

EN

Official Journal of the European Union

C 138/13

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Request for a preliminary ruling from the Sofiyski rayonen sad (Bulgaria) lodged on 15 December 2021 — Y.YA. v K.P.

(Case C-797/21)

(2022/C 138/13)

Language of the case: Bulgarian

Referring court

Sofiyski rayonen sad

Parties to the main proceedings

Applicant: Y.YA.

Defendant: K.P.

Questions referred

| 1. | Must the second subparagraph of Article 19(1) TEU be interpreted as meaning that, due to the fact that the independence of the courts has been undermined, citizens are not guaranteed the legal remedies necessary for effective judicial protection where, in a Member State of the European Union, it is permissible for judges to be seconded to a higher court for an indefinite period, with their consent, by decision of a governing body of the judiciary which is independent of the other public authorities, if conditions are laid down for a decision to terminate the secondment and provision is made for a legal remedy against that decision, but that remedy does not have suspensive effect while the proceedings are pending, and on the basis of what criteria should it be specifically assessed whether secondment for an indefinite period is permissible? |
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1.

Must the second subparagraph of Article 19(1) TEU be interpreted as meaning that, due to the fact that the independence of the courts has been undermined, citizens are not guaranteed the legal remedies necessary for effective judicial protection where, in a Member State of the European Union, it is permissible for judges to be seconded to a higher court for an indefinite period, with their consent, by decision of a governing body of the judiciary which is independent of the other public authorities, if conditions are laid down for a decision to terminate the secondment and provision is made for a legal remedy against that decision, but that remedy does not have suspensive effect while the proceedings are pending, and on the basis of what criteria should it be specifically assessed whether secondment for an indefinite period is permissible?

| 2. | Would the answer to the first question be different if the objective conditions for the decision to order the termination of a secondment are laid down by law and are subject to judicial review, but no such conditions subject to judicial review are laid down in respect of the selection of judges to be seconded? |
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2.

Would the answer to the first question be different if the objective conditions for the decision to order the termination of a secondment are laid down by law and are subject to judicial review, but no such conditions subject to judicial review are laid down in respect of the selection of judges to be seconded?

| 3. | If the answer to the first question is that the secondment of judges is permissible under such conditions if objective rules are complied with, must account be taken, when assessing the extent to which the national provisions run counter to the requirement to provide sufficient remedies under the second subparagraph of Article 19(1) TEU, of not only the criteria laid down by law but also the manner in which they are applied by the competent administrative and judicial authorities? |
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3.

If the answer to the first question is that the secondment of judges is permissible under such conditions if objective rules are complied with, must account be taken, when assessing the extent to which the national provisions run counter to the requirement to provide sufficient remedies under the second subparagraph of Article 19(1) TEU, of not only the criteria laid down by law but also the manner in which they are applied by the competent administrative and judicial authorities?

| 4. | Must Commission Decision 2006/929/EC be interpreted as meaning that the answers to the previous three questions would be different if a national practice of secondment which is based on rules similar to those currently in force has been established, and this has given rise to objections under the mechanism for cooperation and verification established by that decision? |
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4.

Must Commission Decision 2006/929/EC be interpreted as meaning that the answers to the previous three questions would be different if a national practice of secondment which is based on rules similar to those currently in force has been established, and this has given rise to objections under the mechanism for cooperation and verification established by that decision?

| 5. | If it has been established that the national provisions on the secondment of judges may run counter to the obligation to provide remedies that are necessary to guarantee effective judicial protection under the second subparagraph of Article 19(1) TEU, must that article be interpreted as precluding a higher court, the adjudicating panel of which was also composed of a seconded judge, from giving binding directions to a national court, and under what conditions is that the case? In particular, are directions which do not concern the merits of the dispute but prescribe that certain procedural acts are to be performed vitiated by a procedural defect? |
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5.

If it has been established that the national provisions on the secondment of judges may run counter to the obligation to provide remedies that are necessary to guarantee effective judicial protection under the second subparagraph of Article 19(1) TEU, must that article be interpreted as precluding a higher court, the adjudicating panel of which was also composed of a seconded judge, from giving binding directions to a national court, and under what conditions is that the case? In particular, are directions which do not concern the merits of the dispute but prescribe that certain procedural acts are to be performed vitiated by a procedural defect?

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