# C_2022024EN.01001301.xml

| 17.1.2022 | EN | Official Journal of the European Union | C 24/13 |
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17.1.2022

EN

Official Journal of the European Union

C 24/13

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Request for a preliminary ruling from the Sąd Rejonowy Poznań-Stare Miasto w Poznaniu (Poland) lodged on 23 August 2021 — MJ v AA

(Case C-521/21)

(2022/C 24/18)

Language of the case: Polish

Referring court

Sąd Rejonowy Poznań-Stare Miasto w Poznaniu

Parties to the main proceedings

Applicant: MJ

Defendant: AA

Other party: Rzecznik Praw Obywatelskich

Questions referred

| 1. | Must Articles 2 and 19(1) of the Treaty on European Union (‘the TEU’) and Article 6(1) to (3) TEU, read in conjunction with Article 47 of the Charter of Fundamental Rights (‘the Charter’), be interpreted as meaning that a court is not a tribunal established by law in the case where it includes in its composition a person appointed to a judicial post in that court as a result of a procedure in which:






  (a) | the person to be appointed to the post by the Prezydent Rzeczypospolitej Polskiej (President of the Republic of Poland) was selected by the current Krajowa Rada Sądownictwa (National Council of the Judiciary), which was elected contrary to Polish constitutional and statutory provisions, is not an independent body and no representatives of the judiciary were elected to it independently of the executive and the legislature and, therefore, no motion for appointment to a judicial post as provided for under national law was effectively lodged; |
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1.

Must Articles 2 and 19(1) of the Treaty on European Union (‘the TEU’) and Article 6(1) to (3) TEU, read in conjunction with Article 47 of the Charter of Fundamental Rights (‘the Charter’), be interpreted as meaning that a court is not a tribunal established by law in the case where it includes in its composition a person appointed to a judicial post in that court as a result of a procedure in which:

(a)

the person to be appointed to the post by the Prezydent Rzeczypospolitej Polskiej (President of the Republic of Poland) was selected by the current Krajowa Rada Sądownictwa (National Council of the Judiciary), which was elected contrary to Polish constitutional and statutory provisions, is not an independent body and no representatives of the judiciary were elected to it independently of the executive and the legislature and, therefore, no motion for appointment to a judicial post as provided for under national law was effectively lodged;

| (b) | the participants in the competition for appointment to the post had no right of appeal to a court within the meaning of Articles 2 and 19(1) TEU and Article 6(1) to (3) TEU, read in conjunction with Article 47 of the Charter? |
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(b)

the participants in the competition for appointment to the post had no right of appeal to a court within the meaning of Articles 2 and 19(1) TEU and Article 6(1) to (3) TEU, read in conjunction with Article 47 of the Charter?

| 2. | Must Article 2 and Article 19(1) TEU, read in conjunction with Article 47 of the Charter, be interpreted as meaning that, where a court includes in its composition a person appointed in the circumstances described in Question 1 above:






  (a) | those provisions preclude the application of provisions of national law which place the review of the lawfulness of the appointment of such a person to a judicial post within the exclusive jurisdiction of a chamber of the Sąd Najwyższy (Supreme Court, Poland) composed exclusively of persons appointed to judicial posts in the circumstances described in Question 1 above and which provisions of national law also require that any objections concerning the appointment to a judicial post be disregarded, taking into account the institutional and systemic context; |
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2.

Must Article 2 and Article 19(1) TEU, read in conjunction with Article 47 of the Charter, be interpreted as meaning that, where a court includes in its composition a person appointed in the circumstances described in Question 1 above:

(a)

those provisions preclude the application of provisions of national law which place the review of the lawfulness of the appointment of such a person to a judicial post within the exclusive jurisdiction of a chamber of the Sąd Najwyższy (Supreme Court, Poland) composed exclusively of persons appointed to judicial posts in the circumstances described in Question 1 above and which provisions of national law also require that any objections concerning the appointment to a judicial post be disregarded, taking into account the institutional and systemic context;

| (b) | those provisions require, in order to ensure the effectiveness of EU law, provisions of national law to be interpreted in a manner that allows a court to exclude, of its own motion, such a person from hearing the case on the basis of the rules, applicable by analogy, which govern the exclusion of a judge who is incapable of deciding cases (iudex inhabilis); |
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(b)

those provisions require, in order to ensure the effectiveness of EU law, provisions of national law to be interpreted in a manner that allows a court to exclude, of its own motion, such a person from hearing the case on the basis of the rules, applicable by analogy, which govern the exclusion of a judge who is incapable of deciding cases (iudex inhabilis);

| (c) | those provisions require the national court, in order to apply EU law and achieve the effet utile, to disregard a judgment of the national constitutional court in so far as that judgment declares it incompatible with national law to hear a motion for the exclusion of a judge on the ground that the appointment of that judge was defective and did not comply with EU requirements of an independent and impartial tribunal previously established by law within the meaning of Article 19(1) TEU, read in conjunction with Article 47 of the Charter; |
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(c)

those provisions require the national court, in order to apply EU law and achieve the effet utile, to disregard a judgment of the national constitutional court in so far as that judgment declares it incompatible with national law to hear a motion for the exclusion of a judge on the ground that the appointment of that judge was defective and did not comply with EU requirements of an independent and impartial tribunal previously established by law within the meaning of Article 19(1) TEU, read in conjunction with Article 47 of the Charter;

| (d) | those provisions require the national court, in order to apply EU law and achieve the effet utile, to disregard a judgment of the national constitutional court if it prevents the implementation of an order of the Court of Justice of the European Union granting interim measures, which orders the suspension of the application of national legislation that prevents national courts from examining whether there is compliance with EU requirements concerning an independent and impartial tribunal previously established by law within the meaning of Article 19(1) TEU, read in conjunction with Article 47 of the Charter? |
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(d)

those provisions require the national court, in order to apply EU law and achieve the effet utile, to disregard a judgment of the national constitutional court if it prevents the implementation of an order of the Court of Justice of the European Union granting interim measures, which orders the suspension of the application of national legislation that prevents national courts from examining whether there is compliance with EU requirements concerning an independent and impartial tribunal previously established by law within the meaning of Article 19(1) TEU, read in conjunction with Article 47 of the Charter?

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