# C_2022284EN.01001502.xml

| 25.7.2022 | EN | Official Journal of the European Union | C 284/15 |
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25.7.2022

EN

Official Journal of the European Union

C 284/15

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Request for a preliminary ruling from the Sąd Apelacyjny w Krakowie (Poland) lodged on 31 March 2022 — ‘R’ S.A. v AW ‘T’ sp. z o.o.

(Case C-225/22)

(2022/C 284/17)

Language of the case: Polish

Referring court

Sąd Apelacyjny w Krakowie

Parties to the main proceedings

Appellant:‘R’ S.A.

Respondent: AW ‘T’ sp. z o.o.

Questions referred

| 1. | Must the second subparagraph of Article 19(1), Article 2, Article 4(3) and Article 6(3) of the Treaty on European Union (TEU), in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Art. 267 of the Treaty on the Functioning of the European Union (TFEU), and the principle of the primacy of EU law be interpreted as permitting a national court to disregard a decision of a constitutional court which is mandatory under national law, including constitutional law, in so far as that decision precludes an examination by the national court as to whether, having regard to the way in which the judges were appointed, the judicial body is an independent and impartial court previously established by law within the meaning of European Union law? |
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1.

Must the second subparagraph of Article 19(1), Article 2, Article 4(3) and Article 6(3) of the Treaty on European Union (TEU), in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Art. 267 of the Treaty on the Functioning of the European Union (TFEU), and the principle of the primacy of EU law be interpreted as permitting a national court to disregard a decision of a constitutional court which is mandatory under national law, including constitutional law, in so far as that decision precludes an examination by the national court as to whether, having regard to the way in which the judges were appointed, the judicial body is an independent and impartial court previously established by law within the meaning of European Union law?

| 2. | Must the second subparagraph of Article 19(1), Article 2, Article 4(3) and Article 6(3) TEU, in conjunction with Article 47 of the Charter and Article 267 TFEU, be interpreted as precluding national rules adopted by a Member State: (a) prohibiting the national court from assessing the lawfulness of the appointment of a judge and consequently examining whether the judicial body is a court within the meaning of European Union law and (b) providing for the disciplinary liability of a judge for judicial actions connected with the examination in question? |
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2.

Must the second subparagraph of Article 19(1), Article 2, Article 4(3) and Article 6(3) TEU, in conjunction with Article 47 of the Charter and Article 267 TFEU, be interpreted as precluding national rules adopted by a Member State: (a) prohibiting the national court from assessing the lawfulness of the appointment of a judge and consequently examining whether the judicial body is a court within the meaning of European Union law and (b) providing for the disciplinary liability of a judge for judicial actions connected with the examination in question?

| 3. | Must the second subparagraph of Article 19(l), Article 2, Article 4(3) and Article 6(3) TEU, in conjunction with Article 47 of the Charter and Art. 267 TFEU, be interpreted as meaning that an ordinary court which satisfies the requirements laid down on a court within the meaning of EU law is not bound by a judgment of a court of final instance — sitting with members who were appointed to the office of judge in flagrant breach of national law governing the nomination process for the office of a judge of the Sąd Najwyższy (Supreme Court), as a result of which that court does not fulfil the requirement of an independent and impartial court previously established by law and of ensuring that individuals are afforded effective legal protection — issued as a result of an extraordinary appeal procedure (extraordinary appeal), setting aside a final judgment and referring the case back to the ordinary court for re-examination? |
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3.

Must the second subparagraph of Article 19(l), Article 2, Article 4(3) and Article 6(3) TEU, in conjunction with Article 47 of the Charter and Art. 267 TFEU, be interpreted as meaning that an ordinary court which satisfies the requirements laid down on a court within the meaning of EU law is not bound by a judgment of a court of final instance — sitting with members who were appointed to the office of judge in flagrant breach of national law governing the nomination process for the office of a judge of the Sąd Najwyższy (Supreme Court), as a result of which that court does not fulfil the requirement of an independent and impartial court previously established by law and of ensuring that individuals are afforded effective legal protection — issued as a result of an extraordinary appeal procedure (extraordinary appeal), setting aside a final judgment and referring the case back to the ordinary court for re-examination?

| 4. | If the answer to the third question is in the affirmative, must the second subparagraph of Article 19(1), Article 2, Article 4(3) and Article 6(3) TEU, in conjunction with Article 47 of the Charter and Article 267 TFEU, be interpreted in such manner that non-binding means that






  — | a judgment given by a court of final instance, established in the manner described in paragraph 3, is not a judgment in a legal sense (is a non-existent judgment) within the meaning of EU law, and the assessment in that regard may be made by an ordinary court which satisfies the requirements laid down on a court within the meaning of EU law, |
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4.

If the answer to the third question is in the affirmative, must the second subparagraph of Article 19(1), Article 2, Article 4(3) and Article 6(3) TEU, in conjunction with Article 47 of the Charter and Article 267 TFEU, be interpreted in such manner that non-binding means that

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a judgment given by a court of final instance, established in the manner described in paragraph 3, is not a judgment in a legal sense (is a non-existent judgment) within the meaning of EU law, and the assessment in that regard may be made by an ordinary court which satisfies the requirements laid down on a court within the meaning of EU law,

| — | or is the judgment given by the court of final instance, established in the manner described in paragraph 3, a judgment that does exist in a legal sense, but the ordinary court retrying the case is entitled and obliged to disapply the application of provisions of national law concerning the consequences of that judgment to the extent necessary to ensure that individuals are afforded effective legal protection? |
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or is the judgment given by the court of final instance, established in the manner described in paragraph 3, a judgment that does exist in a legal sense, but the ordinary court retrying the case is entitled and obliged to disapply the application of provisions of national law concerning the consequences of that judgment to the extent necessary to ensure that individuals are afforded effective legal protection?

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