# C_2022207EN.01000201.xml

| 23.5.2022 | EN | Official Journal of the European Union | C 207/2 |
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23.5.2022

EN

Official Journal of the European Union

C 207/2

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Judgment of the Court (Grand Chamber) of 29 March 2022 (request for a preliminary ruling from the Sąd Najwyższy — Poland) — BN, DM, EN v Getin Noble Bank S.A.

(Case C-132/20) (1)

(Reference for a preliminary ruling - Admissibility - Article 267 TFEU - Concept of ‘court or tribunal’ - Article 19(1) TEU - Article 47 of the Charter of Fundamental Rights of the European Union - Rule of law - Effective judicial protection - Principle of judicial independence - Tribunal previously established by law - Judicial body, a member of which was appointed for the first time to the position of judge by a political body within the executive branch of an undemocratic regime - Way in which the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland) operates - Unconstitutionality of the law on the basis of which that council was composed - Whether that body is to be considered to be an impartial and independent court or tribunal within the meaning of EU law)

(2022/C 207/02)

Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings

Applicants: BN, DM, EN

Defendant: Getin Noble Bank S.A.

Intervening party: Rzecznik Praw Obywatelskich

Operative part of the judgment

| 1. | The second subparagraph of Article 19(1) TEU, Article 47 of the Charter of Fundamental Rights of the European Union and Article 7(1) and (2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that the circumstance that a judge’s initial appointment in a Member State to such a position or subsequent appointment to a higher court resulted from a decision adopted by a body of an undemocratic regime in place in that Member State prior to its accession to the European Union, including where that judge’s appointments to courts after the regime ended were based, inter alia, on the length of service acquired by that judge when that regime was in place or where the judge took a judicial oath only when first appointed to judicial office by a body of that regime, is not capable per se of giving rise to legitimate and serious doubts, in the minds of individuals, as to the independence and impartiality of that judge or, consequently, of calling into question the status as an independent and impartial tribunal previously established by law of a court formation which includes that judge. |
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1.

The second subparagraph of Article 19(1) TEU, Article 47 of the Charter of Fundamental Rights of the European Union and Article 7(1) and (2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that the circumstance that a judge’s initial appointment in a Member State to such a position or subsequent appointment to a higher court resulted from a decision adopted by a body of an undemocratic regime in place in that Member State prior to its accession to the European Union, including where that judge’s appointments to courts after the regime ended were based, inter alia, on the length of service acquired by that judge when that regime was in place or where the judge took a judicial oath only when first appointed to judicial office by a body of that regime, is not capable per se of giving rise to legitimate and serious doubts, in the minds of individuals, as to the independence and impartiality of that judge or, consequently, of calling into question the status as an independent and impartial tribunal previously established by law of a court formation which includes that judge.

| 2. | The second paragraph of Article 19(1) TEU, Article 47 of the Charter of Fundamental Rights and Article 7(1) and (2) of Directive 93/13 must be interpreted as not precluding the formation of a court of a Member State which includes a judge whose initial appointment as a judge or subsequent appointment to a higher court was made either following that judge’s selection as a candidate for a judicial position by a body composed on the basis of legislative provisions subsequently declared unconstitutional by the constitutional court of that Member State or following that judge’s selection as a candidate for a judicial position by a body properly composed but following a procedure that was neither transparent nor public nor open to challenge before the courts, provided that such irregularities are not of such a kind and of such gravity as to create a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the appointment process and thus give rise to serious and legitimate doubts, in the minds of individuals, as to the independence and impartiality of the judge concerned, from being considered to be an independent and impartial tribunal previously established by law. |
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2.

The second paragraph of Article 19(1) TEU, Article 47 of the Charter of Fundamental Rights and Article 7(1) and (2) of Directive 93/13 must be interpreted as not precluding the formation of a court of a Member State which includes a judge whose initial appointment as a judge or subsequent appointment to a higher court was made either following that judge’s selection as a candidate for a judicial position by a body composed on the basis of legislative provisions subsequently declared unconstitutional by the constitutional court of that Member State or following that judge’s selection as a candidate for a judicial position by a body properly composed but following a procedure that was neither transparent nor public nor open to challenge before the courts, provided that such irregularities are not of such a kind and of such gravity as to create a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the appointment process and thus give rise to serious and legitimate doubts, in the minds of individuals, as to the independence and impartiality of the judge concerned, from being considered to be an independent and impartial tribunal previously established by law.

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(1)  OJ C 209, 22.6.2020.

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