# C_2021079EN.01002101.xml

| 8.3.2021 | EN | Official Journal of the European Union | C 79/21 |
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8.3.2021

EN

Official Journal of the European Union

C 79/21

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Request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Poland) lodged on 9 December 2020 — Criminal proceedings against M.M.

(Case C-671/20)

(2021/C 79/27)

Language of the case: Polish

Referring court

Sąd Okręgowy w Warszawie

Party to the main proceedings

M.M.

Questions referred

| 1. | Must EU law — in particular Article 2 TEU and the value of the rule of law expressed therein, the second subparagraph of Article 19(1) TEU and the principles of primacy, sincere cooperation and legal certainty — be interpreted as precluding the application of a Member State’s legislation, such as Article 41b(1) and (3) of the Ustawa z dnia 27 lipca 2001 r. — Prawo o ustroju sądów powszechnych (Law of 27 July 2001 on the System of Ordinary Courts, ‘the LSOC’), in such a manner that the president of a court may, independently and without judicial review, decide to change the composition of a court as a result of an authorisation granted by a body such as the Izba Dyscyplinarna [Sądu Najwyższego] (Disciplinary Chamber [of the Supreme Court, Poland]) for the criminal prosecution or detention of a judge included in the original panel (Regional Court Judge I. T.), which involves the mandatory suspension of that judge from his or her duties and entails, in particular, prohibiting that judge from sitting on panels in the cases assigned to him or her, including the cases assigned to him or her before the authorisation was granted? |
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1.

Must EU law — in particular Article 2 TEU and the value of the rule of law expressed therein, the second subparagraph of Article 19(1) TEU and the principles of primacy, sincere cooperation and legal certainty — be interpreted as precluding the application of a Member State’s legislation, such as Article 41b(1) and (3) of the Ustawa z dnia 27 lipca 2001 r. — Prawo o ustroju sądów powszechnych (Law of 27 July 2001 on the System of Ordinary Courts, ‘the LSOC’), in such a manner that the president of a court may, independently and without judicial review, decide to change the composition of a court as a result of an authorisation granted by a body such as the Izba Dyscyplinarna [Sądu Najwyższego] (Disciplinary Chamber [of the Supreme Court, Poland]) for the criminal prosecution or detention of a judge included in the original panel (Regional Court Judge I. T.), which involves the mandatory suspension of that judge from his or her duties and entails, in particular, prohibiting that judge from sitting on panels in the cases assigned to him or her, including the cases assigned to him or her before the authorisation was granted?

| 2. | Must EU law — in particular the provisions cited in question 1 — be interpreted as precluding:






  (a) | legislation of a Member State such as Article 42a(1) and (2) and Article 107(1)(3) of the LSOC, which prohibits a national court from reviewing, in the course of that court’s review of its compliance with the requirements of being a tribunal previously established by law, the binding effect and legal circumstances of the authorisation granted by the Disciplinary Chamber referred to in question 1, which are a direct cause of the change in the composition of the court, while at the same time stipulating that an attempt to conduct such a review will give rise to disciplinary proceedings being instituted against the judge conducting it? |
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2.

Must EU law — in particular the provisions cited in question 1 — be interpreted as precluding:

(a)

legislation of a Member State such as Article 42a(1) and (2) and Article 107(1)(3) of the LSOC, which prohibits a national court from reviewing, in the course of that court’s review of its compliance with the requirements of being a tribunal previously established by law, the binding effect and legal circumstances of the authorisation granted by the Disciplinary Chamber referred to in question 1, which are a direct cause of the change in the composition of the court, while at the same time stipulating that an attempt to conduct such a review will give rise to disciplinary proceedings being instituted against the judge conducting it?

| (b) | the case-law of a national body, such as the Trybunał Konstytucyjny (Constitutional Court[, Poland]), according to which acts by national bodies such as the Prezydent Rzeczypospolitej Polskiej (President of the Republic of Poland) and the Krajowa Rada Sądownictwa (National Council for the Judiciary[, Poland]) related to the appointment of members of a body such as the Disciplinary Chamber are not subject to judicial review, including review from the point of view of EU law irrespective of the seriousness and extent of the infringements, and the appointment of a person to a judicial post is final and conclusive? |
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(b)

the case-law of a national body, such as the Trybunał Konstytucyjny (Constitutional Court[, Poland]), according to which acts by national bodies such as the Prezydent Rzeczypospolitej Polskiej (President of the Republic of Poland) and the Krajowa Rada Sądownictwa (National Council for the Judiciary[, Poland]) related to the appointment of members of a body such as the Disciplinary Chamber are not subject to judicial review, including review from the point of view of EU law irrespective of the seriousness and extent of the infringements, and the appointment of a person to a judicial post is final and conclusive?

| 3. | Must EU law — in particular the provisions cited in question 1 — be interpreted as precluding the authorisation referred to in question 1 from having binding effect, in particular as regards the suspension of a judge from his or her duties, due to the fact that it was granted by a body such as the Disciplinary Chamber, and therefore:






  (a) | all State bodies (including the referring court as well as the bodies which have powers to designate and modify the composition of national courts, in particular a court president) must disregard that authorisation and allow the judge of a national court covered by that authorisation to sit on the adjudicating panel of that court; |
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3.

Must EU law — in particular the provisions cited in question 1 — be interpreted as precluding the authorisation referred to in question 1 from having binding effect, in particular as regards the suspension of a judge from his or her duties, due to the fact that it was granted by a body such as the Disciplinary Chamber, and therefore:

(a)

all State bodies (including the referring court as well as the bodies which have powers to designate and modify the composition of national courts, in particular a court president) must disregard that authorisation and allow the judge of a national court covered by that authorisation to sit on the adjudicating panel of that court;

| (b) | a court whose composition does not include the judge originally appointed to it — solely because he or she is covered by that authorisation — is not a tribunal previously established by law and therefore cannot, as a ‘tribunal’, rule on questions concerning the application or interpretation of EU law? |
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(b)

a court whose composition does not include the judge originally appointed to it — solely because he or she is covered by that authorisation — is not a tribunal previously established by law and therefore cannot, as a ‘tribunal’, rule on questions concerning the application or interpretation of EU law?

| 4. | From the point of view of the answers to the above questions, is it relevant that the Disciplinary Chamber and the Trybunał Konstytucyjny do not guarantee effective judicial protection due to their lack of independence and the established infringements of the rules concerning the appointment of their members? |
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4.

From the point of view of the answers to the above questions, is it relevant that the Disciplinary Chamber and the Trybunał Konstytucyjny do not guarantee effective judicial protection due to their lack of independence and the established infringements of the rules concerning the appointment of their members?

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