# C_2021044EN.01002701.xml

| 8.2.2021 | EN | Official Journal of the European Union | C 44/27 |
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8.2.2021

EN

Official Journal of the European Union

C 44/27

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Request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Poland) lodged on 18 November 2020 — Criminal proceedings against YP and Others

(Case C-615/20)

(2021/C 44/33)

Language of the case: Polish

Referring court

Sąd Okręgowy w Warszawie

Parties to the main proceedings

YP and Others

Questions referred

| 1. | Must EU law — in particular Article 47 of the Charter of Fundamental Rights (‘the Charter’) and the right to an effective remedy before a tribunal and the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law expressed therein — be interpreted as precluding the national legislation set out in detail in questions 2 and 3 below, namely, Articles 80 and 129 of the Ustawa z dnia 27 lipca 2001 r. — Prawo o ustroju sądów powszechnych (Law of 27 July 2001 on the system of the ordinary courts, ‘the Law on the system of the ordinary courts’) as well as Article 110(2a) of the Law on the system of the ordinary courts and Article 27(1)(1a) of the Ustawa z dnia 8 grudnia 2017 r. o Sądzie Najwyższym (Law of 8 December 2017 on the Supreme Court, ‘the Law on the Supreme Court’), which provisions allow the Izba Dyscyplinarna Sądu Najwyższego (Disciplinary Chamber of the Supreme Court) to lift a judge’s immunity and suspend a judge from his or her duties, and thus to effectively prevent a judge from ruling on the cases assigned to him or her, particularly since:






  (a) | the Disciplinary Chamber of the Supreme Court is not a ‘tribunal’ within the meaning of Article 47 of the Charter, Article 6 of the European Convention on Human Rights (‘the ECHR’) and Article 45(1) of the Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland) (judgment in Cases C-585/18, C-624/18 and C-625/18, EU:C:2019:982); |
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1.

(a)

the Disciplinary Chamber of the Supreme Court is not a ‘tribunal’ within the meaning of Article 47 of the Charter, Article 6 of the European Convention on Human Rights (‘the ECHR’) and Article 45(1) of the Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland) (judgment in Cases C-585/18, C-624/18 and C-625/18, EU:C:2019:982);

| (b) | members of the Disciplinary Chamber of the Supreme Court have particularly close links to the legislature and the executive (order of 8 April 2020, Commission v Poland, C-791/19 R, EU:C:2020:277); |
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(b)

members of the Disciplinary Chamber of the Supreme Court have particularly close links to the legislature and the executive (order of 8 April 2020, Commission v Poland, C-791/19 R, EU:C:2020:277);

| (c) | the Republic of Poland was obliged to suspend the application of certain provisions of the Law on the Supreme Court concerning the chamber known as the Izba Dyscyplinarna (Disciplinary Chamber) and to refrain from referring cases pending before that Chamber to a panel whose composition does not meet the requirements of independence (order of 8 April 2020, Commission v Poland, C-791/19 R, EU:C:2020:277). |
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(c)

the Republic of Poland was obliged to suspend the application of certain provisions of the Law on the Supreme Court concerning the chamber known as the Izba Dyscyplinarna (Disciplinary Chamber) and to refrain from referring cases pending before that Chamber to a panel whose composition does not meet the requirements of independence (order of 8 April 2020, Commission v Poland, C-791/19 R, EU:C:2020:277).

| 2. | Must EU law — in particular Article 2 TEU and the value of the rule of law expressed therein and the requirements for effective legal protection under the second subparagraph of Article 19(1) TEU — be interpreted as meaning that ‘the rules governing the disciplinary regime of those who have the task of adjudicating’ also cover provisions relating to the criminal prosecution or detention of a judge of a national court, such as Article 181 of the Constitution of the Republic of Poland in conjunction with Articles 80 and 129 of the Law on the system of the ordinary courts, according to which provisions:






  (a) | the criminal prosecution or deprivation of liberty (detention) of a judge of a national court, in principle at the request of a public prosecutor, requires authorisation from the disciplinary court having jurisdiction; |
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2.

(a)

the criminal prosecution or deprivation of liberty (detention) of a judge of a national court, in principle at the request of a public prosecutor, requires authorisation from the disciplinary court having jurisdiction;

| (b) | a disciplinary court, having authorised the criminal prosecution or deprivation of liberty (detention) of a judge of a national court, is allowed (and in some cases is obliged to) suspend this judge from his or her duties; |
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(b)

a disciplinary court, having authorised the criminal prosecution or deprivation of liberty (detention) of a judge of a national court, is allowed (and in some cases is obliged to) suspend this judge from his or her duties;

| (c) | when suspending a judge of a national court from his or her duties, the disciplinary court is at the same time obliged to reduce his or her remuneration, within the limits set by the relevant provisions, for the duration of the suspension? |
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(c)

when suspending a judge of a national court from his or her duties, the disciplinary court is at the same time obliged to reduce his or her remuneration, within the limits set by the relevant provisions, for the duration of the suspension?

| 3. | Must EU law — in particular the provisions referred to in question 2 — be interpreted as precluding legislation of a Member State, such as Article 110(2a) of the Law on the system of the ordinary courts and Article 27(1)(1a) of the Law on the Supreme Court, according to which cases relating to authorisation for the criminal prosecution or deprivation of liberty (detention) of a judge of a national court fall within the exclusive jurisdiction of a body such as the Disciplinary Chamber at both first and second instance, taking in particular into account (individually or jointly) the following facts:






  (a) | the establishment of the Disciplinary Chamber coincided with a change in the rules for selecting members of a body such as the Krajowa Rada Sądownictwa (National Council for the Judiciary, ‘the NCJ’), which is involved in judicial appointments and upon whose proposal all members of the Disciplinary Chamber were appointed; |
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3.

(a)

the establishment of the Disciplinary Chamber coincided with a change in the rules for selecting members of a body such as the Krajowa Rada Sądownictwa (National Council for the Judiciary, ‘the NCJ’), which is involved in judicial appointments and upon whose proposal all members of the Disciplinary Chamber were appointed;

| (b) | the national legislature has made it impossible to transfer to the Disciplinary Chamber current judges of the national court of last instance (the Supreme Court) within which that Chamber operates, such that only new members appointed upon the proposal of the newly selected NCJ may sit in the Disciplinary Chamber; |
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(b)

the national legislature has made it impossible to transfer to the Disciplinary Chamber current judges of the national court of last instance (the Supreme Court) within which that Chamber operates, such that only new members appointed upon the proposal of the newly selected NCJ may sit in the Disciplinary Chamber;

| (c) | the Disciplinary Chamber enjoys a particularly high degree of autonomy within the Supreme Court; |
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(c)

the Disciplinary Chamber enjoys a particularly high degree of autonomy within the Supreme Court;

| (d) | the Supreme Court, in its rulings implementing the judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C-585/18, C-624/18 and C-625/18, EU:C:2019:982), confirmed that the newly selected NCJ is not independent of the legislature and of the executive and that the Disciplinary Chamber is not a ‘tribunal’ within the meaning of Article 47 of the Charter, Article 6 of the ECHR and Article 45(1) of the Constitution of the Republic of Poland; |
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(d)

the Supreme Court, in its rulings implementing the judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C-585/18, C-624/18 and C-625/18, EU:C:2019:982), confirmed that the newly selected NCJ is not independent of the legislature and of the executive and that the Disciplinary Chamber is not a ‘tribunal’ within the meaning of Article 47 of the Charter, Article 6 of the ECHR and Article 45(1) of the Constitution of the Republic of Poland;

| (e) | a request for authorisation for criminal prosecution or deprivation of liberty (detention) of a judge of a national court is, in principle, submitted by a public prosecutor whose superior is an executive body such as the Minister Sprawiedliwości (Minister for Justice), which executive body may issue binding instructions to public prosecutors concerning procedural acts, and at the same time members of the Disciplinary Chamber and of the newly selected NCJ have, as the Supreme Court found in the rulings referred to in point 2(d), particularly close links to the legislature and to the executive, and thus the Disciplinary Chamber cannot be regarded as a third party in relation to the parties to the proceedings; |
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(e)

a request for authorisation for criminal prosecution or deprivation of liberty (detention) of a judge of a national court is, in principle, submitted by a public prosecutor whose superior is an executive body such as the Minister Sprawiedliwości (Minister for Justice), which executive body may issue binding instructions to public prosecutors concerning procedural acts, and at the same time members of the Disciplinary Chamber and of the newly selected NCJ have, as the Supreme Court found in the rulings referred to in point 2(d), particularly close links to the legislature and to the executive, and thus the Disciplinary Chamber cannot be regarded as a third party in relation to the parties to the proceedings;

| (f) | a request for authorisation for criminal prosecution or deprivation of liberty (detention) of a judge of a national court is, in principle, submitted by a public prosecutor whose superior is an executive body such as the Minister Sprawiedliwości (Minister for Justice), which executive body may issue binding instructions to public prosecutors concerning procedural acts, and at the same time members of the Disciplinary Chamber and of the newly selected NCJ have, as the Supreme Court found in the rulings referred to in point 2(d), particularly close links to the legislature and to the executive, and thus the Disciplinary Chamber cannot be regarded as a third party in relation to the parties to the proceedings; |
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(f)

a request for authorisation for criminal prosecution or deprivation of liberty (detention) of a judge of a national court is, in principle, submitted by a public prosecutor whose superior is an executive body such as the Minister Sprawiedliwości (Minister for Justice), which executive body may issue binding instructions to public prosecutors concerning procedural acts, and at the same time members of the Disciplinary Chamber and of the newly selected NCJ have, as the Supreme Court found in the rulings referred to in point 2(d), particularly close links to the legislature and to the executive, and thus the Disciplinary Chamber cannot be regarded as a third party in relation to the parties to the proceedings;

| 4. | Where authorisation is granted for the criminal prosecution or detention of a judge of a national court, which involves suspending that judge from his or her duties and reducing his or her remuneration for the duration of his or her suspension, must EU law — in particular the provisions referred to in question 2 and the principles of primacy, sincere cooperation under Article 4(3) TEU and legal certainty — be interpreted as precluding such authorisation, in particular as regards the suspension of that judge from his or her duties, from having binding effect if it was granted by a body such as the Disciplinary Chamber, and therefore:






  (a) | all State bodies (including the referring court whose composition includes the judge covered by that authorisation as well as the bodies which have powers to designate and modify the composition of national courts) 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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4.

(a)

all State bodies (including the referring court whose composition includes the judge covered by that authorisation as well as the bodies which have powers to designate and modify the composition of national courts) 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) | the court whose composition includes the judge covered by that authorisation is a tribunal previously established by law or an independent and impartial tribunal, and therefore can, as a ‘tribunal’, rule on questions concerning the application or interpretation of EU law? |
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(b)

the court whose composition includes the judge covered by that authorisation is a tribunal previously established by law or an independent and impartial tribunal, and therefore can, as a ‘tribunal’, rule on questions concerning the application or interpretation of EU law?

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