# C_2019413EN.01003602.xml

| 9.12.2019 | EN | Official Journal of the European Union | C 413/36 |
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9.12.2019

EN

Official Journal of the European Union

C 413/36

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Action brought on 25 October 2019 — European Commission v Republic of Poland

(Case C-791/19)

(2019/C 413/44)

Language of the case: Polish

Parties

Applicant: European Commission (represented by: K. Banks, H. Krämer, S.L. Kalėda, Agents)

Defendant: Republic of Poland

Form of order sought

| 1. | Declare that:






  — | by allowing the content of judicial decisions to be treated as a disciplinary offence so far as concerns judges of the ordinary courts (Article 107(1) of the Law on the Organisation of the Ordinary Courts and Article 97(1) and (3) of the Law on the Supreme Court), |
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1.

Declare that:

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by allowing the content of judicial decisions to be treated as a disciplinary offence so far as concerns judges of the ordinary courts (Article 107(1) of the Law on the Organisation of the Ordinary Courts and Article 97(1) and (3) of the Law on the Supreme Court),

| — | by failing to guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court, which has jurisdiction for the review of decisions issued in disciplinary proceedings against judges (Article 3, point 5, Article 27 and Article 73(1) of the Law on the Supreme Court, in conjunction with Article 9a of the Law on the National Council for the Judiciary), |
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by failing to guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court, which has jurisdiction for the review of decisions issued in disciplinary proceedings against judges (Article 3, point 5, Article 27 and Article 73(1) of the Law on the Supreme Court, in conjunction with Article 9a of the Law on the National Council for the Judiciary),

| — | by conferring on the President of the Disciplinary Chamber of the Supreme Court the discretionary power to designate the competent disciplinary court of first instance in cases concerning judges of the ordinary courts (Article 110(3) and Article 114(7) of the Law on the Organisation of the Ordinary Courts) and, therefore, by failing to guarantee that disciplinary cases are adjudicated on by a court ‘established by law’, and |
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by conferring on the President of the Disciplinary Chamber of the Supreme Court the discretionary power to designate the competent disciplinary court of first instance in cases concerning judges of the ordinary courts (Article 110(3) and Article 114(7) of the Law on the Organisation of the Ordinary Courts) and, therefore, by failing to guarantee that disciplinary cases are adjudicated on by a court ‘established by law’, and

| — | by conferring on the Minister for Justice the power to appoint a Disciplinary Representative of the Minister for Justice (Article 112b of the Law on the Organisation of the Ordinary Courts) and, therefore, by failing to guarantee that disciplinary cases against judges of the ordinary courts are heard within a reasonable period, and in providing that: acts connected with the designation of counsel for the defence and that counsel’s conduct of the defence do not have a suspensory effect on the course of the disciplinary proceedings (Article 113a of the Law on the Organisation of the Ordinary Courts) and that the disciplinary court is to conduct the proceedings despite the justified absence of the notified accused or his defence counsel (Article 115a(3) of the Law on the Organisation of the Ordinary Courts) and, therefore, by failing to guarantee the rights of the defence of accused judges of the ordinary courts, |
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by conferring on the Minister for Justice the power to appoint a Disciplinary Representative of the Minister for Justice (Article 112b of the Law on the Organisation of the Ordinary Courts) and, therefore, by failing to guarantee that disciplinary cases against judges of the ordinary courts are heard within a reasonable period, and in providing that: acts connected with the designation of counsel for the defence and that counsel’s conduct of the defence do not have a suspensory effect on the course of the disciplinary proceedings (Article 113a of the Law on the Organisation of the Ordinary Courts) and that the disciplinary court is to conduct the proceedings despite the justified absence of the notified accused or his defence counsel (Article 115a(3) of the Law on the Organisation of the Ordinary Courts) and, therefore, by failing to guarantee the rights of the defence of accused judges of the ordinary courts,

the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU; and that

| — | by allowing the right of courts to refer questions for a preliminary ruling to the Court of Justice to be limited by the possibility of the initiation of disciplinary proceedings, |
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by allowing the right of courts to refer questions for a preliminary ruling to the Court of Justice to be limited by the possibility of the initiation of disciplinary proceedings,

the Republic of Poland has failed to fulfil its obligations under the second and third paragraphs of Article 267 TFEU;

| 2. | Order the Republic of Poland to pay the costs of the proceedings. |
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2.

Order the Republic of Poland to pay the costs of the proceedings.

Pleas in law and main arguments

First, as regards the infringement of the second subparagraph of Article 19(1) TEU, the Commission submits that the disputed provisions (i) allow the content of judicial decisions to be treated as a disciplinary offence, (ii) fail to guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court, which has jurisdiction for the review of decisions issued in disciplinary proceedings, (iii) confer on the President of the Disciplinary Chamber of the Supreme Court the discretionary power to designate the competent disciplinary court of first instance in cases concerning judges of the ordinary courts and, therefore, fail to guarantee that disciplinary cases are adjudicated on by a court ‘established by law’, (iv) fail to guarantee that disciplinary cases against judges of the ordinary courts are heard within a reasonable period, and thus fail to guarantee the rights of the defence of accused judges of the ordinary courts.

Secondly, as regards the infringement of the second and third paragraphs of Article 267 TFEU, the Commission submits that the national provisions at issue allow the right of courts to refer questions for a preliminary ruling to the Court of Justice to be limited by the possibility of the initiation of disciplinary proceedings.

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