# C_2020054EN.01002501.xml

| 17.2.2020 | EN | Official Journal of the European Union | C 54/25 |
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17.2.2020

EN

Official Journal of the European Union

C 54/25

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Request for a preliminary ruling from the Sąd Apelacyjny w Krakowie (Poland) lodged on 18 October 2019 — D.S. v S.P., A.P., D.K., Sz. w K.

(Case C-763/19)

(2020/C 54/26)

Language of the case: Polish

Referring court

Sąd Apelacyjny w Krakowie

Parties to the main proceedings

Applicant: D.S.

Defendants: S.P., A.P., D.K., Sz. w K.

Questions referred

| 1. | Must the second subparagraph of Article 19(1), Article 2, Article 4(3) and Article 6(3) of the Treaty on the European Union, in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and Article 267 of the Treaty on the Functioning of the European Union, be interpreted as meaning that a person who has been appointed to the position of judge in flagrant breach of the laws of a Member State applicable to judicial appointments — which breach included, in particular, the appointment of that person to the position of judge as a result of the designation of a body which does not guarantee independence from the executive and legislative authorities and impartiality, with the systematic exclusion from judicial review of the lawfulness of the nomination procedure, and also the appointment of that person to the position of judge despite a prior appeal to the competent national court (the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland)) against the resolution of a national body (the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland)), which included a motion for the appointment of that person to the position of judge, notwithstanding the fact that the implementation of that resolution had been stayed in accordance with national law and that proceedings before the competent national court (Supreme Administrative Court) had not been concluded before the delivery of the appointment letter — is not an independent judge within the meaning of EU law,






  — | and consequently is a court whose composition includes persons appointed under the conditions set out above not an independent and impartial tribunal previously established by law within the meaning of EU 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 the European Union, in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and Article 267 of the Treaty on the Functioning of the European Union, be interpreted as meaning that a person who has been appointed to the position of judge in flagrant breach of the laws of a Member State applicable to judicial appointments — which breach included, in particular, the appointment of that person to the position of judge as a result of the designation of a body which does not guarantee independence from the executive and legislative authorities and impartiality, with the systematic exclusion from judicial review of the lawfulness of the nomination procedure, and also the appointment of that person to the position of judge despite a prior appeal to the competent national court (the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland)) against the resolution of a national body (the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland)), which included a motion for the appointment of that person to the position of judge, notwithstanding the fact that the implementation of that resolution had been stayed in accordance with national law and that proceedings before the competent national court (Supreme Administrative Court) had not been concluded before the delivery of the appointment letter — is not an independent judge within the meaning of EU law,

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and consequently is a court whose composition includes persons appointed under the conditions set out above not an independent and impartial tribunal previously established by law within the meaning of EU law?

| 2. | If the first question is answered in the affirmative, must the second subparagraph of Article 19(1), Article 2, Article 4(3) and Article 6(3) of the Treaty on the European Union, in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and Article 267 of the Treaty on the Functioning of the European Union, be interpreted as meaning that a judgment given by a judge and a court of final instance, established in the manner described in paragraph 1, 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 tribunal within the meaning of EU law? |
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2.

If the first question is answered in the affirmative, must the second subparagraph of Article 19(1), Article 2, Article 4(3) and Article 6(3) of the Treaty on the European Union, in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and Article 267 of the Treaty on the Functioning of the European Union, be interpreted as meaning that a judgment given by a judge and a court of final instance, established in the manner described in paragraph 1, 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 tribunal within the meaning of EU law?

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