Judgment;Abstract — ECLI:EU:C:2023:562
Date: 2023-07-13
Language of the case: Polish
Court formation: Grand Chamber
Subject matter: Fundamental rights;European Convention on Human Rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-615/20 – 1 
Case C-615/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
18 November 2020 
Referring court: 
Sąd Okręgowy w Warszawie (Regional Court in Warsaw, Poland) 
Date of the decision to refer: 
18 November 2020 
Applicant: 
Prokuratura Okręgowa w Warszawie (Regional Public Prosecutor’s 
Office in Warsaw) 
Defendants: 
YP and Others 
  
Subject matter of the case in the main proceedings 
Criminal proceedings against YP and other defendants charged under 
Article 286(1) of the Kodeks Karny (the Polish Criminal Code, ‘the Criminal 
Code’) and other provisions 
Subject matter and legal basis of the reference 
Interpretation of EU law, in particular Article 47 of the Charter of Fundamental 
Rights of the European Union, Article 2 TEU, Article 4(3) TEU and the second 
subparagraph of Article 19(1) TEU 
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 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-615/20 
 
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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);  
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). 
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; 
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; 
YP AND OTHERS 
 
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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; 
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; 
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; 
f) the Republic of Poland was obliged to suspend the application of certain 
provisions of the Law on the Supreme Court concerning the Disciplinary Chamber 
and to refrain from referring cases pending before this Chamber to a panel whose 
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composition does not meet the requirements of independence in accordance with 
the order of 8 April 2020, Commission v Poland (C-791/19 R, EU:C:2020:277)? 
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; 
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? 
Applicable provisions of EU law 
Article 2 TEU, Article 4(3) TEU and the second subparagraph of Article 19(1) 
TEU; 
Article 47 of the Charter of Fundamental Rights of the European Union. 
Applicable provisions of national law 
Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland) – 
Articles 175, 179, 181, 186 and 187; 
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’) – Article 80, Article 110(2a) and Article 129; 
Ustawa z dnia 8 grudnia 2017 r. o Sądzie Najwyższym (Law of 27 December 1 on 
the Supreme Court, ‘the Law on the Supreme Court’) – Article 27(1); 
Ustawa z dnia 12 maja 2011 r. o Krajowej Radzie Sądownictwa (Law of 12 May 
2011 on the National Council of the Judiciary, ‘the Law on the NCJ’) – Article 9a; 
YP AND OTHERS 
 
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Ustawa z dnia 8 grudnia 2017 r. o zmianie ustawy o Krajowej Radzie 
Sądownictwa oraz niektórych innych ustaw (Law of 6 December amending the 
Law on the National Council of the Judiciary and certain other laws) – Article 6; 
Ustawa z dnia 28 stycznia 2016 r. – Prawo o prokuraturze (Law of 28 January 
2016 – Law on the Public Prosecutor’s Office, the ‘the Law on the Public 
Prosecutor’s Office’) – Article 1, Article 7, Article 8(1) and Article 13. 
Brief outline of the facts and procedure 
1 The case at issue was brought against 14 persons charged with a number of acts 
under Article 258(1) and 3 of the Criminal Code, Article 286(1) of the Criminal 
Code and others, committed to the detriment of 229 victims. The case is currently 
being conducted against 11 defendants. More than 100 hearings have been held in 
this case, not counting detention hearings. The next hearing was scheduled for 
19 November 2020, while subsequent hearings were scheduled for 3 and 
10 December 2020. The case file consists of 197 volumes plus several dozen 
volumes of annexes – seized documents (contracts, invoices, etc.). The 
defendants, victims and more than 150 witnesses have been examined in the court 
proceedings. The court proceedings are in their final stage, since only a few 
witnesses and three expert witnesses remain to be examined. 
2 The adjudicating panel of the court includes Judge I. T. with respect to whom the 
Wydział Spraw Wewnętrznych Prokuratury Krajowej (National Public 
Prosecutor’s Office, Internal Affairs Division) submitted a proposal to the 
Disciplinary Chamber of the Supreme Court for a resolution allowing him to be 
prosecuted. The National Public Prosecutor’s Office wants to charge the judge 
with failing to fulfil his official duties as a public official and overstepping his 
powers by allowing representatives of the mass media to record the sound and 
images of a session of the Sąd Okręgowy w Warszawie (Regional Court in 
Warsaw) as well as the announcement of the order made in the case and the oral 
reasons given for the order, as a result of which he disclosed to unauthorised 
persons, without the legally required permission of the authorised person, 
information concerning a preliminary investigation conducted by the Prokuratura 
Okręgowa w Warszawie (Regional Public Prosecutor’s Office in Warsaw), which 
information he had obtained in connection with the performance of his duties, and 
in that manner he acted to the detriment of the public interest. On 9 June 2020, the 
Disciplinary Chamber of the Supreme Court, acting as the court of first instance, 
did not grant that request. The National Public Prosecutor’s Office appealed 
against the decision. On 18 November 2020, the Disciplinary Chamber of the 
Supreme Court, acting as the court of second instance, lifted the immunity of 
Judge I. T., suspended him from his duties and reduced his remuneration. This 
suspension will continue until the final conclusion of criminal proceedings against 
him, which may take months or even years. 
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3 The suspension of Judge I. T. from his duties results in his being prevented from 
hearing all cases assigned to him, including completion of the trial with Case Ref. 
No VIII K 105/17. Not only can the proceedings in Case VIII K 105/17 not be 
continued – they must in fact be started from the beginning, since the principle of 
the constant composition of adjudicating panels, which is enshrined in the Polish 
Kodeks Postępowania Karnego (Code of Criminal Procedure), means that a court 
ruling may only be issued by the adjudicating panel (the same judges or judges 
and jurors) which was involved in the entire trial. The new judge appointed in 
place of I. T. will be required to re-examine all evidence which has so far been 
disclosed during the trial, that is to say, to examine the defendants, victims and 
witnesses. 
4 The Court of Justice has repeatedly, inter alia in its judgment of 19 November 
2019 (EU:C:2019:982, C-585/18, C-624/18 and C-625/18), confirmed the 
importance of the right to an effective remedy and to an independent and impartial 
tribunal in the EU legal order . Not only are individuals able to rely directly in 
court proceedings on Article 47 of the Charter of Fundamental Rights as a source 
of certain rights and obligations, but this provision also provides a guarantee for 
an individual in proceedings before a court of a Member State that his case will be 
heard by an independent and impartial tribunal. 
5 In its judgment of 5 December 2019 and in its orders of 15 January 2020, the 
Chamber of Labour and Social Security Law of the Supreme Court, hearing cases 
in connection with which 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) was delivered, found that the NCJ in its 
current composition is not a body independent of the legislature and of the 
executive, and that the Disciplinary Chamber – also due to the fact that its 
members have been appointed upon a proposal of the NCJ in its current 
composition – 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, and in any case it is not an impartial body independent of the political 
authorities. 
6 In their resolution of 23 January 2020, the combined chambers of the Supreme 
Court – the Civil Chamber, the Criminal Chamber and the Chamber of Labour and 
Social Security Law – stated that where a person appointed upon a proposal of the 
newly selected NCJ is included in the composition of the Disciplinary Chamber, 
this results in the defectiveness of that adjudicating panel. For these reasons, 
rulings issued by adjudicating panels of the Disciplinary Chamber (since its 
establishment) are not court rulings. 
7 However, in its order of 23 September 2020, the Disciplinary Chamber stated that 
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) ‘cannot be regarded as binding within the Polish legal order’, 
since in the main proceedings before the Supreme Court, in which references for a 
YP AND OTHERS 
 
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preliminary ruling were made, the composition of the court was ‘contrary to the 
law’. 
8 The referring court comes under the Polish judicial system in the ‘fields covered 
by Union law’ within the meaning of the second subparagraph of Article 19(1) 
TEU (see the judgment of 26 March 2020, Miasto Łowicz and Prokurator 
Generalny, C-558/18 and C-563/18, EU:C:2020:234, paragraph 35 and the case-
law cited therein). However, in the light of the above, the referring court has 
doubts as to whether it meets the criteria under EU law for a tribunal previously 
established by law or for an independent and impartial tribunal. 
Brief statement of and reasons for the reference 
9 The requirements for effective judicial protection under the second subparagraph 
of Article 19(1) TEU also cover the rules governing the disciplinary regime of 
those who have the task of adjudicating (order of 8 April 2020, Commission v 
Poland, C-791/19 R, EU:C:2020:277, paragraphs 34–35 and the case-law cited 
therein). In particular, the Court of Justice has had the opportunity to specify that 
this category includes rules the application of which may result in a judge’s 
dismissal (judgment of 5 November 2019, Commission v Poland (Independence 
of ordinary courts), C-192/18, EU:C:2019:924, paragraph 114 and the case-law 
cited therein). 
10 The doubts of the referring court mainly concern whether the disciplinary regime 
also includes national rules on the authorisation for criminal prosecution or 
deprivation of liberty (detention) of a judge of a national court, with the result that 
those rules would also be subject to the requirements for effective judicial 
protection. Although in contrast to the ‘classical’ disciplinary regime, the rules 
covered by this reference do not specify the types of offences they are meant to 
penalise or the penalties to which judges may be subject for committing those 
offences, in the opinion of the referring court their effect is just as severe. 
11 While consent to a judge being criminally prosecuted or detained is just an initial 
step which makes it possible to initiate criminal proceedings, the character of 
these rules makes their status similar to those that concern the disciplinary regime. 
Firstly, such consent may only be given if, in the view of the disciplinary court, 
there is a sufficiently justified suspicion that a criminal offence has been 
committed. Secondly, if such consent is given, the disciplinary court is allowed 
(and in the case of an intentional offence prosecuted by public indictment – 
obliged) to suspend the judge in question from his duties; a judge who has been 
suspended from his or her duties may not rule on cases until the conclusion of 
criminal proceedings. Thirdly, if a judge is suspended from his duties, the 
disciplinary court is obliged to reduce that judge’s remuneration (by between 25% 
and 50%) for the duration of his suspension. Fourthly, national law does not set 
the time limit within which a public prosecutor is required to file an indictment 
after having been given authorisation to prosecute. Therefore, the period during 
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which a judge is suspended from his or her duties and his or her remuneration is 
reduced may be unjustifiably extended by months or even years. 
12 Therefore, the overall assessment of the circumstances described above may lead 
to the conclusion that the procedure under which the disciplinary court may 
consent to a judge being criminally prosecuted or deprived of liberty (detained) is 
in fact similar to the disciplinary regime for judges and should therefore be subject 
to the requirements for effective judicial protection under the second subparagraph 
of Article 19(1) TEU. 
13 Pursuant to the legislation currently in force, the body having jurisdiction to hear 
cases concerning authorisation to prosecute or detain a judge at both first and 
second instance is the Disciplinary Chamber. 
14 Irrespective of the assessment of the status of the Disciplinary Chamber made in 
the aforementioned Supreme Court rulings, in the opinion of the referring court 
significant doubts arise as to whether the Disciplinary Chamber is a third party in 
relation to a public prosecutor who submits a request for authorisation to 
prosecute or detain a judge to that Chamber. 
15 The public prosecution system in Poland is based on hierarchical subordination to 
the Minister for Justice to whom all public prosecutors report and who, by law, 
holds the post of Prokurator Generalny (Prosecutor General). Although a public 
prosecutor is (at least ostensibly) independent in the performance of his duties, he 
or she is obliged to carry out the orders, guidelines and instructions of the public 
prosecutor to whom he or she reports, including the Minister for Justice. The 
Minister for Justice can issue instructions to prosecutors which concern, inter alia, 
the procedural acts to be performed by them, including in proceedings before the 
Disciplinary Chamber. 
16 Moreover, the Minister for Justice is also, under the Constitution of the Republic 
of Poland, a member of the NCJ. An analysis of the connections of 15 of the 25 
members of the NCJ selected by the Sejm [the lower chamber of the Polish 
Parliament] from among the judges reveals that most of them had close links to 
the Minister for Justice at the time of their selection and still retain these links. 
Some of these members hold, pursuant to a unilateral decision of the Minister for 
Justice, top positions (court president or vice-president) in ordinary courts; before 
their selection or afterwards, also by a unilateral decision of the Minister for 
Justice, they were posted to the Ministerstwo Sprawiedliwości (Ministry of 
Justice) to perform administrative duties, or to higher courts to adjudicate cases. In 
the latter case, the Minister for Justice has the power to immediately terminate the 
judge’s posting without his decisions being subject to judicial review (see 
questions in Joined Cases C-748/19 to C-754/19). The NCJ, which was elected in 
this manner, subsequently participated in appointing all members of the 
Disciplinary Chamber. These members include both former public prosecutors 
who reported to the Minister for Justice at the time of their appointment and 
lawyers who openly supported the actions of the Minister for Justice in the media. 
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17 According to the settled case-law of the Court of Justice, the concept of 
‘independence’, which is inherent in the task of adjudication, implies above all 
that the body in question acts as a third party in relation to parties to the 
proceedings (see judgment of 21 January 2020, Banco de Santander, C-274/14, 
EU:C:2020:17, paragraph 62 and the case-law cited). Taking into account both the 
composition of the Disciplinary Chamber (including the current composition of 
the NCJ) as well as the current public prosecution system and the provisions 
governing authorisation for the criminal prosecution or detention of a judge, the 
referring court has significant doubts as to whether the Disciplinary Chamber is a 
third party in relation to the public prosecutor. 
18 Importantly, in the light of the order of 8 April 2020, Commission v Poland 
(C-791/19 R, EU:C:2020:277), the referring court also has reservations as to 
whether the Disciplinary Chamber should hear cases concerning the authorisation 
to prosecute or detain a judge. In the view of the referring court, the concept of 
‘disciplinary cases against judges’ referred to in the first indent of point 1 of the 
operative part of that order should also cover the more problematic cases which 
are the subject of question 2. In any event, since there have been no changes in the 
composition of the Disciplinary Chamber, all cases pending before that body are 
heard by a panel whose composition does not meet the requirements of 
independence pursuant to the second indent of point 1 of the operative part of the 
order of 8 April 2020. 
19 In view of the foregoing, the referring court has doubts about the key issue – is the 
authorisation issued by the Disciplinary Chamber to prosecute a judge who is 
included in the panel of the referring court and to suspend him from his duties, 
with his remuneration being reduced for the duration of that suspension, binding? 
This matter has a direct impact on determining whether the referring court meets 
the criteria for a tribunal previously established by law or for an independent and 
impartial tribunal, and constitutes the fundamental reason for referring the present 
questions for a preliminary ruling. 
20 The referring court points out that the authorisation granted by the Disciplinary 
Chamber, which involves, in particular, the suspension of a judge of a national 
court from his duties, may, owing to the nature of that Chamber, not be a ‘judicial 
ruling’, since this term only applies to rulings made by a body which meets the 
requirements for effective judicial protection within the meaning of EU law. 
Moreover, it is difficult to accept that this authorisation is unquestionably binding 
because it serves to ‘ensure the stability of law and legal relationships as well as 
the proper administration of justice’. The ability of the Disciplinary Chamber to 
suspend a judge of a national court from his duties – in practice for an indefinite 
period of time – does not in any way ensure the stability of law and legal 
relationships and certainly does not contribute to the proper administration of 
justice. 
21 Since, if the Court of Justice answers question 4 in the affirmative, other State 
bodies such as the Minister for Justice, the Public Prosecutor’s Office, court 
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presidents, the Trybunał Konstytucyjny (Constitutional Court) or disciplinary 
bodies may attempt to limit the effects of that judgment in the national legal order, 
the referring court seeks to determine whether the obligation to refuse to grant 
binding effect to a Disciplinary Chamber ruling also extends to other State bodies 
and, accordingly, whether an unjustified refusal to allow a judge with respect to 
whom such an authorisation has been granted to sit on a court panel may infringe 
EU law. 
22 Pursuant to Article 105(1) of the Rules of Procedure of the Court of Justice, the 
referring court requests that the expedited procedure be applied in the present 
case. The doubts raised by the referring court are of a systemic nature and may 
result in legal uncertainty and a limitation of the functioning of the EU legal order 
in Poland. Moreover, the Disciplinary Chamber has issued, or intends to issue in 
the near future, similar authorisations concerning the suspension of other judges of 
national courts from their duties.