Opinion of the Advocate General — ECLI:EU:C:2024:308
Date: 2024-04-11
Language of the case: Polish
Procedure: Reference for a preliminary ruling
Origin: Poland

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: 
25 October 2021 
Referring court: 
Sąd Okręgowy w Słupsku (Poland) 
Date of the decision to refer: 
20 October 2021 
Criminal proceedings against: 
D.K. 
Intervening party: 
Prokuratura Rejonowa w Bytowie 
  
Subject matter of the main proceedings 
Appeal against a judgment of a district court (sąd rejonowy) in a criminal case 
Subject matter and legal basis of the request 
Power of the chamber of a court to release a judge, without his or her consent, 
from the obligation to hear the cases assigned to him or her and to transfer a judge 
to another chamber, thereby affecting the composition of the panel adjudicating in 
a case – second subparagraph of Article 19(1) TEU, in conjunction with Article 47 
of the Charter of Fundamental Rights; Article 267 TFEU 
Question referred for a preliminary ruling 
1. Must the second subparagraph of Article 19(1) TEU, in conjunction with 
Article 47 of the Charter of Fundamental Rights, be interpreted as 
precluding national legislation such as Article 47b(5) and (6) of the Ustawa 
z dnia 27 lipca 2001 r. – Prawo o ustroju sądów powszechnych (Law of 
EN 
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27 July 2001 on the system of ordinary courts), in conjunction with 
Articles 30(1) and 24(1) thereof, under which a body of a national court, 
such as the college of a court, has the power to release a judge of that court 
from the obligation to hear some or all of the cases assigned to him or her, in 
the case where: 
(a) the composition of the college includes, by law, the presidents of 
courts appointed to those posts by an executive body, such as the Minister 
for Justice, who is also the Public Prosecutor General; 
(b) the judge is released, without his or her consent, from the obligation to 
hear the cases assigned to him or her; 
(c) national law does not lay down any criteria to guide the college of a 
court when releasing a judge from the obligation to hear the cases assigned 
to him or her, nor does it lay down any obligation to state reasons and to 
conduct a judicial review of that release; 
(d) some of the members of the college of the court were appointed to the 
post of judge in circumstances similar to those referred to in the judgment of 
the Court of Justice of 15 July 2021 in Commission v Poland (disciplinary 
regime applicable to judges) (C-791/19, EU:C:2021:596)? 
2. Must the provisions referred to in Question 1, and also the principle of 
primacy, be interpreted as empowering (or obliging) a national court hearing 
a case in criminal proceedings coming within the scope of Directive 
2016/343, the judge dealing with which has been released from the 
obligation to hear cases in the manner described in Question 1, and all public 
bodies, to disregard an act of the college of a court and other acts issued 
subsequently, such as an order reassigning cases, including the case in the 
main proceedings, without the consent of the judge who has been released, 
so that he or she can continue to sit on the panel hearing that case? 
3. Must the provisions referred to in Question 1, and also the principle of 
primacy, be interpreted as requiring the existence in the national legal order, 
in criminal proceedings coming within the scope of Directive 2016/343, of 
remedies of the kind which ensure that the parties to the proceedings, such 
as the defendant in the main proceedings, can secure a review of, and appeal 
against, decisions such as those referred to in [Question 1], which are 
intended to bring about a change in the composition of the panel hearing the 
case and consequently to release the judge hitherto assigned to hear the case 
from the obligation to do so, in the manner described in Question 1? 
Provisions of EU law cited 
Article 19(1) TEU, second subparagraph 
D.K. 
 
3 
Article 47 of the Charter of Fundamental Rights of the European Union 
Directive (EU) 2016/343 of the European Parliament and of the Council of 
9 March 2016 on the strengthening of certain aspects of the presumption of 
innocence and of the right to be present at the trial in criminal proceedings (OJ 
2016 L 65, p.1), Article 2 
Provisions of national law cited 
Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland), 
Articles 178(1) and 180(1) and (2); 
Ustawa z dnia 27 lipca 2001 r. – Prawo o ustroju sądów powszechnych (Law of 
27 July 2001 on the system of ordinary courts) (‘the PUSP’), Articles 11(3), 21(1), 
22a, 24(1), 25, 30(1), 37(3), 42a(1), 47a(1) and (2), and 47b(1) and (4) to (6); 
Ustawa z dnia 12 lipca 2017 r. o zmianie ustawy – Prawo o ustroju sądów 
powszechnych oraz niektórych innych ustaw (Law of 12 July 2017 amending the 
Law on the system of ordinary courts and certain other laws), Article 17 
Ustawa z dnia 6 czerwca 1997 r. – Kodeks postępowania karnego (Law of 6 June 
1997 establishing the Code of Criminal Procedure), Articles 30(2), 41(1), 42(1), 
(3), and (4), 35(1) and (2), 36, 37 and 38(1) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The referring court is hearing an appeal brought by defence counsel against the 
judgment of the court of first instance by which the defendant was given a prison 
sentence, which has not become final, for an offence under Article 190(1) of the 
Criminal Code. 
2 The referring court is hearing the case in the main proceedings sitting as a single 
judge since the pre-trial proceedings were conducted in the form of an 
investigation. 
3 The chair of the panel is a judge in respect of whom the president of the court 
issued an order changing the allocation of tasks, consisting in her transfer from the 
appeal chamber of the court to the chamber hearing cases at first instance. The 
decision of the president of the court was preceded by the college of the court 
releasing the chair of the panel from the obligation to hear the cases assigned to 
her in the appeal chamber, including in the case in the main proceedings. 
4 At the beginning of September 2021, the chair of the panel issued an order in a 
separate case, instructing the chair of the chamber to re-appoint a member of the 
panel to replace the president of the court. As grounds, she referred to the second 
subparagraph of Article 19(1) TEU, stating that the presence of the president of 
the court – appointed to the post of judge at the request of the Krajowa Rada 
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Sądownictwa (National Council of the Judiciary) (‘the KRS’) in its current 
composition – on the panel undermines the right to a tribunal previously 
established by law within the meaning of Article 6 of the ECHR, Article 47 of the 
Charter of Fundamental Rights, and Article 45 of the Constitution of the Polish 
Republic. In this regard, the chair of the panel cited the judgment of the European 
Court of Human Rights of 22 July 2021 in the case of Reczkowicz v. Poland 
(Application no 43447/19). 
5 That order was annulled by order of the vice-president of the court. As the reason 
for the annulment, it was stated that it is contrary to Article 42a(2) of the PUSP. 
The vice-president of the court was also appointed to the post of judge at the 
request of the KRS in its current composition, and he was appointed to the post of 
vice-president of the court by the Minister for Justice, who is also the Public 
Prosecutor General. The referring court is uncertain whether that order could have 
been issued at all in connection with the administrative review by the president of 
the court, as such an order can concern only administrative tasks, and the correct 
formation of the court adjudicating in the case is a matter for case-law, in which 
the president of the court may not interfere. In any event, this area is covered by 
the interim measures ordered by the Vice-President of the Court of Justice of the 
European Union in Case C-204/21 on 14 July 2021. 
6 At the beginning of October 2021, the chair of the panel, sitting as a single judge 
in a separate case, set aside a judgment of a lower court delivered by a person 
appointed to the post of judge at the request of the KRS in its current composition. 
The chair of the panel based the setting-aside of that judgment on, inter alia, the 
second subparagraph of Article 19(1) TEU and Article 47 of the Charter of 
Fundamental Rights. That was the sole reason for setting aside that judgment. The 
judgment delivered by the chair of the panel is not final. 
7 On 13 October 2021, the president of the court issued an order changing the 
allocation of tasks of the chair of the panel and another member of the panel 
hearing the case in the main proceedings. The effect of that order is to transfer the 
chair of the panel from the appeal chamber, in which the case in the main 
proceeding is pending, to the chamber hearing cases at first instance. 
8 The grounds for the order of the president of the court point to the need to ensure 
the proper functioning of the chambers of the court. That order entered into force 
on 18 October 2021 and it was not until that date that it was served on the chair of 
the panel. Moreover, that document contains no information concerning the 
remedies available to the chair of the panel. 
9 On 11 October 2021, two days before the order was issued by the president of the 
court, the college of the court adopted a decision to release the chair of the panel 
from the obligation to hear around 70 cases assigned to her in the present 
chamber, including the case in the main proceedings. In addition, the chair of the 
panel was released, without her consent, from her obligation to hear the cases 
assigned to her and also without the request required by law. 
D.K. 
 
5 
10 The decision of the college of the court was not served on the chair of the panel. 
The president of the court informed her solely of the fact that that decision had 
been adopted. The grounds and legal basis for the adoption of that decision are not 
known to the chair of the panel. Despite two requests by the chair of the panel, the 
president of the court refused to provide her with the contents of that decision. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
11 An answer from the Court of Justice to the questions from the referring court is 
objectively necessary to enable it to determine the incidental question as to 
whether it can continue to hear the case as hitherto composed, with the chair of 
that panel sitting as a single judge. 
12 According to the case-law of the Court of Justice, every court is obliged to check 
whether, as composed, it constitutes an independent and impartial tribunal where a 
serious doubt arises on that point. That check is necessary for the confidence 
which courts in a democratic society must inspire in those subject to their 
jurisdiction. In that respect, such a check is an essential procedural requirement, 
compliance with which is a matter of public policy and must be verified of the 
court’s own motion (judgment of 26 March 2020, Review Simpson v Council and 
HG v Commission, C-542/18 RX-II and C-543/18 RX-II, EU:C:2020:232, 
paragraph 57 and the case-law cited). Releasing a judge from the obligation to 
hear, inter alia, the case in the main proceedings constitutes such ‘serious doubt’. 
All the elements, both of law and of fact, of this release, as a means of revising 
judicial decisions, are capable of undermining the principles of the irremovability 
of judges and of judicial independence [judgment of 6 October 2021, W.Ż. (Izba 
Kontroli Nadzwyczajnej i Spraw Publicznych Sądu Najwyższego (Supreme Court 
Chamber of Extraordinary Control and Public Affairs), – appointment), C-487/19, 
EU:C:2021:798, paragraphs 114 and 115].  
13 Although the referring court has suspended the application of the decision of the 
college of the court pending the delivery of a judgment which takes account of the 
Court of Justice’s response, the actual effectiveness of that suspension cannot be 
guaranteed. The actions in law and in fact, inter alia of the president of the court, 
confirm with a high degree of probability that, before a final judgment is given in 
the case, the measures ordered by the referring court may not be complied with. 
14 The facts of the main proceedings concern various aspects of recent changes to the 
administration of justice in Poland. They include, inter alia, the combination of the 
functions of the Minister for Justice and of the Public Prosecutor General, changes 
to the rules on the appointment of presidents of courts and the composition of the 
college of a court, the involvement of the KRS, in its current composition, in the 
appointment of judges, and the absence of a possibility for the courts to check that 
the requirements relating to effective judicial protection have been satisfied. 
15 The second subparagraph of Article 19(1) TEU applies in this case since the 
referring court, as an ordinary court, forms part of the Polish system of legal 
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remedies in areas covered by EU law. In the view of the referring court, Article 47 
of the Charter of Fundamental Rights is also applicable here. Furthermore, the 
case in the main proceedings also comes within the scope of Directive 2016/343, 
the purpose of which is to strengthen the right to a fair trial in criminal 
proceedings. That strengthening also relates to the presumption of innocence, 
which is an element of the right to a fair trial. The presumption of innocence in 
proceedings before a court can, however, be guaranteed only if there is no doubt 
as to the composition of that court and the independence of its members. 
16 As regards Question 1, the referring court takes the view that the transfer of the 
chair of the panel to another chamber and her release from the obligation to hear 
the cases assigned to her, including the case in the main proceedings, undermines 
the requirements relating to independence and irremovability. The referring court 
considers that those actions were taken in response to attempts to check the lower 
court’s compliance with the requirements relating to the establishment of a court 
by law, and thus constitute direct consequences of the application of EU law and 
the standards of the ECHR. In the view of the referring court, the true objective of 
those actions is to prevent checking by the chair of the panel – in the cases heard 
by her – of the requirements relating to the establishment of a court by law, in 
spite of Poland’s requirement to suspend application of the relevant provisions by 
order of the Vice-President of the Court of Justice of 14 July 2021, Commission v 
Poland (C-204/21 R, EU:C:2021:834). In the chamber hearing cases at first 
instance, that judge will not be able to check those facts since she will not be 
hearing appeals at all. There is nothing to show that such a transfer should take 
place immediately, without the legally required consent, or without prior 
notification of the chair of the panel. 
17 In the view of the referring court, the very status of the body which issued the 
transfer order is also questionable. The president of the court had previously been 
seconded to the referring court from a lower court and was subsequently 
appointed to the position of judge at the referring court at the request of the KRS 
in its current composition. Furthermore, it was the Minister for Justice, who is also 
the Public Prosecutor General, who appointed him to the post of president of the 
court under provisions the compatibility of which with the standards of the rule of 
law is open to question (see the Venice Commission Opinion of 11 December 
2017 No 904/2017, CDL-AD(2017)031, paragraphs 100 to 108, judgment of the 
ECtHR of 29 June 2021 in the case of Broda and Bojara v. Poland, Chamber 
(Section I), Applications nos 26691/18 and 27367/18). At the same time – by 
virtue of his office – the president of the court is by law a member of the college 
of the court which released the chair of the panel from the obligation hear the 
cases assigned to her in the chamber in which she had adjudicated previously. 
18 The chair of the panel was not informed about the possibility of lodging an appeal 
against the order issued. Even if such an appeal is admissible, it is heard by the 
KRS in its current composition and then by the Supreme Court Chamber of 
Extraordinary Control and Public Affairs, composed entirely of persons appointed 
at the request of the current KRS. The effectiveness of such an appeal is therefore 
D.K. 
 
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illusory. In addition, it should be pointed out that the wife of the president of the 
court, against whose decision an appeal may be lodged, sits on the KRS as 
currently constituted. 
19 As regards the decision of the college of the court to release the chair of the panel 
from her obligation to hear the cases assigned to her, including the case in the 
main proceedings, it should be noted that it was adopted before the president of 
the court issued the order in question. That fact in itself is evidence of an 
infringement of national law since such a decision may be adopted only after a 
judge has been transferred. In addition, it does not improve the work of the 
chamber since, following that transfer, all the cases previously assigned to her 
(about 70) will have to be heard ab initio. 
20 From a systemic point of view, it should be noted that the composition of the 
college of the court includes, by law, the president of the court and the presidents 
of lower courts – all of them appointed to those positions by the Minister for 
Justice, who is also the Public Prosecutor General, and some of them to positions 
of judge at the request of the KRS in its current composition. In the circumstances 
of the case, it is also relevant that the decisions to release judges from hearing 
cases have been taken by presidents of courts in which, inter alia, criminal cases 
were heard at first instance, against whose rulings the chair of the panel heard 
appeals. Such is also the case with regard to the presidents of courts who adopted 
the decision to release the judge and who also adjudicated in criminal cases. Thus, 
the judges of the lower courts, who are also presidents of courts, acting in their 
own interests or in those of the courts over which they preside, effectively 
removed the judge adjudicating in their appeal cases from the hearing those cases. 
21 If the Court of Justice’s answer to the first question is in the affirmative, the 
referring court asks whether, in such a case, it has the power (or is obliged) to 
disregard the decision of the college of the court, and any subsequent acts, in order 
to continue to hear the case in its current composition. 
22 It is worth noting that the transfer of a judge, his or her release from the obligation 
to hear cases and the appointment of a new panel are not decisions that are judicial 
in nature, but constitute internal acts of the bodies of the court. The referring court 
considers that, under the regulations in force, an order to change the composition 
of the panel must state grounds and show that it was impossible to hear the case in 
the present composition (Article 47(1) of the PUSP). A decision of the college of 
the court does not independently provide such a basis. 
23 A decision of the college, when taken of its own motion (in extreme cases, when a 
judge is unable to apply to be released from the obligation to hear the assigned 
cases) should be treated only as the power to ensure that a judge does not have to 
hear the cases assigned to him or her, and not as a power to remove him or her 
from hearing them. 
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24 In the view of the referring court, the composition of the panel also cannot be 
changed on the basis of a transfer decision since Article 47b(2) of the PUSP 
expressly provides that the transfer of a judge to another place of employment 
does not release him or her from the obligation to complete the cases assigned to 
him or her, in view of the principle of the immutability of the adjudicating panel 
which is applicable in court proceedings. Thus, the mere fact that a judge has been 
transferred to adjudicate in another chamber does not deprive him or her of the 
possibility of completing cases and, where that would be impossible or difficult, 
provision is made for the possibility for the judge him or herself asking the college 
of the court to be released from that obligation (partial or total release from the 
obligation to hear cases). 
25 The referring court points out that in similar circumstances, where the 
composition of a panel adjudicating in a case was appointed notwithstanding the 
provisions in force, on the basis of a decision of a college of the court, out of 
sequence, the European Court of Human Rights found that there had been an 
infringement of Article 6(1) of the ECHR in respect of ‘a tribunal previously 
established by law’ (Chim and Przywieczerski v. Poland – ECtHR judgment of 
12 April 2018, Applications nos 36661/07 and 38433/07). 
26 The third question is prompted by a concern to ensure that a party to proceedings 
has an effective remedy in so far as there is a change in the composition of the 
panel adjudicating in his or her case, which undoubtedly affects exercise of the 
right to a fair trial and, in particular, is directly related to the principle of the 
presumption of innocence. This is particularly important when the composition of 
a court may be changed at the initiative of the bodies of the court which are 
directly linked to and dependent on the Minister for Justice, who appointed them 
(such is also the case with regard to chairs of chambers who are appointed by the 
president of the court), where the Minister for Justice, who is also the Public 
Prosecutor General and is the superior of all prosecutors, is also a party to such 
criminal proceedings. Such interference in the composition of the court hearing 
the case, through the actions of the above bodies, may, in the view of the referring 
court, clearly affect the outcome of the proceedings. 
27 In such circumstances, where a party to the proceedings is not even informed of 
the facts relevant to the exercise of his or her rights of defence, and where there is 
no guaranteed effective monitoring of the actions of such bodies, his or her 
position in those proceedings may be adversely affected. In the view of the 
referring court, national legislation must provide remedies available to a party to 
the proceedings which afford him or her effective legal protection, within the 
scope of EU law, and thus in so far as he or she is protected by Directive 2016/343 
against any arbitrary change in the composition of the panel adjudicating in his or 
her case, particularly in the light of all the actions taken by the bodies of the court 
to change de facto the composition of the adjudicating panel, as here in the main 
proceedings, by shaping it on the basis of obscure and opaque criteria, on the basis 
of decisions which are neither taken nor reviewed by a court.