Opinion of the Advocate General — ECLI:EU:C:2025:270
Date: 2025-04-10
Language of the case: Polish
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-225/22 – 1 
Case C-225/22 
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: 
31 March 2022 
Referring court: 
Sąd Apelacyjny w Krakowie (Poland) 
Date of the decision to refer: 
21 March 2022 
Appellant: 
‘R’ S.A. 
Respondent: 
AW ‘T’ sp. z o.o. 
  
Subject matter of the case in the main proceedings 
Action brought by AW ‘T’ sp. z o.o. in C. seeking the prohibition of acts of unfair 
competition 
Subject matter and legal basis of the reference 
Interpretation of the second subparagraph of Article 19(1), Article 2, Article 4(3) 
and Article 6(3) TEU in conjunction with Article 47 of the Charter of 
Fundamental Rights (‘the Charter’) and Article 267 TFEU 
Question referred 
1. Must the second subparagraph of Article 19(1), Article 2, Article 4(3) and 
Article 6(3) of the Treaty on European Union (TEU), in conjunction with 
Article 47 of the Charter of Fundamental Rights of the European Union (‘the 
Charter’) and Art. 267 of the Treaty on the Functioning of the European 
Union (TFEU), and the principle of the primacy of EU law be interpreted as 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-225/22 
 
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permitting a national court to disregard a decision of a constitutional court 
which is mandatory under national law, including constitutional law, in so 
far as that decision precludes an examination by the national court as to 
whether, having regard to the way in which the judges were appointed, the 
judicial body is an independent and impartial court previously established by 
law within the meaning of European Union law? 
2. Must the second subparagraph of Article 19(1), Article 2, Article 4(3) and 
Article 6(3) TEU, in conjunction with Article 47 of the Charter and 
Article 267 TFEU, be interpreted as precluding national rules adopted by a 
Member State: (a) prohibiting the national court from assessing the 
lawfulness of the appointment of a judge and consequently examining 
whether the judicial body is a court within the meaning of European Union 
law and (b) providing for the disciplinary liability of a judge for judicial 
actions connected with the examination in question? 
3. Must the second subparagraph of Article 19(l), Article 2, Article 4(3) and 
Article 6(3) TEU, in conjunction with Article 47 of the Charter and Art. 267 
TFEU, be interpreted as meaning that an ordinary court which satisfies the 
requirements laid down on a court within the meaning of EU law is not 
bound by a judgment of a court of final instance – sitting with members who 
were appointed to the office of judge in flagrant breach of national law 
governing the nomination process for the office of a judge of the Sąd 
Najwyższy (Supreme Court), as a result of which that court does not fulfil 
the requirement of an independent and impartial court previously established 
by law and of ensuring that individuals are afforded effective legal 
protection – issued as a result of an extraordinary appeal procedure 
(extraordinary appeal), setting aside a final judgment and referring the case 
back to the ordinary court for re-examination? 
4. If the answer to the third question is in the affirmative, must the second 
subparagraph of Article 19(1), Article 2, Article 4(3) and Article 6(3) TEU, 
in conjunction with Article 47 of the Charter and Article 267 TFEU, be 
interpreted in such manner that non-binding means that 
– a judgment given by a court of final instance, established in the 
manner described in paragraph 3, 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 court within the meaning of 
EU law, 
– or is the judgment given by the court of final instance, established in 
the manner described in paragraph 3, a judgment that does exist in a 
legal sense, but the ordinary court retrying the case is entitled and 
obliged to disapply the application of provisions of national law 
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concerning the consequences of that judgment to the extent necessary 
to ensure that individuals are afforded effective legal protection? 
Provisions of EU law relied on 
Treaty on European Union: second paragraph of Article 19(1), Article 2, 
Article 4(3) and Article 6(3); Charter of Fundamental Rights of the European 
Union: Article 47; Treaty on the Functioning of the European Union: Article 267 
Provisions of national law and judgments of national courts relied on 
Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland): 
Articles 175, 177, 183, 188, 190 
Ustawa – Prawo o ustroju sądów powszechnych (Law on the organisation of the 
ordinary courts) of 27 July 2001, in the version applicable after 14 February 2020: 
Articles 42a, 107, 109,  
Ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017: 
Articles 1, 26, 89, 91, 95, 116 
Kodeks postępowania cywilnego (Code of Civil Procedure): Articles 363, 379, 
39820, 401 
Resolution of the Sąd Najwyższy (Supreme Court) of 23 January 2020, BSA 1-
4110-1/20 
Judgment of the Trybunał Konstytucyjny (Constitutional Court) of 20 April 2020, 
U 2/20 
Judgment of the Trybunał Konstytucyjny (Constitutional Court) of 7 October 
2021, K 3/21 
Judgment of the Trybunał Konstytucyjny (Constitutional Court) of 23 February 
2022, P 10/19 
Judgment of the Trybunał Konstytucyjny (Constitutional Court) of 10 March 
2022, K 7/21 
Succinct presentation of the facts of the case and proceedings 
1 By a judgment of the Sąd Apelacyjny w Krakowie (Court of Appeal, Kraków) of 
9 November 2006, a final decision was issued obliging appellant ‘R’ S.A. to cease 
certain acts of unfair competition. After almost 14 years from the time of the final 
resolution of the dispute, on 27 January 2020, the Prokurator Generalny (Public 
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Prosecutor General) filed an extraordinary appeal against the judgment in favour 
of ‘R’ S.A. in W. 
2 The Sąd Najwyższy (Supreme Court), having examined the case in the Izba 
Kontroli Nadzwyczajnej i Spraw Publicznych (Chamber of Extraordinary Control 
and Public Affairs), in its judgment of 20 October 2021, set aside the contested 
judgment of 9 November 2006 in relation to ‘R’ S.A. and referred the case back to 
the Sąd Apelacyjny w Krakowie (Court of Appeal, Kraków) for re-examination. 
The Sąd Najwyższy (Supreme Court) in the formation delivering the judgment 
comprised judges E.S., T.D., P.K., A.R. and M.S.  
3 After the case was referred to the Sąd Apelacyjny (Court of Appeal), by letter of 
12 January 2022, the other party to the proceedings, AW T Spółka z o.o. in C., 
requested that the final and binding nature of the judgment of the Sąd Apelacyjny 
(Court of Appeal) of 9 November 2006 be affirmed despite the judgment having 
been set aside by the Sąd Najwyższy (Supreme Court) as a result of the 
examination of the extraordinary appeal. It argued that the judgment of the Sąd 
Najwyższy (Supreme Court) of 20 October 2021, setting aside the decision of the 
appeal court, should, in accordance with European case-law, be treated as null and 
void. That is because the formation of the Sąd Najwyższy (Supreme Court) in the 
Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Chamber of Extraordinary 
Control and Public Affairs) comprised persons appointed to the office of judge of 
the Sąd Najwyższy (Supreme Court) under a defective nomination procedure, as a 
result of which the court in such formation is not a ‘tribunal or court established 
by law’. In addition, AW T referred to the judgment of the Court of Justice of 
6 October 2021 in W.Ż. (Chamber of Extraordinary Control and Public Affairs of 
the Supreme Court – Appointment) (C-487/19, EU:C:2021:798), indicating that a 
decision given in a defectively appointed formation of the court is not binding on 
other courts and should be disregarded without having to be set aside first. AW T 
also raised objections to the use of an extraordinary appeal against a final court 
decision after a considerable period of time had elapsed, especially where that 
appeal solely served the purpose of protecting the economic interests of a Skarb 
Państwa (State Treasury) company. 
Succinct presentation of the reasons for the request 
4 The issue of the legality and effectiveness of the appointment of Supreme Court 
judges under the procedure described has been, and still is, the subject of 
observations on the part of both courts and academic legal commentators. The 
referring court cites the following recent judgments of the Court: 6 October 2021, 
W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme 
Court – Appointment) (C 487/19, EU:C:2021:798); 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), and recent judgments of the 
European Court of Human Rights (‘the ECtHR’): 8 November 2021 in Dolińska-
Ficek and Ozimek v Poland (Applications nos 49868/19 and 57511/19); 
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3 February 2022 in Adv[a]nce Pharma sp. z o.o. v Poland (Application no 
1469/20); 22 July 2021 in Reczkowicz v Poland (Application no [4]3447/19). The 
issue has also been the subject of observations made by the Sąd Najwyższy 
(Supreme Court), in, among other things, a resolution of 23 January 2020 adopted 
by the Sąd Najwyższy (Supreme Court) in the joint formation of the civil, criminal 
and labour law and social security chambers of that court (BSA 1-4110-1/20), 
delivered in implementation of the Court’s judgment of 19 November 2019, A.K. 
and Others. 
5 In the light of the above judgments, it must be assumed, in the opinion of the 
referring court, that AW T is right in so far as it indicates that the Sąd Najwyższy 
(Supreme Court), sitting as a panel composed of judges E.S., T.D., P.K., A.R. and 
M.S., is not a tribunal within the meaning of Article 6 of the ECHR and Article 47 
of the Charter, i.e. an independent, impartial court previously established by law 
and providing effective legal protection to the individual. 
6 As a result, a ruling on the application filed by AW T requires consideration of the 
consequences of a decision of a court of final instance that does not provide 
effective legal protection within the meaning of the second subparagraph of 
Article 19(1) TEU. In particular, clarification is required as to whether a decision 
given by the Sąd Najwyższy (Supreme Court), sitting in a formation comprising 
persons who were appointed judges in flagrant breach of the law, exists as a 
judgment in a legal sense or not, or whether it also has a formal effect in 
connection with the setting aside of a decision of an appeal court, and whether an 
ordinary court to which the case has been referred is obliged to hear the case once 
again. In other words, the issue is whether, when examining the effectiveness and 
scope of the effectiveness of a judgment of the Sąd Najwyższy (Supreme Court) 
as a court of final instance, an ordinary court (despite the fact that it is a lower 
court) is entitled to and obliged to disregard the legal rules regarding the binding 
nature of a judgment of the Sąd Najwyższy (Supreme Court). 
7 The aformentioned question of law arises as a result of infringements of the legal 
rules adopted concerning the operation of the judicial system. Such infringements 
are of a systemic nature. They are at the same time intentional and reactive, as 
manifested by the intention of the legislative and executive authorities to prevent 
the national courts from reviewing the formation of the courts on the ground that 
judges were appointed under a defective nomination procedure. As part of such 
activities as were undertaken, it should be noted that the Trybunał Konstytucyjny 
(Constitutional Tribunal) issued rulings aimed at excluding the application of the 
interpretation of EU law with regard to how the notion of a ‘tribunal or court 
established by law’ should be understood, thus precluding the national courts from 
verifying the formation of a court due to the manner in which judges were 
appointed under a defective nomination procedure – rulings of the Trybunał 
Konstytucyjny (Constitutional Court) of 20 April 2020 (U 2/20), of 7 October 
2021 (K 3/21), 23 February 2022 (P 10/19) and of 10 March 2022 (K 7/21). The 
same objective is served by the rules contained in the ustawa o zmianie ustawy – 
Prawo o ustroju sądów powszechnych, ustawy o Sądzie Najwyższym oraz 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-225/22 
 
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niektórych innych ustaw (Law amending the Law on the system of ordinary 
courts, the Law on the Supreme Court and certain other laws) of 20 December 
2019 (Dz.U. of 2020, item 190) prohibiting ordinary courts from determining or 
assessing the lawfulness of an appointment and the rules arising therefrom 
concerning professional misconduct in the event that a judge, in the course of 
performing his judicial functions, undertakes acts calling into question the 
existence of the employment relationship of a judge, the effectiveness of the 
appointment of a judge or the legitimacy of a constitutional organ of the Republic 
of Poland. An obligation to impose the harshest possible disciplinary penalties 
applies in the case of such misconduct: transfer to another post or the judge’s 
dismissal from office. 
8 An affirmative answer with regard to the issues raised in the first and second 
questions must give rise to doubts as to the legal effects of the actions (including 
judicial decisions) taken by a body that is not a tribunal or court established in 
accordance with the law within the meaning of EU law. The issue is of a 
fundamental nature since tribunals established in accordance with the law and 
tribunals which do not satisfy the requirements of that law currently coexist in the 
Polish justice system. The question thus arises as to whether the mere fact that a 
court which is not a tribunal within the meaning of European Union law was 
involved in the final determination of a case at one stage of the proceedings gives 
rise to an infringement of a party’s right to have a case determined by an 
independent, impartial court established by law. The problem acquires particular 
importance if one considers that the defect affects judges and courts of final 
instance of a Member State, and does so with regard to the performance of their 
judicial functions, resulting in the undermining of final judgments delivered in 
judicial proceedings that have closed. 
9 The case-law of the EU Courts does not provide an answer to the question 
whether, where there has been a flagrant breach in appointing the court of final 
instance, the lower courts may, during further consideration of the case, assess the 
regularity of the formation of the chamber delivering the judgment, including 
whether the body giving the judgment is a tribunal within the meaning of EU law. 
It would seem that such power on the part of a lower court should exist since such 
court is not only a national court but also a court of the European Union which is 
required to apply the provisions of EU law, including those concerning guarantees 
of judicial protection. 
10 The referring court is uncertain whether an infringement of the rules on the 
appointment of a judge and the formation of a court means that judgments given 
by a person occupying the position of judge are unlawful. On the one hand, it 
could be held that until his or her appointment has been annulled, he or she has the 
full authority of the function entrusted to him or her and therefore there is no basis 
for challenging the judgment given as non-existent. On the other, the referring 
court cites judgments of the ECtHR which show that the seriousness of the 
infringements of national law on the appointment of judges means that the 
composition of a court includes persons who do not have the status of judge or 
AW 'T' 
 
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could not be appointed to the position of judge, and consequently, there is an 
infringement of the right to a trial before ‘a tribunal or court established by law’ 
(judgment in Posokhov v Russia of 4 March 2003, Application no 63486/00; 
judgment in Moskovets v Russia of 23 April 2009, Application no 14370/03; 
judgment in [Sevastyanov] v Russia of 14 June 2011, Application no 75911/01). A 
consequence of finding that a body which issued a judgment included persons 
who are not judges may be that the judgment is not a judgment that exists in a 
legal sense within the meaning of EU law. 
11 Doubts in this respect are not dispelled by the assessment contained in the CJEU 
judgment of 6 October 2021 (Case C-487/19). Firstly, in that case, the power was 
granted to a correctly constituted court of final instance, and not to a lower court. 
Secondly, the declaring of a decision of a court not properly constituted to be null 
and void was made conditional on the need to guarantee the primacy of European 
Union law. It does not follow from the Court’s considerations that every judgment 
issued by a court composed of persons appointed in flagrant breach of 
fundamental norms constituting an integral part of the system and functioning of 
the judiciary is a non-existent judgment. A duly composed court delivering 
judgment should, however, declare a contested judgment to be null and void if the 
integrity of the outcome produced by the defective nomination process, that is to 
say, an outcome that fails to provide a party with effective legal protection, is 
threatened. Thus, in the view of the referring court, the concept of ‘declaring a 
judgment null and void’ cannot be equated with the concept of a ‘non-existent 
judgment’. 
12 It is therefore necessary to consider whether, in order to guarantee the primacy of 
EU law, it is sufficient to disregard only such scope of the provisions of national 
law as is necessary to ensure effective legal protection for individuals in a 
particular case. That would preclude the assumption, a priori, of the non-existence 
of a decision delivered by a court composed of persons appointed under a 
manifestly defective nomination procedure and would entitle the national court to 
accept that the effects of the contested decision are such as are necessary to ensure 
the right of individuals to a fair trial within the meaning of Article 6 of the ECHR 
and Article 47 of the Charter, which does not exclude the possibility that, in a 
particular case, the attainment of such an effect may require that the decision of 
the court of final instance be declared null and void. 
13 The essence of the problem thus comes down to determining the consequences of 
the judicial activities of a body which is not a tribunal within the meaning of 
European law. In this regard, the referring court refers to the ECtHR judgment of 
1 December 2020 in Guðmundur Andri Ástráðsson v Iceland (Grand Chamber, 
Application no 26374/[18]) and refers to the three-stage threshold test developed 
therein, which is designed to assess whether the irregularities in a given judicial 
appointment procedure were so serious as to entail a violation of the right to a 
tribunal or court established by law. 
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14 The particular characteristics of the case at issue and the assessment made in it are 
also related to the fact that the case concerns a court of final instance. Moreover, 
the judicial activities of the court of final instance being assessed concern 
competence related to the activities of the court as a result of considering an 
extraordinary appeal, and the effect of granting such appeal is the setting aside of 
a final decision in a case that has already been closed. 
15 The referring court observes that one of the main aspects of the rule of law is legal 
certainty requiring, inter alia, respect for the principle of res judicata, i.e. the 
finality of judgments. Departures from the principle of legal certainty may be 
justified exceptionally, only if such proves necessary due to circumstances of a 
substantial and compelling character, e.g. to rectify a mistake of fundamental 
importance for the judicial system (ECtHR judgment of 23 July 2003 in Ryabykh 
v Russia (Application no 52854/99)). Thus, in certain situations, the need for legal 
certainty must give way to the need to rectify a fundamental defect or miscarriage 
of justice. The power to set aside or amend a final judgment should therefore 
serve only to remedy the fundamental defects while striking, as far as possible, a 
balance between the interests of the individual and the need to maintain the proper 
administration of justice. 
16 However, with the establishment of the Izba Kontroli Nadzwyczajnej i Spraw 
Publicznych (Chamber of Extraordinary Control and Public Affairs) within the 
Sąd Najwyższy (Supreme Court), matters of importance for the political 
authorities, including the hearing of extraordinary appeals, were transferred to the 
competence of that chamber. 
17 At the same time, the ustawa o Sądzie Najwyższym (Law on the Supreme Court) 
of 7 December 2017 introduced a new extraordinary legal remedy, the 
extraordinary appeal filed against final decisions of the ordinary courts or military 
courts definitively discontinuing proceedings in a given case. 
18 The manner in which the extraordinary appeal is structured, in view of its 
grounds, does not raise significant objections, although at the legislative stage, 
questions were raised concerning the imprecise nature of the prerequisites for the 
admissibility of such appeal. Firstly, there were and are doubts about the rules 
concerning the time limit within which an appeal may be brought, both with 
respect to the basic five-year period from the date of becoming final, and also with 
respect to the time limit arising from a special rule, that is, the possibility of 
challenging by way of an appeal any final judgment issued after 17 October 1997. 
That is because in this regard those rules infringe the principle of the stability of 
jurisprudence and have a retroactive character, which gives rise to concerns from 
the perspective of the principle of trust in the state and the law as established by it. 
Secondly, the possibility of the Prokurator Generalny (Public Prosecutor General) 
initiating such proceedings also gives rise to doubts. This was because there were 
fears that the appeal would be used for political ends, as an instrument for the 
pursuit of partisan interests. It is worth recalling that the function of the Prokurator 
Generalny (Public Prosecutor General) is held by a representative of political 
AW 'T' 
 
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executive power who exercises significant influence over the formation of the 
Krajowa Rada Sądownictwa (National Council of the Judiciary) and the process 
of the appointment of judges. 
19 In the light of the above considerations, it is therefore necessary to analyse the 
assertion that a judgment delivered by a court of final instance formed in such 
manner is not a judgment in the legal sense (sententia non existens). Such solution 
may be supported by considerations of a fundamental nature related to the gravity 
and scale of the infringements and the intentionality of the actions undertaken by 
political authorities.  
20 In previous national practice, defects in the formation of a court generally arose 
for individual rather than systemic reasons and it was possible to resolve the 
ensuing problems by applying the usual procedures laid down in national law. 
21 In civil proceedings, if the composition of the court delivering the judgment was 
contrary to the law, or if a judge excluded by law participated in consideration of 
the case, the proceedings were invalid (Article 379(4) of the Code of Civil 
Procedure), which the higher court was required to take into account of its own 
motion (Article 378, Paragraph 1, of the Code of Civil Procedure). The fact that 
an unauthorised person was included in the composition of the court also provides 
grounds for bringing an extraordinary appeal, which is what an application for 
revision is (Article 401(1) of the Code of Civil Procedure). It is held in the case-
law of the Sąd Najwyższy (Supreme Court) that proceedings are invalid where the 
composition of the court delivering the judgment was contrary to the law and the 
concept of ‘composition of the court’ must also include the participation of an 
authorised judge in the composition delivering the judgment. 
22 Firstly, the problem in this regard is not, however, individual but structural, and 
the actions of the executive and legislative authorities and the judges appointed 
under the new nomination procedure are intended to create faits accomplis which 
are not subject to review. Secondly, it concerns the court of final instance, which 
exercises judicial supervision over the ordinary courts, which, under national law, 
possess no procedural powers to review the judicial actions of the Sąd Najwyższy 
(Supreme Court). Thirdly, the Polish legal system lacks instruments which make it 
possible to review the legality of the appointment of judges of the Sąd Najwyższy 
(Supreme Court) or examine the legality of judgments of the court of final 
instance. 
23 The previous case-law of the ordinary courts has not resulted in a need to 
distinguish non-existent judgments to a broader degree. However, there is no 
doubt that a judgment which fails to meet the constitutional criteria is not a 
judgment. In case-law and academic writings judgments which have not been 
signed, for example, are regarded as not having existed. 
24 Assuming that the concept relating to the non-existence of a court judgment where 
it fails to meet the relevant criteria is permissible and taking account of the fact 
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that one of those criteria is the issuing of the judgment by a tribunal within the 
meaning of the law, the referring court is further uncertain as to which defects in 
the formation of the composition of the body delivering the judgment render the 
proceedings invalid and which lead to the assessment that a judgment does not 
exist.  
25 The penalty of rendering proceedings invalid where there is a defective 
composition of the court delivering the judgment, as provided for in 
Article 379(4) of the Code of Civil Procedure, leads to the conclusion that a 
judgment given by such a composition is an existent judgment, which can be set 
aside by the remedies provided by law. 
26 However, in the view of the referring court the situation is different where persons 
who are not judges participate in the delivery of the judgment and in particular 
where it concerns a court excluded from review in the course of proceedings (the 
Sąd Najwyższy (Supreme Court)).  
27 The referring court emphasises that the status of a judge of the Sąd Najwyższy 
(Supreme Court) is a status separate from that of a judge of an ordinary court. The 
Supreme Court is a court separate from the ordinary courts and thus different 
consequences attach to a judgment of an ordinary court in an inappropriate 
composition than where the judge of an ordinary court, delivers, without authority, 
a judgment in the composition of the Sąd Najwyższy (Supreme Court). In the first 
case it is possible to rely on the effect of invalidity and there are remedies which 
serve to rectify the defect, whilst in the second it is not possible to rely on such 
effect and there are no relevant legal instruments. 
28 This leads to the conclusion that a judgment delivered formally in the Sąd 
Najwyższy (Supreme Court) by a body which does not correspond to the concept 
of a tribunal within the meaning of European Union law and which was composed 
of persons who are not judges within the meaning of European Union law is a 
non-existent judgment.  
29 At the same time, it should be pointed out that the position presented above, which 
assumes an automatic assessment of the consequences of the issuance of a 
decision by a defective judicial body, may lead, in specific procedural situations, 
to the violation of other protected values, including legal certainty or the legal 
security of the individual as well. It may also have a negative impact on the 
stability of the legal system. 
30 It is therefore necessary to consider whether an assessment of the effects arising 
from the issuance by a court of final instance of a judgment setting aside a final 
decision of an ordinary court as a result of granting an extraordinary appeal should 
not take into account the procedural situation in a particular case, weighing up the 
values which are of importance in order to ensure that a party enjoys the right to 
effective legal protection to the maximum possible extent. 
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31 Therefore, if the circumstances of a particular case indicate that the granting of an 
extraordinary appeal would have the effect of infringing the rights of the 
individual, a lower court would be entitled to take such action as would be 
necessary for ensuring that a party is afforded legal protection to the maximum 
possible extent. As a result, weighing up the values resulting from the requirement 
that a case be heard by a ‘tribunal or court established by law’, the principle of 
legal certainty, the principle of legal security of the individual – in a specific case 
and when a specific procedural situation is identified – would oblige the court to 
make an appropriate decision as to the extent to which it is bound by the judgment 
of the court of final instance. 
32 Adopting such a solution would take into account the possibility of weighing up 
whether the requirement related to implementation of the principle of legal 
certainty and legal security is met. It should be noted that such values are 
threatened both when the principle of res judicata is violated and when the 
destruction of the justice system precludes the possibility of the effective use of 
legal remedies, including an extraordinary appeal (and such a consequence is 
connected with the application of an automatic approach in assessing the 
consequences of the judicial activities of the Sąd Najwyższy (Supreme Court) 
given its defective formation). 
33 Under Article 105(1) of the Rules of Procedure of the Court of Justice, the 
referring court requests that the case be determined pursuant to an expedited 
procedure, for the following reasons: (1) the need to take procedural decisions in a 
case where the proceedings themselves are prolonged; (2) the importance of the 
answer to the question referred for the protection of the justice system and 
consequently the judicial protection afforded to individuals, in particular in the 
light of the structural and blatant nature of the infringements and concerns as to 
their consolidation and continuation; and (3) the fundamental importance of the 
answer to Question 2 with regard to the continued existence of a state of 
destabilisation of the justice system and legal certainty for individuals.