Opinion of the Advocate General — ECLI:EU:C:2021:403
Date: 2021-05-20
Language of the case: Polish
Subject matter: Principles, objectives and tasks of the Treaties;Judicial cooperation in criminal matters;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Poland

summary form, the factual information on which the questions referred are based. 56 Moreover, the requests for a preliminary ruling do not contain an adequate statement of reasons as regards, in particular, the reasons for the choice of the provisions of EU law in respect of which interpretation is sought and proof of the existence of a link between those provisions and the national rules applicable in the main proceedings. The referring court has merely cited provisions of EU law and set out in summary form the interpretation of some of those provisions, without examining either their interdependence or the relevance of the various rules in respect of which interpretation is sought for resolving the disputes in the main proceedings. 57 In that regard, it is apparent from the elements referred to in paragraphs 5 to 14 and 16 to 19 of this judgment that the requests for a preliminary ruling, as clarified by the referring court in its response to a request for information put to it by the Court, contain all the necessary information, including the content of the provisions of national legislation that may be applicable in this instance, the reasons which have led the referring court to question the Court regarding the interpretation of the provisions referred to in paragraph 39 of this judgment, and the link established by that court between those provisions and the national rules relied on, so that the Court is in a position to rule on the first question. 58 In the light of all the foregoing considerations, it must be held that the first question referred is admissible. Substance 59 Article 19 TEU, which gives concrete expression to the value of the rule of law affirmed in Article 2 TEU, entrusts the responsibility for ensuring the full application of EU law in all Member States and the judicial protection that individuals derive from EU law to national courts and tribunals and to the Court of Justice (judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraph 108 and the case-law cited). 60 In that regard, as provided for by the second subparagraph of Article 19(1) TEU, it is for the Member States to establish a system of legal remedies and procedures ensuring for individuals compliance with their right to effective judicial protection in the fields covered by EU law (judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraph 109 and the case-law cited). 61 As is apparent from settled case-law, the principle of the effective judicial protection of individuals’ rights under EU law, referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and which is now reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) (judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraph 110 and the case-law cited). 62 As regards the material scope of the second subparagraph of Article 19(1) TEU, that provision refers to the ‘fields covered by Union law’, irrespective of whether the Member States are implementing Union law within the meaning of Article 51(1) of the Charter (judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraph 111 and the case-law cited). 63 Under the second subparagraph of Article 19(1) TEU, every Member State must thus in particular ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by EU law and which, therefore, are liable to rule, in that capacity, on the application or interpretation of EU law meet the requirements of effective judicial protection (judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 104 and the case-law cited). 64 In this instance, it is common ground that the Polish ordinary courts, which include regional courts such as the Sąd Okręgowy w Warszawie (Regional Court, Warsaw), may be called upon to rule on questions relating to the application or interpretation of EU law and that, as ‘courts or tribunals’ within the meaning of EU law, they fall within the Polish judicial system in the ‘fields covered by Union law’, within the meaning of the second subparagraph of Article 19(1) TEU, with the result that they must meet the requirements of effective judicial protection (see, to that effect, judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 106 and the case-law cited). 65 To guarantee that such courts are in a position to ensure the effective legal protection thus required under the second subparagraph of Article 19(1) TEU, maintaining their independence is essential, as confirmed by the second paragraph of Article 47 of the Charter, which refers to access to an ‘independent’ tribunal as one of the requirements linked to the fundamental right to an effective remedy (judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 107 and the case-law cited). 66 As the Court has emphasised on several occasions, that requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded (judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 108 and the case-law cited). 67 It is settled case-law that the guarantees of independence and impartiality required under EU law presuppose rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, that are such as to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it (judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 109 and the case-law cited). 68 In particular, in accordance with the principle of the separation of powers which characterises the operation of the rule of law, the independence of the judiciary must in particular be ensured in relation to the legislature and the executive (judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 127 and the case-law cited). 69 In that regard, it is necessary that judges be protected from external intervention or pressure liable to jeopardise their independence. The rules applicable to the status of judges and the exercise of their judicial functions must, in particular, be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned, and thus preclude a lack of appearance of independence or impartiality on their part likely to prejudice the trust which justice in a democratic society governed by the rule of law must inspire in individuals (judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 110 and the case-law cited). 70 In this instance, the referring court’s doubts concern the possibility for the Minister for Justice of a Member State, on the basis of criteria which have not been made public, to second a judge to another criminal court for a fixed or indefinite period and, at any time, by way of a decision which does not contain a statement of reasons, to terminate that secondment, irrespective of whether that secondment is for a fixed or indefinite period. 71 In that regard, as has been recalled in paragraph 67 of this judgment, the guarantees of independence and impartiality which courts that may be called upon to rule on the application or interpretation of EU law are required to provide under EU law presuppose, inter alia, rules as regards the composition of the body concerned and the appointment, length of service and grounds for dismissal of its members that are such as to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it. Such rules necessarily include those concerning the secondment of judges, since, as is the case with the provisions of Article 77 of the Law on the organisation of the ordinary courts, those rules are liable to affect both the composition of the body which is called upon to hear and determine a case and the length of service of the judges thus seconded. They also provide for the possibility of terminating the secondment of one or more of the members of that body. 72 It is true that the Member States may have recourse to a system according to which judges may, in the interests of the service, be temporarily seconded from one court to another (see, to that effect, ECtHR, 25 October 2011, Richert v. Poland, CE:ECHR:2011:1025JUD005480907, § 44, and 20 March 2012, Dryzek v. Poland, CE:ECHR:2012:0320DEC001228509, § 49). 73 However, compliance with the requirement of independence means that the rules governing the secondment of judges must provide the necessary guarantees of independence and impartiality in order to prevent any risk of that secondment being used as a means of exerting political control over the content of judicial decisions (see, by analogy, judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others, C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 198 and the case-law cited). 74 It will ultimately be for the referring court to rule, in the light of all the principles recalled in paragraphs 59 to 73 of this judgment, having made the assessments required for that purpose, on whether the conditions under which the Minister for Justice may second a judge to a higher court and terminate that secondment, taken as a whole, are such as to lead to the conclusion that, during the period of those judges’ secondment, they are not guaranteed to be independent and impartial (see, by analogy, judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 131). 75 Article 267 TFEU does not empower the Court to apply rules of EU law to a particular case, but only to rule on the interpretation of the Treaties and of acts adopted by the EU institutions, providing, inter alia, the referring court, on the basis of the material in the case file, with interpretations of EU law which may be useful to the referring court in assessing the effects of one provision of EU law or another (see, to that effect, judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraphs 132 and 133 and the case-law cited). 76 In that regard, it is true that the fact that, in accordance with Article 77 § 1 of the Law on the organisation of the ordinary courts, the Minister for Justice may not second a judge to another court for the purpose of exercising judicial functions or performing administrative tasks without that judge’s consent constitutes an important procedural safeguard. 77 However, as regards the Polish rules governing the secondment of judges and the very conditions under which judges have been seconded to the Sąd Okręgowy w Warszawie (Regional Court, Warsaw), the referring court mentions a number of factors which, in its view, empower the Minister for Justice to influence those judges, so that doubts may arise as to their independence. 78 In the first place, as has been stated by the referring court, the criteria applied by the Minister for Justice for the purpose of seconding judges are not made public. In addition, the Minister for Justice has the power to terminate such secondments at any time, without the criteria that may be associated with that power being known and without the reasons for such a decision being stated. 79 In order to avoid arbitrariness and the risk of manipulation, the decision relating to the secondment of a judge and the decision terminating that secondment, in particular where a secondment to a higher court is involved, must be taken on the basis of criteria known in advance and must contain an appropriate statement of reasons. 80 In the second place, it is apparent from Article 77 § 4 of the Law on the organisation of the ordinary courts that the Minister for Justice may terminate the secondment of a judge irrespective of whether that secondment is for a fixed or indefinite period, and that, in the specific case where the judge has been seconded for a fixed period, the termination may even take place without prior notice. That provision thus allows the Minister for Justice to decide to terminate the secondment of a judge at any time. Moreover, that provision does not lay down specific conditions governing the termination of the secondment. 81 Thus, the possibility available to the Minister for Justice to terminate the secondment of a judge at any time, in particular in the case of a secondment to a higher court, could give an individual the impression that the assessment to be carried out by the seconded judge who is to hear and determine his or her case will be influenced by the fear of termination of the secondment. 82 Furthermore, that possibility to terminate the secondment of a judge at any time and without any publicly known reason could also give the seconded judge the feeling of having to meet the expectations of the Minister for Justice, which could give rise to the impression on the part of the judges themselves that they are ‘subordinate’ to the Minister for Justice, in a manner incompatible with the principle of the irremovability of judges. 83 Lastly, as the termination of the secondment of a judge without that judge’s consent is liable to have effects similar to those of a disciplinary penalty, the second subparagraph of Article 19(1) TEU requires that the regime applicable to such a measure provide all the necessary guarantees to prevent any risk of such a regime being used as a means of exerting political control over the content of judicial decisions, which means, inter alia, that it must be possible for that measure to be legally challenged in accordance with a procedure which fully safeguards the rights enshrined in Articles 47 and 48 of the Charter (see, to that effect, judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraphs 115 and 118). 84 In the third place, while the Minister for Justice may, as has been recalled in paragraph 80 of this judgment, by terminating a judge’s secondment, take a decision which has an effect on the composition of an adjudicating panel, that same minister also, pursuant to Article 1 § 2 of the Law on the Public Prosecutor’s Office, occupies the position of Public Prosecutor General and, in that capacity, pursuant to Article 13 § 2 of that law, has authority over, inter alia, public prosecutors attached to the ordinary courts. Thus, the Minister for Justice has, in any given criminal case, power over both the public prosecutor attached to the ordinary court and the seconded judges, which is such as to give rise to reasonable doubts in the minds of individuals as to the impartiality of those seconded judges when they rule in such a case. 85 In the fourth place, it is apparent from the statements made by the referring court that the seconded judges in the adjudicating panels called upon to rule in the disputes in the main proceedings continue to perform, in parallel, the duties – which they were performing prior to their secondment – of the deputies of the Disciplinary Officer, who is the person responsible for investigating, if necessary under the authority of the Minister for Justice, disciplinary proceedings that may be brought against judges (see, to that effect, judgment of 15 July 2021, Commission v Poland (Disciplinary regime for judges), C‑791/19, EU:C:2021:596, paragraph 233). 86 As has also been noted, in essence, by the Advocate General in point 190 of his Opinion, the fact that one and the same person performs the duties of a seconded judge and those of a deputy of the Disciplinary Officer, in a context where, under Article 112 of the Law on the organisation of the ordinary courts, the deputies of the Disciplinary Officer are also appointed by the Minister for Justice, is such as to give rise to reasonable doubts in the minds of individuals as to the imperviousness of the other members of the adjudicating panels concerned to external factors, for the purposes of the case-law referred to in paragraphs 67 and 68 of this judgment, given that those members are likely to fear that the seconded judge is involved in disciplinary proceedings concerning them. 87 It is apparent from all those elements that, taken together, the facts referred to in paragraphs 76 to 86 of this judgment are, subject to the final assessments which are to be carried out by the referring court in that regard, such as may lead to the conclusion that the Minister for Justice – who is also the Public Prosecutor General – has, on the basis of criteria which are not officially known, the power to second judges to higher courts and to terminate their secondment, at any time and without being required to give reasons for that decision, with the result that, during the period of those judges’ secondment, they are not provided with the guarantees and the independence which all judges should normally enjoy in a State governed by the rule of law. Such a power cannot be considered compatible with the obligation to comply with the requirement of independence, in accordance with the case-law referred to in paragraph 73 of this judgment. 88 Furthermore, as regards the presumption of innocence, to which recital 22 and Article 6 of Directive 2016/343 – provisions which are also mentioned in the first question referred for a preliminary ruling – refer, it presupposes that the judge is free of any bias and any prejudice when examining the criminal liability of the accused. The independence and impartiality of judges are therefore essential conditions for guaranteeing the presumption of innocence. 89 However, in this instance, it appears that, in circumstances such as those at issue in the main proceedings, described in paragraph 87 of this judgment, the independence and impartiality of judges and, accordingly, the presumption of innocence may be jeopardised. 90 In the light of the foregoing considerations, the answer to the first question is that the second subparagraph of Article 19(1) TEU, read in the light of Article 2 TEU, and Article 6(1) and (2) of Directive 2016/343 must be interpreted as precluding provisions of national legislation pursuant to which the Minister for Justice of a Member State may, on the basis of criteria which have not been made public, second a judge to a higher criminal court for a fixed or indefinite period and may, at any time, by way of a decision which does not contain a statement of reasons, terminate that secondment, irrespective of whether that secondment is for a fixed or indefinite period. The second, third and fourth questions 91 By its second question, the referring court asks, in essence, whether the requirements of effective judicial protection, which include the independence of the judiciary, and those arising from the presumption of innocence, are infringed where, in the event that the judgments to be delivered in the cases in the main proceedings are the subject of appeals before the Sąd Najwyższy (Supreme Court), those appeals may be assigned to a judge appointed on a proposal from the KRS. By its third question, the referring court questions the Court of Justice, in essence, as to the legal effects of those judgments in the event that they are handed down by an adjudicating panel including one or more judges seconded by the Minister for Justice and, in the event of an appeal, as to the legal effects of a decision of the Sąd Najwyższy (Supreme Court) adopted with the involvement of a judge appointed on a proposal from the KRS. By its fourth question, the referring court asks, in essence, whether the fact that the court concerned has ruled in favour of or against the accused person may have a bearing on the answer to be given to the third question. 92 As the admissibility of those questions is disputed by the Polish Government, the Regional Public Prosecutor’s Office, Lublin, the Regional Public Prosecutor’s Office, Warsaw, and the European Commission, it should be borne in mind that the Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 27 and the case-law cited). 93 In this instance, the second, third and fourth questions raised are purely hypothetical, in so far as they assume that an appeal will be brought before the Sąd Najwyższy (Supreme Court) against the judgments to be delivered in the cases in the main proceedings. In addition, in so far as the third and fourth questions concern the legal effects of those judgments, the Court does not have before it the factual or legal material necessary to give a useful answer to those questions, since the referring court has failed to specify the possible relevance of such an answer for the decisions to be taken by it in the cases in the main proceedings. 94 It follows that the second, third and fourth questions referred are inadmissible. Costs 95 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Grand Chamber) hereby rules: The second subparagraph of Article 19(1) TEU, read in the light of Article 2 TEU, and Article 6(1) and (2) of 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 must be interpreted as precluding provisions of national legislation pursuant to which the Minister for Justice of a Member State may, on the basis of criteria which have not been made public, second a judge to a higher criminal court for a fixed or indefinite period and may, at any time, by way of a decision which does not contain a statement of reasons, terminate that secondment, irrespective of whether that secondment is for a fixed or indefinite period. [Signatures] * Language of the case: Polish.