Order;Information — ECLI:EU:C:2024:459
Date: 2024-05-29
Language of the case: Polish
Court formation: Tenth Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
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: 
18 January 2022 
Referring court: 
Sąd Najwyższy (Poland) 
Date of the decision to refer: 
22 December 2021 
Appellant: 
Prokurator Generalny 
Other parties to the proceedings: 
D.J., D[X]. J., Ł.J., S.J. 
Wojewódzkie Pogotowie Ratunkowe w K. 
  
Subject matter of the main proceedings 
Extraordinary appeal against a judgment awarding compensation for non-material 
damage caused by the death of a close person. 
Subject matter and legal basis of the request 
Compatibility with EU law of the secondment of a judge to a higher civil court for 
a fixed or indefinite period on the basis of criteria which have not been made 
public, with the possibility of terminating the secondment of that judge at any time 
and without stating reasons. 
Article 267 TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING OF 22. 12. 2021 – CASE C-43/22 
 
2  
Questions referred for a preliminary ruling 
1. Must the second subparagraph of Article 19(1) and Article 5(1) to (3) of the 
Treaty on European Union, read in conjunction with Articles 47 and 51(1) of the 
Charter of Fundamental Rights, be interpreted as precluding national rules under 
which the Minister for Justice of a Member State may, on the basis of criteria 
which have not been made public, on the one hand, second a judge to a higher 
civil court with jurisdiction over matters of EU law for a fixed or indefinite 
period, and, on the other hand, terminate the secondment of that judge at any time 
by way of a decision which does not contain a statement of reasons? 
2. If the answer to the first question is in the affirmative: must the second 
subparagraph of Article 19(1) and Article 5(1) to (3) of the Treaty on European 
Union, read in conjunction with Articles 47 and 51(1) of the Charter of 
Fundamental Rights, be interpreted as meaning that a national court seised of an 
appeal against a decision of a court which includes a judge seconded in the 
manner described in the first question is required to examine of its own motion 
whether that court is independent and impartial even if the case at issue does not 
involve a matter of EU law? 
3. If the answer to the second question is in the affirmative: must the second 
subparagraph of Article 19(1) and Article 5(1) to (3) of the Treaty on European 
Union, read in conjunction with Articles 47 and 51(1) of the Charter of 
Fundamental Rights, be interpreted as requiring a court of a Member State to set 
aside a final court decision whenever it is established that such a seconded judge 
participated in the examination of the case, and that the court which included the 
judge in question was not independent and impartial, by means of a legal remedy 
the purpose of which is to set aside final decisions, such as an extraordinary 
appeal, or does the determination of the effects of such an infringement come 
within the procedural autonomy of the Member State? 
Provisions of EU law cited 
Second subparagraph of Article 19(1) TEU, and Article 5(1) to (3) TEU 
Articles 47 and 51(1) of the Charter of Fundamental Rights 
Provisions of national law cited 
Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland) – 
Article 45, Article 178(1), Article 179; 
Ustawa – Prawo o ustroju sądów powszechnych (Law on the System of Ordinary 
Courts, ‘the LSOC’) – Article 77; 
PROKURATOR GENERALNY 
 
3 
Kodeks postępowania cywilnego (Code of Civil Procedure, ‘the CCP’) – 
Article 1, Article 379(4), Article 386(2), Article 39813, Article 39815, 
Article 39821; 
Ustawa o Sądzie Najwyższym (Law on the Supreme Court) – Article 1(1)(b), 
Article 26(1), Article 89(1), Article 91(1), Article 95(1). 
Succinct presentation of the facts and procedure in the main proceedings 
1 By judgment of 18 October 2017, the Sąd Apelacyjny (Court of Appeal) 
dismissed the appeals of both parties against the judgment of the Sąd Okręgowy 
(Regional Court) of 9 March 2016 awarding from the defendant, the Wojewódzkie 
Pogotowie Ratunkowe (Provincial Ambulance Service) in K., to each of the 
applicants (D.J., D[X]. J., Ł.J. and S.J.) the sum of PLN 100 000 together with 
statutory interest from 7 August 2013 until the date of payment as compensation 
for non-material damage caused by the death of a person close to them, I.J., that 
compensation being based on Article 446(4) of the Civil Code, read in 
conjunction with Articles 23 and 24 thereof. 
2 The court which delivered the judgment included J.K. and J.N., judges of the 
Court of Appeal performing their judicial duties in the Court of Appeal, and 
A.P.-P., a district court judge, seconded from 1 November 2016 for an indefinite 
period to perform judicial duties in the Court of Appeal. 
3 An extraordinary appeal against the judgment of the Court of Appeal was lodged 
by the Prokurator Generalny (Prosecutor General) pursuant to Article 89(1), read 
in conjunction with Article 115(1) and (1a), of the Law on the Sąd Najwyższy 
(Supreme Court), citing the need to ensure compliance with the principle of a 
democratic state operating under the rule of law and implementing the principles 
of social justice, and challenging the judgment in its entirety. 
4 The Prosecutor General alleged that the contested judgment breached the 
principles and human and civil freedoms and rights laid down in the Constitution 
of the Republic of Poland: firstly, by holding that the amount of PLN 100 000 
each was appropriate compensation for the applicants, despite the fact that the 
relationship between family members had been broken as a result of I.J.’s death 
following a wrongful act committed by an employee of the Provincial Ambulance 
Service in K. and the amounts awarded did not fulfil the compensatory function, 
and secondly, by failing to take into account the applicants’ legal and factual 
situation as a consequence of the wrongful act committed by an employee of the 
Provincial Ambulance Service in K. and by failing to consider the possibility of 
awarding them compensation in the full amount claimed, that is to say, 
PLN 200 000 each. The Prosecutor General also alleged a flagrant breach of 
substantive law by reason of misinterpretation of the relevant provisions of the 
Civil Code, resulting in the assumption that the appropriate compensation due to 
the applicants was PLN 100 000 each, and that higher amounts would have been 
excessive. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING OF 22. 12. 2021 – CASE C-43/22 
 
4  
5 In response to the extraordinary appeal, the applicants requested that the appeal be 
allowed in its entirety and that the defendant be ordered to pay their costs. The 
defendant, in turn, requested that the appeal be dismissed as manifestly unfounded 
and that it be awarded the costs of the proceedings. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
6 The need to submit to the Court of Justice the legal questions set out in the 
operative part of the present order stems from the fact that the court which 
delivered the contested judgment included a judge seconded pursuant to 
Article 77(1)(1) of the LSOC to perform judicial duties in a higher court for an 
indefinite period. That need has arisen following the judgment of the Court of 
Justice of 16 November 2021, Prokuratura Rejonowa w Mińsku Mazowieckim 
and Others, C-748/19 to C-754/19, EU:C:2021:931, paragraphs 72, 73, 81, 82, 83, 
88 and 90 of which and its operative part are cited in the order for reference. 
7 In particular, in that context, a doubt arises as to whether the conclusions of the 
judgment in Case C-748/19, which were drawn in the context of criminal 
proceedings, should also be applied to the situation of judges seconded under 
Article 77(1)(1) of the LSOC to adjudicate civil cases. 
8 Since that judgment was delivered as a result of a reference for a preliminary 
ruling by a referring court adjudicating a criminal case, its conclusions cannot be 
directly applied to the situation of seconded judges adjudicating civil cases, if only 
because those conclusions were also formulated as a result of an examination of 
the compatibility of national legislation with 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. At the same time, apart 
from the obvious differences between criminal and civil proceedings, the doubt is 
caused by, inter alia, the fact that in civil proceedings the Minister 
Sprawiedliwości (Minister for Justice), who is at the same time the Prosecutor 
General, does not have authority over one of the parties to the trial (unlike in 
criminal proceedings, in which the Minister has authority over the public 
prosecutor). 
9 In view of the foregoing, a doubt arises as to whether the judgment of the Court of 
Justice in Case C-748/19 may be applied to the situation of a judge seconded to 
perform judicial duties at a higher court with jurisdiction over civil cases 
involving EU law where the secondment is on the terms set out in Article 77(1)(1) 
of the LSOC, which provision does not require that the criteria determining the 
secondment be indicated or that they be made public. A similar question arises in 
view of the fact that, pursuant to Article 77(4) of the LSOC, the secondment of a 
judge seconded to perform judicial duties at a higher court with jurisdiction over 
civil cases involving EU law may, just as in the case of a seconded judge who 
adjudicates criminal cases subject to EU-law regulations, be terminated without 
PROKURATOR GENERALNY 
 
5 
notice on the basis of a decision of the Minister for Justice which need not contain 
a statement of reasons. 
10 If the first question is answered in the affirmative, it will be necessary to 
determine the consequences of the provisions on secondment – within the scope 
stated above – being declared incompatible with EU law. The main question is 
whether a national court seised of an appeal against a decision of a court which 
included a seconded judge is required to examine of its own motion whether that 
court is independent and impartial even if the case at issue does not involve a 
matter of EU law. 
11 The court judgment contested in the main proceedings was delivered in a case 
relating to financial compensation for non-material damage caused by the death of 
a close person, and proceedings to pursue such claims are not regulated by EU 
law. However, it should be borne in mind that the judgment of the Court of Justice 
in Case C-748/19 was delivered in the context of a case with an EU element in 
view of the applicability of Directive 2016/343. Therefore, that judgment of the 
Court of Justice cannot, in the opinion of the Sąd Najwyższy (Supreme Court), be 
applied directly to the situation of seconded judges who adjudicate cases that are 
not only of a different nature (civil proceedings), but are also not covered by the 
norms established under the European Union’s legislative procedure. 
12 If, in answering the first question, the Court of Justice were to hold that judges 
seconded under Article 77(1)(1) of the LSOC who adjudicate civil cases are not 
covered by guarantees of independence and impartiality, the question would arise 
as to what consequences this would have where a judgment in a civil case which 
does not come within the scope of EU law is being challenged. In such a case, a 
justified doubt arises, in particular, as to whether a national court seised of an 
appeal against a decision of a court which includes a judge seconded in the 
manner described above may be required to examine of its own motion whether 
that court is independent and impartial. Indeed, the principle of procedural 
autonomy of the Member States may lead to the conclusion that it is for national 
law to determine whether and to what extent that issue is to be examined by the 
appellate court, including, inter alia, whether a relevant plea must be raised by a 
party to the proceedings. 
13 In addition, if the second question thus formulated is answered in the affirmative, 
a doubt arises as to whether it is permissible to set aside a judgment delivered with 
the participation of a judge seconded under Article 77(1)(1) of the LSOC by 
means of a legal remedy such as an extraordinary appeal. In that regard it becomes 
relevant, in particular, whether a national court hearing such an extraordinary 
appeal may be required to set aside a final judgment whenever it is established 
that such a seconded judge participated in the examination of the case and 
therefore, as the Court of Justice has found, the court that included such a judge 
was not independent and impartial. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING OF 22. 12. 2021 – CASE C-43/22 
 
6  
14 An extraordinary appeal is an exceptional remedy which was designed on the 
basis of the assumption that it should serve to set aside court judgments which are 
fundamentally defective in the light of the principle of a democratic state 
operating under the rule of law and implementing the principles of social justice. 
The role of the constitutional review exercised by the Supreme Court in a specific 
case as a result of an extraordinary appeal being lodged is not to set aside all 
defective judgments, but only those that undermine the social contract that is the 
foundation of a democratic state operating under the rule of law and implementing 
the principles of social justice, and thus concern a specific relationship between 
the individual and public authorities or the dignity of the individual. Therefore, a 
breach which is found to undermine that principle must be sufficiently serious to 
warrant interference with the principle of res judicata. By making it possible to set 
aside a final judgment where this is found to be justified, the institution of 
extraordinary appeal is an exception to the constitutional principle of the stability 
of final court decisions. Therefore, the mere fact that a judgment has been 
delivered in gross infringement of the law does not yet justify setting it aside in 
order to ensure compliance with the principle of a democratic state operating 
under the rule of law, because in some specific circumstances priority should be 
given to the constitutional value of legal certainty, an inherent element of which is 
the protection of res judicata, which serves to protect the stability and finality of 
court decisions and the legal relationships which they establish. 
15 The principle of the stability of final court decisions is also an important value 
within the legal order of the European Union. It is recognised that, given the 
importance of res judicata, stability of the law and legal relations and the sound 
administration of justice, it is important that judicial decisions which have become 
definitive after all rights of appeal have been exhausted or after expiry of the 
periods provided for in that connection can no longer be called into question. It 
follows that EU law does not require a national court to disapply domestic rules of 
procedure conferring finality on a decision, even if to do so would enable it to 
remedy an infringement of EU law by the decision at issue (judgments of 1 June 
1999, Eco Swiss, C-126/97, EU:C:1999:269, paragraphs 46 and 47, and of 
16 March 2006, Kapferer, C-234/04, EU:C:2006:178, paragraphs 20, 21 and 24). 
16 At the same time, EU law is governed by the principle of effectiveness (effet 
utile), which requires the full application of that law in all Member States, as well 
as providing a guarantee for the procedural protection of the rights that individuals 
derive from that law. In the light of that principle, EU law should be applied of a 
court’s own motion, without having to be invoked in a plea raised by a party. 
17 A kind of complement to the principle of effectiveness is the concept of 
procedural autonomy of the Member States. That doctrine, which was traditionally 
articulated in the Court’s judgments of 16 December 1976, Rewe-Zentralfinanz 
and Rewe-Zentral, 33/76, EU:C:1976:188, and Comet, 45/76, EU:C:1976:191, 
recognises that, in the absence of EU rules, it is for the domestic legal system to 
designate the courts having jurisdiction and to determine the procedural conditions 
PROKURATOR GENERALNY 
 
7 
governing actions at law intended to ensure the protection of the rights which 
citizens of the Member States derive from the direct effect of EU law. 
18 In view of the foregoing, a doubt arises as to whether the lodging of an 
extraordinary appeal against a final judgment in a civil case that is not a case 
involving EU law, which judgment was delivered with the participation of a judge 
seconded to perform judicial duties at a higher court pursuant to Article 77(1)(1) 
of the LSOC, should – if the Court of Justice finds, as it did in Case C-748/19, 
that such a judge is not covered by guarantees of independence and impartiality – 
necessarily result in that judgment being set aside. In that eventuality, it would 
primarily have to be clarified whether a national court hearing an extraordinary 
appeal must, of its own motion and in all circumstances, set aside the final 
judgment of a court that included such a seconded judge, or whether it is possible 
to determine the consequences of such a breach in accordance with national rules 
within the framework of the aforementioned procedural autonomy of the Member 
State.