Opinion of the Advocate General — ECLI:EU:C:2019:551
Date: 2019-06-27
Language of the case: Polish
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-585/18 — 1 
Case C-585/18 
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: 
20 September 2018 
Referring court: 
Sąd Najwyższy (Supreme Court, Poland) 
Date of the decision to refer: 
30 August 2018 
Appellant: 
A. K. 
Respondent: 
Krajowa Rada Sądownictwa (National Council of the Judiciary) 
  
Subject matter of the case in the main proceedings 
Request to suspend the enforceability of the resolution of the National Council of 
the Judiciary entitled ‘Opinion of the National Council of the Judiciary of 27 July 
2018 on the continued service of A. K. as a judge of the Naczelny Sąd 
Administracyjny (Supreme Administrative Court, Poland)’. 
Subject matter and legal basis of the request for a preliminary ruling 
Third subparagraph of Article 267 TFEU, read in conjunction with Article 19(1) 
and Article 2 TEU and Article 47 of the Charter of Fundamental Rights of the 
European Union 
Questions referred 
(1) On a proper construction of the third subparagraph of Article 267 
TFEU, read in conjunction with Article 19(1) and Article 2 TEU and 
Article 47 of the [Charter of Fundamental Rights], is a newly-created 
EN 
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chamber of a court of last instance of a Member State which has 
jurisdiction to hear an appeal by a national court judge and which is 
composed exclusively of judges selected by a national body tasked 
with safeguarding the independence of the courts (the National 
Council of the Judiciary), which, having regard to the systemic model 
for the way in which it is formed and the way in which it operates, is 
not guaranteed to be independent from the legislative and executive 
authorities, an independent court or tribunal within the meaning of EU 
law? 
(2) If the answer to the first question is negative, should the third 
subparagraph of Article 267 TFEU, read in conjunction with 
Article 19(1) and Article 2 TEU and Article 47 of the [Charter of 
Fundamental Rights], be interpreted as meaning that a chamber of a 
court of last instance of a Member State which does not have 
jurisdiction in the case but meets the requirements of EU law for a 
court seised with an appeal in an EU case should disregard the 
provisions of national legislation which preclude it from having 
jurisdiction in that case? 
Provisions of Community law relied on 
Third subparagraph of Article 267 TFEU, read in conjunction with Article 19(1) 
and Article 2 TEU and Article 47 of the Charter of Fundamental Rights of the 
European Union (‘the CFR’) 
Article 9(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a 
general framework for equal treatment in employment and occupation (OJ 2000 
L 303, p. 16) 
Article 105(1) of the Rules of Procedure of the Court of Justice 
Provisions of national law relied on 
Articles 2, 10, 186, and 187 of the Konstytucja Rzeczypospolitej Polskiej 
(Constitution of the Republic of Poland) 
Article 388 § 1 of the Kodeks Postępowania Cywilnego (Code of Civil 
Procedure), read in conjunction with Article 39821 thereof and Article 44(3) of the 
Ustawa z dnia 12 maja 2011 r. o Krajowej Radzie Sądownictwa (Law of 12 May 
2011 on the National Council of the Judiciary) (consolidated text: Journal of Laws 
of the Republic of Poland of 2018, item 389, as amended) 
Article 49 of the Ustawa z dnia 25 lipca 2002 r. — Prawo o ustroju sądów 
administracyjnych (Law of 25 July 2002 on the System of Administrative Courts) 
(consolidated text: Journal of Laws of the Republic of Poland of 2017, item 2188) 
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Subparagraph 3 of Article 27 § 1, Article 37 § 1, Article 111 § 1, and Article 111 
§ 1a of the Ustawa z dnia 8 grudnia 2017 r. o Sądzie Najwyższym (Law of 
8 December 2017 on the Supreme Court) (Journal of Laws of the Republic of 
Poland of 2018, item 5, as amended) 
Announcement of the President of the Republic of Poland of 24 May 2018 
regarding judicial vacancies at the Supreme Court — notice of 16 judicial 
vacancies at the Disciplinary Chamber of the Supreme Court (Official Journal of 
the Republic of Poland of 2018, item 633) 
Brief outline of the facts and procedure 
1. The Sąd Najwyższy (Supreme Court) (‘the SC’) has doubts regarding the 
interpretation of provisions of EU Law in the appeal brought by A. K., a judge of 
the Naczelny Sąd Administracyjny (Supreme Administrative Court) (‘the SAC’), 
against the resolution of the Krajowa Rada Sądownictwa (National Council of the 
Judiciary) (‘the NCJ’) of 27 July 2018 entitled ‘Opinion of the National Council 
of the Judiciary of 27 July 2018 on the continued service of A. K. as a judge of the 
Supreme Administrative Court’. 
2. That appeal was lodged in the course of proceedings concerning the consent of the 
President of the Republic of Poland to the continued service of an SAC judge who 
has reached the age of 65. Pursuant to Article 37 § 1 of the Law on the Supreme 
Court (‘the LSC’), which applies to SAC judges, a judge must retire at the age of 
65 unless he obtains the consent of the President of the Republic of Poland to 
continue to serve. Before making a decision, the President of the Republic of 
Poland consults the NCJ, but is not bound by its opinion. The opinion of the NCJ 
regarding the appellant was negative. 
3. Resolutions of the NCJ in individual cases may be appealed before the SC. In the 
present case, the appeal has been lodged directly with the SC because there are 
grounds to believe that the NCJ will not allow that appeal to proceed and will 
disregard it. While examining the request to suspend the enforceability of the 
resolution, the SC has been informed of the position of the Deputy Chairman of 
the NCJ. 
4. The appeal alleged, inter alia, an infringement of the second subparagraph of 
Article 19(1) TEU and of the second paragraph of Article 47 CFR, which lay 
down the principle of effective judicial protection and thus preclude the arbitrary 
retirement of a judge solely on the basis of that judge having reached the age of 
65. The appellant also alleged infringement of Article 9(1) of Directive 2000/78. 
The appeal included a request for questions regarding the interpretation of the 
second sentence of Article 19(1) TEU and Article 47 CFR, read in conjunction 
with Article 9(1) of Directive 2000/78, to be referred for a preliminary ruling, and 
a request to suspend the enforceability of the resolution of the NCJ. 
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5. The appeal was lodged with the SC, specifically the Chamber of Labour Law and 
Social Security, which had jurisdiction to examine appeals against resolutions of 
the NCJ until the entry into force of the LSC. Pursuant to subparagraph 3 of 
Article 27 § 1 of the LSC, which is also applicable to SAC judges, cases 
concerning the retirement of SC judges, including appeals against resolutions of 
the NCJ, have been transferred to the jurisdiction of the newly-created 
Disciplinary Chamber of the SC. As at the date of examining the request to 
suspend the enforceability of the resolution of the NCJ, the aforementioned 
Disciplinary Chamber of the SC does not in fact exist. The President of the 
Republic of Poland has not yet appointed the judges who will sit in that chamber, 
but the NCJ has already completed the competition procedure regarding 
appointments to the vacant judicial posts. It has selected candidates for 12 of the 
16 Disciplinary Chamber vacancies and intends to submit the relevant motions for 
their appointment to the President of the Republic of Poland. The President of the 
Republic of Poland may only appoint judges to sit in that chamber from among 
the candidates presented to him by the NCJ together with motions for their 
appointment. Six public prosecutors, two judges, two legal advisers, and two 
academics have been selected for appointment to judicial posts in the Disciplinary 
Chamber — a total of 12 candidates. Only new SC judges selected from outside 
the current membership of the SC may sit in the Disciplinary Chamber. 
6. The judicial members of the NCJ itself were selected in 2018 on the basis of a 
new mechanism for selecting representatives of the judiciary to be included in the 
NCJ. Previously, members of the NCJ had been selected by general assemblies of 
judges. Currently, members of the NCJ are selected by the legislature (deputies 
and senators) from among the judges recommended either by two thousand 
citizens of the Republic of Poland or by 25 judges. The formula for the selection 
of SC judges has thus fundamentally changed. The judges are now selected by a 
body whose composition is determined by the legislative and executive 
authorities. 
7. Under those circumstances, having regard to the judgments of the Court in the 
following cases: Torresi, C-58/13 and C-59/13, paragraph 22; Consorci Sanitari 
del Maresme, C-203/14, paragraph 19; Wilson, C-506/04, paragraph 51; TDC, 
C-222/13, paragraph 30; Associação Sindical dos Juízes Portugueses, C-64/16, 
paragraph 43; and Minister for Justice and Equality, C-216/18 PPU, 
paragraphs 66 and 67, the SC has doubts concerning the interpretation of EU law. 
Those doubts require a ruling from the Court within the framework of the 
preliminary ruling procedure. 
Succinct presentation of the reasons for the reference 
8. Resolving the SC’s doubts as set out in the order for reference is important for 
resolving the present case. If the first question is answered in the affirmative, the 
uncertainty as to the existence of an independent court or tribunal (which is 
independent of both the legislative and executive authorities) will be removed. 
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This would allow the appellant’s case to be brought before a court that is duly 
authorised for the purpose of both EU and national law. On the other hand, a 
negative answer to the first question and an affirmative answer to the second 
question would enable the present case to be heard by a chamber of the SC which, 
although it has no jurisdiction under national law, nevertheless meets the 
requirements of EU law with respect to a court or tribunal, taking into account any 
interpretation of EU law which the Court may provide in response to the question 
raised by the SC in Case C-522/18. The issue raised is of great importance in view 
of the positions of domestic and foreign institutions expressing serious doubts as 
to the compatibility of the rules currently prevailing in Poland for appointing 
judges — including SC judges — with the principles of the independence of the 
courts and the independence of the judiciary. This is because uncertainty has 
arisen as to whether Polish courts meet the mandatory requirements for courts as 
provided for in EU law. 
9. The first question concerns two related issues. The first touches upon the systemic 
form of the NCJ. There is serious doubt as to whether the method of selecting the 
members of the NCJ and the way in which that body subsequently operates 
undermine its independence from the legislative and executive authorities. The 
second issue concerns the question whether a body (the NCJ) constituted in this 
way may select judges for a new chamber of the SC (which has jurisdiction to 
hear an appeal brought by an SAC judge) which will inherently have the status of 
an independent court or tribunal within the meaning of EU law. 
10. The starting point for analysis should be a concise description of the historical 
systemic model for appointing members of the NCJ. The first Law on the NCJ of 
1989 provided that members of the NCJ were to be selected by the Sejm (the 
lower house of the Polish Parliament) from among the deputies, by the Senat (the 
upper house of the Polish Parliament) from among the senators, and by general 
assemblies of judges of courts of all levels from among the judges. This procedure 
for selecting members of the NCJ was applicable when the Constitution of the 
Republic of Poland of 2 April 1997 (‘the Constitution’) entered into force. The 
Constitution stipulated the NCJ’s status as a constitutional body safeguarding the 
independence of the courts and of the judiciary (Article 186 of the Constitution). 
The Constitution provides that the NCJ consists of the First President of the SC, 
the Minister for Justice, the President of the SAC and an individual appointed by 
the President of the Republic of Poland, together with 15 members selected from 
among the judges of the SC, common courts, administrative courts and military 
courts, 4 members selected by the Sejm from among its deputies, and 2 members 
selected by the Senat from among its senators (Article 187). The Constitution 
provides that the term of office of members of the NCJ is 4 years. Implementing 
the assumptions arising from the Constitution, the Law on the NCJ provided for a 
mechanism whereby the judicial members of the NCJ would be selected by their 
peers. The subsequent Law on the NCJ of 2011 adopted the same mechanism for 
selecting members of the NCJ (Article 9). 
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11. A fundamental change to the mechanism for selecting members of the NCJ was 
introduced by the Ustawa z dnia 8 grudnia 2017 r. o zmianie ustawy o Krajowej 
Radzie Sądownictwa oraz niektórych innych ustaw (Law of 8 December 2017 
amending the Law on the NCJ and Certain Other Laws). Currently, the Sejm 
selects 15 members of the NCJ from among the judges of the SC, common courts, 
administrative courts and military courts, for a joint term of office of 4 years. 
When carrying out the selection, the Sejm takes into account as far as possible the 
need for judges from different types and levels of courts to be represented in the 
NCJ. However, the provisions of the Constitution with regard to the composition 
of the NCJ and the rules regarding appointment thereto have not changed in any 
respect. Statute may be used only to adjust the method whereby the judicial 
members of the NCJ are selected by their peers, and cannot be used to introduce a 
procedure allowing the judicial members of the NCJ to be selected by the 
legislative authority. 
12. In the aforementioned Law amending the Law on the NCJ and Certain Other 
Laws, a procedure was introduced whereby the legislative and executive 
authorities gained a monopoly position as regards determining the composition of 
the NCJ. The legislative authority currently selects the 15 judicial members of the 
NCJ. Six additional members of the NCJ are parliamentarians (4 selected by the 
Sejm and 2 selected by the Senat). The new procedure for appointing 15 judges to 
the NCJ means that the Polish Parliament selects as many as 21 out of 25 
members of the NCJ (or 84% of its entire membership). Moreover, the Minister 
for Justice and a representative of the President of the Republic of Poland are ex 
officio members of the NCJ. Thus, 23 of its 25 members are ultimately appointed 
by authorities other than the judiciary. The separation of and balance between the 
legislature, the executive, and the judiciary stipulated in Article 10 of the 
Constitution, which provides the basis for a democratic State based on the rule of 
law (Article 2 of the Constitution), has thus been distorted. 
13. The referring court does not deny that the legislature is entitled to freely regulate 
and set the objectives it intends to achieve by introducing new legal solutions, 
including with respect to the area of justice. In addition, it agrees that judges 
themselves also wish to see a reform in this area. Such a reform should ensure, as 
far as possible, that citizens have an effective right to a fair trial within a 
reasonable period. However, the freedom of the legislature is limited not only by 
constitutional provisions, but also by provisions of international agreements and 
provisions of EU law. 
14. According to the existing interpretation of EU law, which is summarised in the 
Court’s judgment of 27 February 2018, Associação Sindical dos Juízes 
Portugueses, C-64/16, EU:C:2018:117, and expanded in its judgment of 25 July 
2018, Minister for Justice and Equality, C-216/18 PPU, EU:C:2018:586, one of 
the criteria to be considered when assessing whether a given body in a Member 
State has the status of a court or tribunal within the meaning of EU law is its 
independence and the independence of its judges (Associação Sindical dos Juízes 
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Portugueses, C-64/16, paragraph 38; Minister for Justice and Equality, 
C-216/18 PPU, paragraphs 48 and 63 to 65). 
15. In order to meet the independence requirement, any such body must fulfil two 
criteria. The first, which is external, presumes that the body carries out its 
functions in a wholly independent manner, does not occupy a hierarchical or 
subordinate position in relation to any other body, and does not take orders or 
instructions from any source whatsoever (see judgments of 17 July 2014, Torresi, 
C-58/13 and C-59/13, EU:C:2014:2088, paragraph 22, and of 6 October 2015, 
Consorci Sanitari del Maresme, C-203/14, EU:C:2015:664, paragraph 19). It is 
thus protected against external intervention or pressure liable to jeopardise the 
independent judgment of its members as regards proceedings before them (see 
judgments of 19 September 2006, Wilson, C-506/04, EU:C:2006:587, 
paragraph 51; of 9 October 2014, TDC, C-222/13, EU:C:2014:2265, 
paragraph 30; and of 6 October 2015, Consorci Sanitari del Maresme, C-203/14, 
EU:C:2015:664, paragraph 19). 
16. The second aspect, which is internal, is linked to impartiality and seeks to ensure a 
level playing field for parties to proceedings and their respective interests with 
regard to the subject matter of those proceedings. That aspect requires objectivity 
and the absence of any interest in the outcome of the proceedings aside from strict 
application of the rule of law (see, in particular, the following judgments: Wilson, 
C-506/04, EU:C:2006:587, paragraph 52; TDC, C-222/13, EU:C:2014:2265, 
paragraph 31; and Consorci Sanitari del Maresme, C-203/14, EU:C:2015:664, 
paragraph 20). 
17. The independence of the judiciary (Minister for Justice and Equality, 
C-216/18 PPU, paragraph 48) and the independence of the courts (Minister for 
Justice and Equality, C-216/18 PPU, paragraph 54) underpin the fundamental 
right to a fair trial, which is not only a general principle of EU law additionally 
recognised in Article 47 CFR, but also an element of the rule of law — a 
fundamental value of the European Union without which no country may become 
a Member State. The referring court takes the view that in its judgment in Minister 
for Justice and Equality, C-216/18 PPU, paragraphs 66 and 67 — in which it 
discusses the requirements relating to guarantees of the independence and 
impartiality of courts — the Court drew attention to the need for certain rules 
common to all Member States concerning the composition of the body, the 
appointment of its members, and the system of disciplinary measures. On the basis 
of the judgment in Minister for Justice and Equality, C-216/18 PPU (in particular, 
paragraphs 66 and 67), the referring court considers that these rules must provide 
for adequate guarantees such that the system for selecting members of a body 
which is both a national court and, at the same time, an EU court, the composition 
of that body, and the manner of disciplining judges and resolving other matters 
related to the legal status of judges (as representatives of the third branch of 
government), are designed in the Member States so as to prevent any risk of that 
body/court being used to politically control the content of judicial decisions and to 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-585/18 
 
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exercise political control over the way in which national judges — particularly 
when ruling on EU matters — perform their judicial obligations. 
18. Within the framework of what so far are general guidelines concerning the ‘rules’ 
referred to in paragraphs 66 and 67 of the judgment in Minister for Justice and 
Equality, C-216/18 PPU, there is, of course, an entire spectrum of options 
compatible with EU law concerning the composition of the body which selects 
judges (candidates for judicial posts), the procedure for the selection of national 
judges who rule on EU matters, and the determination of the jurisdiction of the 
courts in disciplinary matters. These comments also apply to other matters 
regarding the status of judges. However, in light of the position expressed by the 
Court in the aforementioned judgments concerning the fundamental importance of 
the principle of the independence (within the meaning of EU law) of the courts 
and of the judges within those courts, the SC poses the following question to the 
Court: From the point of view of EU law and in the context of the principles of the 
independence of the courts and the independence of the judiciary and the way in 
which those principles are guaranteed in the national legal order, what importance 
should be attached to the following aspects: (1) the independence of the body 
responsible for selecting judges, whose responsibility it is to safeguard the 
independence of the courts and of the judiciary, from the political authorities; and 
(2) the circumstances under which the membership of a newly-created court 
having jurisdiction to hear an EU case is selected in a particular Member State? 
19. The referring court points out that due to the fact that per non est interpretation is 
prohibited, the delegation contained in Article 187(4) of the Constitution, which 
enables the way in which members of the NCJ are selected to be specified by 
statute, concerns only the way in which members of the NCJ are selected. The 
procedure laid down in that provision does not provide for an option to change, by 
way of an ordinary statute, the body which selects the members of the NCJ. It 
only concerns the way in which the pool of seats for judicial members is to be 
allocated — in a manner defined in greater detail by statute — among the 
candidates selected by the general assemblies of individual courts. Any other 
interpretation of Article 187(4) of the Constitution results in an increase in the 
number of members of the NCJ selected by a single branch of government 
(currently the legislature) despite the fact that the provisions of the Constitution 
strictly limit the authority of that branch in this respect. This system could be 
changed only by amending the Constitution. A view has been put forward in legal 
doctrine that any linguistic interpretation of the provisions of the Constitution, 
pursuant to which the NCJ consists of ‘15 judges selected from among the judges’ 
(Article 187(1)(2) of the Constitution), would be unconstitutional if it led to the 
conclusion that those judges were not to be selected by their peers. Any 
interpretation of the Constitution which assumed that the judicial members of the 
NCJ could be selected by the legislative or executive authorities would mean that 
the responsibilities of the NCJ as set out in the Constitution, which include 
safeguarding the independence of the courts and of the judiciary (Article 186(1) of 
the Constitution), would be ignored. Such an interpretation would also disregard 
Article 173 of the Constitution, pursuant to which courts and tribunals ‘shall 
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constitute a separate power and shall be independent of other branches of power’. 
As regards a logical analysis of the wording of the relevant provisions of the 
Constitution, the phrase subject to definition (definiendum) is ‘the National 
Council of the Judiciary shall be composed as follows’. In Article 187(1)(2) and 
(3) of the Constitution, both the selecting body (the Sejm and the Senat in 
Article 187(1)(3)) and the number of seats to be filled by it are specified. As 
regards the selection of judges (Article 187(1)(2)), the situation is more complex 
in that the selection is not made by a single body, as this would by definition 
prevent the NCJ from being representative. In this case, members are selected 
from among the different levels of judges, and therefore more bodies are involved 
in the process (specifically, the relevant assemblies of judges of the different 
levels and types of courts). At the same time, the expression which explains the 
idea (intention) of the defined phrase (definiens) uses a different grammatical 
form, namely ‘selected from among the judges’. This phrase indicates the general 
principle according to which the selection is to be made by a specific group 
(although the group is not specified directly). In this case, the selection is made by 
judges rather than by deputies or other members of the legislature, since just as the 
Sejm selects members from among the deputies and the Senat from among the 
senators, judges from the different levels of the judiciary select members of the 
NCJ from among the judges who have put themselves forward as candidates. 
Consequently, the principle of checks and balances as expressed in Article 10 of 
the Constitution is also observed. A clear intention to entrust the selection of the 
judicial members of the NCJ to the judiciary was also expressed during the 
session of the Constitutional Committee of the National Assembly in 1996. 
20. Notwithstanding the above, the appointing of judges to the NCJ by the Polish 
Parliament is being challenged from the point of view of international standards of 
judicial independence. In its opinion of 11 December 2017, the Venice 
Commission concluded that the selection of the 15 judicial members of the NCJ 
by the Polish Parliament, coupled with the immediate replacement of its current 
members, would lead to the far-reaching politicisation of the NCJ. At the same 
time, the Venice Commission recommended that the judicial members of the NCJ 
be selected by their peers, as under the previous Law. In Recommendation 
CM/Rec(2010)12 of the Committee of Ministers of the Council of Europe, it is 
also stated that not less than half of the members of the NCJ should be judges 
selected by their peers from all levels of the judiciary and with respect for 
pluralism within the judiciary. 
21. The above observations might suggest that the referring court should address its 
questions to the national body competent to assess the compatibility of statutes 
with the Constitution — all the more so as, pursuant to Article 4(2) TEU, the 
European Union is to respect the equality of Member States before the Treaties as 
well as their national identities. However, that provision does not preclude 
recourse to EU law in order to clarify concepts which are universally applicable to 
all Member States’ legal systems in order to extract and establish a common 
minimum standard for the selection of members of a body which subsequently 
determines the composition of another national body that must itself meet the 
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requirements of EU law concerning its independence from other branches of 
government. Therefore, the SC has made an order for reference to the Court. A 
potential ruling by the Court from which it would follow that a court composed 
exclusively of judges appointed to their posts by a body which, owing to its 
dependence on the executive and legislative authorities, does not guarantee the 
independent performance of its tasks, is not a court or tribunal within the meaning 
of EU law, would not result in a contradiction between EU law and the 
Constitution, since the Constitution does not provide that the legislative authority 
should select the judicial members of the NCJ. Therefore, the Constitution does 
not impose the solution implemented in 2018 that raises serious doubts as to 
whether Polish courts meet the requirements of EU law for courts as bodies of a 
Member State responsible for giving effect to EU law in practice. 
22. EU law has not, so far, set a standard concerning the way in which bodies such as 
the NCJ are to be appointed. Therefore, this is in principle the prerogative of the 
national legislature, which is restricted by the safeguards contained in the national 
constitution and in EU law. In the referring court’s view, it is necessary to set out 
the position of the national Trybunał Konstytucyjny (Constitutional Court) (‘the 
CC’) in this regard. 
23. In the case-law of the CC, the view was expressed that those members of the NCJ 
who are judges are to be selected by the judiciary. The CC emphasised that the 
NCJ, unlike any other constitutional State body, was established to protect the 
independence of the courts and of the judiciary. By definition, it is in the interest 
of the independence of the NCJ (which is a constitutional objective) that the 
judges selected as its members should not be linked to the legislative and 
executive authorities. The purpose of the function entrusted to the NCJ 
(safeguarding the independence of the courts) is in line with EU law (and an EU 
value). This is also in line with Article 6 of the European Convention for the 
Protection of Human Rights and Fundamental Freedoms (‘the ECHR’). 
24. The CC addressed this issue again in its judgment of 20 June 2017 (K 5/17). In 
that judgment, it emphasised that it did not agree with the position, taken in an 
earlier CC judgment, according to which only judges selected by their peers could 
be members of the NCJ. Therefore, despite the fact that no amendments had been 
made to the Constitution, the CC did not so much change its position on the way 
in which members of the NCJ are selected as introduce a discrepancy with regard 
to systemic issues that are fundamental not only for the exercise of the right to a 
fair trial provided for in the Constitution, but also for the performance of Member 
State obligations resulting from Poland’s membership of the European Union as a 
community of law. Regardless of any formal reservations concerning the judges 
hearing the cases, the SC is forced, owing to the fact that the two judgments of the 
CC are contradictory, to decode the constitutional standard in a manner consistent 
with the EU standard binding on Member States. In its first question, the SC 
requests that the latter standard be established. 
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25. The SC considers that the legal order of the European Union may be a natural 
determinant of the relevant national standard, since international agreements play 
an important role in the interpretation of the law (Article 91 of the Constitution). 
The Strasbourg standard (the ECHR) is also significant. Both systems have 
common values which, in the area of justice, are based on an individual’s right to 
a trial by an independent court. This timeless and universal value is linked to the 
preamble of the Constitution. It is the responsibility of each Member State to 
establish a system that ensures not only the formal implementation of this 
principle, but also the effective independence of the courts from political factors. 
26. The referring court points out that the current judicial members of the NCJ were 
selected in a way which was not transparent. To date, it has not been confirmed 
who supported the candidates, or whether the names of the candidates were 
submitted lawfully. The relevant documents were classified. There have even been 
indications that supporters withdrew their support prior to the deadline for 
submitting applications, and it is not clear whether such actions were taken into 
account. Nor is it clear whether the candidates offered support to one another, or 
whether support was offered by persons linked to the candidates by dint of their 
employment at the Ministry of Justice. Were this to be the case, this would mean 
that judges who were supposed to safeguard the independence of the courts were 
subordinated to the executive authority (in their position as judges seconded to the 
Ministry of Justice or promoted to their posts by the Minister for Justice). This 
was also a concern of the European Commission. This issue has been discussed in 
the legal literature, and the European Network of Councils for the Judiciary 
(ENCJ) has also drawn attention to it. 
27. Another important issue is that the NCJ as selected according to the procedure 
currently in force does not fulfil the representativeness criterion. Pursuant to 
Article 187(1)(2) of the Constitution, members of the NCJ should be selected 
from among the judges of the SC, common courts, administrative courts and 
military courts. This is meant to ensure that the NCJ represents the entire judicial 
community. The current membership of the NCJ does not include judges from the 
SC, courts of appeal or military courts. There is one representative from a 
Wojewódzki Sąd Administracyjny (Regional Administrative Court), two from 
sądy okręgowe (regional courts), and 12 from sądy rejonowe (district courts). 
28. Doubts as to the ability of the current NCJ to perform its task, under the 
Constitution and EU law, of safeguarding the independence of the courts and of 
the judiciary, arising as a result of the way in which the composition of that body 
was determined in 2018, have already been confirmed by even a cursory analysis 
of that body’s activities. The referring court is not aware of any resolution of the 
new NCJ that would defend the independence of the SC or the independence of its 
judges. Moreover, the NCJ has issued a statement to the effect that the current 
First President of the SC is no longer an active judge and no longer holds that 
position, despite her constitutionally guaranteed term of office not ending until 
2020. The NCJ website includes a list of its members, and there is an empty field 
next to the position of First President of the SC. This means that the NCJ as a 
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whole does not accept the concept of the constitutional six-year term of office of 
the First President of the SC (Article 183(3) of the Constitution), at the beginning 
of which there were no obstacles to her holding the position entrusted to her by 
the President of the Republic of Poland. Therefore, the new law, which is 
subordinate to the Constitution, should not interrupt that term of office, but merely 
set a precedent according to which, in future, it will not be possible to entrust a 
judge with this function if he should reach retirement age before the end of his 
term of office. The position of the NCJ is thus contrary to the Constitution. It also 
completely ignores EU law with regard to the principle of the independence of the 
courts and of the judiciary, and with regard to the status of judges as employees 
and the prohibition of discrimination on the ground of age. 
29. The SC also points out that members of the NCJ have publicly demanded that 
disciplinary proceedings be instituted against those judges who referred questions 
for a preliminary ruling in Case C-522/18. The cooperation of national judges 
with EU bodies, in particular with the European Commission and the Court, is 
treated by the NCJ as an argument against appointment to a vacant judicial post at 
a court of higher instance. Due to the NCJ’s failure to react adequately to the crisis 
surrounding the SC that has been caused by the legislature, and the fact that the 
NCJ acts only in line with the will of the executive authority, the SC finds no 
arguments that would allow it to regard the current NCJ as a body which actually, 
as opposed to just formally, safeguards the independence of the courts and of the 
judiciary. 
30. The present case is an example of the way in which opinions are formulated in 
proceedings concerning consent to a judge continuing to serve. As in previous 
proceedings of this kind, the NCJ gave a negative opinion on the appellant without 
providing any justification. The SC points out that in other cases concerning 
consent to a judge continuing to serve, the justification for the NCJ’s resolution 
was limited to repeating the contents of Article 37 § 1b of the LSC. This means 
that, in reality, no arguments were put forward to indicate what was meant by the 
‘interest of the judiciary’ or an ‘important public interest’, specifically the 
reasonable use of the SC’s staff or needs arising from the workload of particular 
chambers of the SC. If a specific provision uses a vague phrase (such as ‘interest 
of the judiciary’ or ‘important public interest’), the justification for the decision 
made by the competent body (the NCJ) should contain specific reasons for the 
position taken. This ensures that the body’s actions are transparent and allows the 
person making the final decision (the President of the Republic of Poland) to form 
an opinion about the candidate in question. The word-for-word repetition of 
statutory provisions without indicating the reason for the NCJ’s refusal to adopt a 
positive resolution confirms the referring court’s conviction that the constitutional 
function of that body is not being fulfilled. 
31. Of course, the role of the NCJ is not limited to affirming the actions of courts at 
different levels of the judicial system; it should also take a critical view of 
negative phenomena in the judiciary. Such phenomena are usually unrelated to the 
administration of justice, especially when there is conduct involved which is 
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incompatible with the importance of the duties being performed. However, where 
a judge’s judicial activity is assessed negatively, usually in connection with the 
interpretation of the law, a body such as the NCJ should tone down emotions 
rather than heightening them through the actions/statements described above. 
Meanwhile, members of the NCJ who are not judges themselves have expressed 
negative opinions about judges in the media without providing any evidence in 
support of those opinions. 
32. The NCJ’s failure to perform its task under the Constitution and EU law of 
safeguarding the independence of the courts and of the judiciary is evidenced by 
the conduct of the NCJ in the present case. When it gave a negative opinion in the 
present case, the NCJ failed to serve that opinion on the appellant and thus 
prevented him from reviewing the reasons for the NCJ’s position. Therefore, there 
are grounds to assume that the NCJ in its current form and with its current 
membership is no longer independent from the political authorities. This 
assumption brings us to the second issue raised in the first question referred for a 
preliminary ruling. The SC also seeks to determine whether the selection of SC 
(Disciplinary Chamber) judges by a body (the NCJ) selected (from a formal point 
of view) and operating (from a factual point of view) in this way will result in the 
creation of a court or tribunal which meets the requirements of EU law for such a 
body with respect to the independence of the courts and of the judiciary. In this 
regard, the referring court draws attention to the circumstances which the Court 
should take into account when establishing the EU standard on the basis of the 
provisions of primary legislation cited in the order for reference. 
33. First, the announcement of the President of the Republic of Poland regarding 
judicial vacancies at the SC was issued without the countersignature of the Prime 
Minister. The effects of a failure to fulfil this obligation have been analysed in the 
case-law of the CC, and it has been concluded that the procedure may be viewed 
as invalid. There are currently no instruments in national law that would allow this 
conclusion to be confirmed, due to the fact that the legislature has precluded 
effective judicial review in this regard. 
34. Secondly, the rules of the competition procedure in question have entirely 
excluded the SC from participating or playing any role in that procedure. 
Previously, candidates serving as judges could be seconded to hear cases at the 
SC. An assessment of that work was later drawn up by a judge-visitator which 
also took into account the candidate’s judicial work at his court of origin. The 
candidate also had the opportunity to appear before the assembly of judges of the 
chamber in question and, subsequently, before the general assembly. Support 
obtained in this way could feed into the NCJ’s recommendation, although it was 
not always decisive. The procedure described here allowed the candidate’s 
substantive qualifications to be comprehensively verified. In the current legal 
environment (the LSC), the legislature has precluded the candidate’s assessment 
by the SC in any form. The sole emphasis is on the candidate’s individual 
initiative; he must fill in the relevant application form in order to enter the 
competition. The hearings conducted by the NCJ as part of the procedure do not 
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guarantee the prevention of ‘accidents’, for example, the appointment of 
candidates who do not meet the formal requirements (for example because they 
lack the required seniority), against whom a final disciplinary court ruling has 
been issued, or who have taken procedural steps which have resulted in a 
complaint to [the European Court of Human Rights (‘the ECtHR’)]. 
35. Thirdly, the terms of the competition procedure were changed when the procedure 
was already underway. By way of the Ustawa z dnia 20 lipca 2018 r. o zmianie 
ustawy — Prawo o ustroju sądów powszechnych (Law of 20 July 2018 Amending 
the Law on the System of Common Courts), Article 35(3) was added to the Law 
on the NCJ. This abolished the requirement for persons applying for appointment 
to submit the required documents (professional experience, scholarly 
achievements, superiors’ opinions, recommendations, publications, the opinion of 
the board of the competent court, and the assessment drawn up by the competent 
assembly of judges) as part of the process of drawing up a list of recommended 
candidates. Within the framework of that amendment, a principle was also 
introduced that if a resolution in an individual case concerning appointment to an 
SC judicial post is not appealed by all parties to the proceedings, the part of the 
resolution concerning the decision to submit the motion for appointment to an SC 
judicial post becomes valid. Such a solution precludes a candidate from bringing 
an effective appeal against an NCJ resolution before the competent court, since 
even if an appeal were found to be justified, this would not halt the appointment 
procedure, including if, hypothetically, the selected candidate did not meet the 
statutory requirements while the appellant did. The purpose of the amendment, 
then, is to preclude any effective judicial protection; it thus runs counter to long-
established EU principles and also to the constitutional standard as regards access 
to the civil service. Ultimately, this means that the NCJ, selected in the manner 
described above, can freely select SC judges from among the submitted candidates 
without any judicial review. 
36. Fourthly, the competition procedure conducted to date shows that the candidates 
selected include persons who have been subordinated to the executive authority or 
persons who, during the crisis concerning the rule of law which is now the subject 
of proceedings under Article 7 TEU, worked on behalf of the political authorities 
or acted in line with their expectations. The fact that only such candidates have 
been selected as SC judges does not guarantee the independence of that court. The 
persons selected include, inter alia, the head of the Legal Office of the Prokuratura 
Krajowa (National Public Prosecutor’s Office), who was previously retired and 
whose period of retirement was counted towards the level of seniority needed in 
order to fulfil the formal requirement for applying for SC judge status, despite the 
fact that he performed no duties during that period, a former head of the 
Legislative Office of the Instytut Pamięci Narodowej (Institute of National 
Remembrance), a public prosecutor from the National Public Prosecutor’s Office 
who accused judges of corruption (although proceedings in that case were 
ultimately discontinued), a legal adviser employed by the National Public 
Prosecutor’s Office who was punished under a disciplinary procedure, a former 
provincial governor and current advisor to the Marszałek Sejmu (Speaker of the 
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Sejm), a person known in the legal community exclusively in connection with his 
mass media and social media activities who has expressed clear political 
sympathies on numerous occasions, and a public prosecutor who has taken 
procedural steps which have been found to have infringed Article 3 ECHR 
(prohibition of torture) as a result of a settlement concluded before the ECtHR. 
37. In view of the fact that the SC administers justice by ensuring that rulings are 
lawful and that the case-law of the common courts is uniform, an answer to the 
questions referred is required, since the highest national judicial instances have 
already stated their positions and those statements have not yet yielded an 
unequivocal result. In addition, representative groups and legal authorities have 
argued that the selection of the current membership of the NCJ was incompatible 
with the Constitution, and that motions may therefore be filed in court cases to 
exclude judges recommended by that body from hearing cases. The courts, 
recognising the conflict between the Constitution and the Law on the NCJ, may 
also find certain proceedings to be invalid, which will result in chaos within the 
judicial system. This chaos may be prevented by the authority of the Court which, 
without interfering in national law, will rule on the interpretation of EU law, 
thereby establishing an EU standard as regards the systemic impact of the doubts 
raised in respect of the independence of the courts. 
38. If the first question is answered in the negative, that is, if the Court finds that a 
newly-created organisational unit of a court of last instance of a Member State 
which has jurisdiction to hear an appeal by a national court judge and which is 
composed exclusively of judges selected by a national body tasked with 
safeguarding the independence of the courts and of the judiciary (the NCJ), which, 
having regard to the systemic model for the way in which it is formed and the way 
in which it operates, is not guaranteed to be independent from the legislative and 
executive authorities, is not an independent court or tribunal within the meaning 
of EU law, the Court must rule on the issue of how effective judicial protection 
should be ensured under those circumstances for an individual lodging an appeal 
in an EU case. 
39. It follows from the judgments of the Court cited above that the prerequisite for 
ensuring effective judicial protection as a general principle of EU law, which is 
confirmed as a fundamental right recognised in Article 47 CFR, and additionally 
results from Article 6 ECHR and from the constitutional traditions common to the 
Member States, is that an EU case must be heard by a court which is independent 
of other authorities and of parties to proceedings, whose judges are independent in 
the exercise of their judicial duties. Where the body that is competent under 
national law to hear an appeal lodged in an EU case does not meet the above 
requirements, EU law is infringed, because the national law on the court 
procedure which must be provided for in EU cases does not meet one of the 
fundamental requirements of primary EU legislation. Therefore, there is a conflict 
between the national legislation, which designates a body that is not a court or 
tribunal within the meaning of EU law as the body competent to hear the appeal, 
and EU law (the principle of effective judicial protection — a fundamental right 
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recognised in Article 47 CFR). According to the Simmenthal rule, where there is a 
conflict between national law and EU law, the national court should disregard the 
relevant provisions of national law. This concerns not only those provisions of EU 
law that satisfy the direct applicability test (which results directly from the Court’s 
judgment in Simmenthal), but also the general principles of EU law and the 
fundamental right referred to in Article 47 CFR (see, in particular, judgment of 
17 April 2018, Egenberger, C-414/16, EU:C:2018:257, paragraph 82). 
40. Therefore, in the SC’s view, the obligation to refuse to apply provisions of 
national legislation that are incompatible with EU law also covers the provisions 
of a national law indicating that another body (a chamber of the SC) has 
jurisdiction to hear the appeal if that body does not meet the requirements for a 
court or tribunal provided for in EU law. If this is the case, another court (in the 
present case, another organisational unit of the court of last instance of the 
Member State concerned), which does meet the requirements of EU law related to 
its independence must consider itself competent to hear the case and, if necessary, 
to suspend the enforceability of the measure under appeal. 
41. Under Article 105 of the Rules of Procedure of the Court of Justice, the referring 
court requests the application of the expedited preliminary ruling procedure. It is 
important that the questions referred for a preliminary ruling in the present case be 
examined as soon as possible in order to determine which court has jurisdiction to 
rule on the status of the appellant as an SAC judge in active service, and to 
confirm the competence of the court which does not have jurisdiction in the case 
to take preventive measures where there is no competent court or where the body 
which is a court or tribunal under national law is not a court or tribunal within the 
meaning of EU law. 
42. The application of that procedure is also justified by the announcements to the 
effect that disciplinary proceedings before the Disciplinary Chamber will be 
brought against those judges who respect EU law and who refer questions to the 
Court for a preliminary ruling. In addition, attention should be drawn to cases in 
which the executive authority has made instrumental use of the institution of 
reviewing the compatibility of laws with the Constitution in order to preclude the 
application of EU law and the option to refer questions to the Court for a 
preliminary ruling in response to the SC decision of 2 August 2018 in Case 
C-522/18. In the application submitted by the Minister for Justice/Prosecutor 
General to the CC on 23 August 2018 (K 7/18), it was requested that, inter alia, 
Article 267 TFEU be recognised as contrary to the Constitution. For those 
reasons, the SC highlights the risk that the legislative or executive authorities and 
the bodies of the newly-created Disciplinary Chamber may take action in order to 
cause the order for reference in the present case to be withdrawn. Moreover, 
statements have been published in the national press that none of the current SC 
judges should rule in any further cases because they have allowed questions to be 
referred to the Court for a preliminary ruling. 
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43. Since the resolution containing the NCJ’s opinion on an SAC judge continuing to 
serve is a mandatory element of proceedings regarding the consent of the 
President of the Republic of Poland to that judge continuing to serve, its 
enforceability must be suspended until the appeal is heard in order to ensure 
effective judicial protection — a principle which, as the appellant points out, 
derives from EU law. The fact that the enforceability of a resolution has been 
suspended means that the procedure for expressing an opinion has not been 
brought to a decisive conclusion, which in practice prevents any further action 
from being taken in proceedings concerning an SAC judge continuing to serve. 
44. At the same time, owing to the fact that no organisational unit of the SC is 
competent to examine the request to suspend the enforceability of the NCJ’s 
resolution, and also owing to the doubts indicated in the order for reference, the 
Supreme Court, specifically the Chamber of Labour Law and Social Security, has 
given a provisional ruling as stated in paragraph 3 of the operative part of the 
order for reference.