Opinion of the Advocate General — ECLI:EU:C:2025:630
Date: 2025-08-01
Language of the case: Polish

Summary C-748/23 – 1 
Case C-748/23 [Gekus] i 
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: 
6 December 2023 
Referring court: 
Sąd Najwyższy (Poland) 
Date of the decision to refer: 
20 October 2023 
Appellant: 
C. Limited 
Respondent: 
M. S. 
  
Subject matter of the main proceedings 
Action for payment – Incidental proceedings – Motion to examine whether a 
Supreme Court judge fulfils the requirements of independence and impartiality 
Subject matter and legal basis of the reference 
Second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of 
the Charter of Fundamental Rights – Criteria for determining that the 
requirements of independence and impartiality have not been met – Composition 
of the adjudicating panel conducting the test to determine whether a Supreme 
Court judge is impartial 
 
i This case has been given a fictitious name which does not correspond to the real names of either of the parties to the proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING OF 20. 10. 2023 – CASE C-748/23 
 
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Questions referred for a preliminary ruling 
1. Must the second subparagraph of Article 19(1) TEU, interpreted in light of 
Article 47 of the Charter of Fundamental Rights, be understood as meaning 
that the circumstances of a judicial appointment may in and of themselves 
indicate that a judge fails to meet the requirements of independence and 
impartiality if those circumstances result in a court being constituted in a 
manner that violates an individual’s right to a tribunal or, alternatively, that 
the failure to meet those requirements is determined by the judge’s passive 
acceptance (by continuing to give rulings) of irregularities in the procedure 
by which he or she was appointed, resulting in a court being constituted in a 
manner that violates an individual’s right to a tribunal? 
2. Must the second subparagraph of Article 19(1) TEU, interpreted in light of 
Article 47 of the Charter of Fundamental Rights, be understood as meaning 
that the test to determine whether a judge of the Sąd Najwyższy (Supreme 
Court, Poland) is impartial cannot be conducted by judges whose 
participation – due to the fact that they were appointed as Supreme Court 
judges on a proposal of the Krajowa Rada Sądownictwa (National Council 
of the Judiciary) constituted in accordance with the procedure set out in 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 National Council of the Judiciary and certain other 
laws, Dziennik Ustaw (Journal of Laws) of 2018, item 3) – violates an 
individual’s right to a tribunal? 
3. If the second question is answered in the affirmative, must the second 
subparagraph of Article 19(1) TEU, interpreted in light of Article 47 of the 
Charter of Fundamental Rights, be interpreted as meaning that the Supreme 
Court is obliged not to include such judges in the panel conducting the 
impartiality test and, as a last resort, disapply the national provision 
providing for a panel of five judges in such cases, whereby the case should 
be heard by another panel provided for by national law which does not 
include such judges? 
Provisions of European Union law relied on 
Second subparagraph of Article 19(1) TEU 
Article 47 of the Charter of Fundamental Rights 
Provisions of national law relied on 
Article 29 of the ustawa z dnia 8 grudnia 2017 r. o Sądzie Najwyższym (Law of 
8 December 2017 on the Supreme Court, consolidated text: Journal of Laws of 
2023 item 1093, as amended; ‘the LSC’) 
GEKUS 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 The dispute in the main case is between an Irish company and an Irish citizen. It 
concerns the obligations of the parties and liability for legal actions taken in the 
territory of Poland. The final judgment of the court of second instance in the 
present case is to be enforced in Ireland, but the respondent has asked the Irish 
court to refuse to recognise and enforce the judgment on the grounds that his right 
to a tribunal was violated on account of the fact that Judge JG, seconded by the 
Minister Sprawiedliwości (Minister of Justice), participated in hearing the case. 
The appellant filed an application for a test of impartiality and independence of 
the Supreme Court Judge JG. 
2  The appellant relied on the following circumstances in order to demonstrate that 
the requirement of independence and impartiality had not been met. First, a 
proposal was made to the President of the Republic of Poland seeking that Judge 
JG be appointed to the office of a judge of the Supreme Court pursuant to a 
resolution of the KRS formed following the recent judicial reform. Second, Judge 
JG signed the declaration of the judges of the Izba Cywilna Sądu Najwyższego 
(civil division of the Supreme Court), according to which the judgment of the 
Court of Justice of 19 November 2019, A.K. And Others (Independence of the 
Disciplinary Chamber of the Supreme Court), C-585/18, C-624/18 and C 625/18, 
EU:C:2019:982 does not concern judges of the civil division of the Supreme 
Court appointed to the office of judge on the basis of a resolution of the KRS in its 
new composition. Third, the appellant referred to the statement of the respondent 
M.S in the main proceedings, from which it is clear that the respondent, alleging 
infringement of his right to have his case heard by an impartial and independent 
tribunal established by law, seeks to obtain from the Irish courts a refusal to 
declare enforceable the Polish judgments issued in the main proceedings. 
3 In order to examine the request for an impartiality test made by the appellant, a 
panel of five judges of the Supreme Court was selected. In closed session on 20 
October 2023, the Supreme Court sitting as a single-member panel consisting of 
the reporting judge (who is also the president of the panel consisting of five 
judges) expressed doubts as to the admissibility of the request for the impartiality 
test (to be decided by a single-member panel) and as to the panel to examine that 
request on the merits, and raised the questions referred for a preliminary ruling set 
out in the operative part of this order for reference. 
The essential arguments of the parties in the main proceedings 
4 According to the appellant, in the event that the ruling by the Supreme Court, 
given with the participation of Judge JG, is unfavourable to the respondent, the 
respondent will continue to try to prevent the judgments of Polish courts from 
being enforced. 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
5 The legal issue raised in the question referred for a preliminary ruling, as well as 
the incidental proceedings in the main case, that is to say, the proceedings 
concerning the impartiality and independence test, have the character of an EU 
case. First, it is understood that the provisions governing test case proceedings 
have been the subject of negotiations between representatives of the Republic of 
Poland and representatives of the European Commission. It is therefore necessary 
for the Court of Justice to provide interpretive guidance to allow the Supreme 
Court to determine whether the effect of the actions taken by the Polish legislature 
is consistent with EU standards concerning the right to a tribunal. Secondly, that 
character is attested by the fact that the dispute in the main case is between an 
Irish company and an Irish citizen, and the judgment is also to be enforced in 
Ireland. However, that dispute concerns the obligations of the parties and liability 
for legal actions taken in the territory of the Republic of Poland. Thirdly, by order 
of 15 March 2023 (Prezes Urzędu Ochrony Konkurencji i Konsumentów – 
President of the Office of Competition and Consumer Protection, C-326/23) the 
Supreme Court has already referred a question for a preliminary ruling concerning 
the interpretation of EU law in a test case. However, the Supreme Court in its 
present composition clarifies that the question concerned was referred by a panel 
consisting of a single judge, at a similar stage of the test procedure as in the 
present case (a hearing on the possible rejection of the motion for the impartiality 
test), and that the composition of the Supreme Court panel referring the question 
was covered by the scope of application of the resolution of the combined 
Chambers of the Supreme Court – the Civil, Criminal, and Labour and Social 
Insurance Chambers – of 23 January 2020 (‘the resolution of the three combined 
SC chambers’). 
6 The abovementioned resolution is the ruling of the national court referred to in the 
judgments of 12 May 2022, W. J. (Change in the habitual residence of the 
maintenance creditor), C-644/20, EU:C:2022:371, and of 29 March 2022, Getin 
Noble Bank, C-132/20, EU:C:2022:235. It follows from the operative part of that 
resolution that ‘the judges constituting the referring court are not independent and 
impartial, and the court is not a tribunal previously established by law within the 
meaning of the second subparagraph of Article 19(1) TEU in light of the second 
paragraph of Article 47 of the Charter of Fundamental Rights’. The referring court 
points out that the effects of the resolution were not removed by the judgment of 
the Trybunał Konstytucyjny (Constitutional Court) of 20 April 2020, as has also 
been confirmed by the case-law of the Supreme Court, because the Constitutional 
Court is not competent to declare the rulings of the Supreme Court 
unconstitutional. Therefore, the view that the resolution of the three combined SC 
chambers is non-existent is incorrect. 
7 The first question referred is relevant to the further examination of the appellant’s 
motion for the impartiality test. The appellant considers that due to the 
circumstances of Judge JG’s appointment to a judicial post in the Supreme Court, 
the impartiality and independence standard has not been met. Pursuant to 
GEKUS 
 
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Article 29(10) of the LSC, a motion based on such grounds should be rejected. 
The answer given by the Court of Justice will determine whether the appellant’s 
motion for the impartiality test is rejected or referred to a hearing on the merits. 
This depends on whether national laws that ostensibly seek to implement the 
judgments of the Court of Justice (and indirectly those of the European Court of 
Human Rights) should be interpreted consistently with EU law or disapplied. In 
fact, the provisions of the LSC that apply to the present case prevent the 
implementation of the Court’s judgments in a manner that would meet the 
requirements of Article 19 TEU and Article 47 of the Charter of Fundamental 
Rights. 
8 The referring court points out that a systemic problem with the impartiality and 
independence of judges emerged in the Polish legal system when the composition 
of the National Council of the Judiciary (‘the NCJ’) was changed, since its new 
composition made it dependent on the political authorities. Therefore, in the 
resolution of the three combined SC chambers, it was assumed that ‘a judge 
appointed with the participation of [an NCJ] constituted and operating in a flawed 
manner does not enjoy the presumption of independence’. 
9 The referring court notes that two lines of Supreme Court case-law have emerged 
in connection with the practical application of the impartiality test. According to 
the narrow interpretation of Article 29 of the LSC, a motion for an impartiality 
test must indicate (together with evidence) the circumstances surrounding the 
judge’s appointment and his or her conduct after the appointment that would 
warrant the assumption that the standard of independence and impartiality had not 
been met as well as the impact of the failure to meet the standard of independence 
and impartiality on the outcome of the case in question, taking into account the 
nature of the case. According to that line of case-law, the purpose of the 
examination of a judge’s independence and impartiality provided for in 
Article 25(5) et seq. of the LSC is not to enable challenges to the system of 
judicial appointments envisaged by the legislature, but rather to assess the 
individual circumstances surrounding the appointment of a particular judge and 
his or her conduct after the appointment, and that assessment is to be made in the 
context of a particular case. 
10 The abovementioned line of case-law has been developed both by panels 
consisting of a single Supreme Court judge (judge-rapporteur) and by panels 
composed of persons appointed to the position of a Supreme Court judge who are 
covered by the resolution of the three combined SC chambers. There is a one 
difference between the rulings given by the above panels: the panels composed of 
Supreme Court judges treat impartiality test proceedings as superfluous, since 
even before the introduction of those proceedings into the Polish legal order, 
parties could demand that a judge be excluded on the basis of existing procedural 
rules if there was reasonable doubt as to his or her impartiality in the case in 
question (Article 49(1) of the Kodeks Postępowania Cywilnego – Code of Civil 
Procedure, Article 41(1) of the Kodeks Postępowania Karnego – Code of Criminal 
Procedure). 
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11 However, there is also an entirely different line of Supreme Court case-law that 
has emerged in cases in which a panel of Supreme Court judges not covered by 
the resolution of the three combined SC chambers was drawn from among all 
Supreme Court judges. In those cases, judges covered by the resolution of the 
three combined SC chambers whom the motion for the impartiality test concerned 
were excluded from hearing the main case on the grounds that, pursuant to the 
resolution of the three combined SC chambers, a Supreme Court judge who was 
appointed upon a motion submitted by the NCJ in its new composition did not 
meet the minimum standard of impartiality. 
12 In that line of case-law, the Supreme Court further clarified that the Constitutional 
Court judgments of 14 July 2021, 24 November 2021, and 10 March 2022 are not 
binding. Those judgments do not render the existing laws null and void, and 
therefore do not bind independent courts, in particular the Supreme Court. In 
addition, the abovementioned Constitutional Court judgments should be 
disregarded as incompatible with the principle of the primacy of EU law 
(judgment of the Court of Justice of 22 February 2022, RS (Effects of the 
decisions of a constitutional court), C-430/21, EU:C:2022:99, in particular 
paragraph 77). 
13 In that regard, the Supreme Court also refers to the case-law of the European 
Court of Human Rights in its judgments of 22 July 2021 in Reczkowicz v. Poland, 
Application no 43447/19, ECHR:2021:0722; of 8 November 2021 in Dolińska-
Ficek and Ozimek v. Poland, Applications nos 49868/19 and 57511/19, 
ECHR:2021:1108; and of 3 February 2022 in Advance Pharma sp. z o.o. v. 
Poland, Application no 1469/20. The Supreme Court believes that those 
judgments make it possible to claim that a Supreme Court judge appointed under 
the new procedure must be excluded from hearing a case, irrespective of the 
circumstances of the specific case. 
14 The referring court points out that it follows from the case-law of the Court of 
Justice that when assessing whether an individual has been able to exercise his or 
her right to a tribunal, it is taken into account whether the substantive conditions 
and detailed procedural rules governing the adoption of appointment decisions are 
such that they cannot give rise to reasonable doubts, in the minds of individuals, 
as to the imperviousness of the judges concerned to external factors and as to their 
neutrality with respect to the interests before them (judgments: of 19 November 
2019, A. K. and Others (Independence of the Disciplinary Chamber of the 
Supreme Court), C-585/18, C-624/18 and C-625/18, EU:C:2019:982, 
paragraph 134; of 2 March 2021, A. B. and Others (Appointment of judges to the 
Supreme Court – Appeal), C-824/18, EU:C:2021:153, paragraph 123; of 15 July 
2021, Commission/Poland (Disciplinary regime for judges), C-791/19, 
EU:C:2021:596, paragraph 98; 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 148). 
GEKUS 
 
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15 The referring court finds that the obligation to examine the circumstances 
surrounding a judicial appointment arises from the judgments of 1 July 2008, 
Chronopost and La Poste v UFEX and Others, C-341/06 P and C-342/06 P, 
EU:C:2008:375, paragraphs 46 and 48, and of 26 March 2020, Réexamen Simpson 
v Council and HG/Commission, C-542/18 RX-II and C-543/18 RX-II, 
EU:C:2020:232, paragraph 57. The obligation of every court to check whether, as 
composed, it ensures a fair trial, is also confirmed in the judgments of 24 March 
2022, Wagenknecht v Commission, C-130/21 P, EU:C:2022:226, paragraph 15, 
and of 21 December 2021, Euro Box Promotion and Others, C-357/19, C-379/19, 
C-547/19, C-811/19 and C-840/19, EU:C:2021:1034, paragraph 206. 
16 The referring court is of the opinion that Article 29(5) of the LSC can – and 
should – be interpreted in a manner that makes it possible to meet the ECHR and 
EU standards outlined above. Therefore, in the present case, the ‘circumstances 
surrounding the appointment’ of the judge in question mean that the procedure for 
the appointment of Judge JG to the position of a Supreme Court judge involved a 
flagrant breach of the law consisting in the NCJ in its new composition and the 
Prezydent Rzeczypospolitej Polskiej (President of the Republic of Poland) 
‘wilfully and intentionally’ ignoring the order of the Naczelny Sąd 
Administracyjny (Supreme Administrative Court) of 27 September 2018 
suspending the implementation of Resolution No 330/18 of 28 August 2018, and 
thus preventing that court from reviewing the legality of the resolution. The 
‘circumstances related to the judge’s conduct after the appointment’, in turn, 
consist in the judge’s failure to evaluate the appointment procedure negatively 
(passive acceptance) despite the existence of the national, EU and international 
case-law presented above. 
17 In those circumstances, the Supreme Court in its present composition believes it is 
necessary for the Court of Justice to clarify whether, in light of the EU standard of 
the right to a tribunal and to an effective judicial remedy, the circumstances of a 
judicial appointment must be excluded from the test of judicial impartiality and 
independence where it follows from the very circumstances of the judicial 
appointment that the participation of the person in question in hearing the case 
will violate the individual’s right to a tribunal within the meaning of Article 6(1) 
of the ECHR. 
18 If Article 19 TEU and Article 47 of the Charter of Fundamental Rights must be 
interpreted as meaning that a flaw in a judicial appointment procedure is sufficient 
in and of itself to call into question that judge’s independence and impartiality in 
the given case (and in any other case), then it is necessary to ensure that the 
motion for the impartiality test is heard by an independent and impartial tribunal 
established by law. The panel randomly selected to hear the motion for the 
impartiality test in the present case consists of two judges of the Supreme Court 
and three judges covered by the resolution of the three combined SC chambers. 
One of the latter judges – Judge MS – has already been excluded from hearing 
another case after the same impartiality test procedure as in the present case was 
conducted (Supreme Court order of 19 October 2023) as a result of the 
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circumstances surrounding his appointment. Judges RS and RD, in turn, are 
excluded from hearing cases that do not involve impartiality tests if a party 
submits a motion for their exclusion and a panel composed of a Supreme Court 
judge not covered by the resolution of the three combined SC chambers is 
randomly selected to hear that motion. Thus, the panel of the Supreme Court in 
the present case, which is to hear the motion for the impartiality test, includes 
persons affected by the national court ruling referred to in the judgments in W. J. 
(Change of habitual residence of the maintenance creditor) and Getin Noble Bank. 
19 Pursuant to Article 29(15) of the LSC, the Supreme Court hears motions for 
impartiality tests in closed session, sitting as a panel of five judges randomly 
selected ‘from among all the judges of the Supreme Court’. As a result, in cases 
concerning judges appointed to the Supreme Court upon motions submitted by the 
‘new’ NCJ, the outcome of the impartiality test may be decided by other judges 
appointed on the basis of a resolution adopted by the NCJ in its new composition 
and in similar circumstances. It is for this reason, as indicated in the case-law of 
Supreme Court, that the manner in which the panel hearing a motion for an 
impartiality test is formed demonstrates that the purpose of the ustawa z 9 czerwca 
2022 r. o zmianie ustawy o Sądzie Najwyższym oraz niektórych innych ustaw 
(Law of 9 June 2022 amending the Law on the Supreme Court and certain other 
laws), and of the structure of the test procedure itself, was to deliberately 
introduce a solution that would nullify the principle of nemo judex in causa sua. 
20 The referring court recalls that, pursuant to the resolution of the three combined 
SC chambers, if a judge of the Supreme Court appointed on the basis of a 
resolution adopted by the NCJ in its new composition participates in hearing a 
case, the result is the invalidity of the proceedings (in civil proceedings) or the 
improper composition of the court (in criminal proceedings). However, that 
resolution is not respected by judges appointed to judicial posts upon motions 
submitted by the NCJ in its new composition. Those judges are not omitted from 
the panel selection procedure, nor do they, with very few exceptions, recuse 
themselves from hearing impartiality test cases. 
21 Therefore, in the opinion of the Supreme Court, the test of judicial independence 
and impartiality provided for in Article 29(4) of the LSC does not fulfil the criteria 
necessary to secure the rights guaranteed to the appellant by acts that are higher 
ranking than statutes, including in particular Article 6(1) of the ECHR, and thus 
also Article 19(1) TEU, read in conjunction with Article 47 and Article 52(3) of 
the Charter of Fundamental Rights, in a situation in which the panel hearing the 
appellant’s appeal on a point of law includes a judge appointed to the Supreme 
Court upon a motion submitted by the NCJ in its new composition. 
22 The referring court points out that the case-law of the European Court of Human 
Rights and the Supreme Court, as well as judgments given by the Court of Justice 
to date, are contested by adjudicating panels that include persons appointed as 
Supreme Court judges upon motions submitted by the NCJ in its new 
composition. It is necessary to obtain the Court of Justice’s answer as to the 
GEKUS 
 
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interpretation of Article 19 TEU and Article 47 of the Charter of Fundamental 
Rights on the question of whether it is permissible for the national legislature to 
create judicial panels that violate the right to a tribunal within the meaning of 
Article 6 of the ECHR and issue invalid (under national law) judgments in an EU 
case. In the opinion of the referring court, it is impermissible that an EU case 
(such as an impartiality test case) can be decided by a court composed of persons 
appointed to judicial posts in circumstances which, in light of the judgment in 
A. K. and Others, allow a court that has no jurisdiction to consider that it does 
have jurisdiction when national law entrusts the hearing of a case (incidental 
proceedings) to a court that is not a tribunal within the meaning of Article 47 of 
the Charter of Fundamental Rights, and additionally, in light of the judgment in 
W. Ż., those circumstances allow a national court’s rulings to be disregarded. 
Moreover, according to the judgments of the European Court of Human Rights, 
the participation of such persons in the hearing of a case constitutes a violation of 
the individual’s right to a tribunal, and thus to take a different view would imply 
that, contrary to Article 52(3) of the Charter of Fundamental Rights, the EU 
standard regarding that right is lower than the ECHR standard. Therefore, the 
principle of national procedural autonomy in determining the composition of 
national court panels competent to hear an EU case such as an impartiality test 
case should be limited on account of the principle of effectiveness. 
23 The purpose of the third question referred is to provide another instrument to 
protect of the rule of law by adding an obligation to ensure that the composition of 
a national court meets EU standards regarding the right to a tribunal. Indeed, it 
cannot be ruled out that, given the past practice of those in charge of the Supreme 
Court since May 2020, which includes preventing the implementation of 
preliminary rulings of the Court of Justice, adjudicating panels in impartiality test 
cases will continue to include persons covered by the resolution of the three 
combined SC chambers. 
24 In the minimum variant, that instrument could consist in an obligation to use 
existing national procedural rules to remove from the adjudicating panel persons 
(judges) whose participation in the hearing of the case will result in a violation of 
the individual’s right to a tribunal, and then to fill the panel with persons whose 
participation in the hearing of the case will not raise any doubts regarding that 
right. In the maximum variant, which should be applied if national procedural 
rules cannot be used, the proposed remedy is to have the case heard by a judicial 
panel not explicitly provided for in domestic law, but one which guarantees the 
individual’s right to an impartial and independent tribunal (by disapplying the 
provisions of national law which provide for a panel of five judges, and applying 
in their place other provisions of national law which provide that in the absence of 
special regulations, the Supreme Court sits in a single-judge formation). 
25 The referring court notes that in those circumstances, in order to constitute the 
court, it is possible to apply the measures for excluding a judge provided for in 
national procedural rules. The use of those measures requires a broad 
interpretation of the grounds for exclusion – an interpretation that is consistent 
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with the ECHR or with EU law. In the case-law of the Supreme Court, such an 
interpretation is adopted by panels that include Supreme Court judges not covered 
by the resolution of the three combined SC chambers. 
26 Finally, in the opinion of the referring court, when assessing whether doubts 
concerning a judge’s impartiality are reasonable, all circumstances that might 
affect the judge’s conduct should be taken into account. Those circumstances 
should be evaluated in terms of whether, from the point of view of the average 
citizen, the objective conditions for perceiving that judge as impartial and 
independent, and the court which includes that judge as an independent court, 
have been met. The judge’s attitude towards the changes being introduced in the 
judiciary is also relevant here. First of all, it is recognised that such motions for 
exclusion are legitimate, since a ‘new judge’ sitting on a panel conducting an 
impartiality test would be forced to take a position on an issue that directly affects 
him or her too, as it is related to the appointment procedure. Consequently, the 
participation of such judges in hearing a motion for exclusion could cause both the 
parties and the general public to believe that the court is not impartial. 
27 As a result, the hearing of such test cases depends on the composition of the 
Supreme Court panel. If a motion to exclude a judge from hearing a test case is 
heard by a Supreme Court judge, anyone appointed as a Supreme Court judge who 
is covered by the resolution of the three combined SC chambers is excluded from 
hearing that test case. Motions by Supreme Court judges who recuse themselves 
from hearing a test case are also accepted when persons covered by the resolution 
of the three combined SC chambers are in a majority on the Supreme Court panel 
hearing the test case. On the other hand, when a person covered by the resolution 
of the three combined SC chambers is randomly selected to hear a motion to 
exclude a judge from hearing a test case, such a motion is disregarded both when 
it is submitted by a judge of the Supreme Court on the basis of an interpretation of 
national procedures that is consistent with EU law and with the ECHR, and when 
it is submitted directly by a party. One can also point to rulings in which motions 
by Supreme Court judges recusing themselves from hearing a test case are 
disregarded as inadmissible under law. 
28 In this situation, in test cases heard by the Supreme Court, there is only piecemeal 
enforcement of the judgments of the Court of Justice in cases concerning the rule 
of law – a kind of ‘á la carte’ enforcement that creates a double standard in terms 
of the right to a tribunal. Consequently, there is a need to obtain a direct answer 
from the Court of Justice on the interpretation of EU law in the context of test 
cases and to resolve the question of whether the effectiveness of Article 19 TEU 
and Article 47 of the Charter of Fundamental Rights requires – where persons 
covered by the resolution of the three combined SC chambers fail to recuse 
themselves, where motions for the exclusion of such persons submitted by either 
the parties or Supreme Court judges are not granted, and where the practice of 
randomly selecting adjudicating panels to hear test cases does not change – that 
the national court be empowered to disapply national provisions requiring test 
cases to be heard by a panel of five judges as contrary to EU law.