Information;Order — ECLI:EU:C:2023:863
Date: 2023-11-08
Language of the case: Slovak
Court formation: Ninth Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Slovakia

Summary C-232/23–1 
Case C-232/23 
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:  
12 April 2023 
Referring court:  
Okresný súd Bratislava II (Slovakia) 
Date of the decision to refer:  
12 April 2023 
Applicant:  
A 
Defendant:  
B 
  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-232/23 
 
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Subject matter of the main proceedings 
The request for a preliminary ruling was filed as part of proceedings to demand a 
public apology. The reason for filing this request stems from doubts regarding the 
compliance of legislation governing the functioning and jurisprudence of 
disciplinary chambers of the Najvyšší správny súd Slovenskej republiky (the 
Supreme Administrative Court of the Slovak Republic, Slovakia) with EU law, 
and if non-compliance is found between this legislation and EU law, the legal 
consequences of this non-compliance.  
Subject matter and legal basis of the request  
The referring court is requesting an interpretation of Article 47 of the Charter of 
Fundamental Rights of the European Union in conjunction with Article 2 and 
Article 19(1) second subparagraph of the Treaty on European Union and 
Article 6(1) of the European Convention for the Protection of Human Rights and 
Fundamental Freedoms, as well as the principle of the primacy of EU law, the 
principle of sincere cooperation and the principle of legal certainty in the context 
of the reform of the legal provisions related to disciplinary justice in the Slovak 
Republic. 
ŠTÍKEĽ 
 
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Questions referred for a preliminary ruling 
1. Must Article 47 of the Charter of Fundamental Rights in conjunction 
with Article 19(1) (second subparagraph) and Article 2 of the Treaty on 
[European Union] (‘the TEU’) and Article 6(1) of the European Convention 
for the Protection of Human Rights and Fundamental Freedoms (‘the 
ECHR’), as well as the principle of the primacy of EU law, the principle of 
sincere cooperation and the principle of legal certainty be interpreted as 
meaning that a disciplinary chamber of judges that in accordance with 
national legislation is composed of five members, three of whom are 
professional judges and two of whom are lay judges as ‘other persons 
selected by the judicial council’ is also to be regarded as an independent 
court within the meaning of EU law in such circumstances as are provided 
for by national legislation, namely: 
(a) the function of a member of the disciplinary chamber (a professional 
judge) ceases on the day the Minister of Justice submits a disciplinary motion 
against a member of the disciplinary chamber, irrespective of the legitimacy 
of the disciplinary motion, the seriousness of the act against which the 
disciplinary motion has been filed, and without the possibility of appealing 
against the cessation of the function of a member of the disciplinary 
chamber; 
(b) the function of a lay judge who is also a lawyer ceases on the day the 
Minister of Justice submits a disciplinary motion against a lay judge (a 
lawyer) irrespective of the legitimacy of the disciplinary motion, the 
seriousness of the act against which the disciplinary motion has been filed, 
and without the possibility of appealing against the cessation of the function 
of a member of the disciplinary chamber; 
(c) the function of a lay judge ceases when he or she ceases to meet the 
prerequisite for performing the function of a lay judge provided for in a 
normative manner in national legislation, requiring that experience and 
moral qualities guarantee the proper performance of the function of a lay 
judge, with the simultaneous absence of a body evaluating the loss of this 
prerequisite in the case of an individual lay judge, and without the possibility 
of appealing against this cessation of function; 
(d) an appeal against a decision of the disciplinary chamber is admissible 
only when the objective is to deprive a judge of his or her function? 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-232/23 
 
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2. Does the fact that the Minister of Justice has the power under national 
legislation to institute disciplinary proceedings against judges of a national 
court and is, therefore, an opposing party to the disciplinary proceedings, 
have any bearing on this issue? 
3. If the answer to the first question is in the negative, must Article 2 
TEU and Article 19(1), second subparagraph, TEU, and Article 47 of the 
Charter, as well as the principle of the primacy of EU law, the principle of 
sincere cooperation and the principle of legal certainty be interpreted as 
meaning that 
(a) they impose on all State authorities, including the national court and 
public administration authorities, the obligation to nullify the unlawful 
effects of decisions of the disciplinary chamber and to disregard such a 
decision, 
(b) they impose on the disciplinary chamber the obligation to not apply 
the provisions of domestic law that, in the opinion of the Court of Justice, 
influenced the answer in the negative to the first question[?]. 
4. Are Article 2 TEU and Article 19(1), second subparagraph, TEU and 
Article 47 of the Charter to be interpreted as guaranteeing a national court 
judge the subjective right to judicial independence and impartiality that 
would be guaranteed and respected by the State? 
5. Irrespective of the answer to the first question, do Article 2 TEU and 
Article 19(1), second subparagraph, TEU and Article 47 of the Charter 
preclude such an interpretation of national legislation, as well as national 
practice, which does not allow any appeal against decisions of the evaluation 
committee, while allowing account to be taken of a breach of judicial ethics 
that is the subject of disciplinary proceedings that have not yet been finally 
concluded[?] 
Provisions of European Union law relied on 
Article 2 and Article 19(1) second subparagraph of the Treaty on European Union 
(‘the TEU’) 
Articles 47 and 51 and Article 52(3) of the Charter of Fundamental Rights of the 
European Union (‘the Charter’) 
Explanatory notes to the Charter of Fundamental Rights  
ŠTÍKEĽ 
 
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Article 6(1) of the European Convention for the Protection of Human Rights and 
Fundamental Freedoms (‘the ECHR’) 
Provisions of national law relied on 
A. Zákon č. 432/2021 Z. z. o disciplinárnom poriadku Najvyššieho správneho 
súdu Slovenskej republiky a o zmene a doplnení niektorých zákonov [Law 
No 432/2021 on the Disciplinary Regulations of the Najvyšši správny súd 
Slovenskej republiky (Supreme Administrative Court of the Slovak Republic, 
Slovakia) and amending certain laws] (‘the URD’): Paragraph 1(1), Paragraph 3, 
Paragraph 5(1) and (2), Paragraph 6(1)–(4), Paragraph 7, Paragraph 8, 
Paragraph 9(1) and (2), Paragraph 10(4) and (6), Paragraph 11(1)(c), 
Paragraph 11(2)(f), Paragraph 15(a), Paragraph 37(1)–(5). 
1 The provisions of Paragraph 1(1) of the URD show that this law governs 
disciplinary proceedings in relation to judges, prosecutors, bailiffs and notaries. 
2 Pursuant to Paragraph 3 of the URD, the disciplinary liability of judges, 
prosecutors, bailiffs and notaries is adjudicated and disciplinary measures are 
imposed by the Najvyšši správny súd Slovenskej republiky (Supreme 
Administrative Court of the Slovak Republic) in disciplinary chambers. 
3 Pursuant to Paragraph 5 of the URD, a disciplinary chamber consists of five 
members, and unless Paragraph 9(4) provides otherwise, it is composed of the 
president of the disciplinary chamber, two judges of the disciplinary chamber and 
two court lay judges of the disciplinary chamber (‘lay judges’). 
4 Pursuant to Paragraph 6 of the URD, presidents of disciplinary chambers, judges 
of disciplinary chambers and their deputies are appointed for a period of three 
years by the president of the supreme administrative court. The composition of all 
disciplinary chambers must be substantially changed after three consecutive years. 
Lay judges are selected from the databases of lay judges during the registration of 
a disciplinary application in the filing office, separately for each disciplinary 
application. If the defendant in the disciplinary proceedings is a judge, lay judges 
are selected at random, using such technical and organisational means as are 
approved by the Minister of Justice, from the database of lay judges referred to in 
Paragraph 9(1)(d). 
5 Pursuant to Paragraph 7 of the URD, only a judge of the supreme administrative 
court who is the president of the chamber pursuant to a separate provision and a) 
against whom no disciplinary or criminal proceedings are pending, b) against 
whom no disciplinary measures have been applied, unless that disciplinary penalty 
has been expunged, c) who is not a member of the Súdna rada Slovenskej 
republiky (judicial council of the Slovak Republic, Slovakia), the president of the 
supreme administrative court or the deputy president of the supreme 
administrative court may be appointed to the position of president of the 
disciplinary chamber. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-232/23 
 
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6 Pursuant to Paragraph 8 of the URD, only a judge of the supreme administrative 
court a) against whom no disciplinary or criminal proceedings are pending, b) 
against whom no disciplinary measures have been applied, unless the disciplinary 
penalty has been expunged, c) who is not a member of the judicial council, the 
president of the supreme administrative court or the deputy president of the 
supreme administrative court may be appointed to the position of judge of the 
disciplinary chamber. 
7 Pursuant to Paragraph 9(1)(d) of the URD, in order to create disciplinary 
chambers, databases of lay judges are created from among […] d) other persons 
selected by the judicial council. 
8 Pursuant to Paragraph 10(4) of the URD, a citizen of the Slovak Republic may be 
elected as a lay judge pursuant to Paragraph 9(1)(d), 
(a.) who has obtained a second-cycle higher education in law at the law faculty of 
a higher education institution in the Slovak Republic, or who possesses a 
recognised document confirming a second-cycle higher education in law issued by 
a foreign higher education institution; if he or she has obtained a first-cycle higher 
education followed by a second-cycle higher education, he or she is required to 
obtain legal education at both levels, 
(b.) who has full legal capacity and is fit to act as a lay judge in terms of health, 
(c.) who has an unblemished reputation, 
(d.) who has permanent residence in the territory of the Slovak Republic, 
(e.) whose experience and moral qualities guarantee the proper performance of the 
duties of a lay judge, 
(f.) who is not a member of a political party or political movement and does not 
conduct active political activity in political parties or political movements; active 
political activity is considered to be standing as a candidate on the list of a 
political party or political movement in elections to the Národná rada Slovenskej 
republiky (national council of the Slovak Republic, Slovakia) and in elections to 
the European Parliament, 
(g.) who has been practising as a lawyer for at least ten years, 
(h.) against whom no disciplinary or criminal proceedings are pending, 
(i.) who has not been subject to a disciplinary measure, unless the disciplinary 
penalty has been expunged, 
(j.) who is not a judge, prosecutor, bailiff, notary or member of the judicial 
council. 
ŠTÍKEĽ 
 
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9 Pursuant to Paragraph 11(1)(c) of the URD, the function of president of the 
disciplinary chamber and judge of the disciplinary chamber ceases if he or she 
ceases to meet the conditions set out in Paragraph 7(a) or Paragraph 8(a). 
10 Pursuant to Paragraph 11(2)(f) of the URD, the function of a lay judge ceases if, 
in accordance with Paragraph 9(1)(d), he or she ceases to meet the conditions 
referred to in Paragraph 10(4)(b)–(f). 
11 According to Paragraph 15(a) of the URD, a disciplinary application against a 
judge may be submitted by an applicant, inter alia, the Minister of Justice of the 
Slovak Republic. 
12 Pursuant to Paragraph 37(1) of the URD, an appeal against a disciplinary ruling 
may be brought by 
(a.) an accused in disciplinary proceedings, if the disciplinary measure imposed 
on him or her consists of dismissal from a function, deprivation of a function, 
deprivation of the right to perform functions, or removal from office, 
(b.) an applicant, if he or she has applied for a disciplinary measure pursuant to 
(a), and the disciplinary chamber has not imposed such a disciplinary measure. 
B. Zákon č. 586/2003 Z. z. o advokácii a o zmene a doplnení zákona č. 
455/1991 Zb. o živnostenskom podnikaní (živnostenský zákon) v znení neskorších 
predpisov [Law No 586/2003 on the Bar and Amending Law No 455/1991 on 
Trade (Business Licence Law), as amended]: Paragraph 58(1) 
Pursuant to Paragraph 58(1) of the Law on the Bar, disciplinary proceedings 
against a lawyer who is a lay judge in a disciplinary chamber are initiated at the 
request of the chairman of the audit committee or the Minister of Justice of the 
Slovak Republic. 
C. Zákon č. 185/2002 Z. z. o Súdnej rade Slovenskej republiky a o zmene a 
doplnení niektorých zákonov (Law No 185/2002 on the judicial council of the 
Slovak Republic and on amendments to certain acts): Paragraph 27fb(1)–(3). 
Pursuant to the provisions of Paragraph 27fb, a request for the election of a lay 
judge of a disciplinary chamber may be submitted to the judiciary council by a 
member of the judiciary council. 
Succinct presentation of the facts and procedure in the main proceedings 
13 On 26 May 2020, a request was received by the Okresný súd Bratislava II 
(Bratislava II Regional Court, Slovakia) – the referring court which made the 
request for a preliminary ruling – in which party A requested that the court order 
the other party to the proceedings B to make a public apology to it. The other 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-232/23 
 
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party to the proceedings B is the vice-chairman of a political party that, according 
to recent polls, is the third-strongest political party in Slovakia.  
14 The judge of the referring court points out that the independence of her 
adjudication in the present case and of the judiciary as a whole is at stake, 
because, in accordance with applicable provisions, at the request of the former 
Minister of Justice and on the basis of official notes drawn up by an employee of 
the ministry of justice, who claims that the judge made inappropriate comments to 
an employee of the ministry of justice who attended her hearing as part of an 
audience, she is subject to disciplinary proceedings initiated against her in 
connection with other judicial proceedings. Such inappropriate comments were 
allegedly made after the completion of a trial when the judge was alone in the 
courtroom and was having a private telephone conversation with a third party, the 
content of which, despite being behind a closed door, was heard by an employee 
of the ministry of justice. This telephone conversation allegedly took place after 
the completion of the judicial activities by the judge, namely after the end of the 
hearing. The judge of the referring court indicates that, other than these 
disciplinary proceedings, she has never been subject to disciplinary proceedings 
and has been a judge for over 17 years. 
The essential arguments of the parties in the main proceedings 
15 Complainant A argues that the other party to the proceedings B has harmed her 
with its statements and, therefore, seeks a public apology. In the opinion of the 
judge of the referring court, this case can be described as politically sensitive, and 
it can be expected that it will be publicised by the media.  
Succinct presentation of the reasoning in the request for a preliminary ruling 
16 The referring court is of the opinion that the functioning and adjudicating 
activities of the disciplinary chambers of the Supreme Administrative Court of the 
Slovak Republic, whose chambers have been exercising their jurisdiction since the 
entry into force of the URD on 1 December 2021, are contrary to the right to an 
independent and impartial hearing, and interfere with the independence of national 
courts in the Slovak Republic. Hence, the fundamental principles of the rule of 
law and the protection of human rights, which the Slovak Republic must strictly 
observe with regard to Article 2 TEU, are under threat. 
17 The independence of the judiciary is under threat in particular in the sense that the 
disciplinary chambers are interfering in the judicial activity of courts, and by their 
decisions are indirectly ordering courts how to adjudicate a given case. The 
decisions of the disciplinary chambers are strongly political in nature. A 
manifestation of interference in the independence of courts is also the fact that 
restrictive disciplinary measures are applied when the subject is a case that has 
been publicised in the media. The judge faces a more-severe disciplinary penalty 
just because the case is publicised in the media.  
ŠTÍKEĽ 
 
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18 In support of his or her assertions, the referring judge cites two judgments of 
disciplinary chambers that have been publicised in the media and that, at the very 
least, give rise to suspicions as to their interference with the independence of 
judicial decisions. 
19 The referring court emphasises that, although the organisation of the judiciary 
falls within the competence of the Member States, the fact remains that, when 
exercising that competence, the Member States are required to comply with their 
obligations deriving from EU law. The essence of the issues raised is whether the 
disciplinary chamber meets the requirement of impartiality and independence. 
Therefore, the Court clearly has jurisdiction to answer these questions, as they 
concern the interpretation of EU law [for example, judgments of the Court: 
Repubblika, C-896/19, EU:C:2021:311, paragraph 48, and A.B. and Others 
(Appointment of judges of the Supreme Court – appeal), C-824/18, 
EU:C:2021:153, paragraph 68, as well as the case-law cited therein].  
20 The referring court highlights that there is no doubt that, as a judicial authority 
within the meaning of EU law, it acts under national legislation in ‘matters to 
which EU law applies’, in accordance with Article 19(1), second subparagraph, 
TEU [for example, judgment of the Court W.Ż. (Supreme Court, Chamber of 
Extraordinary Control and Public Affairs – Appointment), C-487/19, 
EU:C:2021:798, paragraph 106, as well as the case-law cited therein]. 
21 The Court has already decided that, for the purposes of interpreting Article 19(1) 
second subparagraph TUE, Article 47 of the Charter [for example, judgment of 
the Court of 20 April 2021, Repubblika, C-896/19, EU:C:2021:311, paragraph 1 
of the decision] must also be taken into account. Account must also be taken of 
Article 2 TEU, from which it follows that the European Union is based on such 
values as the rule of law, which is undoubtedly related to the administration of 
justice. Member States are required to ensure that, in the light of this value, they 
do not negatively influence their legislation on the organisation of the judiciary by 
refraining from adopting regulations that jeopardise the independence of judges 
[for example, Judgment of the Court of 17 December 2020, Openbaar Ministerie 
(Independence of the issuing judicial authority), C-354/20 PPU and 
C-412/20 PPU, EU:C:2020:1033, paragraph 40].  
The first question referred for a preliminary ruling 
22 According to the case-law of the Court, the mere threat of disciplinary 
proceedings is significant, as it interferes with the independence of the judiciary. 
The mere prospect of a disciplinary investigation can put pressure on those tasked 
with issuing decisions; hence, it is important that the body empowered to conduct 
investigations and disciplinary proceedings is objective and impartial in the 
performance of its tasks and that it is not subject to any external influence for that 
purpose (judgment of the Court of 18 May 2021, Asociaţia ‘Forumul 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-232/23 
 
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Judecătorilor din România’ et al., C-83/19, C-127/19, C-195/19, C-291/19, 
C-355/19 and C-397/19, EU:C:2021:393, paragraph 199). 
23 The referring court also refers to the Opinion of Advocate General A.M. Collins 
in Inspecţia Judiciară, (C-817/21, EU:C:2023:55, paragraph 40): ‘In order to 
ensure judicial independence, the Court’s case-law emphasises the guarantees 
afforded to judges subject to disciplinary investigations and proceedings. The 
same guarantees of objectivity and impartiality apply irrespective as to whether a 
judge is subject to disciplinary proceedings or, as in the case before the referring 
court, complaints against judges or prosecutors are dismissed and disciplinary 
investigations and proceedings not initiated. In that regard, it must be emphasised 
that those guarantees ensure that the public maintain the perception, vital in a 
democratic society, that the judiciary is independent and impartial. The 
undermining of public trust and confidence due to the conduct of disciplinary 
investigations and proceedings in an unprofessional or a biased manner, as per the 
applicant’s allegations, can result in a de facto denial of effective legal protection 
in the fields covered by EU law pursuant to the second subparagraph of 
Article 19(1) TEU’. 
24 In the light of the above observations, the referring court expresses doubts as to 
whether – in particular with regard to the procedure for terminating the functions 
of judges and lay judges of the disciplinary chamber – this chamber meets the 
requirements of independence and impartiality. 
25 In the case of judges and lay judges (if they are lawyers) of the disciplinary 
chamber, the mere submission of a disciplinary application by the Minister of 
Justice automatically terminates their function as members of the disciplinary 
chamber, without the possibility of appealing against such a termination of 
function. It can, therefore, be concluded that the performance of duties by each 
member of the disciplinary chamber is dependent on the minister submitting a 
motion to initiate disciplinary proceedings against one of the judges or lay judges 
of the disciplinary chamber, which will simply terminate their functions.  
26 The referring court considers that it is incompatible with EU law that there is no 
remedy for the termination of the duties of the members of the disciplinary 
chamber as well as with regard to the decisions of the disciplinary chamber. In 
accordance with national provisions, the applicable law is that the remedy applies 
in a limited way only to judgments the subject of which is to deprive a judge of 
his or her function.  
27 In view of these facts, the referring court considers that the disciplinary chamber 
does not meet the requirements of judicial independence and impartiality within 
the meaning of Article 47 of the Charter, Article 6(1) ECHR and Article 2 TEU in 
conjunction with Article 19(1), second subparagraph, TEU. 
ŠTÍKEĽ 
 
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The second question referred for a preliminary ruling 
28 The essence of the second question is whether the compatibility of the disciplinary 
chambers with EU law is affected by the fact that the Minister of Justice has the 
power under national legislation to initiate disciplinary proceedings against judges 
of a national court and, therefore, is the opposing party to the disciplinary 
proceedings and at the same time has the power to initiate disciplinary 
proceedings against both members of the disciplinary chamber (professional 
judges) and lay judges (lawyers).  
The third question referred for a preliminary ruling  
29 If the answer to the first question is in the negative, the Court would, in principle, 
have to answer whether such decisions of the disciplinary chamber should be 
taken into account, or whether they produce legal effects. In that regard, the 
referring court refers to the Opinion of Advocate General A.M. Collins in Joined 
Cases (C-615/20 and C-671/20, EU:C:2022:986). In this opinion, in a similar 
case, the Advocate General proposes disregarding a disciplinary ruling in certain 
circumstances where the preliminary ruling procedure was initiated not by a 
disciplinary chamber but by the judge hearing the case (against whom national 
measures had been applied). 
30 According to the referring court, an answer to that question is necessary in order 
for the referring court to give its decision, since it would in fact ensure that the 
referring court is able to exercise its function as an independent and impartial 
court without being subject to the jurisdiction of the disciplinary chamber, whose 
members are dependent on the Minister of Justice as the opposing party. 
The fourth question referred for a preliminary ruling 
31 The fourth question concerns whether EU law should be interpreted as meaning 
that a judge has a subjective right to the guarantee of judicial independence. This 
right corresponds to the positive obligation of the Member State to establish and 
guarantee the independence and impartiality of the judge. 
The fifth question referred for a preliminary ruling 
32 As regards the fifth question, the referring court takes the view that the national 
provisions, when combined with national practice, undermine the independence of 
the judiciary and are, therefore, contrary to, at minimum, Article 19(1), second 
subparagraph, TEU. This is because they do not allow a judge to appeal against 
decisions made by a disciplinary chamber, while at the same time allowing the 
infringement of judicial ethics to be taken into account, without the prior decision 
of the disciplinary chamber, which is, moreover, itself currently the subject of 
disciplinary proceedings.  
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Request for expedited proceedings 
33 The referring court, referring to Article 105 of the Rules of Procedure of the Court 
of Justice, requests that the proceedings be conducted under an expedited 
procedure. It justifies this request by stating that the disciplinary judiciary 
significantly threatens the rule of law, in particular the independence and 
impartiality of the judiciary. These are systemic shortcomings that seriously 
interfere with the judiciary activity of the courts. In the present case, the 
functioning of the disciplinary judiciary interferes with the independence of the 
court, and thus poses a threat not only to the national court that hears the case, but 
also all national courts in Slovakia.