Order — ECLI:EU:C:2025:737
Date: 2025-09-11
Language of the case: Polish

Summary C-646/23 – 1 
Case C-646/23 [Lita] 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: 
27 October 2023 
Referring court: 
Wojskowy Sąd Okręgowy w Warszawie (Poland) 
Date of the decision to refer: 
25 October 2023 
Criminal proceedings against: 
P. B. 
  
Subject matter of the main proceedings 
Criminal proceedings before the court of second instance against Private P. B., 
who was found guilty at first instance of committing a criminal offence under 
Article 278(1) of the Kodeks Karny (Criminal Code). 
Subject matter and legal basis of the request 
Compatibility with European Union law in light of the second subparagraph of 
Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights, read in 
conjunction with the provisions of Directive (EU) 2016/343, of a provision of 
national law that provides for the retirement by operation of law of a judge 
hearing an appeal in a case subject to the provisions of that directive. 
Questions referred for a preliminary ruling 
(1) Must the second subparagraph of Article 19(1) of the Treaty on 
European Union (‘TEU’) and Article 47 of the Charter of Fundamental 
Rights of the European Union (‘the Charter’), read in conjunction 
 
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 – CASE C-646/23 
 
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with the provisions of Directive (EU) 2016/343 of the European 
Parliament and of the Council of 9 March 2016 on the strengthening of 
certain aspects of the presumption of innocence and of the right to be 
present at the trial in criminal proceedings (‘the directive’) be 
interpreted as precluding a provision of national law such as Article 13 
or Article 10 of the ustawa z dnia 28 lipca 2023 r. o zmianie ustawy – 
Kodeks cywilny oraz niektórych innych ustaw (Law of 28 July 2023 
Amending the Civil Code and Certain Other Laws), which provides for 
the retirement by operation of law of a judge hearing an appeal in a 
case subject to the provisions of the directive, in a situation where: (i) 
the provision is structured in such a way as to apply to only one of all 
active judges; (ii) the provision does not apply to prosecutors in an 
analogous situation, even though prosecutors and judges in situations 
analogous to that of the judge hearing the appeal were treated in the 
same way under the previously applicable laws; (iii) the law in which 
that provision is included does not concern the organisation of courts, 
but a completely different matter, and its explanatory memorandum 
offers no explanation of the reasons for the introduction of the 
provision, does not indicate any compelling public interest that its 
introduction would serve, and does not justify the reasons why its 
introduction would be proportionate to those aims; and (iv) neither the 
provision concerned nor any other provision of national law provides 
for the possibility for a court or any other body to hear an appeal or 
any other legal remedy of a judge affected by that provision in order to 
verify the legitimacy of his or her retirement or the compatibility of the 
provision with higher-ranking provisions of national law or provisions 
of EU or international law? 
(2) Is it relevant to the answer to Question 1 that the judge to whom the 
aforementioned provision of national law applies had previously, 
because of his activities aimed at protecting the independence of courts 
and the independence of judges, been subject to repression by the 
executive, which attempted to retire him on the basis of previously 
applicable laws, and the aforementioned provision of national law was 
enacted due to the failure of those attempts? Is it relevant to the answer 
that, in the view of the referring court, the provision concerned does 
not serve any compelling public interest, but is repressive in nature? 
(3) Must the second sentence of Article 19(1) TFEU, Article 47 of the 
Charter, Articles 2 and 4(3) TEU and the principles of the primacy of 
Union law and effective judicial review, in light of the judgment of the 
Court of Justice of 13 March 2007 in Unibet, C-432/05, be interpreted 
as meaning that a court which includes the judge referred to in 
Questions 1 and 2 is entitled to suspend of its own motion the 
application of the provision of national law referred to in Question 1 
that provides for his retirement and to continue to adjudicate in this 
and other cases pending a response from the Court of Justice, in so far 
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as that court considers it necessary for the case pending before it to be 
decided in accordance with the applicable provisions of Union law? 
(4) Must the provisions and principles referred to in Question 3 be 
interpreted as meaning that if the Court of Justice, taking into account 
the circumstances indicated in Question 2, answers Question 1 in the 
affirmative, the provision of national law referred to in Question 1 that 
provides for the judge’s retirement cannot be applied and the judge 
shall not be retired unless there is another legal basis for his or her 
retirement? 
Provisions of European Union law relied on 
The second subparagraph of Article 19(1) of the Treaty on European Union; 
Article 47 of the Charter of Fundamental Rights of the European Union; 
Directive (EU) 2016/343 of the European Parliament and of the Council of 
9 March 2016 on the strengthening of certain aspects of the presumption of 
innocence and of the right to be present at the trial in criminal proceedings (OJ 
2016 L 65, p. 1). 
Provisions of national law relied on 
Articles 10 and 13 of the ustawa z dnia 28 lipca 2023 r. o zmianie ustawy – 
Kodeks cywilny oraz niektórych innych ustaw (Law of 28 April 2023 Amending 
the Civil Code and Certain Other Laws, Dziennik Ustaw (Journal of Laws) of 
2023, item 1615); 
– Pursuant to Article 10, ‘In the ustawa z dnia 11 marca 2022 r. o obronie 
Ojczyzny (Law of 11 March 2022 on the Defence of the Homeland, Dziennik 
Ustaw (Journal of Laws) of 2022, item 2305, and of 2023, items 347 and 641), 
Article 233 shall read: “In the event that a prosecutor for military affairs who is 
a professional soldier is discharged from professional military service, he or 
she shall remain in his or her position as a prosecutor in a given organisational 
unit of the prosecutor’s office irrespective of the number of prosecutorial 
positions in that unit”’. 
– Pursuant to Article 13, ‘A military court judge discharged from professional 
military service who remains in the position of judge on the effective date of 
this law shall retire on that date. […]’. Pursuant to Article 14 of the amending 
Law, the effective date of both provisions is 15 November 2023. 
Articles 175(1), 176 (2), 179 and 180 of the Konstytucja Rzeczypospolitej 
Polskiej (Constitution of the Republic of Poland); 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-646/23 
 
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Articles 22(1), 23(1), 35(1), 70(1) and 70(2) of the ustawa z 21 sierpnia 1996 r. – 
Prawo o ustroju sądów wojskowych (Law of 21 August 1996 on the Organisation 
of Military Courts, ‘the LOMC’); 
Articles 200(6), 226(3), 229(2) and 233 of the ustawa z 11 marca 2022 roku o 
obronie Ojczyzny (Law of 11 March 2022 on the Defence of the Homeland); 
– Pursuant to Article 233, ‘In the event that a military court judge or a prosecutor 
for military affairs who is a professional soldier is discharged from professional 
military service, he or she shall remain in his or her position as a judge or 
prosecutor in the respective organisational unit of the court or of the 
prosecutor’s office irrespective of the number of positions in those units. […]’. 
Articles 70(1), 70(2), 71(2), 71(3), 73(1) and 73(3) of the ustawa z dnia 27 lipca 
2001 r. – Prawo o ustroju sądów powszechnych (Law of 27 July 2001 on the 
Organisation of Ordinary Courts); 
Article 439(1) of the ustawa z dnia 6 czerwca 1997 r. – Kodeks postępowania 
karnego (Law of 6 June 1997 – Code of Criminal Procedure); 
Article 104(1) of the ustawa z dnia 24 sierpnia 2001 r. – Kodeks postępowania w 
sprawach o wykroczenia (Law of 24 August 2001 – Code of Procedure in Cases 
Involving Petty Offences). 
Succinct presentation of the facts and procedure in the main proceedings 
1 The Wojskowy Sąd Garnizonowy w Warszawie (Garrison Military Court in 
Warsaw) delivered a judgment finding Private P. B. guilty of committing a 
criminal offence under Article 278(1) of the Criminal Code. The judgment was 
appealed by Private P. B., who argued that a punitive measure consisting in the 
publication of the judgment had been wrongly imposed and requested that the 
judgment be amended and that that part of the judgment be annulled. At the 
appeal hearing before the Wojskowy Sąd Okręgowy w Warszawie (Regional 
Military Court in Warsaw) Private P. B. additionally requested that the judgment 
be annulled in its entirety and the proceedings conditionally discontinued. 
2 A judge who is to be retired on 15 November 2023 pursuant to Article 13 of the 
Law of 28 July 2023 Amending the Civil Code and Certain Other Laws, without 
the right of appeal and without implementing regulations, was appointed to hear 
the appeal as a single judge. Articles 10 and 13 of that Law apply to one person 
only and were enacted by a majority of deputies in the lower chamber of 
Parliament (the Sejm), while the upper chamber of Parliament (the Senate) and the 
relevant Senate committee adopted a negative position. 
3 The judge in question was appointed to the office of judge of the Regional 
Military Court in Warsaw on 29 January 2013. In July 2017, he was declared unfit 
for military service on health grounds, but capable of serving as a judge. For that 
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reason, he applied to the then Krajowa Rada Sądownictwa (National Council of 
the Judiciary, ‘the NCJ’) for a transfer to a judicial post in an ordinary court. The 
NCJ asked the Prezydent Rzeczypospolitej (President of the Republic of Poland) 
to appoint (transfer) the judge to an equivalent post in an ordinary court. Four and 
a half years later, the President, by decision of 27 December 2021, declined to 
appoint the judge, and also declined to state the reasons for his decision. In 
December 2019, the Minister Sprawiedliwości (Minister of Justice) submitted a 
request to the current NCJ that the judge be retired; the NCJ, however, refused to 
retire the judge on the grounds that the judge, although unfit for military service, 
was capable of serving as a judge. Following the President’s decision, in January 
2022, the Minister Obrony Narodowej (Minister of National Defence) submitted a 
similar request to the new NCJ. On 12 June 2023, the new NCJ refused to retire 
the judge, citing the entry into force on 24 April 2022 of Article 233 of the Law 
on the Defence of the Homeland. Pursuant to that provision, upon the request of 
the Minister of National Defence, the judge was discharged from professional 
military service and remained a judge of the Regional Military Court in Warsaw. 
As of March 2023, the judge resumed hearing cases. 
4 On 28 July 2023, the Sejm adopted the Law Amending the Civil Code and Certain 
Other Laws, pursuant to which, inter alia, the provision on judges was removed 
from Article 233 of the Law on the Defence of the Homeland (while the provision 
on prosecutors was retained); the amending Law also introduced Article 13 on the 
retirement of a military court judge who has been discharged from professional 
military service. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
5 As a court within the meaning of EU law, the referring court is subject to the 
requirements of the principle of effective judicial protection, since it can rule on 
matters concerning the application or interpretation of EU law. The associated 
guarantees of a court established by law include not only the basis for the legal 
existence of the court, but also requirements concerning the composition of the 
court and individual judges. The court must remain independent and impartial, 
which in turn must be secured by appropriate guarantees including, in particular, 
the protection of a judge’s active service, retirement, and irremovability. The 
referring court relies in that regard on the case-law arising from the following 
judgments: of 27 February 2018, Associação Sindical dos Juízes Portugueses 
(C-64/16, EU:C:2018:117); of 11 July 2019, Commission v Poland (Independence 
of the Supreme Court) (C-619/18, EU:C:2019:615); and of 5 November 2019, 
Commission v Poland (Independence of ordinary courts) (C-192/18, 
EU:C:2019:924). Additionally, the referring court recalls that Directive (EU) 
2016/343 on the strengthening of certain aspects of the presumption of innocence 
and of the right to be present at the trial in criminal proceedings also applies to the 
main proceedings in a criminal case. 
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6 The referring court is composed of a single judge who was discharged from 
professional military service due to being declared permanently unfit for military 
service, but capable of performing the duties of a judge. With respect to that 
judge, statutory provisions were first amended to allow him to be discharged from 
professional military service without being retired, and subsequently a statutory 
arrangement was introduced whereby he was retired by operation of law precisely 
because of his discharge from military service. In practice, the statutory 
amendments introduced only apply to that one judge sitting on the referring court 
(a so-called ad hominem law). For this reason, in the Polish media, the 
amendments have been referred to as ‘lex Raczkowski’. 
7 Accordingly, as a result of those amendments, the referring court has doubts as to 
whether it still satisfies the criteria of an ‘independent and impartial court 
previously established by law’. It is objectively necessary for the referring court to 
receive answers to the questions referred as it must decide whether it can continue 
to hear the case in the main proceedings in its current composition. 
8 The referring court has doubts as to whether the situation described in Question 1 
may or does affect compliance with the requirements of effective judicial 
protection, including the right to an independent and impartial court established by 
law, given that the principle of the irremovability of judges has an obvious impact 
on the principle of the independence of courts and judges. The above principles 
are not the privileges of courts and judges, but are there to guarantee the right of 
citizens to a fair trial. 
9 In the circumstances of the case at hand, the legislature first enacted a law 
pursuant to which the judge sitting on the court in the main proceedings would 
remain in his position as a military court judge in the event of his discharge from 
professional military service, and subsequently, without any compelling public 
interest, amended the wording of Article 233 of that law, removing from it the 
guarantee of that judge’s continued active service, while maintaining the same 
guarantee for prosecutors in a similar situation. At the same time, without any 
justification for such a significant change, an amendment concerning this matter 
was introduced in a law concerning another matter, and thus in flagrant violation 
of the constitutional principles of good legislation. Consequently, a new arbitrary 
statutory arrangement was introduced, contrary to Article 180(3) of the 
Constitution of the Republic of Poland, pursuant to which a judge is retired by 
operation of law if he or she is no longer in military service. Where the 
composition of a court can be arbitrarily changed, restricted or retired by violating 
or in any way altering the rules laid down in both national and EU law, the ability 
of that court to carry out the tasks set forth in Directive (EU) 2016/343 must be 
called into question. 
10 For those reasons, the questions referred in the present case focus on the status of 
the referring court and the threat to the principles of the presumption of innocence, 
independence, impartiality, and the right to a fair trial. The fact that it is possible 
to manipulate the wording of a legal provision in such a way as to alter the rules 
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governing a judge’s service and to shorten his or her length of office, such that it 
is de facto possible to remove a judge from active service at any time, 
undoubtedly has or may have an impact on the judge’s independence and 
impartiality, and thus on the fairness of the criminal proceedings being conducted 
and the observance of the principle of the presumption of innocence. 
11 The referring court points out that it is also impossible for the Trybunał 
Konstytucyjny (Constitutional Court) to review the legality of the contested 
provisions, since the relevant case-law of the Constitutional Court was developed 
at a time when it was no longer a body providing effective judicial protection, and 
the panels delivering those judgments included persons who were not competent 
to adjudicate. 
12 Until the enactment of Article 233 of the Law on the Defence of the Homeland, 
the applicable laws provided that a military court judge could not be discharged 
from professional military service prior to the termination of his or her service 
relationship by operation of law or prior to his or her removal from office or 
retirement (Article 35(1) of the LOMC). A judge could be retired if he or she was 
unfit for military service, unless he or she applied for a transfer to an ordinary 
court (Article 35(4) of the LOMC). Therefore, he or she could not be retired 
regardless of the President’s refusal to appoint or transfer him or her to an 
ordinary court. 
13 The circumstances in which the provisions contained in Article 233 of the Law on 
the Defence of the Homeland were enacted are not known, but their introduction 
undoubtedly filled a legal gap regarding the distinction between unfitness for 
military service and unfitness to serve as a judge under Article 180(3) of the 
Constitution of the Republic of Poland. 
14 Once the executive – the Minister of Justice – became aware that the judge 
hearing the case at hand would benefit from those provisions, his return to hearing 
cases was delayed for 10 months. This was undoubtedly related to the efforts to 
remove that judge from the judiciary on account of his activities as deputy chair of 
the former NCJ, especially in the years 2014–2018, his participation in cases 
related to violations of the Constitution by those in power, his activities in defence 
of judicial and court independence, and the permission he gave to journalists to 
inspect the non-confidential file of a case involving a government minister. As a 
result, the judge was harassed both by the authorities and the pro-government 
media. 
15 In the view of the referring court, the provision on retirement applies solely to the 
judge hearing the case in the main proceedings, directly violates the principle of 
the irremovability of judges, does not serve any compelling public interest, and is 
purely repressive in nature. Indeed, the principle of the irremovability of judges 
should be understood to mean that the legislature or the executive cannot decide 
arbitrarily whether a judge may continue to hear cases. Retirement must be linked 
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to the inability to serve as a judge, and those regulations should be subject to 
judicial review. 
16 The referring court considers that, if Questions 1 and 2 are answered in the 
affirmative, measures should be taken to safeguard the proper functioning of the 
court in order to ensure the proper implementation of Directive (EU) 2016/343. In 
the view of the referring court, the contested provisions deprive the judge of his 
active status in violation of all rules and also deprive him of his right to an 
effective remedy. In light of the foregoing, no implementing measures declaring 
the judge to be retired should be adopted on the basis of those provisions. The 
referring court considers itself obliged – in accordance with the Simmenthal rule – 
to disapply national provisions which are incompatible with EU law. In light of 
the case-law arising from the judgments 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); of 18 May 2021, Asociaţia ‘Forumul Judecătorilor 
din România’ and Others (C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and 
C-397/19, EU:C:2021:393); of 5 June 2023, Commission v Poland (Independence 
and Private Life of Judges) (C-204/21, EU:C:2023:442); and of 13 March 2007, 
Unibet (C-432/05, EU:C:2007:163), the referring court relies on the direct effect 
of the second subparagraph of Article 19(1) TEU and its obligation to ensure the 
full effect of that provision by disapplying any national legislation contrary to it. 
The referring court also sees the source of that obligation in the principle of 
sincere cooperation enshrined in Article 4(3) TEU. 
17 The suspension by the referring court of the application of the provisions indicated 
above allows the judge to perform his judicial duties within the national court, and 
until the case before the Court is resolved, there is no legal possibility of retiring 
him. The referring court seeks a protective measure that will directly guarantee 
that the judge can exercise his rights under EU law and also guarantee effective 
judicial protection for the parties to the criminal proceedings by ensuring that the 
case is heard by an independent court composed of independent judges. 
18 The referring court also requests that the case be decided under an expedited 
procedure. This request is justified by the fact that the reference concerns a 
fundamental element of the right to effective judicial protection, namely the right 
to an independent and impartial court previously established by law and guided by 
the principle of the presumption of innocence. The referring court considers the 
request to be legitimate due to the importance of the answers to the questions 
referred for that court’s ability to exercise its jurisdiction lawfully and in 
accordance with the principle of legal certainty with the involvement of a judge 
who is being removed from office by the legislature and the executive in breach of 
the principle of the irremovability of judges and the independence of courts.