Information;Order — ECLI:EU:C:2024:419
Date: 2024-05-15
Language of the case: Polish
Court formation: Seventh Chamber
Subject matter: Provisions governing the Institutions;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Poland

Summary C-390/23 – 1 
Case C-390/23 
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: 
27 June 2023 
Referring court: 
Sąd Najwyższy (Poland) 
Date of the decision to refer: 
13 June 2023 
Applicant: 
Rzecznik Finansowy 
Defendant: 
Bank AG S.A. 
  
Subject matter of the main proceedings 
Order-for-payment proceedings relating to a bill of exchange – Extraordinary 
appeal against an order for payment – Infringement of the rule of law, the 
principle that international law is binding, and the principle of consumer 
protection, by a court’s failure to examine of its own motion the unfairness of the 
contractual terms contained in a credit agreement and failure to examine whether a 
credit agreement is valid following the elimination from it of unfair contractual 
terms 
Subject matter and legal basis of the request 
Interpretation of the second subparagraph of Article 19(1) TEU, in conjunction 
with the second paragraph of Article 47 of the Charter of Fundamental Rights of 
the European Union (‘Charter of Fundamental Rights’) – Involvement of lay 
judges in a judgment of the court of last instance (Sąd Najwyższy (Supreme 
Court)) relating to an extraordinary appeal (extraordinary action) 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-390/23 
 
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Questions referred for a preliminary ruling 
Does the second paragraph of Article 19(1) of the Treaty on European Union, in 
conjunction with the second paragraph of Article 47 of the Charter of 
Fundamental Rights of the European Union, preclude national legislation which 
provides that a court of last instance (the Sąd Najwyższy) hearing an extraordinary 
appeal (extraordinary action) against a final judgment of an ordinary court is to sit 
in a panel which includes a person (a lay judge of the Sąd Najwyższy) who: 
1. is not a judge of the Sąd Najwyższy; 
2. has been appointed to perform his or her function: 
(a) directly by the legislature – by a simple majority, 
(b) on the basis of general and unverifiable selection criteria, 
(c) in a procedure which does not allow judicial review of the appointment, 
(d) for a term of four years; 
3. and may be dismissed by the legislature, which is also not subject to judicial 
review[?] 
Provisions of European Union law relied on 
Treaty on European Union, second paragraph of Article 19(1); 
Charter of Fundamental Rights of the European Union, second paragraph of 
Article 47; 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts (OJ 1993 L 95, p. 29) 
Provisions of national law relied on 
Constitution of the Republic of Poland, Articles 178, 179, 180, 182, and 183; 
Ustawa z dnia 8 grudnia 2017 r. o Sądzie Najwyższym (Law of 8 December 2017 
on the Supreme Court), Articles 1, 59 to 62, 64(1) and (2), 65, 67(1), 71, 77(1), 
89, 91(1), and 94(1); 
Ustawa z dnia 27 lipca 2001 r. – Prawo o ustroju sądów powszechnych (Law of 
27 July 2001 on the system of ordinary courts), Article 166; 
Uchwała Senatu Rzeczypospolitej Polskiej z dnia 23 listopada 1990 r. – 
Regulamin Senatu (Resolution of the Senate of the Republic of Poland of 
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23 November 1990 laying down the Rules of Procedure of the Senate), 
Articles 92(2a), 96c(1), and 96f. 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 2 August 2005, the defendants placed at the disposal of the applicant’s legal 
predecessor a blank promissory note with a ‘without protest’ clause as security for 
the bank’s claims arising from the mortgage agreement of 2 August 2005. If the 
defendants failed to comply with the terms of the agreement, the applicant was 
entitled to fill out the promissory note for a sum corresponding to the applicant’s 
claims, plus interest, and to enter a payment date as it so wished. The applicant 
was obliged to notify the issuers that the promissory note had been filled out, by 
registered letter sent at least seven days before the payment date, and an advice 
note, at the last address known to the applicant, was to signify effective delivery 
of the letter giving notice that the promissory note had been filled out. The 
promissory note was transferable by endorsement with a ‘no obligation’ clause. 
On 20 November 2018, the applicant filled out the blank promissory note, which 
it held, for an amount of CHF 24 844.96, stating a payment date of 4 December 
2018. By letters of 20 November 2018, the applicant requested the defendants to 
redeem the promissory note with a payment date of 4 December 2018. A.K. 
received the request to redeem the promissory note on 27 November 2018, while 
the correspondence addressed to M.S. was returned to the applicant – because the 
defendant failed to take delivery thereof. 
2 By order for payment of 30 April 2019, issued in order-for-payment proceedings 
relating to a promissory note, as a result of an action brought on 11 February 2019 
by Bank AG (Spółka Akcyjna) Oddział w Polsce (Bank AG (Public Limited 
Company) Branch in Poland) the Sąd Okręgowy w Legnicy (Regional Court, 
Legnica) ordered the defendants – M.S. and A.K. – to pay jointly and severally to 
the applicant an amount of CHF 24 844.96, plus statutory default interest, 
calculated from 5 December 2018 to the date of payment, and an amount of 
PLN 4 800 as costs of the proceedings, within two weeks of the order for payment 
being served. 
3 The Sąd Okręgowy held that when issuing the order for payment, the court does 
not examine whether the promissory note was completed in accordance with the 
content of the promissory note declaration. A plea alleging that the content of the 
completed promissory note is not consistent with the content of the promissory 
note agreement, and the authorisation contained therein for the recipient of the 
blank promissory note to complete the promissory note, is examined only at the 
second stage of order-for-payment proceedings as a result of a possible plea raised 
by the promissory note debtor, who also bears the burden of demonstrating that 
fact. 
4 On that basis, the Sąd Okręgowy ruled that the conditions for issuing an order for 
payment in order-for-payment proceedings had been satisfied in this case. 
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5 In the order-for-payment proceedings, the defendants lodged no objections to the 
order for payment and therefore it acquired the force of res judicata on 1 June 
2019. 
6 An extraordinary action against that judgment was brought by the Rzecznik 
Finansowy (Financial Ombudsman). He claimed that that judgment, on the one 
hand, infringes the principles and freedoms and rights of a human being and a 
citizen laid down in the Constitution, which have a significant impact on the 
outcome of the case, including infringement of the duty of State authorities to act 
in accordance with and within the limits of the law, fails to fulfil the obligation to 
take account of EU law when interpreting national law, in particular Council 
Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 
1993 L 95, p. 29), and infringes the principle of the protection of consumers as the 
weaker party to a civil-law relationship with a trader, understood as a duty of the 
State laid down in Article 76 of the Constitution. 
7 On the other hand, the Financial Ombudsman claimed that that judgment 
constitutes a flagrant infringement of substantive law by the refusal to apply in 
this case Article 3851(1) of the Civil Code, in conjunction with Article 3851(3) 
thereof, and, consequently, by the court’s failure to examine of its motion the 
unfair nature of the terms contained in a credit agreement, ultimately leading to a 
refusal to grant protection to entitled consumers, and by failure to apply 
Article 58(1) of the Civil Code expressed in the failure to examine whether the 
credit agreement would have been valid if the prohibited contractual terms had 
been eliminated from it. 
8 On the basis of the foregoing, the Ombudsman requested that the contested 
judgment be set aside in its entirety and the case be referred back to the Sąd 
Okręgowy w Legnicy. In response to the extraordinary action, the applicant 
contended that it should be dismissed. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 Proceedings before the Sąd Najwyższy are under way because an extraordinary 
action, that is to say an extraordinary appeal against final court judgments, has 
been brought. The institution of an extraordinary action serves to set aside final 
court judgments vitiated by specific – qualified – defects. Those defects must be 
of fundamental importance in the light of the principle of a democratic state ruled 
by law implementing the principles of social justice. 
10 In judgment I NSNc 260/21 of 17 November 2021, the Sąd Najwyższy referred 
questions to the Court of Justice for a preliminary ruling on the permissibility of 
setting aside final judgments using an extraordinary action in order to ensure the 
effectiveness of EU law (Case C-720/21). However, the Sąd Najwyższy sees the 
need for further clarification as to whether, in the light of the requirements of the 
Treaty, the mechanism for reviewing final judgments in a Member State may be 
shaped in such a way that the court of last instance hearing such cases includes 
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persons who are not professional judges (or even lawyers), whose method of 
appointment differs from that of judges, and who do not benefit from all the 
guarantees of independence provided for in respect of judges. 
11 Dispelling the doubts set out here will have a direct impact on the composition of 
the court hearing the present case. An answer in the affirmative would make it 
necessary to disregard the provisions which determine the composition in which 
the Sąd Najwyższy hears extraordinary actions, thus ensuring that only 
professional judges are included therein. 
12 The need to dispel doubts arises from the constitutional position of the Sąd 
Najwyższy. The Sąd Najwyższy is a court within the meaning of Article 267 
T[F]EU, that is to say a court against whose decisions there is no judicial remedy 
under national law. Under Article 183(1) of the Constitution of the Republic of 
Poland, the fundamental task of the Sąd Najwyższy is to supervise the judicial 
activity of the ordinary courts and military courts. In that respect, the ‘typical’ 
activities of the Sąd Najwyższy are those undertaken in connection with ruling on 
appeals and adopting resolutions concerning questions of law. Conversely, ruling 
on extraordinary actions is a special type of activity of the Sąd Najwyższy, which 
at the same time constitutes administration of justice. 
13 The inclusion of lay judges, that is to say non-professional representatives of 
society, in panels adjudicating in cases relating to an extraordinary action raises 
doubts in the context of the scope of procedural activities which the Sąd 
Najwyższy performs in this type of proceedings. Performing such activities 
certainly requires not only legal training, but also considerable knowledge of the 
law. However, lay judges not only do not have to be distinguished by an 
outstanding level of legal knowledge and do not even have to be lawyers or even 
to have completed any higher education. The approach taken appears prima facie 
to be not only irrational, but even systemically inconsistent. That is because it 
introduces a social (non-professional) factor where neither evidence is taken nor 
an assessment of evidence is carried out, but only the correctness of the 
application of the substantive and procedural law is examined, making a specific 
assessment of the constitutionality of the court’s judgment. The ineffectiveness or 
inadequacy of the legal measures does not in itself result in an infringement of the 
Treaty provisions, but the creation of the institution of lay judges of the Sąd 
Najwyższy raises doubts in the context of the features which a court within the 
meaning of the second paragraph of Article 19(1) TEU, in conjunction with the 
second paragraph of Article 47 of the Charter of Fundamental Rights, must have. 
14 As the case-law of the Court of Justice reiterates, to ensure that a court is in a 
position to provide the effective legal protection required by the provisions 
referred to, maintaining its independence is essential. The Sąd Najwyższy refers in 
that regard to the judgments of: 24 June 2019, Commission v Poland 
(Independence of the Sąd Najwyższy) (C-619/18, EU:C:2019:531, paragraphs 109 
and 111); 6 October 2021, W.Ż. (Izba Kontroli Nadzwyczajnej i Spraw 
Publicznych Sądu Najwyższego (Chamber of Extraordinary Control and Public 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-390/23 
 
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Affairs of the Supreme Court) – Appointment) (C-487/19, EU:C:2021:798, 
paragraph 110); and 19 November 2019, A.K. and Others (Independence of the 
Izba Dyscyplinarnej Sądu Najwyższego (Disciplinary Chamber of the Supreme 
Court)) (C-585/18, C-624/18 and C-625/18, EU:C:2019:982, paragraphs 127 to 
129). 
15 The non-professional nature of lay judges of the Sąd Najwyższy does not preclude 
their independence from also being examined in relation to them. It is crucial that 
the entity in question adjudicates – which non-professional judges undoubtedly 
do – in order to be regarded as a ‘court or tribunal’ within the meaning of the 
second subparagraph of Article 19(1) TEU [see judgment of 16 July 2020, 
Governo della Repubblica italiana (Status of Italian magistrates), C-658/18, 
EU:C:2020:572, paragraph 76]. 
16 The Sąd Najwyższy is uncertain whether the lay judges of the Sąd Najwyższy 
satisfy the above criteria and, consequently, whether a body including them can be 
regarded as a ‘court of tribunal’ within the meaning of the Treaty. The uncertainty 
in that regard arises from a number of circumstances considered together, which 
will be set out below. 
17 First, the procedure for selecting lay judges of the Sąd Najwyższy differs 
significantly from the procedures applied to professional judges. Judges are 
appointed for an indefinite period, by the President of the Republic of Poland, on a 
prior proposal of the Krajowa Rada Sądownictwa (National Council of the 
Judiciary; ‘the KRS’). By contrast, lay judges of the Sąd Najwyższy are appointed 
directly by a branch of the legislature, namely the Senate. In the context of the 
procedure for selecting judges, the Court of Justice held, in its judgment of 
2 March 2021, A.B. and Others (Appointment of judges of the Sąd Najwyższy – 
Appeal), C-824/18 (EU:C:2021:148, paragraphs 43 and 131 to 137), that the fact 
that the judges put forward for appointment to the President of the Republic of 
Poland are selected by the KRS consisting of judges selected not by their peers but 
by the Lower Chamber of the Polish Parliament – the other branch of the 
legislative power in Poland – cannot offer sufficient guarantees of independence 
as it creates a risk that members of the KRS might be subject to influence from the 
political forces represented in the Lower Chamber of the Polish Parliament. Those 
remarks apply much more clearly to the procedure for selecting lay judges of the 
Sąd Najwyższy, and the uncertainty in that respect appears a minori ad maius all 
the more serious. The Senate makes the selection entirely autonomously, that is, 
its selection is not preceded by any separate proceedings before any other 
constitutional public authority. No judges are involved (directly or indirectly) at 
any stage of the procedure. The selection is made directly by politicians. 
18 Second, the selection of lay judges by the Senate is not subject to any review by 
the judiciary. This is significant as in its judgment of 2 March 2021, A.B. and 
Others (Appointment of judges of the Sąd Najwyższy – Appeal), C-824/18, 
EU:C:2021:148, paragraph 156), the Court of Justice held that while the fact that 
it may not be possible to exercise a legal remedy in the context of a process of 
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appointment to judicial positions of a national supreme court may, in certain 
cases, not prove to be problematic in the light of the requirements arising from EU 
law, in particular the second subparagraph of Article 19(1) TEU, the position may 
be different where provisions undermining the effectiveness of judicial remedies 
of that kind which previously existed. The introduction of the institution of lay 
judges of the Sąd Najwyższy (in the 2017 Law on the Supreme Court), selected 
directly by the legislature, without allowing judicial review of such appointment, 
is a regression from the previous state of affairs, in which such review was 
ensured vis-à-vis all members of panels of the court hearing cases (‘professional 
judges’). 
19 Third, in selecting lay judges of the Sąd Najwyższy, the Senate is guided 
exclusively by selection criteria known only to itself, which also leads to the 
conclusion that the selection in that respect is fully discretionary. The statutory 
selection criteria are very general and discretionary. The requirements laid down 
in Article 60 of the Law on the Supreme Court, which a candidate for lay judge of 
the Sąd Najwyższy must meet, are only the absolute minimum required of 
candidates for that post. They are met by the majority of citizens of the Republic 
of Poland. However, there is no provision which specifies those general formal 
requirements. The Rules of Procedure of the Senate, which specify the procedure 
for selecting lay judges of the Sąd Najwyższy, are also silent on the matter. The 
Senate’s resolution on the selection of lay judges of the Sąd Najwyższy need not 
be accompanied by a statement of grounds. All this makes the selection lay judges 
of the Sąd Najwyższy a fully discretionary power, based on the will of the 
political majority. 
20 Fourth, additional uncertainty as to the independence of the lay judges of the Sąd 
Najwyższy is also raised by their term of office and the possibility of re-selection. 
The term of office of lay judges of the Sąd Najwyższy is four years. There are no 
legislative provisions which prohibit a person from applying again or which limit 
the number of terms in office. That, together with the Senate’s almost complete 
discretion in the selection of lay judges of the Sąd Najwyższy, may lead to a 
weakening of their independence. 
21 Fifth, the Senate also has the right to dismiss a lay judge of the Sąd Najwyższy. 
While it is true that the Senate may take such action only at the request of the First 
President of the Sąd Najwyższy and only in the situation specified in the relevant 
provisions, the circumstance allowing for that – ‘conduct incompatible with the 
dignity of the court’ – is so vague that it creates a risk of abuse in that regard. 
Uncertainty as to the compliance of the above rules with the provisions of the 
TEU is further exacerbated by an analysis of the Rules of Procedure of the Senate. 
They specify the procedure for dismissing a lay judge the Sąd Najwyższy, but do 
not refer at all to the circumstances (reasons) justifying his or her dismissal. They 
merely state that dismissal ‘shall take place exclusively in the cases specified in 
the Law on the system of ordinary courts’. The above assessment is not altered by 
the procedure accompanying the dismissal of a lay judge of the Sąd Najwyższy 
which is laid down in that law, in conjunction with the Rules of Procedure of the 
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Senate. It does limit considerably the freedom of action of the authorities in that 
respect, including guaranteeing a hearing for a dismissed lay judge of the Sąd 
Najwyższy, but a dismissed lay judge of the Sąd Najwyższy has no possibility of 
challenging the above actions in court. In that context, there is also no restrictions 
whatsoever on the admissibility of initiating the procedure for dismissing a lay 
judge of the Sąd Najwyższy, for example on account of cases under way in which 
he or she is involved. Theoretically, that makes it possible – in an indirect 
manner – to influence the dynamics of the process for hearing extraordinary 
actions. A resolution dismissing a lay judge of the Sąd Najwyższy is not subject to 
any verification procedure – either before the Senate (for example, as part of an 
application for the case to be reheard) or an independent court. The resolution is 
adopted by a simple majority and therefore the dismissal of lay judge of the Sąd 
Najwyższy, in principle, does not require broader political consensus. 
22 The arbitrariness of that action by the Senate should be assessed in the light of the 
judgment of the Court of Justice of 24 June 2019, Commission v Poland 
(Independence of the Sąd Najwyższy) (C-619/18, EU:C:2019:531, paragraphs 75 
and 77), which states that the freedom of the judges from all external intervention 
or pressure requires certain guarantees appropriate for protecting the individuals 
who have the task of adjudicating in a dispute, such as guarantees against removal 
from office. In the light of the case-law of the Court of Justice, rules which define, 
in particular, conduct amounting to disciplinary offences, which provide for the 
involvement of an independent body in accordance with a procedure which fully 
safeguards the rights enshrined in Articles 47 and 48 of the Charter, in particular 
the rights of the defence, and which lay down the possibility of bringing legal 
proceedings challenging the disciplinary bodies’ decisions constitute a set of 
guarantees that are essential for safeguarding the independence of the judiciary 
(judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the 
system of justice) (C-216/18 PPU, EU:C:2018:586, paragraph 67). The guarantees 
of the independence and impartiality of judges require that the authority in 
question exercise its functions wholly autonomously, thus being protected against 
external interventions or pressure liable to impair the independent judgment of its 
members and to influence their decisions. There are certainly no such guarantees 
as regards lay judges of the Sąd Najwyższy. 
23 Having regard to the uncertainties set out above, and also the role of lay judges of 
the Sąd Najwyższy who, when adjudicating in cases relating to extraordinary 
actions, have the power to review and set aside final judgments of ordinary courts, 
the Sąd Najwyższy has ruled as in the operative part of the order.