Order;Summary — ECLI:EU:C:2024:38
Date: 2024-01-09
Language of the case: Polish
Court formation: Tenth Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Poland

Summary C-658/22–1 
Case C-658/22 
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: 
19 October 2022 
Referring court: 
Sąd Najwyższy (Poland) 
Date of the decision to refer: 
2 September 2021 
On the request of: 
Pierwsza Prezes Sądu Najwyższego 
  
Subject matter of the main proceedings 
Legal issue raised by the Pierwsza Prezes Sądu Najwyższego (First President of 
the Supreme Court) concerning abusive clauses in indexed or denominated loan 
agreements 
Subject and legal basis of the request 
The concept of an independent, impartial tribunal previously established by law 
and providing effective legal protection to individuals in areas covered by EU law, 
Article 267 TFEU 
Questions referred for a preliminary ruling 
(1) Must Article 2, Article 6(1) and (3), and the second subparagraph of 
Article 19(1) of the Treaty on European Union (‘TEU’), read in conjunction with 
Article 47 of the Charter of Fundamental Rights of the European Union (‘the 
Charter’) and Article 267 of the Treaty on the Functioning of the European Union 
(‘TFEU’), be interpreted as meaning that a court of last instance of a Member 
State (Sąd Najwyższy (Supreme Court, Poland)) whose composition includes 
persons appointed to the post of judge in breach of the fundamental rules of law of 
the Member State applicable to judicial appointments to the Supreme Court is not 
EN 
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an independent, impartial tribunal previously established by law and providing 
effective legal protection to individuals in areas covered by EU law, where the 
aforementioned breach consists in: 
(a) the Prezydent Rzeczypospolitej Polskiej (President of the Republic of 
Poland) announcing judicial vacancies in the Supreme Court without the prior 
countersignature of the Prezes Rady Ministrów (Prime Minister); 
(b) pre-appointment proceedings being conducted without regard to the 
principles of transparency and fairness by a national body (Krajowa Rada 
Sądownictwa – the National Council of the Judiciary, Poland) which, given the 
circumstances surrounding its establishment (the selection of judges), and the 
manner in which it operates, does not meet the requirements of a constitutional 
body upholding the independence of the courts and of judges; 
(c) the President of the Republic of Poland handing out letters of appointment to 
the post of judge of the Supreme Court despite the fact that the resolution of the 
National Council of the Judiciary, which includes the motion for appointment to 
the post of judge, was previously challenged before the competent national court 
(Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland)), that 
the Supreme Administrative Court suspended the implementation of that 
resolution in accordance with national law, and that the appeal proceedings were 
not concluded, after which proceedings the Supreme Administrative Court set 
aside the challenged resolution of the National Council of the Judiciary due to its 
unlawfulness, permanently removing it from the legal order, thereby depriving the 
appointment to the post of judge of the Supreme Court of the basis required by 
Article 179 of the Konstytucja Rzeczypospolitej Polskiej (Constitution of the 
Republic of Poland), which basis consists of a motion by the National Council of 
the Judiciary for appointment to the post of judge? 
(2) Must Article 2, Article 6(1) and (3), and the second subparagraph of 
Article 19(1) TEU, read in conjunction with Article 47 of the Charter and 
Article 267 TFEU, be interpreted as precluding the application of national laws 
such as Article 29(2) and (3), Article 26(3), and Article 72(1), (2) and (3) of the 
Ustawa z dnia 8 grudnia 2017 r. o Sądzie Najwyższym (Law of 8 December 2017 
on the Supreme Court, consolidated text: Dz. U. of 2021, item 154) [‘the Law on 
the Supreme Court’], in so far as those laws prohibit judges of the Supreme Court, 
on pain of the disciplinary penalty of dismissal, from determining or assessing the 
lawfulness of a judge’s appointment or his or her resulting authority to perform 
judicial tasks as well as from assessing in substantive terms motions to exclude a 
judge based on those grounds, assuming that that prohibition were to be justified 
by the need for the Union to respect the constitutional identity of the Member 
States? 
(3) Must Article 2 and Article 4(2) and (3) TEU, read in conjunction with 
Article 19 TEU and Article 267 TFEU, be interpreted as meaning that a judgment 
of the constitutional court of a Member State (Trybunał Konstytucyjny 
SĄD NAJWYŻSZY 
 
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(Constitutional Court, Poland) declaring a ruling of the national court of last 
instance (the Supreme Court) to be incompatible with the Constitution of the 
Republic of Poland cannot constitute an obstacle to assessing the independence of 
a court and determining whether a court is a tribunal established by law within the 
meaning of European Union law, given that, in addition, the ruling of the Supreme 
Court aimed to implement the judgment of the Court of Justice of the European 
Union to the effect that the provisions of the Constitution of the Republic of 
Poland and applicable laws (national laws) do not confer upon the Constitutional 
Court the competence to review judicial rulings, including resolutions resolving 
discrepancies in the interpretation of laws adopted pursuant to Article 83 of the 
[Law on the Supreme Court] and, furthermore, the Constitutional Court, due to the 
manner in which it is currently constituted, is not a tribunal established by law 
within the meaning of Article 6(1) of the Convention for the Protection of Human 
Rights and Fundamental Freedoms (Dz. U. of 1993, No 61, item 284, as 
amended)? 
Provisions of European Union law relied on 
Article 2, Article 4(2) and (3), Article 6(1) and (3), the second subparagraph of 
Article 19(1) TEU; 
Article 47 of the Charter of Fundamental Rights of the European Union (‘the 
Charter’); 
Article 267 TFEU. 
Provisions of national law relied on 
Articles 179, 187, 188, 189 and 190 of the Konstytucja Rzeczypospolitej Polskiej 
(Constitution of the Republic of Poland); 
Article 26(2) and (3), Article 29(2) and (3), Article 72(1), (2) and (3), Article 83, 
the first sentence of Article 87(1), Article 88 of the Ustawa z dnia 8 grudnia 2017 
r. o Sądzie Najwyższym (Law of 8 December 2017 on the Supreme Court, 
consolidated text: Dziennik Ustaw (Journal of Laws) of 2021, item 154); 
Article 33 of the Ustawa z dnia 30 listopada 2016 r. o organizacji i trybie 
postępowania przed Trybunałem Konstytucyjnym (Law of 30 November 2016 on 
the Organisation and Procedure before the Constitutional Court). 
Succinct presentation of the facts and procedure in the main proceedings 
1 Considering the legal questions submitted to it by the First President of the 
Supreme Court in a motion dated 29 January 2021 concerning abusive clauses in 
indexed or denominated loan agreements, the Civil Chamber of the Supreme 
Court (full court) raised doubts about the interpretation of EU law. 
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2 The Supreme Court’s doubts concern three issues. Firstly, they concern whether 
the court of last instance of a Member State (the Supreme Court) whose 
composition includes persons appointed to the post of judge in breach of the 
fundamental rules of the Member State applicable to judicial appointments, is an 
independent, impartial tribunal previously established by law and providing 
effective legal protection to individuals in areas covered by EU law. Secondly, 
there are doubts as to whether national laws that prohibit judges of the Supreme 
Court, on pain of the disciplinary penalty of dismissal, from determining or 
assessing the lawfulness of a judge’s appointment or his or her resulting authority 
to perform judicial tasks as well as from assessing in substantive terms motions to 
exclude a judge are permissible. Thirdly, the doubts concern whether a judgment 
of the constitutional court of a Member State (Trybunał Konstytucyjny 
(Constitutional Court)) declaring a ruling of the national court of last instance (the 
Supreme Court) to be incompatible with the Constitution of the Republic of 
Poland can constitute an obstacle to assessing the independence of a court and 
determining whether a court is a tribunal established by law within the meaning of 
EU law, especially given that the Constitutional Court, due to the manner in which 
it is currently constituted, is not a tribunal established by law within the meaning 
of Article 6(1) of the Convention for the Protection of Human Rights and 
Fundamental Freedoms (‘the ECHR’), and it is not competent to review the case-
law of courts, including the Supreme Court. 
3 The present case has an EU dimension, as the Civil Chamber of the Supreme 
Court is to adopt a resolution responding to the legal question indicated at the 
outset, which concerns the situation of consumers who have taken out indexed and 
denominated loans referencing a foreign currency exchange rate, and are currently 
engaged in disputes with banks about the abusive clauses allegedly included in 
their agreements and the consequences of that state of affairs, especially in the 
context of the provisions of the Kodeks Cywilny (Civil Code) implementing 
Council Directive 93/13/EEC of 5 April 1993. The Supreme Court resolution will 
have the force of a legal principle and will be binding on all the Supreme Court’s 
panels. The responsibilities of the Supreme Court related to its judicial supervision 
over ordinary courts and their case-law as well as its constitutional position within 
the judiciary will probably result in ordinary courts following that interpretation of 
the law. Thus, the resolution will guide judicial practice in cases of great 
importance to the public, and due to the nature of those cases, both parties to the 
dispute – the consumer (borrower) and the bank (lender) – expect that the ruling 
will be given by an impartial court, and any irregularities and doubts in that regard 
may be used to challenge the ruling. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
4 The Supreme Court, and thus also its Civil Chamber, rules on appeals in areas 
covered by EU law. There is no doubt that the issue of abusive clauses in 
agreements concerning loans indexed to foreign currencies or denominated in 
foreign currencies (commonly known as Swiss franc loans) is a matter of EU law. 
SĄD NAJWYŻSZY 
 
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The proceedings initiated by the motion of the First President of the Supreme 
Court relate to the interpretation of national law on the consequences of the 
inclusion of abusive clauses in Swiss franc loan agreements. However, before the 
questions raised by the First President of the Supreme Court are answered, the 
doubts regarding the appointment of part of the Civil Chamber should be clarified. 
5 In view of the doubts raised by the majority of Civil Chamber judges – namely, 
those appointed before 2018 – concerning the correctness of the appointments to 
the post of judge of the Supreme Court made by the President of the Republic of 
Poland since 2018, the Supreme Court has found it appropriate to refer a 
preliminary question concerning the validity of the composition of its panel. In the 
present case, doubts about the correctness of appointments are raised by the 
Supreme Court with respect to only some of the judges included in the court’s 
panel. 
6 The answer to the question whether the Civil Chamber of the Supreme Court is a 
‘tribunal’ within the meaning of EU law, and, moreover, whether the panel of the 
Civil Chamber of the Supreme Court composed in that manner constitutes an 
independent, impartial tribunal previously established by law and providing 
effective legal protection for individuals in areas covered by EU law, is crucial in 
order to determine whether the rulings of that Chamber can have effects in EU law 
and influence the case-law of both the Supreme Court and ordinary courts. 
7 Citing the previous case-law of the Court of Justice and of the European Court of 
Human Rights (‘the ECtHR’), the Supreme Court recalls the criteria for 
considering a tribunal to be independent, impartial and established by law, as 
required by EU law and the ECHR. In that context, it cites, inter alia, the 
following judgments 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); of [2] March 2021, A.B. 
and Others (Appointment of judges to the Supreme Court – Actions) (C-824/18, 
EU:C:2021:153), and the ECtHR judgment of 6 November 2018, Ramos Nunes de 
Canvalho e Sá v. Portugal (Application No 55391/13). 
8 The Supreme Court points to a number of circumstances which may suggest that, 
in introducing legislative amendments, the Polish legislature acted to prevent any 
judicial review of the appointments made on the basis of the resolutions adopted 
by the Krajowa Rada Sądownictwa (National Council of the Judiciary, the ‘NCJ’) 
constituted in 2018. 
9 The Supreme Court also notes that the President of the Republic of Poland views 
his power to appoint judges as an act which not only – and this indeed has a 
constitutional basis – does not require the countersignature of the Prezes Rady 
Ministrów (Prime Minister), but is in fact not subject to any review. 
10 The Supreme Court recalls that pursuant to Article 187(1) of the Constitution of 
the Republic of Poland, the NCJ is composed of judges, MPs elected by the Sejm 
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[lower house of the Polish parliament], senators elected by the Senate [upper 
house of the Polish parliament], the Minister of Justice, and a member appointed 
by the President of the Republic of Poland. With respect to judges, the 
Constitution directly mentions the First President of the Supreme Court and the 
President of the Naczelny Sąd Administracyjny (Supreme Administrative Court, 
‘the SAC’), and indicates that the remaining 15 members are chosen from among 
judges of the Supreme Court, ordinary courts, administrative courts and military 
courts. In the view of the Supreme Court, it cannot be deduced from 
Article 187(1) of the Constitution of the Republic of Poland that judges who are 
members of the NCJ can be elected by either house of parliament rather than by 
the judges themselves. If the legislature had intended to entrust the election of 
judges to parliament or to one of its houses, this would have been provided for 
explicitly in the Constitution of the Republic of Poland.  
11 The Supreme Court recalls the process of filling judicial vacancies, including in 
the Supreme Court, before the legislative amendments introduced in 2018. In its 
view, deviation from the rules in force until 2018, under which the judicial section 
of the NCJ was elected by judges, and also from the rules for appointing judges to 
the Supreme Court, is a clear violation of the rules for appointing Supreme Court 
judges. In combination with other violations of judicial appointment rules that 
have occurred since 2018, this undermines the correctness of the composition of 
the Supreme Court panel referring this question for a preliminary ruling. 
12 The Supreme Court would like to point out further irregularities that have been 
revealed in the public domain with respect to the drawing up of lists of 
endorsement for NCJ members. For instance, one of the candidates signed his own 
list of endorsement; the same candidate used an endorsement that had been 
withdrawn. The Supreme Court points out that the endorsement was withdrawn 
before the list verification procedure had been initiated and the vote based on that 
list had taken place, and that the Marszałek Sejmu (Speaker of the Sejm) had also 
been notified of that fact well in advance. Those circumstances did not affect the 
appointment of the candidate in question as a member of the NCJ or his activity as 
a member. 
13 The Supreme Court describes the changes that occurred with respect to the 
selection of its judges under the [Law on the Supreme Court], pointing out that in 
the process the law was breached with respect to the announcement of judicial 
vacancies (no countersignature by the Prime Minister), the conduct of pre-
appointment proceedings by the NCJ (the question of its composition, and 
competitions being conducted without regard to the principles of transparency and 
integrity), and letters of appointment being handed out in October 2018 [despite 
the fact that NCJ resolutions including motions for appointment to the post of 
Supreme Court judge were challenged before the SAC and the SAC issued orders 
to suspend the execution of those NCJ resolutions, and subsequently set aside 
those resolutions in 2021]. 
SĄD NAJWYŻSZY 
 
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14 In the view of the Supreme Court, the persons selected in the flawed procedure for 
filling judicial vacancies cannot be considered to have been properly submitted to 
the President as candidates whom the President had the power to appoint as 
Supreme Court judges. While those persons are technically appointed to the post 
of judge upon being handed letters of appointment, assessing whether they can 
perform judicial duties requires a determination that this does not result in a 
breach of the standards of impartiality and independence required of a court which 
administers justice. 
15 The second question referred is motivated by the fact that the legislature 
introduced new provisions in the Law on the Supreme Court that prohibit judges 
of the Supreme Court, on pain of the disciplinary penalty of dismissal, from 
determining or assessing the lawfulness of a judge’s appointment or his or her 
resulting authority to perform judicial tasks as well as from assessing in 
substantive terms motions to exclude a judge based on those grounds. According 
to the Supreme Court, those amendments make it impossible to conduct a judicial 
review of the correctness of the appointment of judges, including in particular 
those appointed since 2018.  
16 In the view of the Supreme Court, Article 29(2) and (3) of the Law on the 
Supreme Court, pursuant to which it is inadmissible to challenge the legitimacy of 
courts and tribunals, constitutional state bodies and bodies established to enforce 
and review laws, and inadmissible for the Supreme Court to determine or assess 
the lawfulness of a judge’s appointment or his or her resulting authority to 
perform judicial tasks, is contrary to EU law, but it is expedient to obtain the 
Court’s position in this regard. 
17 The need for the third question referred is related to the fact that on 23 January 
2020, a resolution was adopted by three combined chambers of the Supreme Court 
(BSA 1-4110-1/2020). In adopting that resolution, the Supreme Court 
implemented the 19 November 2019 judgment of the Court of Justice in Cases 
C-585/18, C-624/18 and C-625/18 by clarifying the practical procedural 
consequences that arise when the NCJ, as the body involved in judicial 
appointment proceedings, fails the test of independence from the legislative and 
executive branches of government. In that resolution, the Supreme Court stated, 
inter alia, that a court is improperly or unlawfully composed within the meaning 
of applicable laws also where its composition includes a person appointed to the 
post of judge of the Supreme Court upon a motion of the NCJ constituted under 
the procedure stipulated 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]). The resolution has been given the force of a legal 
principle and is binding on all panels of the Supreme Court as long as it has not 
been waived. 
18 By its judgment of 20 April 2020 (Ref. No U 2/20), the Constitutional Court – 
upon a motion from the Prime Minister – found that the above resolution was 
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incompatible with certain provisions of the Constitution of the Republic of 
Poland, with Article 2 and Article 4(3) TEU and with Article 6(1) of the ECHR. 
Subsequently, by its order of 21 April 2020 (Ref. No Kpt 1/20), the Constitutional 
Court ruled that the Supreme Court was not competent to issue interpretations of 
law by way of resolutions which affect the system and organisation of the 
judiciary, nor was it competent to supervise the exercise by the President of the 
Republic of Poland of his prerogatives to appoint judges upon a motion from the 
NCJ, including issuing binding legal interpretations that make it possible to set 
conditions for the valid exercise of that prerogative by the President of the 
Republic of Poland. 
19 The Supreme Court considers that the aforementioned Constitutional Court 
rulings are intended to prevent parties to proceedings from lodging motions to 
exclude judges on the grounds covered by the judgment of the Court of Justice in 
Case C-585/18. In the view of the Supreme Court, in U 2/20 the Constitutional 
Court went beyond the scope of its powers and interfered in the courts’ judicial 
activity. Indeed, the contested resolution of 23 January 2020 is not a law or any 
other type of legal instrument subject to review by the Constitutional Court. Only 
instruments passed by the legislative or executive branches of government, as 
opposed to those passed by the judiciary, can have the character of laws. 
Resolutions of the Supreme Court issued as part of its judicial supervision 
function are not subject to such review, since they are not legislative acts within 
the meaning of the Constitution of the Republic of Poland. Thus, the conducted 
review is beyond the scope of the Constitutional Court’s jurisdiction under the 
Constitution of the Republic of Poland. Acts applying the law are not subject to 
review by the Constitutional Court, either. 
20 In addition, the Supreme Court notes that due to the irregular composition of the 
Constitutional Court’s panel (which includes persons previously involved in 
drawing up legislation), its judgment cannot be binding on the Supreme Court 
despite the fact that it was published. In addition, the composition of the 
Constitutional Court is also irregular due to the fact that positions were filled that 
had already been occupied – this was the subject of the ECtHR judgment of 
7 May 2021, Xero Flor Sp. z o. o. v. Poland (Application No 4907/18). In that 
judgment, the ECtHR established that the fundamental rule applicable to the 
election of Constitutional Court judges was breached by the eighth-term Sejm and 
the President of the Republic of Poland, as they filled seats that had already been 
filled by the previous Sejm, and the President received the oath of office from the 
persons that were to fill those seats and handed letters of appointment to them. 
This means that, as currently constituted, the Constitutional Court does not meet 
the requirements for a tribunal established by law within the meaning of 
Article 6(1) of the ECHR. 
21 As a consequence, the resolution of the Supreme Court of 23 January 2020 
remains in force and is binding on the Supreme Court.