Opinion of the Advocate General — ECLI:EU:C:2022:990
Date: 2022-12-15
Language of the case: Polish
Subject matter: Provisions governing the Institutions;Principles, objectives and tasks of the Treaties;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Poland

Summary C-181/21 – 1 
Case C-181/21 
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: 
23 March 2021 
Referring court: 
Sąd Okręgowy w Katowicach (Regional Court in Katowice, Poland) 
Date of the decision to refer: 
18 March 2021 
Applicant: 
G. 
Defendant: 
M. S. 
  
Subject matter of the case in the main proceedings 
The proceedings before the referring court concern a claim arising from a 
consumer credit agreement and seek to assess the unfair nature of certain terms of 
that agreement. The doubts of the referring court, however, are related to the panel 
of judges which is to hear the case on the merits. The referring court is concerned 
that this panel would include a person appointed to a judicial post in breach of the 
rules which require the participation of judicial self-government bodies in the 
appointment process. 
Subject matter and legal basis of the reference 
The concept of a tribunal established by law pursuant to Article 2, Article 19(1) 
and Article 6(1) to (3) TEU, read in conjunction with Article 47 of the Charter of 
Fundamental Rights of the European Union. 
EN 
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Questions referred 
1. Must Articles 2 and 19(1) of the Treaty on European Union (‘the TEU’) and 
Article 6(1) to (3) TEU, read in conjunction with Article 47 of the Charter of 
Fundamental Rights (‘the CFR’), be interpreted as meaning that: 
(a) where a court includes in its composition a person appointed to a judicial 
post in that court as a result of a procedure which does not provide for the 
participation of judicial self-government bodies, which bodies are appointed 
largely independently of the executive and the legislature, in a situation 
where, in the light of the constitutional acquis of the Member State, the 
participation of a judicial self-government body meeting those requirements 
in the judicial appointment procedure is necessary, that court is not a 
tribunal established by law within the meaning of European Union law, 
having regard to the institutional and structural context and given that: 
− there was a requirement for an assembly of judges to give an opinion on the 
candidate’s suitability for the judicial post, which requirement was 
deliberately disregarded contrary to national law and the position of that 
judicial self-government body; 
− the current Krajowa Rada Sądownictwa (National Council of the Judiciary), 
which was elected contrary to Polish constitutional and statutory provisions, 
is not an independent body and no representatives of the judiciary were 
elected to it independently of the executive and the legislature, and therefore 
no motion for appointment to the post of judge was effectively lodged as 
required under national law; 
− the participants in the competition for appointment to the post had no right 
of appeal to a court within the meaning of Articles 2 and 19(1) TEU and 
Article 6(1) to (3) TEU, read in conjunction with Article 47 of the Charter of 
Fundamental Rights. 
(b) where a court includes in its composition a person appointed to a judicial 
post in that court as a result of a procedure which is subject to arbitrary 
interference by the executive and omits the participation of judicial self-
government bodies, which bodies are appointed largely independently of the 
executive and the legislature, or of another body ensuring an objective 
assessment of the candidate, in view of the fact that the participation of 
judicial self-government bodies or of another body independent of the 
executive and the legislature which ensures an objective assessment of the 
candidate in the judicial appointment procedure is, in the context of the 
European legal tradition which is rooted in the aforementioned provisions of 
the TEU and the CFR and which underpins a union of law such as the 
European Union, necessary to ensure that the national court guarantees the 
required level of effective judicial protection in cases governed by European 
Union law, and consequently that the principles of separation and balance of 
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powers and of the rule of law are safeguarded, that court does not satisfy the 
requirements of an independent tribunal established by law;  
2. Must Article 2 and Article 19(1) TEU, read in conjunction with Article 47 of 
the CFR, be interpreted as meaning that, where a court includes in its 
composition a person appointed in the circumstances described in point 1 
above: 
(a) those provisions preclude the application of provisions of national law which 
place the review of the lawfulness of the appointment of such a person to a 
judicial post within the exclusive jurisdiction of a chamber of the Sąd 
Najwyższy (Supreme Court, Poland) which is composed exclusively of 
persons appointed to judicial posts in the circumstances described in point 1 
above and which provisions of national law also require that any objections 
concerning the appointment to a judicial post be disregarded, having regard 
to the institutional and systemic context; 
(b) those provisions require, in order to ensure the effectiveness of European 
Union law, provisions of national law to be interpreted in a manner that 
allows a court to exclude, of its own motion, such a person from hearing the 
case on the basis of the rules, applicable by analogy, which govern the 
exclusion of a judge who is incapable of deciding cases (iudex inhabilis). 
Provisions of EU law relied on 
Article 2, Article 19(1) and Article 6(1) to (3) TEU, read in conjunction with 
Article 47 of the Charter of Fundamental Rights. 
Provisions of national law relied on 
Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland) – 
Article 175, Article 179, Article 186(1), Article 187; 
Ustawa z dnia 27 lipca 2001 r. – Prawo o ustroju sądów powszechnych (Law of 
27 July 2001 on the System of Ordinary Courts, ‘the LSOC’) – Article 3, 
Article 29(1), Article 30(1), Article 31(1), Article 33, Article 36(1), Article 55(1), 
Article 58(2), Article 107, Article 109; 
Ustawa z dnia 8 grudnia 2017 r. o Sądzie Najwyższym (Law of 8 December 2017 
on the Supreme Court – consolidated text of 17 December 2020, ‘the LSC’) – 
Article 26; 
Ustawa z dnia 12 maja 2011 r. o Krajowej Radzie Sądownictwa (Law of 12 May 
2011 on the National Council of the Judiciary, ‘the LNCJ’) – Article 9a, 
Article 11a, Article 35, Article 44(1); 
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Ustawa z dnia 8 grudnia 2017 r. o zmianie ustawy o Krajowej Radzie 
Sądownictwa oraz niektórych innych ustaw (Law of 8 December amending the 
Law on the National Council of the Judiciary and certain other laws) – Article 6; 
Kodeks postępowania cywilnego (Code of Civil Procedure, ‘the CCP’) – 
Article 48, Article 367(3), Article 379, Article 401. 
Succinct presentation of the facts and procedure 
1 The credit agreement that was the source of the disputed claim is a consumer 
credit agreement to which the provisions of national law implementing Council 
Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 
1993 L 95, p. 29), in particular Article 3851(1) of the Civil Code, apply. Such 
consumer disputes are EU cases, which obliges the court hearing the case to 
ensure the effectiveness (effet utile) of the protection afforded to the consumer by 
European Union law. 
2 Of the three-judge panel appointed to hear the case on appeal in the Regional 
Court, one of the members was appointed as a judge of the Regional Court in 
questionable circumstances, which give rise to the present questions referred for a 
preliminary ruling. 
3 At the time of the competition for the judicial post in which A. Z. took part, 
provisions were in force which complied with the constitutional principle of 
participation of judicial self-government bodies in the appointment process by 
ensuring the participation in it of assemblies of representatives of judges working 
within an appellate court’s jurisdiction as basic judicial self-government bodies. 
After the Kolegium Sądu Apelacyjnego (College of the Court of Appeal) had 
given its opinion on A. Z.’s candidature, the Assembly of Representatives of 
Judges working within the jurisdiction of the Sąd Apelacyjny (Court of Appeal) in 
K. withheld its opinion in view of the doubts concerning the status of the National 
Council of the Judiciary (‘the NCJ’) and the manner of its operation, including 
the application of criteria other than substantive criteria in competitions for 
judicial posts, and the fact that the question of the NCJ’s status would be decided 
in future by the Court of Justice of the European Union. It is apparent from the 
wording of the resolutions adopted by the Assembly of Representatives of Judges 
working within the jurisdiction of the Court of Appeal in K. that the Assembly did 
not relinquish its competence, but temporarily withheld its opinion on the 
candidates until the status of the NCJ had been resolved by the competent bodies, 
including the Court. Despite the aforementioned resolutions, the President of the 
Court of Appeal in K., who is also the Chair of the Assembly and was appointed 
to his position by the current Minister Sprawiedliwości (Minister of Justice), 
initiated proceedings in the case, and A. Z. was appointed by the Prezydent 
Rzeczypospolitej Polskiej (President of the Republic of Poland) to a judicial post 
at the Regional Court in K. 
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4 The referring court, composed of a single judge-rapporteur, has referred these 
questions at a closed session pursuant to Article 367(3) of the CCP. The doubts as 
to the status of the court concern not the referring court (sitting as a single judge) 
that has decided to make a reference for a preliminary ruling in this case, but 
rather the full panel of the court which will hear the defendant’s (consumer’s) 
appeal. As the court of last instance in the case, the referring court is obliged to 
refer a question for a preliminary ruling even if national legislation provides in 
this case for disciplinary sanctions in the form of the referring judge being 
transferred to another post or being removed from office altogether 
(Article 109(1a) of the LSOC, read in conjunction with Article 107(1)(2)-(4) of 
the LSOC). 
5 The referring court is familiar with the proceedings which resulted from the 
preliminary questions referred by the Supreme Court in Cases C-508/19, 
C-487/19, C-491/20, C-492/20, C-493/20, C-494/20, C-495/20, C-496/20, 
C-506/20, C-509/20, C-511/20, C-615/20 and C-671/20. However, the issue posed 
here differs from the legal questions referred to date. The questions referred to 
date concerned persons appointed to the post of judge of the Supreme Court, and 
not of an ordinary court. This involves a different procedure and a different scale 
of irregularities in the appointment process, and thus also entails different 
consequences for the legal system. 
Succinct presentation of the reasons for the reference 
6 In its judgment of 5 December 2019 and in its orders of 15 January 2020, the 
Supreme Court (‘the SC’), ruling on the cases in connection with which the 
judgment of 19 November 2019 was delivered, 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, ‘the judgment in A. K. and others’), held that the NCJ, 
as currently constituted, is not a body independent of the legislature and the 
executive. That position was confirmed by the resolution of 23 January 2020 of 
the joint chambers of the Supreme Court – the Civil Chamber, the Criminal 
Chamber and the Chamber of Labour and Social Security Law (‘the SC 
resolution’). In that resolution, the Supreme Court held that a court is improperly 
composed within the meaning of the provisions of the Kodeks postępowania 
karnego (Code of Criminal Procedure, ‘the CCP’) or the court’s composition does 
not comply with applicable laws within the meaning of the CCP (invalidity of 
proceedings) also where a person appointed to the post of judge of the Supreme 
Court upon a motion of the NCJ constituted under the new procedure is included 
in the composition of that court. 
The first question 
7 By its first question, the referring court seeks to establish whether, where there are 
defects in the appointment of a member of the adjudicating panel to a judicial 
post, the court which includes such a member in its composition is a tribunal 
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established by law which meets the criteria necessary for it to be regarded as a 
court or tribunal within the meaning of European Union law and, consequently, 
whether a panel of judges so constituted may conduct proceedings in a case and 
deliver a judgment without prejudice to the right to a fair trial as guaranteed under 
European Union law, in particular Article 19(1) TEU and Article 47 of the Charter 
of Fundamental Rights. 
8 The question concerns the status of a person who has been appointed to a judicial 
post in breach of constitutional and statutory provisions and who is at the same 
time a member of the panel in the proceedings pending before the referring court. 
This problem is a systemic one because it indirectly concerns many other persons 
who have been appointed in the same or a similar manner. The answer to that 
question is of fundamental importance to the proceedings before the national 
court: if it is established that, in the circumstances in question, an adjudicating 
panel formed in flagrant breach of the requirements referred to above is not a 
court or tribunal within the meaning of European Union law, a ruling by that court 
on the application of European Union law will deprive the parties of their right to 
a fair trial and the right to effective judicial protection as guaranteed by the 
Treaties. There is also a concern that such a ruling will not be considered as 
existing from the point of view of European Union law and that it will be treated 
as ‘invisible’ in the Union legal order. 
9 In the light of the case-law of the European Court of Human Rights (‘the ECtHR’) 
(judgment of 1 December 2020 in Guðmundur Andri Ástráðsson v Iceland, 
Application No 26374/18) and of the Court (judgment of 26 March 2020, 
Réexamen Simpson and HG/Council and Commission, C-542/18 RX-II and 
C-543/18 RX-II, EU:C:2020:232; the judgment in A. K. and others), the judicial 
appointment procedure must be carried out in compliance with national rules and 
on the basis of objective substantive criteria and fair procedural rules so as to 
ensure the selection of the most qualified candidates in terms of both their 
professional competences and their impeccable character. According to the above 
judgment of the ECtHR, a failure to observe the judicial appointment procedure 
violates the right to a fair trial within the meaning of Article 6(1) of the European 
Convention on Human Rights, since there is no tribunal established by law as a 
result. According to that judgment, a ‘tribunal established by law’ is a ‘tribunal 
established in accordance with the law’ (paragraph 229 of the judgment in Á.). 
10 The requirement of a ‘tribunal established by law’ is also explicitly set out in 
Article 47 of the Charter of Fundamental Rights, and compliance with this 
requirement is necessary for the principle of effective judicial protection to be 
satisfied. It is also a fundamental requirement in order for a court to hear cases, 
and is even more important than the expectation that the court will be independent 
and impartial. 
11 In the referring court’s view, ‘establishment by law’ is not limited to the formal 
compliance of the manner in which the court is established and staffed with the 
laws enacted by the national legislature; it also requires compliance with the 
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fundamental principles of the domestic constitutional order, particularly in a 
situation where the option to submit the constitutionality of national laws for a 
review is not realistically available or has been rendered ineffective. This concerns 
not only the status of the court and its position in the constitutional order, but also 
the appointment of individual judges to that court and, more specifically, their 
appointment according to a procedure based on law. 
12 At the time of the competition which resulted in A. Z. being appointed to the post 
of judge, provisions were in force which reflected the constitutional principle of 
the participation of a judicial self-government body in the appointment process, 
and which were subsequently amended by the Polish legislature after judges 
throughout Poland refrained from giving opinions on judicial candidates. 
Ultimately, the judges’ assemblies were deprived of their power to give opinions 
on candidates for judicial posts by the ustawa z dnia 14 lutego o zmianie ustawy – 
Prawo o ustroju sądów powszechnych, ustawy o Sądzie Najwyższym oraz 
niektórych innych ustaw (Law of 14 February amending the Law on the System of 
Ordinary Courts, the Law on the Supreme Court and certain other laws). That 
power was transferred to the courts’ colleges, at least half of whose members are 
court presidents, with the president of the regional court having the casting vote in 
the event of a tie. All court presidents are appointed by the Minister of Justice. 
There is no doubt that court colleges have already ceased to be judicial self-
government bodies. The changes have removed the opinions of judicial self-
government as a factor in the appointment process. 
13 Given that, in the light of earlier case-law of the Trybunał Konstytucyjny 
(Constitutional Court, Poland) and of the Supreme Court, preventing judicial self-
government bodies from participating in the appointment and removal of court 
presidents (whose role is primarily administrative) cannot be reconciled with 
constitutional norms concerning the separation of powers, the same conclusion 
should be drawn a maiore ad minus in relation to the appointment of judges who 
exercise judicial functions and therefore administer justice in the strict sense. 
14 The national law in force before and during the competition in which A. Z. took 
part established an important and necessary element of the appointment procedure 
consisting in the participation of judicial self-government. The assembly’s opinion 
was a prerequisite for the subsequent appointment process, and the president of 
the court only performed the technical function of forwarding the dossier, 
including the required opinion expressed by the assembly. Nevertheless, the 
President of the Court of Appeal in K., contrary to national legislation and the 
Assembly’s resolution to postpone the giving of an opinion, inter alia in regard to 
the person of A. Z., initiated proceedings in the case and sent the dossier to the 
NCJ. The NCJ continued to proceed with the appointment even though it had no 
competence to do so due to the Assembly’s decision not to refer the matter to it. 
Finally, and no less importantly, despite the fact that the procedure was conducted 
in clear violation of national laws and despite the position expressed by the 
judicial self-government body, the candidate did not withdraw her candidature and 
agreed to participate in an illegal appointment process. Such conduct by the 
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candidate, that is, agreeing to become a judge by way of an illegal procedure, 
negatively affects the public perception of that person as a judge. It should be 
noted at this juncture that many judges in Poland have withdrawn from such 
competitions, even at their final stages. 
15 As regards the role of the NCJ in the judicial appointment process, the referring 
court points out that, in its view, the legal and factual circumstances in which the 
NCJ was transformed in 2018 deprived it of independence, and as a result 
rendered it incapable of objectively selecting candidates for judicial posts. In this 
respect, the referring court also points to the judgment in A. B. and others and to 
the judgment in A. K. and others. 
16 As a result of the aforementioned changes in the national legal order and the 
actual actions taken by the bodies appointed by the executive, the involvement of 
judicial self-government bodies has effectively been reduced to formulating 
motions for appointment to judicial posts by the NCJ, which procedure is 
stipulated in the Constitution of the Republic of Poland. Although this 
appointment procedure meets the minimum requirements set out in the 
Constitution concerning the compatibility of such a procedure with the national 
constitutional order, due to the unconstitutional composition of the current NCJ, 
the constitutional requirement that judicial self-government bodies participate in 
judicial appointments cannot be deemed to have been met, since the current NCJ 
does not provide sufficient guarantees of independence from the legislature and 
the executive in the judicial appointment procedure. 
17 In view of the above, no effective motion for appointment was formulated and 
thus the candidates for appointment to a judicial post were not duly presented to 
the President of the Republic of Poland. This means that the judge was not 
appointed ‘upon the motion’ of the NCJ acting as provided for in Articles 186(1) 
and 187(1) of the Constitution of the Republic of Poland, that it to say, no motion 
was lodged within the meaning of Article 179 of the Constitution of the Republic 
of Poland, and ‘it is impossible to become a judge’ without a motion from the 
NCJ. As a result, an ‘appointment’ made as a result of the submission of such a 
‘motion’ to the President is not an appointment within the meaning of Article 179 
of the Constitution of the Republic of Poland, and thus the persons indicated were 
not effectively appointed to judicial posts. The President’s constitutional act 
cannot cure the irregularities described above. 
18 According to the referring court, it is also relevant whether an appeal against a 
resolution of the NCJ makes it possible to ensure effective judicial review of such 
resolutions, at least to the extent that it is possible to establish that there was no 
ultra vires or improper exercise of authority, error of law or manifest error of 
assessment (the judgment in A. B. and others, paragraph 145). Appeals against the 
resolutions of the current NCJ concerning motions for appointment to judicial 
posts are heard by the Chamber for Extraordinary Control and Public Affairs (‘the 
CECPA’). This chamber is one of the two new chambers of the Supreme Court, 
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staffed entirely by persons appointed as judges by the NCJ, which is constituted as 
described above. 
19 In a resolution which has the force of a legal principle, the CECPA stated that a 
review of the validity or effectiveness of a constitutional act by the President of 
the Republic of Poland which consists in appointing a judge, and of the resulting 
constitutional relationship which links that judge with the Republic of Poland 
through the President of the Republic of Poland – which relationship is separate 
from the employment relationship – is not permissible in any proceedings before a 
court or another state authority (SC CECPA resolution of 8 January 2020). In the 
view of the referring court, the manner in which that Chamber sets out its position 
indicates an abandonment of the rule of law in the aspects to which the referring 
court wishes to draw attention in its question. Thus, the procedure for appealing 
against the resolution of the current NCJ adopted with respect to the candidate 
whom the questions in the present case concern did not meet the requirements of 
effective judicial protection. Consequently, the doubts concerning the correctness 
of the appointment procedure cannot be regarded as having been reviewed by a 
tribunal within the meaning of European Union law and duly considered by that 
tribunal. Therefore, another of the conditions for concluding that in the present 
case we are not dealing with a tribunal established by law is met, in accordance 
with the test formulated in the Á. case and also in the S. and HG. case. 
20 Thus, A. Z. was appointed as a result of a defective procedure, which failed to 
meet the constitutional and statutory requirement concerning the participation of a 
judicial self-government body, or at least the requirement concerning the 
formulation of a motion by an NCJ with the status stipulated in Articles 186 and 
187 of the Constitution of the Republic of Poland and the formulation of an 
opinion by the Assembly which initiates the process before the NCJ. Those 
irregularities not only clearly violated the law, but also undermined the very 
foundations on which the administration of justice is based, namely the rule of law 
and the balance and separation of powers. Furthermore, the appointment 
procedure carried out with respect to A. Z. was not subject to a judicial review 
that would meet the criterion of effective judicial protection. 
21 The referring court has also reviewed the judicial systems of the Member States of 
the European Union and has come to the conclusion that in practice the 
participation in appointment procedures of a judicial self-government body, or a 
body independent of the executive and the legislature that involves the judiciary, 
is guaranteed in each of those countries. This does not, of course, preclude 
considerable variation in the judicial appointment models of individual EU 
countries, which variation reflects the principle of procedural and organisational 
autonomy. The referring court points out, however, that the principle of 
procedural and organisational autonomy must not become a shield for a Member 
State behind which the foundations of the rule of law can be breached and the 
separation and balance of powers can be undermined. Although the organisation 
of justice in the Member States falls within the competence of those Member 
States, the fact remains that, when exercising that competence, the Member States 
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are required to comply with their obligations deriving from EU law (judgment of 
24 June 2019, Commission v Poland (Independence of the Supreme Court), 
C-619/18, EU:C:2019:531, paragraph 52 and the case-law cited therein; and 
judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C-558/18 
and C-563/18, EU:C:2020:234, paragraph 36 and the case-law cited therein). 
The second question 
22 By its second question, the referring court seeks to establish whether, if it is found 
that the composition of the court was in flagrant breach of national law and of the 
principle of the separation and balance of powers which is part of the right to a 
tribunal established by law (Articles 2 and 19(1) TEU, read in conjunction with 
Article 47 of the CFR), to the extent that it cannot be regarded as a tribunal 
established by law, the national court thus composed, as well as the individual 
members of that court, are bound by obligations related to the need to prevent 
consequences that cannot be reconciled with the relevant provisions of European 
Union law. In addition, the referring court seeks to establish whether European 
Union law precludes national legislation that would transfer the decision on these 
issues to a national body whose composition is also defective (at least to the same 
extent) rather than to a national court that is directly affected by the defects in 
question. 
23 In the light of the provisions of national law currently in force, the issues related 
to the resolution of the referring court’s doubts set out in the grounds for the first 
question have been transferred to the jurisdiction of the CECPA, which itself fails 
to meet the requirements of a tribunal established by law, and there are justified 
concerns as to its impartiality and independence. Furthermore, proceedings before 
that body cannot result in the resolution of the doubts raised, since motions 
addressing such doubts are left unexamined. 
24 The referring court considers that the legislature intended the procedure to be 
framed in precisely such a manner that issues related to the irregularity of 
appointments to judicial posts should be examined by a body which also consists 
of persons who have been incorrectly appointed, thus ensuring that those persons, 
ruling contrary to the fundamental principles of the administration of justice 
(nemo iudex in causa sua), would certainly not find that such a court had been 
incorrectly composed, since that would also undermine their own status. 
25 Therefore, the application by the referring court of the procedure laid down by the 
applicable provisions of national law is not capable of ensuring the effectiveness 
(effet utile) of European Union law, and indeed prevents it from being ensured. 
However, if those provisions of national law are to be disregarded, this still does 
not resolve the question of the procedural measures to be taken by a court which 
finds itself in the situation described in the grounds for the first question in order 
to guarantee the effectiveness of European Union law, since there is no measure 
under national law which would enable the defective composition of a national 
court to be cured or the member of the panel to whom these doubts relate to be 
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excluded from adjudicating cases. This concerns both the remedies available to 
the parties to the proceedings and to the court itself or to individual members of its 
panel. 
26 National law includes rules on the exclusion of a judge by operation of law (iudex 
inhabilis), but these rules do not expressly cover the situation at issue, that is to 
say, doubts concerning the appointment, in a lawful procedure, of a person to a 
judicial post at this court. It should be noted that the national judicial authorities, 
which are beholden to the political authorities, have attempted to prevent the 
analogous application of the mechanism for the exclusion of a judge proposed in 
the SC’s resolution (which should be applied whenever circumstances are present 
that could result in justified doubts as to a judge’s impartiality in a given case), 
and the legislature has prohibited, by way of the ‘muzzle law’, any review of the 
lawfulness of judicial appointments conducted with the participation of the new 
NCJ. In the view of the referring court, the adoption of the concept proposed by 
the SC, that is to say, the application to the present case of the mechanism for the 
exclusion of a person from the adjudicating panel upon a motion from a party 
(iudex suspectus) on the grounds of uncertainty as to that person’s impartiality, is 
not sufficient to guarantee the effectiveness of European Union law, since that 
mechanism leaves the exclusive power to initiate the procedure for removing the 
person in question from the composition of the court to that person or to one of the 
parties to the proceedings. However, the member of the adjudicating panel to 
whom those doubts relate may not be interested in initiating that procedure, and a 
party may not be aware of the irregularities in question. 
27 In this context, the mechanism for the exclusion of a judge by operation of law 
(iudex inhabilis) would come closest to achieving the values enshrined in, inter 
alia, Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights, 
since, as each court must verify of its own motion its competence and the 
correctness of its composition, this would offer the possibility to exclude a person 
who has been defectively appointed from adjudicating the case. Furthermore, 
where the court issues a ruling despite circumstances being present which should 
result in the exclusion of a member of its panel by operation of law, this would 
result in the proceedings being null and void or in absolute grounds for appeal. At 
the same time, final court rulings issued in breach of the above rules could be 
challenged and proceedings in such cases could be resumed.  
28 However, firstly, statutory grounds for excluding a judge by operation of law do 
not expressly cover the situation in question. Secondly, even if it is assumed that 
the provisions in question are applicable, they cannot be applied directly, but only 
by analogy. Thirdly, the exclusion of a person from adjudicating a case owing to 
that person’s defective appointment (by analogy to the iudex inhabilis mechanism) 
would be independent of the circumstances of the case in question; indeed, this 
would have to apply to every case in which such a person was included in the 
adjudicating panel. Therefore, the actions related to the application of the iudex 
inhabilis mechanism in the manner described above would lie (or at least should 
lie) within the competence of the person to whom the doubts relate as well as of 
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the other members of the adjudicating panel, the parties to the proceedings, and 
other bodies of the court (the president of the court, the chair of the relevant court 
division and the court college). 
Expedited procedure 
29 Pursuant to Article 105(1) of the Rules of Procedure of the Court of Justice, the 
referring court requests the application of the expedited preliminary ruling 
procedure. 
30 Firstly, the significance of the answer to the question referred for a preliminary 
ruling goes beyond the circumstances of the case which the question directly 
concerns. At present, there are at least several hundred persons sitting in ordinary 
courts who have been appointed to judicial posts in those courts in flagrant breach 
of the provisions of Polish law relating to the appointment of judges. In a large 
proportion of cases, that breach consists in their appointment to judicial posts in 
ordinary courts without the opinions of judges’ assemblies being sought. 
31 Secondly, ordinary courts in Poland hand down millions of rulings each year, 
some of them as courts of last instance. With each passing day, therefore, the legal 
chaos in Poland caused by those persons deciding cases is exacerbated. The 
immediate resolution of the doubts expressed in the question referred for a 
preliminary ruling would make it possible to avoid a systemic threat to civil 
liberties and rights in Poland or to determine that there is no such threat. 
32 Thirdly, providing an answer to the question referred for a preliminary ruling as 
soon as possible is required in order to dispel the doubts concerning the 
functioning of ordinary courts with the participation of the persons concerned. The 
participation of those persons in adjudicating panels, assuming that those panels 
do not meet the standards of an independent and impartial tribunal previously 
established by law, results in a threat to the stability of court rulings, which 
infringes the interests of citizens. It also threatens the courts’ ability to fulfil their 
systemic functions, undermining the very foundations of the administration of 
justice in Poland.