Opinion of the Advocate General — ECLI:EU:C:2021:557
Date: 2021-07-08
Language of the case: Polish
Subject matter: Consumer protection;Approximation of laws;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Poland

summary, in order to assess compliance with the principle of independence of the judiciary, enshrined in Article 19(1) TEU and in Article 47 of the Charter, a national court must consider all relevant elements and take into account, where appropriate, the reasons and specific objectives of the national measures that may be applicable to the situation. In that context, both formal and institutional elements and case-specific elements may be relevant, depending on the characteristics of the case in question and the EU provision(s) that is/are applicable. The significance of those elements should not be evaluated per se or in isolation, but assessed together in the light of the broader legal and institutional landscape. 105. That said, I will now turn to the specific issues mentioned in the various question referred. 2. Questions 1 to 3 106. By its first, second and third questions – which are closely related and can therefore be examined together – the referring court is asking essentially whether the circumstances pertaining to the first appointment to judicial office of one of the judges of the court that delivered the contested judgment (Judge FO), which appointment took place under the Communist regime of the then Polish People’s Republic (‘the PRL’), has an impact on his independence in the current exercise of his judicial duties, for the purposes of Article 19(1) TEU and Article 47 of the Charter. 107. In that connection, the referring court indicates that, during the Communist era in Poland, when taking up office, a judge would swear an oath to the president of the relevant court, inter alia, to consolidate the freedom, independence and power of the ‘democratic’ Polish State, to protect and strengthen the order based on the social, economic and political principles of the PRL, and to strengthen respect for the law and loyalty to that State. According to the provisions in force at the time, the task of the justice system in the PRL was to protect the ‘people’s democracy’ and aid its development towards socialism. Courts during the Communist era in Poland were also obliged through their activities to educate citizens in a spirit of loyalty to the PRL. 108. In the view of the referring court, the way in which judges were appointed at that time, and the arrangements concerning their supervision and the possibility of dismissal, did not comply with the standards of a democratic State subject to the rule of law. In particular, until 1989, judges were appointed and dismissed by an executive body of a State characterised by an undemocratic system of power: the Council of State. The regulations governing the appointment and dismissal of judges, aside from their close dependence on the executive bodies of the State, also did not include any transparent appointment criteria or allow judicial self-government or bodies elected through democratic elections to participate in the appointment procedure. Those procedures, in the view of the referring court, undermine the confidence that the judiciary should inspire in a democratic society. 109. In the referring court’s view, the amendments introduced into Polish law after 1989 did little to develop effective instruments for the verification of judicial appointments made during the Communist era or of potential breaches by judges of the principle of independence. Therefore, in the referring court’s view, post-1989, there was neither any general verification of all judicial appointments made in the Communist era, nor any effective review of individual judicial appointments, even in cases where individual judges would have been manifestly in breach of the principle of judicial independence. 110. I do not find the above arguments convincing. 111. I certainly agree with the referring court that the procedures for the appointment of judges, and more generally the rules governing their tenure and activities, during the PRL era, did not offer adequate guarantees to meet the standard of judicial independence set out in the EU Treaties today. 112. However, as for the rest, I am at a loss as to the relevance of all those statements in legal terms today. By wrapping up a certain political vision of the world as a legal argument, the referring court appears to be suggesting something that either amounts to true retroactivity, or wholly unsubstantiated insinuations. 113. First, it is stating the obvious that EU law did not apply to Poland before its accession to the European Union. It is also trite law that, in the EU legal order, absent specific provisions on retroactive effects, new rules of law do not apply to legal situations that have arisen and become definitive under the old law, but they may apply to their future effects, and will apply to new legal situations. (52) Thus, I remain puzzled as to how rules and standards flowing from Article 19(1) TEU and/or Article 47 of the Charter could be applied to judicial appointments in Poland prior to 1989, without that amounting to true retroactivity. (53) 114. Second, there is indeed, in EU law, the caveat of ongoing legal effects. A problem of independence under Article 19(1) TEU and/or Article 47 of the Charter could, therefore, potentially arise if the national rules which the referring court made reference to were, in spite of no longer being in force for several decades, still capable of producing some effect today. In order for that to happen, and as far as the present case is concerned, one would need to show an ongoing impact, a relationship between those previous national rules and the emergence of present day legitimate and genuine doubts in the minds of individuals as to the independence and impartiality of a judge such as Judge FO. 115. However, in that regard, the order for reference is, rather surprisingly considering its overall length and detail, quite scarce in providing any specific explanations as to the identity of the person, institution or body which would be currently capable of exerting undue pressure over Judge FO, and as to the reasons why Judge FO could be inclined to yield to that pressure. Instead, the referring court appears to be labouring under the assumption that judges appointed during the Communist era are by definition ‘forever tainted’, simply by virtue of association with the previous regime, and because, as Question 3 implies, they were never reappointed and never swore a new judicial oath to the new democratic State. 116. Third, without wishing to comment in any way on the merits of such ‘views’, I would simply note that, over the course of the history of any country, there are constitutional moments within which a number of options as to the design of new State institutions and their personnel emerge. (54) However, when making that constitutional choice some 30 years ago, Poland, together with a number of other countries in central Europe, opted for continuity. Subsequently, judges appointed under the previous regime in Poland have benefited from a double layer of acceptance, at both national and EU level. 117. On the one hand, as the referring court points out, despite the adoption of certain ‘lustration’ measures, (55) the newly formed democratic State accepted that judges appointed in the PRL era could, in principle, remain in office. This was confirmed by the Polish Government at the hearing. 118. On the other hand, that situation was considered to be in compliance with EU law by the EU institutions for the purposes of Poland’s accession to the European Union. It should not be overlooked, in that respect, that prospective Member States were required to meet the so-called ‘Copenhagen criteria’, (56) one of which concerned the existence of stable institutions guaranteeing, inter alia, democracy, the rule of law and protection of human rights. 119. Viewed in this context, the questions raised by the referring court amount in essence to suggesting that the constitutional choice exercised by Poland decades ago, and accepted by the European Union upon its entry into the Union, was wrong. Again, I shall not pass comment on the political implications of that proposition. However, in terms of the present case, as a matter of fact, any judicial intervention that would invalidate decisions taken by a national judge, such as Judge FO, simply for having been first appointed to judicial office in the PRL, would be akin to a newly adopted measure of ‘lustration’. 120. Fourth, no provision of EU law allows the Court to check the manner in which Member States have, before their accession, dealt with the political, legal and administrative heritage of the previous regimes. (57) Likewise, the shaping of applicable or new rules regarding judicial organisation, appointments, or judicial discipline remain, by default, within the institutional choices of the Member States. (58) 121. That does not mean, however, that any lustration measure that a Member State were to adopt now can escape verification of its compliance with EU law, where the latter is applicable. In particular, a measure that could have an impact on the activity of national courts acting in the fields governed by EU law would have to be consistent with, inter alia, the principles embodied in Article 19(1) TEU, which reflect the values enshrined in Article 2 TEU, such as the rule of law and respect for fundamental rights. 122. Although the Court has not had the opportunity to review any such measure, various forms of lustration have been considered in the past by the European Court of Human Rights (‘ECtHR’). In that regard, the ECtHR has found that lustration measures could be justified if pursuing aims relating to, inter alia, the protection of national security, public safety, the promotion of trust in the new democratic institutions, the prevention of disorder, the transparency of public life, clarity and internal peace in the society, the economic well-being of the country and the rights and freedoms of others. (59) In that connection, the ECtHR has also stated that States may validly adopt lustration measures since ‘a democratic State is entitled to require civil servants to be loyal to the constitutional principles on which it is founded’. (60) 123. However, the ECtHR has considered that, even if not leading to a breach of human rights per se, certain conditions have to be satisfied for such measures to be compliant with the provisions of the ECHR. In terms of what is relevant to the present proceedings, I shall simply recall that the ECtHR required the national legal framework to, inter alia: (i) be sufficiently precise to be able to individualise the responsibility of each of the persons concerned, (61) (ii) include adequate procedural guarantees for the persons concerned, (62) and (iii) be temporary in nature, since the objective necessity of restricting individual rights because of the transitional measures decreases with time. (63) 124. The ECtHR’s findings appear, in my view, largely transposable to the EU legal order. (64) In the light of that case-law, I have serious doubts that a judicial decision such as that suggested by the referring court would be compatible with EU law. Without there being the need to elaborate on this issue, I see several potential issues arising, especially in respect of Article 2 TEU (rule of law) and Articles 47 and 48 of the Charter (due process). 125. However, and in any event, what I find most striking is that such a measure would be contemplated decades after the fall of the previous regime and the creation of a new State, but still, at least nominally, in the name of the need to deal with the Communist past. Whatever the true motives behind such suggestions being made in Poland today, I simply note that that sheer temporal disconnect would, by itself, exclude the objective necessity of such measures in a democratic society. (65) Put simply, the constitutional moment where any such measures could be legitimately envisaged, has, in my view, long since passed. 126. In the light of the foregoing, I take the view that the mere fact that some judges were appointed to judicial office for the first time during the PRL era is not an element capable, in itself, of calling into question their independence today. Therefore, the circumstances referred to in Questions 1 to 3 are not such as to cast doubts on the independence and impartiality of a national judge, such as Judge FO, for the purposes of Article 19(1) TEU and Article 47 of the Charter. 3. Questions 4 and 5 127. By its fourth question, the referring court seeks to know whether the fact that some members of the composition of the court which delivered the contested judgment were appointed to that court on the basis of resolutions adopted by the KRS in a composition resulting from legislation, as interpreted, subsequently declared unconstitutional by the Trybunał Konstytucyjny (Constitutional Court), (66) has any bearing on the assessment of whether that composition of the court complied with the requirement of independence. By its fifth question, the referring court also asks, in essence, whether a body – such as the KRS at the material time – which followed non-transparent and non-public procedures with regard to the appointment of judges can be regarded as being independent for the purposes of EU law. 128. These two questions can be treated together. They may perhaps best be approached in two stages: first, at face value, that is to say without taking into account the overall context, and then, second, by enriching the analysis with that broader context. (67) 129. First, it should be pointed out that, as follows from the case-law of the Court and the ECtHR, not every error that may take place during the procedure for the appointment of a judge is of such nature as to cast doubts on the independence of that judge. 130. In Simpson, the Court pointed out that an irregularity committed during the appointment of judges entails an infringement of Article 47 of the Charter, ‘particularly when that irregularity is of such a kind and of such gravity as to create a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the appointment process and thus give rise to a reasonable doubt in the minds of individuals as to the independence and the impartiality of the judge or judges concerned’. In that case, the irregularity committed by the Council in the appointment of a member of the (then) European Union Civil Service Tribunal was found not to be of such gravity as to infringe Article 47 of the Charter. (68) 131. Similarly, in Ástráðsson, the Grand Chamber of the ECtHR followed a three-step test to determine whether an unlawful appointment of a judge breached the right to a ‘tribunal established by law’ under Article 6(1) ECHR. In essence, the ECtHR checked whether: (i) there was a manifest breach of the domestic rules on judicial appointments, (ii) the breach concerned a law of fundamental importance for appointing judges, and (iii) the breach had been effectively reviewed and remedied by domestic courts. (69) 132. In particular, as far as the second element mentioned above is concerned, the ECtHR emphasised the need to assess the breach ‘in the light of the object and purpose of the requirement of a “tribunal established by law”, namely to ensure the ability of the judiciary to perform its duties free of undue interference and thereby to preserve the rule of law and the separation of powers’. Accordingly, the ECtHR held that ‘breaches of a purely technical nature that have no bearing on the legitimacy of the appointment process must be considered to fall below the relevant threshold’. (70) 133. In the present case, the issues identified by the Trybunał Konstytucyjny (Constitutional Court) in its decision K 5/17 of 20 June 2017, related to the length of office of certain members of the KRS, which is one of the bodies participating in the judicial nomination process. The findings of that court appear to be mostly of a technical nature, at least when observed through the prism of Article 19(1) TEU and Article 47 of the Charter. Neither the referring court nor the Polish Government provided any specific and clear explanation to the contrary in the context of the present proceedings. When asked about that point at the hearing, the Polish Government stated that, in its view, the irregularity in the composition of the KRS had no automatic effects on the validity of the resolution of that body adopted between 2000 and 2018. It also remains unclear how the finding of the Trybunał Konstytucyjny (Constitutional Court) could have any impact on the public perception of the independence of the three judges in question. 134. That is so, notwithstanding the fact that the case-law shows the importance of identifying such an element. 135. For example, in Commission v Poland, the Court ruled that the national legislation at issue – which provided for an immediate effective lowering of the retirement age of Supreme Court judges, together with a discretionary authorisation, granted by the President of the Republic, to allow a judge to continue in that role – undermined the principle of the irremovability of judges, which is essential to their independence, and thereby infringed Article 19(1) TEU. Due to its specific features, and in the light of the circumstances in which it was adopted, the Court came to the conclusion that that legislation could give rise to reasonable doubts as to the real motives behind it. In particular, the Court noted that several elements suggested that the legislation may have been adopted in order to exclude or side-line a certain group of judges. (71) 136. Similarly, in A. K. and Others and in Repubblika, (72) the Court had to consider the composition and functioning of two State bodies which intervene in the procedure for the appointment of judges in their respective Member States. The Court examined, in particular, the circumstances in which the members of those bodies were appointed, the manner in which those bodies performed their functions, the broader legal framework governing the role and activities of those bodies, and finally the political landscape in which those bodies operated. 137. In that light, in A. K. and Others, the Court found that certain elements could give rise, in the minds of individuals, to doubts as to the imperviousness of the body in question to external factors, especially to the influence of the legislature and the executive, although it ultimately left the assessment in question to the referring court. By contrast, in Repubblika, with regard to the relevant rules and the manner in which those rules had been applied by the institutions of a Member State, the Court found nothing pointing towards a possible lack of independence of the body in question. There was no ground to consider that the President of the Republic in that Member State could use his powers to appoint judges in a manner that could raise, among the wider public, genuine suspicions about the independence of the individuals selected. 138. In WB and Others, the referring court questioned the Court about the compatibility of national legislation according to which the Minister for Justice/General Prosecutor could, on the basis of criteria that are not made public, second judges to higher courts for an indefinite period and, at any time, may terminate that secondment at his own discretion with, inter alia, Article 19(1) TEU read in conjunction with Article 2 TEU. In my Opinion, I took the view that that legislation breaches those provisions in that it can have an impact on the manner in which certain judges exercise their functions. In particular, I suggested that, under that legislation, some judges may have an incentive to rule in favour of the prosecutor or, more generally, to the liking of the Minister for Justice/General Prosecutor. Indeed, judges of lower courts may be tempted by the possibility of being rewarded with a secondment to a higher court, with possibly improved career prospects and a higher salary. In turn, judges seconded to higher courts could be discouraged from acting independently, to avoid the risk that their secondment may be terminated by the Minister for Justice/General Prosecutor. (73) 139. Unlike in those cases, no ‘motive, means and opportunity’ can be detected with regard to a potential lack of independence of the three judges in question in the present case. Similar to my conclusion regarding the circumstances concerning the first appointment of a judge during the PRL era, here too I am left wondering who would be, at present, able to exert undue pressure over the three judges in question, certainly as a consequence or in view of the alleged fault in their appointment procedure, and why those judges may, at least in the minds of the individuals, be induced to bow to that pressure. 140. Second, however, a somewhat different picture arises when the analysis is indeed enlarged by ‘all the relevant circumstances’, in particular when considering the potential ‘motive, means and opportunity’ underlying the decision of the Trybunał Konstytucyjny (Constitutional Court) concerning the (im)proper composition of the KRS, on which the referring court bases all its concerns regarding the correctness of judicial appointments during the period from 2000 to 2018. In that regard, a more inquisitive or critical observer may perhaps be inclined to wonder what were the true motives behind that decision, whether that decision itself was issued by an independent and properly composed tribunal, (74) and how much reliance can be placed in general on decisions of an institution which could be seen as being prone, at present, to instrumental abuse. (75) 141. In conclusion, the circumstances referred to in Questions 4 and 5 are also not such as to cast doubts on the independence and impartiality of any national judges for the purposes of Articles 19(1) TEU and Article 47 of the Charter. 4. Questions 6 and 7 142. By its sixth question, the referring court asks if it is required to examine of its own motion whether the court of lower instance, which delivered the contested judgment, meets the requirement of independence enshrined in Article 19(1) TEU and Article 47 of the Charter for the purposes of checking the possible invalidity of a judgment under appeal. 143. By its seventh question, the referring court seeks to ascertain whether, in view of the irrevocable nature of the appointment of judges provided for in the Polish Constitution, it must refrain from verifying, for the purposes indicated above, the independence of the judges who delivered the contested judgment. 144. In the light of the answers provided to the previous questions, there is, in principle, no need to answer those questions. 145. However, for the sake of completeness, I shall provide some brief thoughts on the issues raised by the referring court in those two questions. Essentially, the referring court wonders whether it is, in principle, required to raise issues of independence of its own motion, and whether the principle of irremovability of judges could prevent that court from doing so. 146. As far as Question 6 is concerned, it is not entirely clear why that question is raised in the first place, in view of the fact that the referring judge apparently has an obligation to verify ex officio the proper composition of the court that delivered the judgment on appeal under national law. (76) However, indeed, for the purpose of the potential application of Article 47 of the Charter, the answer to the referring court’s doubts can be found in the judgment of the Court in Simpson. (77) 147. In that judgment, the Court stated that it follows from Article 47 of the Charter, which enshrines the rights to an effective remedy before an independent and impartial tribunal previously established by law and to a fair trial, that ‘the Courts of the European Union must be able to check whether an irregularity vitiating the appointment procedure [of a judge] could lead to an infringement of [those rights]’. Those rights also imply that ‘every court is obliged to check whether, as composed, it constitutes such a tribunal where a serious doubt arises on that point’. On the basis of previous case-law, the Court held that such a check is ‘an essential procedural requirement, compliance with which is a matter of public policy and must be verified of the court’s own motion’. (78) 148. The wording of that judgment is quite clear: when genuine doubts concerning the composition of the bench arise – for example because of a possible flaw in the appointment procedure of one or more judges concerned – every court of the European Union must raise such an issue, if need be ex officio. Therefore, although Simpson was concerned with a judicial procedure taking place before the Court of Justice of the European Union, the principles flowing from that judgment are applicable also in respect of national courts every time Article 47 of the Charter is applicable. 149. Nevertheless, as explained in the previous parts of this Opinion, in the present case, there appears to be no actual factor which points to a possible lack of independence of the judges who delivered the contested judgment. 150. As far as Question 7 is concerned, like the Commission, I have difficulty seeing how the principle of irremovability of judges – a principle that is said to be enshrined, as the referring court states, in the Polish Constitution – would have precluded the referring court from raising an issue regarding the independence of the judges in question on the ground of an allegedly unlawful appointment procedure. 151. The referring court appears to suggest that once a judge has been formally appointed under national law, that judge cannot be removed and the decision appointing him or her cannot be invalidated, despite that appointment possibly being unlawful in respect of the EU standard of independence, because to do so would conflict with the principle of irremovability. 152. I remain puzzled by both the starting assumptions seemingly embraced by the referring court and the conclusions drawn from them. 153. First, and once again, that court appears to focus closely on one specific issue viewed in clinical isolation, and on that basis establishes a false contradiction at a very high level of abstraction. Although under national law the decision appointing a judge to judicial office cannot be reviewed and annulled, it certainly does not follow that the decisions of that judge are immune from review or that, provided that all the necessary rules and procedures as complied with, that judge cannot be removed by way of disciplinary or other pertinent proceedings. 154. Second, I fail to see how the principle of irremovability of a judge, as commonly understood, would be at all at issue in the main proceedings. The referring judge is tasked with deciding on the admissibility of an appeal in cassation before the Sąd Najwyższy (Supreme Court). Those proceedings are clearly not, for example, disciplinary proceedings in which the removal of the judge in question, or the imposition of some other disciplinary measure against him, could be adopted. Therefore, I do not see a direct clash between the principle of irremovability of judges and the possibility of invalidating a judgment handed down in an appeal procedure because of an alleged wrongful composition of the bench. 155. Third, I also do not see an indirect clash in that respect. In my opinion, the considerations expressed in the order for reference overlook two important elements, concerned, respectively, with the nature of the principle of irremovability and its articulation with general principles of law. 156. On the one hand, the Court has consistently emphasised that, in order to ensure the independence of the judiciary, certain guarantees must exist in order to protect the individuals who have the task of adjudicating in a dispute, such as guarantees against removal from office. The principle of irremovability requires, in particular, that ‘judges may remain in post provided that they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term’. (79) 157. At the same time, however, the Court made clear that irremovability is not, and cannot be, ‘wholly absolute’. Irremovability, and more broadly the judicial independence that it is intended to guarantee, comes hand in hand with judicial accountability. Indeed, exceptions to that principle may exist, provided that ‘they are warranted by legitimate and compelling grounds, subject to the principle of proportionality’. For instance, the Court pointed out that ‘it is widely accepted that judges may be dismissed if they are deemed unfit for the purposes of carrying out their duties on account of incapacity or a serious breach of their obligations, provided that the appropriate procedures are followed’. (80) 158. Admittedly, the relationship between, on the one hand, the principle of irremovability and, on the other hand, the principle of independence of the judiciary, and the rights to an effective judicial protection and to a fair trial, does raise some delicate problems of linkage. A balance between those interests, which may at times pull in different directions, must be struck in each set of circumstances. That balance cannot be struck in the abstract, as the referring court would imply by its seventh question. 159. However, under no conceivable approach to that matter can the position implied in the request for a preliminary ruling be sustained. In fact, that position gives rise to a paradox: in order to protect the independence of judges, the non-independent judges would also have to be protected. 160. That is untenable. In a community based on the rule of law and in which the fundamental rights of individuals – such as those of effective judicial protection and to a fair trial – must be guaranteed, the very opposite of what is being suggested by the referring court is in fact true. One could even go as far as to say that, to that end, the ‘removability’ of non-independent judges is as important as the ‘irremovability’ of independent judges. Indeed, the existence of judges subject to some political, economic or other private interest strikes at the heart of a legal system based on the rule of law and of a democracy predicated on the separation of powers. 161. By that, I am not implying that any judge whose appointment raises issues of independence should ipso facto be removed from office and his or her decisions invalidated. Yet, a legal system must be able to enforce compliance with the principle of independence of the judiciary. This brings me to my final point. 162. As mentioned above, not all flaws in a judicial appointment procedure give rise to problems of independence. There is no automatism in that respect. (81) There is also no automatism vis-à-vis the consequences which flow from a finding that an individual was erroneously appointed to judicial office, in particular where the unlawfulness stems from a breach of the principle of independence. Instead, as a matter of EU law, a reasonable correlation must be found between the rules or principles that have been breached, the seriousness of the infringement committed, and the type and scope of remedies available (and, if need be, the penalties imposed on the perpetrators), in the light of the facts and circumstances of a case. (82) 163. General principles of EU law such as, inter alia, proportionality, legal certainty, respect for res judicata, and fairness of the procedure will certainly not be foreign to any assessment of whether the national remedies in this field ensure compliance with, and the effectiveness of, EU law. 164. Therefore, I see no tension between the possible finding that the appointment of a judge was vitiated by some procedural error (even where that error is of such nature as to give rise, in the minds of individuals, to doubts regarding his or her independence), and the principle of irremovability of judges. V. Conclusion 165. I propose that the Court answer the question referred for a preliminary ruling by the Sąd Najwyższy (Supreme Court, Poland) as follows: – In order to assess compliance with the principle of independence of the judiciary, enshrined in Article 19(1) TEU and in Article 47 of the Charter of Fundamental Rights of the European Union, a national court must consider all relevant elements and take into account, where appropriate, the reasons and specific objectives of the national measures that may be applicable to the situation. In that context, both formal and institutional elements and more concrete and case-specific elements may be relevant, depending on the specificities of the case in question and the EU provision(s) that may be applicable. The significance of those elements should not be evaluated per se or in isolation, but assessed together in the light of the broader legal and institutional landscape; – The circumstances referred to in Questions 1 to 5 are not such as to cast doubts on the independence and impartiality of national judges for the purposes of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights; – Article 47 of the Charter of Fundamental Rights must be interpreted as requiring national courts to verify whether an irregularity vitiating a procedure for the appointment of a judge could lead to an infringement of rights conferred by EU law. Where a genuine and serious doubt arises on that point, that issue must be raised of the court’s own motion. The principle of irremovability of judges does not preclude national courts from carrying out that verification. 1 Original language: English. 2 Tůma, Z., ‘Soudce nelze novelizovat’ [Judges Cannot be Amended], in: Kokeš, M., and Pospíšil, I., (eds.), In dubio pro libertate: Úvahy nad ústavními hodnotami a právem. Pocta Elišce Wagnerové u příležitosti životního jubilea, Masarykova Univerzita, Brno, 2009, p. 247. 3 OJ 1993 L 95, p. 29. 4 Judgment of 20 June 2017, K 5/17, OTK-A 2017. 5 Matthew 7:12 – ‘Therefore all things whatsoever ye would that men should do to you, do ye even so to them’ (King James Bible) or, in a more modern translation, ‘Do to others whatever you would have them do to you’ (New American Bible). However, the same ‘golden rule’ of behaviour is also considered to be a basic teaching of a number of other religions. 6 Such as, in the present case, Article 7 of Directive 93/13, quoted above in point 9 of this Opinion. 7 With some regimes of secondary law even being applicable transversally, that is to say independent of any (substantive) sectoral legislation. Although evidently not applicable in the present case, see, for an example, Commission Decision of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (OJ 2006 L 354, p. 56), explored in detail in my Opinion in Asociaţia “Forumul Judecătorilor din România” and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19 and C‑355/19, EU:C:2020:746, points 183 to 225). 8 See, inter alia, judgment of 17 July 2014, Torresi (C‑58/13 and C‑59/13, EU:C:2014:2088, paragraphs 17 and 18 and the case-law cited). 9 See judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117, paragraphs 37 to 42), and of 20 April 2021, Repubblika (C‑896/19, EU:C:2021:311, paragraph 51). 10 Joined Cases C‑748/19 to C‑754/19, EU:C:2021:403, points 161 and 162. 11 Ibid., points 163 to 169. 12 Case C‑487/19, W.Ż., (OJ 2019 C 337, p. 4). In his Opinion in that case, Advocate General Tanchev concluded that judicial appointments carried out by the President of the Republic in disregard of the suspension of the appointment procedure by an order of the Naczelny Sąd Administracyjny (Supreme Administrative Court) constituted a manifest and deliberate violation of the national rules, amounting to a flagrant breach of the appointment procedure for judges (EU:C:2021:289, points 87 to 89). 13 Judgment of 17 September 1997, Dorsch Consult (C‑54/96, EU:C:1997:413, paragraph 23). More recently, see, for instance, judgment of 9 July 2020, Land Hessen (C‑272/19, EU:C:2020:535, paragraph 43 and the case-law cited). 14 To that effect, see the recent judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions) (C‑824/18, EU:C:2021:153, paragraph 90 and the case-law cited). 15 See, to that effect, Opinion 1/09 (Agreement creating a Unified Patent Litigation System) (EU:C:2011:123, paragraph 66). 16 See also my Opinion in Pula Parking (C‑551/15, EU:C:2016:825, points 85 and 86), and Opinion of Advocate General Wahl in Joined Cases Torresi (C‑58/13 and C‑59/13, EU:C:2014:265, point 53). 17 Starting already with cases such as judgment of 30 June 1966, Vaassen-Göbbels (61/65, EU:C:1966:39, at p. 273), it is no accident that the terminology employed has referred consistently to a ‘body’ (‘organisme’ in French; ‘Einrichtung’ in German), as being the relevant institution. 18 Already, for instance, judgment of 11 June 1987, X (14/86, EU:C:1987:275, paragraphs 6 and 7), concerning a request for a preliminary ruling made by an Italian Pretore, as a single judge and acting, in essence, at that stage of the proceedings, as an investigating judge. 19 For a general overview, see, for instance, Broberg, M., and Fenger, N., Preliminary References to the European Court of Justice, 2nd edn, Oxford University Press, Oxford, 2014, pp. 61 and 62. 20 Judgment of 23 March 1982 (102/81, EU:C:1982:107, paragraphs 7 to 16). 21 See, inter alia, judgments of 12 June 2014, Ascendi Beiras Litoral e Alta, Auto Estradas das Beiras Litoral e Alta (C‑377/13, EU:C:2014:1754, paragraph 24); of 17 July 2014, Torresi (C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 20); and of 6 October 2015, Consorci Sanitari del Maresme (C‑203/14, EU:C:2015:664, paragraph 18). 22 See, in particular, judgments of 9 October 2014, TDC (C‑222/13, EU:C:2014:2265, paragraphs 27 to 38), and of 21 January 2020, Banco de Santander (C‑274/14, EU:C:2020:17, in particular paragraph 55). 23 Opinion of Advocate General Ruiz-Jarabo Colomer in De Coster (C‑17/00, EU:C:2001:366, point 14). 24 See, in particular, judgment of 17 July 2014, Torresi (C‑58/13 and C‑59/13, EU:C:2014:2088, paragraphs 15 to 30), and order of 23 October 2018, Conseil départemental de l’ordre des chirurgiens-dentistes de la Haute-Garonne (C‑296/18, not published, EU:C:2018:857, paragraph 6). More generally on this issue, and with further references, see my Opinion in Ministerstwo Sprawiedliwości (C‑55/20, EU:C:2021:500, points 31 to 62). 25 See, inter alia, the German (‘gesetzliche Grundlage der Einrichtung’), Spanish (‘origen legal’), French (‘origine légale’), Italian (‘origine legale’), Portuguese (‘origem legal’). 26 As the Court recently noted in a case which raised, although in a different context, a similar interpretative issue in the judgment of 15 March 2017, Al Chodor (C‑528/15, EU:C:2017:213, paragraph 31). 27 Judgment of the ECtHR of 1 December 2020, Guðmundur Andri Ástráðsson v. Iceland (CE:ECHR:2020:1201JUD002637418, §§ 229 to 234), as recently confirmed in judgment of the ECtHR of 7 May 2021, Xero Flor w Polsce sp. z o.o. v. Poland (CE:ECHR:2021:0507JUD000490718, §§ 243 to 247). 28 Most recently, see, for example, Opinion of Advocate General Tanchev in W.Ż (Case C‑487/19, EU:C:2021:289, points 70 to 80). 29 Points 36 to 42 of this Opinion. 30 See, more recently, judgment of 20 April 2021, Repubblika (C‑896/19, EU:C:2021:311, paragraph 53 and the case-law cited). My emphasis. 31 Judgment of 4 February 1999, Köllensperger and Atzwanger (C‑103/97 EU:C:1999:52, paragraph 24). This case-law echoes the approach taken by the European Court of Human Rights on this matter, see judgment of the ECtHR of 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal (CE:ECHR:2018:1106JUD005539113, § 186). 32 See, among others, judgment of 24 May 2016, MT Højgaard and Züblin (C‑396/14, EU:C:2016:347, paragraphs 22 to 32). 33 Judgment of 19 September 2006, Wilson (C‑506/04, EU:C:2006:587, paragraph 49). 34 Thus excluding bodies tasked with administrative appeals from making a reference to the Court under Article 267 TFEU – see, for instance, judgment of 30 March 1993, Corbiau (C‑24/92, EU:C:1993:118, paragraphs 15 to 17) or of 30 May 2002, Schmid (C‑516/99, EU:C:2002:313, paragraphs 34 to 38). 35 Judgment of 16 July 2020, Governo della Repubblica italiana (Status of Italian magistrates) (C‑658/18, EU:C:2020:572, especially paragraphs 43 and 55). Compare this case with previous cases – essentially concerning the same issue – in which the Court rejected the reference as inadmissible, but only because the referring court was, under national law, manifestly incompetent. Although some of the parties had raised the issue of impartiality, the Court did not refer to any such argument in its orders: see orders of 6 September 2018, Di Girolamo (C‑472/17, not published, EU:C:2018:684), and of 17 December 2019, Di Girolamo (C‑618/18, not published, EU:C:2019:1090). 36 Generally on this issue, and with references to the relevant case-law, see my Opinion in Hochtief Solutions Magyarországi Fióktelepe (C‑620/17, EU:C:2019:340, points 59 to 62). 37 In detail with regard to similar issues arising in the context of judgment of 9 July 2020, Land Hessen (C‑272/19, EU:C:2020:535), see my Opinion in WB and Others, points 115 to 120. 38 See my Opinion in WB and Others, point 154. 39 For the sake of completeness, but without having, in my view, any bearing on the disposition of the present case, it might be added that the existence of procedural irregularities in that appointment procedure were confirmed, after the hearing in the present case took place, by judgments of the Naczelny Sąd Administracyjny (Supreme Administrative Court) of 6 May 2021, II GOK 2/18, II GOK 3/18, II GOK 5/18, II GOK 6/18 and II GOK 7/18. Because of those procedural irregularities, that court annulled the contested resolutions of the KRS, without, however, in any way touching upon the validity of the decisions of the President of the Republic appointing the judges in question. 40 With regard to the problems flowing, in respect of Article 19(1) TEU and Article 47 of the Charter, from that ‘unholy alliance’ of roles, see my Opinion in WB and Others, in particular points 178 to 192. 41 To that effect, judgment of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236, paragraph 194 and the case-law cited). 42 See judgment of 24 November 2020, Openbaar Ministerie (Forgery of documents) (C‑510/19, EU:C:2020:953, paragraph 25 and the case-law cited). 43 Ibid., paragraph 26. 44 See, inter alia, judgments of 13 September 2016, Rendón Marín (C‑165/14, EU:C:2016:675, paragraph 24), and of 19 June 2018, Gnandi (C‑181/16, EU:C:2018:465, paragraph 31). 45 Judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 48). 46 Ibid., paragraphs 49 to 51. 47 Judgment 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, paragraphs 127 and 130 to 134 and the case-law cited). (‘A. K. and Others’). 48 A. K. and Others, paragraphs 152 and 153. 49 Compare with judgment of the ECtHR of 6 October 2011, Agrokompleks v. Ukraine (CE:ECHR:2011:1006JUD002346503, §136). More generally on this issue, Spano, R., ‘The rule of law as the lodestar of the European Convention on Human Rights: The Strasbourg Court and the independence of the judiciary’, European Law Journal, 2021, p. 9. 50 For a more detailed discussion and categorisation of the potential scenarios, see my Opinion in Asociaţia “Forumul Judecătorilor din România” and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19 and C‑355/19, EU:C:2020:746, points 240 to 248). 51 Points 36 to 42 of this Opinion, as well as points 163 to 169 of my Opinion in WB and Others. 52 See, with further references, my Opinion in E.B. (C‑258/17, EU:C:2018:663, points 44 to 48). 53 However, see judgment of 15 January 2019, E.B. (C‑258/17, EU:C:2019:17, paragraphs 54 and 55). 54 That is hopefully with the exception of the ‘solution’ mentioned in point 1 of this Opinion. 55 The term ‘lustration’ – a neologism deriving from the ancient Latin word ‘lustratio’ which meant purification by sacrifice – has been widely used to refer to measures of transitional justice, adopted in post-Communist States in central and eastern Europe, in order to facilitate institutional and administrative reforms, as well as political and societal transformation. Those measures often involved screening programmes aimed at assessing the integrity and capabilities of individuals serving in some key areas of the public administration (including judges). See, generally, Council of Europe, Parliamentary Assembly, ‘Measures to dismantle the heritage of former communist totalitarian systems: Guidelines to ensure that lustration laws and similar administrative measures comply with the requirements of a State based on the rule of law’ (doc. 7568), 3 June 1996; and Horne, C.M., ‘Transitional justice: Vetting and lustration’, in Lawther, C., Moffett, L., and Jacobs, D. (eds), Research Handbook on Transitional Justice, Edward Elgar Publishing, Cheltenham, 2017, pp. 424 to 441. 56 See Conclusions of the Presidency, European Council in Copenhagen (21 and 22 June 1993). See, currently, Article 49 TEU. 57 Nor, as far as I know, is there any binding international agreement on that matter, in particular one binding on the European Union and/or its Member States. 58 See, inter alia, judgment of 20 April 2021, Repubblika (C‑896/19, EU:C:2021:311, paragraph 48). 59 Judgment of the ECtHR of 21 October 2014, Naidin v. Romania (CE:ECHR:2014:1021JUD003816207, § 51). Cf. also United Nations, Rule-Of-Law Tools for Post-Conflict States – Vetting: an operational framework, 2006, pp. 3 to 5: which suggests that personnel reform aiming at excluding from public service persons with serious integrity deficits contributes to re‑establishing civic trust and re‑legitimising public institutions. 60 Judgment of the ECtHR of 26 September 1995, Vogt v. Germany, (CE:ECHR:1995:0926JUD001785191, § 59). 61 Judgments of the ECtHR of 24 June 2008, Adamsons v. Latvia (CE:ECHR:2008:0624JUD000366903, § 116), and of 3 September 2015, Sõro v. Estonia (CE:ECHR:2015:0903JUD002258808, §§ 60 and 61). See also Council of Europe, Parliamentary Assembly, Resolution 1096 of 27 June 1996 on measures to dismantle the heritage of former communist totalitarian systems, p. 12. 62 Judgments of the ECtHR of 14 February 2006, Turek v. Slovakia (CE:ECHR:2006:0214JUD005798600, § 115); of 24 June 2008, Adamsons v. Latvia (CE:ECHR:2008:0624JUD000366903, § 116); and of 24 April 2007, Matyjek v. Poland (CE:ECHR:2007:0424JUD003818403, § 62). 63 Judgments of the ECtHR of 24 June 2008, Adamsons v. Latvia (CE:ECHR:2008:0624JUD000366903, § 116), and of 21 January 2016, Ivanovski v. the former Yugoslav Republic of Macedonia (CE:ECHR:2016:0121JUD002990811, § 185). See also the statement of the Venice Commission reproduced in the latter judgment in § 108, point (a), according to which ‘introducing lustration measures a very long time after the beginning of the democratization process in a country risks raising doubts as to their actual goals. Revenge should not prevail over protection of democracy. Cogent reasons are therefore required’. 64 As also prescribed by Article 52(3) of the Charter and Article 6(3) TEU. 65 In the sense of the requirements of the ECtHR case-law quoted above in footnote 63, assuming that any such a case would even pass the stage of legitimate aim and legality once genuine motives behind such measures were to be analysed. 66 See above, point 19 of this Opinion. 67 Thus providing indeed a case study for the taking into account of ‘all relevant circumstances’, as outlined above in points 98 to 100 of this Opinion. 68 Judgment of 26 March 2020, Review Simpson and HG v Council and Commission (C‑542/18 RX‑II and C‑543/18 RX‑II, EU:C:2020:232, in particular paragraphs 75 to 82). 69 Judgment of the ECtHR of 1 December 2020, Guðmundur Andri Ástráðsson v. Iceland (CE:ECHR:2020:1201JUD002637418, §§ 244 to 252). 70 Ibid., § 246. 71 Judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court) (C‑619/18, EU:C:2019:531, paragraphs 82 and 85). 72 Judgment of 20 April 2021, Repubblika (C‑896/19, EU:C:2021:311, paragraph 51). 73 See my Opinion in WB and Others, points 171 to 196. 74 See judgment of the ECtHR of 7 May 2021, Xero Flor w Polsce sp. z o.o. v. Poland, (CE:ECHR:2021:0507JUD000490718), which held that certain recent appointments to the Trybunał Konstytucyjny (Constitutional Court) were made in flagrant breach of domestic law and that the unlawful external influence on that body exercised by the legislature and the executive undermines the very essence of the right to a ‘tribunal established by law’ under Article 6(1) ECHR. 75 Most recently, and somewhat relevant for the present proceedings in view of the interested parties in this case, see, for instance, judgment of the Trybunał Konstytucyjny (Constitutional Court) of 15 April 2021, K 20/20, which came to the conclusion that a provision of the Law on the Ombudsman, which provides that the incumbent holder remains in office, even after the expiry of his or her mandate, until a new Ombudsman is appointed, is unconstitutional. It is not easy to understand why such a provision, legitimately assuring institutional continuity in a number of bodies across Europe, including the Court of Justice (see Article 5 of the Statute of the Court of Justice of the European Union), could be conceptually unconstitutional. However, any potential intellectual conundrum in this regard might quickly dissipate if one understands the context, in particular why there was a need for such a decision and who needed it. 76 See above, points 13 and 88 of this Opinion. 77 Judgment of 26 March 2020, Review Simpson and HG v Council and Commission (C‑542/18 RX‑II and C‑543/18 RX‑II, EU:C:2020:232, in particular paragraphs 75 to 82). 78 Ibid., paragraphs 53 to 58. My emphasis. 79 See judgment of 16 July 2020, Governo della Repubblica italiana (Status of Italian magistrates) (C‑658/18, EU:C:2020:572, in particular paragraphs 47 and 48 and the case-law cited). 80 Ibid., paragraph 48. 81 See also judgment of the ECtHR of 1 December 2020, Guðmundur Andri Ástráðsson v. Iceland (CE:ECHR:2020:1201JUD002637418), joint partly concurring, partly dissenting opinion of Judges O’Leary, Ravarani, Kucsko‑Stadlmayer and Ilievski, especially § 53. 82 In general on that correlation, see my Opinion in An tAire Talmhaíochta Bia agus Mara and Others (C‑64/20, EU:C:2021:14, points 34 to 63).