Opinion of the Advocate General — ECLI:EU:C:2025:286
Date: 2025-04-29
Language of the case: Polish

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 August 2021 
Referring court: 
Sąd Rejonowy Poznań-Stare Miasto w Poznaniu (Poland) 
Date of the decision to refer: 
23 July 2021 
Applicant: 
MJ 
Defendant: 
AA 
Other party: 
Rzecznik Praw Obywatelskich 
  
Subject matter of the main proceedings 
A motion for the exclusion of a judge hearing a case in commercial court 
proceedings.  
Subject matter and legal basis of the request 
Doubts as to whether the judge hearing the case was validly appointed to a judicial 
post; Article 267 TFEU. 
Questions referred for a preliminary ruling 
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 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-521/21 
 
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Fundamental Rights (‘the Charter’), be interpreted as meaning that a court is 
not a tribunal established by law in the case where it includes in its 
composition a person appointed to a judicial post in that court as a result of a 
procedure in which: 
(a) the person to be appointed to the post by the Prezydent Rzeczypospolitej 
Polskiej (President of the Republic of Poland) was selected by 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 a judicial post as provided for under national law was 
effectively lodged; 
(b) 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? 
2. Must Article 2 and Article 19(1) TEU, read in conjunction with Article 47 of 
the Charter, be interpreted as meaning that, where a court includes in its 
composition a person appointed in the circumstances described in 
Question 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) composed exclusively of persons 
appointed to judicial posts in the circumstances described in Question 1 
above and which provisions of national law also require that any objections 
concerning the appointment to a judicial post be disregarded, taking into 
account the institutional and systemic context; 
(b) those provisions require, in order to ensure the effectiveness of EU 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); 
(c) those provisions require the national court, in order to apply EU law and 
achieve the effet utile, to disregard a judgment of the national constitutional 
court in so far as that judgment declares it incompatible with national law to 
hear a motion for the exclusion of a judge on the ground that the 
appointment of that judge was defective and did not comply with EU 
requirements of an independent and impartial tribunal previously established 
by law within the meaning of Article 19(1) TEU, read in conjunction with 
Article 47 of the Charter; 
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(d) those provisions require the national court, in order to apply EU law and 
achieve the effet utile, to disregard a judgment of the national constitutional 
court if it prevents the implementation of an order of the Court of Justice of 
the European Union granting interim measures, which orders the suspension 
of the application of national legislation that prevents national courts from 
examining whether there is compliance with EU requirements concerning an 
independent and impartial tribunal previously established by law within the 
meaning of Article 19(1) TEU, read in conjunction with Article 47 of the 
Charter? 
Provisions of EU law cited 
Article 2, Article 19(1) and Article 6(1) to (3) TEU, read in conjunction with 
Article 47 of the Charter of Fundamental Rights; 
Directive 2011/7/EU of the European Parliament and of the Council of 
16 February 2011 on combating late payment in commercial transactions (OJ 
2011 L 48, p. 1). 
Provisions of national law cited 
Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland; 
‘the CRP’) – 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 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); 
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) – 
Article 6; 
Kodeks postępowania cywilnego (Code of Civil Procedure; ‘the CCP’) – 
Article 47, Article 48, Article 49(1); 
Ustawa z dnia 8 marca 2013 r. o przeciwdziałaniu nadmiernym opóźnieniom w 
transakcjach handlowych (Law of 8 March 2013 on counteracting excessive 
delays in commercial transactions). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-521/21 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 In the case, the applicant MJ requested that the defendant AA be ordered to pay 
him the sum of PLN 3 993.89 together with interest and legal fees. The claim 
arises from a contract for the provision of services concluded by the parties in 
connection with their business activities. The contract is a commercial transaction 
within the meaning of Article 2(1) of Directive 2011/7/EU of the European 
Parliament and of the Council of 16 February 2011 on combating late payment in 
commercial transactions (OJ 2011 L 48, p. 1), and, in his statement of claim, the 
applicant seeks, inter alia, compensation from the defendant as set out in 
Article 6(1) of that directive and Article 10(1) of the Law of 8 March 2013 on 
counteracting excessive delays in commercial transactions, which transposed that 
directive into Polish law. Thus, there is no doubt that the dispute is an EU case. 
2 By letter of 21 May 2021, the defendant filed a motion for exclusion of the judge 
hearing the case. In his motion, the defendant argued that the judge hearing the 
case had not been validly appointed to the judicial post (she was not a judge) 
because the resolution to submit a motion for her appointment had been adopted 
by the Krajowa Rada Sądownictwa (National Council of the Judiciary; ‘the NCJ’), 
a body whose constitutionality had been challenged by the Naczelny Sąd 
Administracyjny (Supreme Administrative Court, Poland; ‘the SAC’). The 
defendant indicated that he was also seeking the exclusion of any other judges 
appointed upon a motion of the new NCJ in so far as they were to hear his 
complaint. The motion to have the judge excluded was submitted to the referring 
court. 
3 In connection with the motion for her exclusion, Judge S.C. who was hearing the 
case, made a statement that in her opinion there were no circumstances that could 
raise doubts as to her impartiality and that there were no grounds for excluding her 
from hearing the case. At the time of the competition for the judicial post in which 
S.C. took part, provisions were in force which complied with the constitutional 
principle of the involvement of judicial self-government bodies in the appointment 
process by ensuring the participation of assemblies of representatives of judges 
working within the jurisdiction of regional courts as the basic judicial self-
government bodies. S.C. received a favourable opinion from the College of the 
Sąd Okręgowy (Regional Court) and from the Assembly of Representatives of 
Judges working within the jurisdiction of the Regional Court. Judge S.C. was 
appointed by the President of the Republic of Poland to the post of judge of the 
Sąd Rejonowy Poznań-Stare Miasto w Poznaniu (District Court for Poznań-Stare 
Miasto in Poznań, Poland) by virtue of the order of the President of the Republic 
of Poland of 14 March 2019 upon a motion from the NCJ constituted under the 
procedure provided for in the Law of 8 December 2017 amending the Law on the 
National Council of the Judiciary and certain other laws. By Resolution 
No 611/2018 of 4 December 2018, the NCJ submitted a motion to the President of 
the Republic of Poland to appoint S.C.  
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4 The issue presented here is different from the questions referred for a preliminary 
ruling to date, since the earlier requests related only in part to the problem posed 
by the present case. They concerned either a person appointed to a judicial post at 
the Supreme Court, rather than an ordinary court, or a person appointed to a 
judicial post at an ordinary court without the requirement to consult the opinion of 
judicial self-government bodies independent of the executive and the legislature 
having been met. Moreover, the questions posed in Cases C-181/21 and C-269/21 
were not prompted by a party’s motion for the exclusion of a judge and concerned 
persons appointed without the opinion of judicial self-government bodies having 
been sought. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
5 The referring court largely reproduces the reasoning set out in the request for a 
preliminary ruling in Case C-181/21. At the same time, it also cites the case-law 
of Polish and international courts subsequent to that request. 
6 Thus, in its judgments of 6 May 2021 and 13 May 2021, the SAC, after having 
obtained answers to the preliminary questions referred to the Court (judgment of 
2 March 2021, C-824/18), held that the NCJ does not provide sufficient 
guarantees of independence, and the degree of its dependence on the legislature 
and the executive is so high that it cannot be considered irrelevant for the 
assessment of whether the judges it has selected meet the objective requirements 
(prerequisites) of independence and impartiality under Article 47 of the Charter of 
Fundamental Rights. In the aforementioned judgments, the SAC indicated clearly 
that the composition of the NCJ is contrary to Article 187(1)(2) of the CRP 
because it includes 14 representatives of judges of ordinary courts but does not 
include judges of the Supreme Court or judges of administrative courts, as is 
clearly required by Article 187(1)(2) of the CRP. Given those defects in its 
composition, in the view of the referring court the NCJ is unable effectively to 
submit a motion for the appointment of a judge. 
7 In its judgment of 2 June 2020, the Trybunał Konstytucyjny (Constitutional Court, 
Poland) ruled that Article 49(1) of the CCP, in so far as it allows the examination 
of a motion to exclude a judge due to his or her defective appointment by the 
President of the Republic of Poland upon a motion of the NCJ, is incompatible 
with Article 179 of the CRP. Additionally, in its judgment of 14 July 2021, the 
Constitutional Court found that the second sentence of Article 4(3) TEU, read in 
conjunction with Article 279 TFEU, in so far as the Court of Justice imposes ultra 
vires obligations on Poland as a Member State of the European Union by issuing 
interim measures relating to the system and jurisdiction of Polish courts and the 
procedure before Polish courts, is incompatible with Articles 2, 7, 8(1) and 90(1) 
of the CRP, read in conjunction with Article 4(1) of the CRP, and to that extent is 
not covered by the principles of primacy and direct application. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-521/21 
 
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The first question 
8 The reasoning for the first question submitted by the referring court is similar to 
the reasoning for the first question in Case C-181/21. 
9 In that regard, the referring court additionally refers to the recent judgment of the 
European Court of Human Rights of 22 July 2021 in Reczkowicz v. Poland 
(application No 43447/19). It is stated in that judgment that a procedure for 
appointing judges which reveals undue influence on the part of the legislature and 
executive over the appointment of judges is per se incompatible with Article 6(1) 
of the European Convention on Human Rights, as it adversely affects the entire 
process and compromises the legitimacy of a court composed of judges thus 
appointed. 
The second question 
10 The reasoning for the second question is largely similar to the reasoning for the 
second question in Case C-181/21. 
11 At the same time, the referring court points out that, notwithstanding the existence 
of provisions which reserve the examination of motions or statements concerning 
the exclusion of a judge or the designation of the court before which the 
proceedings are to be brought on the grounds of the alleged lack of that judge’s or 
that court’s independence for the Izba Kontroli Nadzwyczajnej i Spraw 
Publicznych (Chamber of Extraordinary Control and Public Affairs, ‘the 
CECPA’) of the Supreme Court, whose judges were appointed in the same 
circumstances as the judges of the Izba Dyscyplinarna (Disciplinary Chamber) of 
that court, and order that such motions be disregarded, the referring court has 
nevertheless been presented with a motion for the exclusion of a judge based on 
the above grounds. In those circumstances, the referring court seeks to ascertain 
whether it is obliged to refrain from examining that motion and to refer it to the 
CECPA or whether, in view of the justified concerns as to the impartiality and 
independence of the CECPA, it is entitled to examine the motion itself. 
12 The referring court considers that the order of the Vice President of the Court of 
14 July 2021 on interim measures, C-204/21 R, which obliges Poland, and 
therefore the referring court, to suspend the application of the provisions 
transferring to the exclusive jurisdiction of the CECPA the examination of pleas 
alleging a judge’s or a court’s lack of independence provides the basis for the 
referring court’s refusal to refer the motion for the exclusion of a judge to the 
jurisdiction of the CECPA and to disregard the motion. Given that, prior to the 
introduction of those provisions, the referring court was competent to examine 
such motions, the order that suspends their application also restores jurisdiction to 
the court which previously had jurisdiction. 
13 The referring court also seeks to ascertain whether, in order to ensure the full 
effectiveness of EU law, it should disregard the aforementioned judgment of the 
RZECZNIK PRAW OBYWATELSKICH 
 
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Constitutional Court of 2 June 2020. That judgment formally refers to Article 49 
of the CCP, but since it lays down a general principle prohibiting the examination 
of the effectiveness of a judicial appointment, it could also apply to the exclusion 
of a judge who is incapable of deciding cases (iudex inhabilis) under Article 48 of 
the CCP. 
14 Since the referring court’s jurisdiction to hear the motion for exclusion is based on 
the order of the Vice President of the Court of 14 July 2021, C-204/21 R, the next 
issue to be decided by the referring court is whether it should also disregard the 
aforementioned judgment of the Constitutional Court of 14 July 2021. 
15 In the view of the referring court, that judgment should be disregarded for two 
reasons: first, because it was delivered by a panel of judges which included a 
person who was not duly appointed as a judge of the Constitutional Court and 
therefore infringed the right to an independent and impartial tribunal established 
by law as guaranteed by Article 47 of the Charter. This is because one of the 
judges included in the panel was appointed to replace another judge who had died 
during his term of office. He was appointed despite the fact that the Sejm had 
previously elected another judge to the same post from whom the President of the 
Republic of Poland had refused to receive the oath. 
16 In its judgment of 7 May 2021 in Xero Flor v. Poland (application No 4907/18), 
the European Court of Human Rights found that a fundamental principle 
governing the procedure for the election of Constitutional Court judges had thus 
been breached, and that consequently, having regard to the three-step test 
indicated in the Guðmundur Andri Ástráðsson case, a panel that includes persons 
appointed to positions already occupied in the Constitutional Court is not a 
‘tribunal established by law’. What this means is that, in its rulings, the referring 
court should not take account of the decisions of such a body. 
17 Second, the instruments available to the national court for ensuring the effective 
application of EU law must be effective in themselves. It is not sufficient for the 
national court to be able to refer a question to the Court of Justice for a 
preliminary ruling under Article 267 TFEU, but the national court must also be 
able to apply EU law in a manner consistent with the Court’s ruling. Accordingly, 
any provision of a national legal system and any legislative, administrative or 
judicial practice which might impair the effectiveness of that law by withholding 
from the national court having jurisdiction to apply such law the power to do 
everything necessary at the moment of its application to set aside national 
legislative provisions which might prevent EU rules from having full force and 
effect are incompatible with those requirements which are the very essence of EU 
law (see judgment of the Court of Justice of 9 March 1978, Simmenthal, 106/77, 
EU:C:1978:49, paragraphs 21 to 23). 
18 According to the referring court, the effectiveness of EU law and Article 267 
TFEU would be jeopardised if, as a result of a judgment of a national 
constitutional court, it were not possible to refer a question to the Court of Justice 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-521/21 
 
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for a preliminary ruling and to apply EU law directly in accordance with a 
decision or case-law of the Court (judgment of 22 June 2010, Melki and Abdeli, 
C-188/10 and C-189/10, EU:C:2010:363, paragraph 53). Moreover, the ability to 
refer a question for a preliminary ruling cannot be limited by a national 
constitutional court ruling that an interim measure concerning procedure before 
the national courts is ultra vires. 
19 It follows from settled case-law that provisions of national law, even of 
constitutional rank, cannot be allowed to undermine the unity and effectiveness of 
EU law. Those principles apply to the relationship between the constitutional 
court and all other national courts. In Winner Wetten (judgment of 8 September 
2010, C-409/06, EU:C:2010:503, paragraph 56 and the case-law cited therein), 
referring to the need for the national court to retain full independence in the 
application of the principle of primacy, the Court of Justice additionally reinforced 
its arguments by referring to the principle of effective judicial protection as well 
as the principle of cooperation in good faith (Article 4(3) TEU). 
20 The referring court confirms that, irrespective of how the national judicial system 
is organised, it is the duty of the public authorities to guarantee the independence 
of all courts and judges at all times. Although the organisation of justice comes 
exclusively within the competence of the Member States, the latter, when 
exercising that competence, are required to comply with EU law, including the 
second subparagraph of Article 19(1) TEU, and interim measures intended to 
guarantee such independence cannot be regarded as ultra vires if, in order to be 
effective, they require the suspension of the application of certain rules of 
procedure before the national courts without whose suspension their purpose 
would not be achieved (see the judgment of 25 July 1991, Factortame and Others, 
C-221/89, EU:C:1991:320, paragraph 14 and the case-law cited therein; for the 
organisation of justice, see the judgment of 20 April 2021, Repubblika, C-896/19, 
EU:C:2021:311, paragraph 48 and the case-law cited therein). 
21 The requirement to respect the independence of judges is not a question of the 
way in which the judiciary is organised, since no discretion is left to the Member 
States in that regard. The right to an independent court, whether derived from the 
CRP, EU law or the European Convention on Human Rights, is not left to the 
discretion of the legislature, since judicial independence cannot be ‘organised’ in 
any way.