Opinion of the Advocate General — ECLI:EU:C:2022:986
Date: 2022-12-15
Language of the case: Polish
Subject matter: Fundamental rights;European Convention on Human Rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-671/20 – 1 
Case C-671/20 
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: 
9 December 2020 
Referring court: 
Sąd Okręgowy w Warszawie (Regional Court in Warsaw, Poland) 
Date of the decision to refer: 
9 December 2020 
Criminal proceedings against: 
M. M. 
  
Subject matter of the case in the main proceedings 
Criminal proceedings against M. M. 
Subject matter and legal basis of the reference 
Interpretation of Article 2 TEU and the second subparagraph of Article 19(1) 
TEU – judicial independence  
Questions referred 
1) Must EU law – in particular Article 2 TEU and the value of the rule of law 
expressed therein, the second subparagraph of Article 19(1) TEU and the 
principles of primacy, sincere cooperation and legal certainty – be interpreted as 
precluding the application of a Member State’s legislation, such as Article 41b(1) 
and (3) of the 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’), in such a manner that the president of a court may, independently and 
without judicial review, decide to change the composition of a court as a result of 
an authorisation granted by a body such as the Izba Dyscyplinarna [Sądu 
Najwyższego] (Disciplinary Chamber [of the Supreme Court, Poland]) for the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-671/20 
 
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criminal prosecution or detention of a judge included in the original panel 
(Regional Court Judge I. T.), which involves the mandatory suspension of that 
judge from his or her duties and entails, in particular, prohibiting that judge from 
sitting on panels in the cases assigned to him or her, including the cases assigned 
to him or her before the authorisation was granted? 
2) Must EU law – in particular the provisions cited in question 1 – be 
interpreted as precluding: 
a) legislation of a Member State such as Article 42a(1) and (2) and 
Article 107(1)(3) of the LSOC, which prohibits a national court from 
reviewing, in the course of that court’s review of its compliance with the 
requirements of being a tribunal previously established by law, the binding 
effect and legal circumstances of the authorisation granted by the 
Disciplinary Chamber referred to in question 1, which are a direct cause of 
the change in the composition of the court, while at the same time stipulating 
that an attempt to conduct such a review will give rise to disciplinary 
proceedings being instituted against the judge conducting it? 
b) the case-law of a national body, such as the Trybunał Konstytucyjny 
(Constitutional Court[, Poland]), according to which acts by national bodies 
such as the Prezydent Rzeczypospolitej Polskiej (President of the Republic 
of Poland) and the Krajowa Rada Sądownictwa (National Council for the 
Judiciary[, Poland]) related to the appointment of members of a body such 
as the Disciplinary Chamber are not subject to judicial review, including 
review from the point of view of EU law irrespective of the seriousness and 
extent of the infringements, and the appointment of a person to a judicial 
post is final and conclusive? 
3) Must EU law – in particular the provisions cited in question 1 – be 
interpreted as precluding the authorisation referred to in question 1 from having 
binding effect, in particular as regards the suspension of a judge from his or her 
duties, due to the fact that it was granted by a body such as the Disciplinary 
Chamber, and therefore: 
a) all State bodies (including the referring court as well as the bodies 
which have powers to designate and modify the composition of national 
courts, in particular a court president) must disregard that authorisation and 
allow the judge of a national court covered by that authorisation to sit on the 
adjudicating panel of that court; 
b) a court whose composition does not include the judge originally 
appointed to it – solely because he or she is covered by that authorisation – 
is not a tribunal previously established by law and therefore cannot, as a 
‘tribunal’, rule on questions concerning the application or interpretation of 
EU law? 
M. M. 
 
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4) From the point of view of the answers to the above questions, is it relevant 
that the Disciplinary Chamber and the Trybunał Konstytucyjny (Constitutional 
Court) do not guarantee effective judicial protection due to their lack of 
independence and the established infringements of the rules concerning the 
appointment of their members? 
Applicable provisions of EU law 
Article 2 TEU and the second subparagraph of Article 19(1) TEU 
Applicable provisions of national law 
Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland) – 
Article 144, Article 175, Article 179, Article 180, Article 181, Article 190(1); 
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 42a, 
Article 47b, Article 80, Article 107(1)(3), Article 110(2a), Article 129 
Ustawa z dnia 8 grudnia 2017 r. o Sądzie Najwyższym (Law of 8 December 2017 
on the Supreme Court; ‘the LSC’) – Article 27(1); 
Ustawa z dnia 6 czerwca 1997 r. – Kodeks postępowania karnego (Law of 6 June 
1997 – Code of Criminal Procedure) – Article 439(1). 
Brief outline of the facts and procedure 
1 The Prokuratura Okręgowa (Regional Public Prosecutor’s Office, Poland) charged 
M. M. with seven offences in total, including a failure to file a petition in 
bankruptcy (despite the relevant conditions being present), failure to satisfy 
creditors’ claims, bank fraud and failure to file the company’s financial 
statements. By order of the public prosecutor, security was established on M. M.’s 
assets against potential fines and court fees. The security was established by way 
of a compulsory mortgage on the immovable property owned jointly by the 
suspect and his wife G. M. That order by the public prosecutor was appealed by 
the suspect’s lawyer. 
2 In its resolution of 18 November 2020 (Case Ref. No II DO 74/20), the 
Disciplinary Chamber of the Supreme Court authorised the criminal prosecution 
of Judge I. T., suspended him from his duties and reduced his remuneration by 
25% for the duration of the suspension. Judge I. T. was originally appointed to 
hear the case in the main proceedings. By order of 24 November 2020, the 
President of the Sąd Okręgowy w Warszawie (Regional Court in Warsaw, Poland) 
ordered an urgent change in the composition of court panels in cases that had been 
assigned to the judge covered by the aforementioned resolution of the Disciplinary 
Chamber. This reassignment of cases also included the case at issue in the main 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-671/20 
 
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proceedings. An exception was the case with reference number VIII K 105/17 in 
which that judge had made a request to the Court of Justice for a preliminary 
ruling. 
3 Although it has not been explicitly stated that the change in the composition of 
court panels was a result of the resolution of the Disciplinary Chamber, the 
referring court is not aware of any other circumstance that could have been the 
cause of that change. 
4 Meanwhile, in its judgment of 5 December 2019 and in its orders of 15 January 
2020, the Chamber of Labour and Social Security Law of the Sąd Najwyższy 
(Supreme Court), hearing cases in connection with which the 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) was 
delivered, found that the Krajowa Rada Sądownictwa (National Council for the 
Judiciary; ‘NCJ’) in its current composition is not a body independent of the 
legislature and of the executive, and that the Disciplinary Chamber – also due to 
the fact that its members have been appointed upon the motion of the NCJ in its 
current composition – is not a ‘tribunal’ within the meaning of Article 47 of the 
Charter [of Fundamental Rights], Article 6 of the ECHR and Article 45(1) of the 
Constitution of the Republic of Poland, and in any case it is not an impartial body 
independent of political power. 
5 In their resolution of 23 January 2020, the combined chambers of the Sąd 
Najwyższy (Supreme Court) – the Civil Chamber, the Criminal Chamber and the 
Chamber of Labour and Social Security Law – stated that where a person 
appointed upon a motion of the newly selected NCJ is included in the composition 
of the Disciplinary Chamber, this results in the defectiveness of that adjudicating 
panel. For these reasons, rulings issued by adjudicating panels of the Disciplinary 
Chamber (since its establishment) are not court rulings. 
Brief statement of and reasons for the reference 
6 The referring court has doubts as to whether the president of the court acted 
correctly in preventing the judge covered by the resolution of the Disciplinary 
Chamber from hearing the case, which affects the referring court’s compliance 
with the criterion of being a tribunal previously established by law, since the 
question arises as to whether EU law entitles the president of a court to change the 
composition of a court as a result of the judge initially appointed to hear the case 
in the main proceedings being suspended from his duties by a body which does 
not itself meet the requirements for effective judicial protection and which has 
been recognised at the national level as a body which is not a ‘tribunal’ within the 
meaning of national and EU law. 
7 According to the case-law of the Court of Justice, every court is obliged to check 
whether, as composed, it constitutes an independent and impartial court previously 
established by law. Such a check is an essential procedural requirement, 
M. M. 
 
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compliance with which is a matter of public policy and must be verified of the 
court’s own motion (judgment of the Court of Justice of the European Union of 
26 March 2020, Review Simpson v Council and Review HG v Commission, 
C-542/18 RX-II and C-543/18 RX-II, EU:C:2020:232, paragraph 57 and the case-
law cited therein). 
8 Polish law does not provide for the possibility for the referring court to review the 
decision of the court president to change its composition in the context of the 
assessment as to whether this court meets the criterion of being a tribunal 
previously established by law. Additionally, Polish law prohibits, on pain of 
disciplinary action, a review of the aforementioned resolution of the Disciplinary 
Chamber from the point of view of the status of the body which issued it and its 
binding effect. 
9 In addition, the recent case-law of the Trybunał Konstytucyjny (Constitutional 
Court) clearly emphasises that national courts may not review the effectiveness of 
a person’s appointment to a judicial post and his or her powers arising from such 
an appointment, including whether the President of the Republic of Poland and the 
National Council for the Judiciary acted in accordance with the law when 
conducting the procedure for the appointment of judges. The referring court notes 
that the Trybunał Konstytucyjny (Constitutional Court) developed this case-law at 
a time when it was no longer a body providing effective judicial protection, and 
the Trybunał Konstytucyjny (Constitutional Court) panels issuing the rulings in 
question included persons who were not authorised to adjudicate as they had been 
selected for seats which the Sejm [the Lower Chamber of the Polish Parliament] 
had already filled during its 7th term. 
10 In order to assess whether it meets the criterion of being a tribunal previously 
established by law, the referring court must examine the resolution of the 
Disciplinary Chamber, including from the point of view of its binding effect, but it 
is prohibited from doing so by national legislation and by the case-law of a body 
which does not itself guarantee effective judicial protection. It is therefore 
doubtful whether the referring court has the power to carry out such a review, and 
thus whether Union law precludes the aforementioned provisions and the case-law 
of the Trybunał Konstytucyjny (Constitutional Court). 
11 An assessment of the legal effects of the authorisation granted by the Disciplinary 
Chamber, which involves the suspension of a judge from his or her duties, is an 
essential element of the above review. The referring court has doubts as to 
whether the judge in question has been effectively suspended from his or her 
duties. 
12 The referring court points out that the authorisation granted by the Disciplinary 
Chamber, which involves, in particular, the suspension of a judge of a national 
court from his duties, may, owing to the nature of that Chamber, not be a ‘judicial 
ruling’, since this term only applies to rulings made by a body which meets the 
requirements for effective judicial protection within the meaning of EU law. 
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Moreover, it is difficult to accept that this authorisation is unquestionably binding 
because it serves to ‘ensure the stability of law and legal relationships as well as 
the proper administration of justice’. The ability of the Disciplinary Chamber to 
suspend a judge of a national court from his or her duties – in practice for an 
indefinite period of time – does not in any way ensure the stability of law and 
legal relationships and certainly does not contribute to the proper administration 
of justice. 
13 Since, if the Court of Justice answers this question in the affirmative, other State 
bodies such as the Minister of Justice, the Public Prosecutor’s Office, court 
presidents, the Trybunał Konstytucyjny (Constitutional Court) or disciplinary 
bodies may attempt to limit the effects of that judgment in the national legal order, 
the referring court seeks to determine whether the obligation to refuse to grant 
binding effect to a Disciplinary Chamber ruling also extends to other State bodies 
and, accordingly, whether an unjustified refusal to allow a judge with respect to 
whom such an authorisation has been granted to sit on a court panel may infringe 
EU law. 
14 Pursuant to Article 105(1) of the Rules of Procedure of the Court of Justice, the 
referring court requests that the expedited procedure be applied in the present 
case. The referring court considers that a prompt ruling by the Court of Justice 
may dispel serious doubts as to the fundamental questions relating to the 
fundamental provisions of EU law mentioned in this reference and also as to the 
consequences which the interpretation of that law might have for the composition 
of the referring court itself.