Judgment;Summary — ECLI:EU:C:2025:592
Date: 2025-08-01
Language of the case: Polish
Court formation: Second Chamber
Procedure: Reference for a preliminary ruling
Origin: Poland

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: 
10 July 2023 
Referring court: 
Sąd Najwyższy (Poland) 
Date of the decision to refer: 
3 April 2023 
Appellant: 
T.B. 
Other parties to the proceedings: 
C.B. 
D.B. 
  
Subject matter of the main proceedings 
Division of common assets and division of legacy 
Subject matter and legal basis of the request 
Article 267 TFEU – Article 19(1) TEU, read in conjunction with Article 47 of the 
Charter of Fundamental Rights of the European Union – No legal remedy against 
a decision to appoint a judge, without his or her consent, to sit for a fixed period 
per year in another chamber having jurisdiction to hear a different type of case – 
Whether a court whose composition includes a judge who has not had the 
opportunity to appeal the appointment is an independent and impartial tribunal 
previously established by law 
 
i This case has been given a fictitious name that does not correspond to the names of any of the parties to the proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-422/23 
 
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Questions referred for a preliminary ruling 
(1) In a situation in which national law provides that a judge of the court ruling 
at final instance (a Supreme Court judge) may, by a discretionary decision of the 
President of that Court (First President of the Supreme Court), be appointed, 
without his or her consent, to sit for a fixed period per year in another chamber of 
that Court having jurisdiction to hear cases the nature of which differs from those 
with which that judge has hitherto dealt, instead of in a chamber of that Court in 
which, in accordance with his or her training and areas of competence, he or she 
normally sits, should the second subparagraph of Article 19(1) TEU, read in 
conjunction with Article 47 of the Charter of Fundamental Rights of the European 
Union (‘the Charter’), be interpreted as requiring that such a judge should, for the 
purpose of protecting his or her independence and autonomy, have an effective 
remedy against that decision before an independent and impartial tribunal in a 
procedure which satisfies the requirements of Articles 47 and 48 of the Charter? 
(2) Should [the second subparagraph of Article 19(1) TEU, read in conjunction 
with Article 47 of the Charter] be construed as meaning that a court of final 
instance of a Member State (Supreme Court), whose collegial three-member 
composition includes two judges who, without their consent, have been appointed 
by the President of that Court to sit on that Court away from their home chamber 
and to sit in a chamber competent for hearing the case in question, and who have 
not previously had the opportunity to challenge their appointment before an 
impartial and independent tribunal in a procedure which satisfies the requirements 
of Articles 47 and 48 of the Charter, is not an independent, impartial tribunal 
previously established by law and giving individuals effective access to justice in 
areas covered by EU law? 
Provisions of EU law cited 
The second subparagraph of Article 19(1) TEU, read in conjunction with 
Article 47 of the Charter of Fundamental Rights; Article 48 of the Charter of 
Fundamental Rights. 
Provisions of national law cited 
Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland): 
Article 186(1); 
Law of 8 December 2017 relating to the Supreme Court (‘the Law on the Supreme 
Court’): Articles 3, 10(1), 23, 24, 25, 26(1), 27a and 35; 
Decree of the President of the Republic of Poland of 14 July 2022 concerning the 
Rules of Procedure of the Supreme Court: Article 80(12); 
Law on the organisation of the ordinary courts of 27 July 2001: Article 22a. 
DAKA 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 The appeal on a point of law examined by the Sąd Najwyższy (Supreme Court) 
was brought by the party to the proceedings, T.B., against the order issued by the 
Sąd Okręgowy w Poznaniu (Regional Court, Poznan) on 9 September 2019 in a 
case brought by C.B., with the participation of T.B. and D.B., on the division of 
property held in common and partition of a legacy. 
2 By an order of 2 March 2023, a three-judge panel of the Civil Chamber of the 
Supreme Court was appointed to hear this appeal, two of whom (Supreme Court 
Judge B.B. and Supreme Court Judge M.P.) were judges of the Supreme Court 
who worked in the Supreme Court’s Chamber of Labour and Social Security, with 
jurisdiction over cases which were the diametrical opposite of the subject matter 
of the present case and of the subject matter of cases falling within the jurisdiction 
of the Izba Cywilna (Civil Chamber). 
3 The judge acting as First President of the Supreme Court, by unanimous orders 
(No 25/2023 and No 28/2023) of 15 February 2023 temporarily appointed 
Supreme Court Judges B.B. and M.P. to sit in the Civil Chamber of the Supreme 
Court from 1 April 2023 to 30 June 2023. This appointment was made without the 
agreement of the judges and without consulting them. After this appointment to 
the Civil Chamber, Supreme Court Judges B.B. and M.P. were not relieved of 
their obligation to exercise (to the usual extent) their judicial functions in the 
Chamber in which they had their usual place of work. 
4 The main basis for that appointment is to be found in Article 35(3) of the Law on 
the Supreme Court, which states that a (Supreme Court) judge may be appointed 
to sit on a particular case in another chamber and, with the judge’s agreement, for 
a specified time in another chamber, by the First President of the Supreme Court. 
A judge may be appointed to a different chamber without his or her agreement 
only for a maximum of 6 months in a year. Once the period for appointing the 
judge to another chamber has expired, the judge should continue to sit on the 
cases assigned to him or her in that chamber until their completion. 
5 Article 35(3) of the Law on the Supreme Court does not state explicitly that a 
decision to assign a judge to a different chamber requires justification. The orders 
assigning Supreme Court Judges B.B. and M.P. to sit in the Civil Chamber do not 
state any reasons. Media reports state that they were dictated by the desire to 
bolster the staff of the Civil Chamber to reduce the backlog of cases pending 
there. The referring court considers that this reason is all the more misguided, as 
the backlog of cases in the Civil Chamber was primarily the result of the so-called 
judicial reforms implemented in Poland in recent years. In the view of the 
referring court, the proper way to reduce the backlog in the Civil Chamber would 
not be to appoint judges holding posts in other chambers of the Supreme Court 
and who do not ordinarily sit on cases that are within the Civil Chamber's remit, 
but rather to appoint judges through a properly and constitutionally sound 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-422/23 
 
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application issued by the Krajowa Rada Sądownictwa (National Council of the 
Judiciary; ‘the NCJ’). 
6 In the view of the referring court, the fact that both the composition order and the 
order to appoint Supreme Court Judges B.B. and M.P. to sit on the Civil Chamber 
of the Supreme Court were issued by persons appointed to the Supreme Court 
under the same circumstances as in Case C-487/19, W. Ż., is highly relevant to the 
case, and, in the light of the case-law to date, court proceedings involving such 
persons are either invalid or breach the party’s right to a fair hearing as defined in 
Article 6 of the European Convention for the Protection of Human Rights and 
Fundamental Freedoms. Furthermore, the resolution of the NCJ, by which the 
President of Poland was presented with the applications to appoint those persons 
to the post of Supreme Court judge, had been legally annulled within the relevant 
scope by the judgment of 6 May 2021 in Case II GOK 2/18 by the Naczelny Sąd 
Administracyjny (Supreme Administrative Court). As a result, on 2 September 
2021, the full composition of the Civil Chamber of the Supreme Court issued an 
order to lodge a request for a preliminary ruling before the Court of Justice on the 
impact of these annulments and flaws in the procedures for nominating such 
judges of the Supreme Court. The Court of Justice has not yet given a ruling in 
Case C-658/22, which was opened in response to that order. 
7 In practice, the decision to appoint a judge to sit in a different chamber of the 
Supreme Court is essentially a discretionary decision. Neither the Law on the 
Supreme Court nor any other legislative provision makes explicit provision for 
judicial review of such a decision. The fact that some judges appointed to sit in the 
Civil Chamber attempted to challenge the orders appointing them before the NCJ 
does nothing to change this assessment. First, the NCJ is not a court or a judicial 
authority within any meaning of those words. Second, as the case-law of the 
Polish Supreme Court, the Court of Justice and the European Court of Human 
Rights has made clear, the NCJ, as established under the procedure set out in 
accordance with the Law of 8 December 2017 amending the Law on the National 
Council of the Judiciary and certain other laws, is not an independent and 
impartial body. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
8 The doubts raised by the referring court boil down to, firstly, the question 
whether, in a situation in which national law allows a judge of the Supreme Court 
holding his or her office in one of the chambers of the court to be assigned without 
his or her agreement to sit in another chamber of the court with jurisdiction for 
different types of cases, the second subparagraph of Article 19(1) TEU, read in 
conjunction with Article 47 of the Charter, is to be interpreted as meaning that a 
judge appointed to sit in a different Supreme Court chamber should, in order to 
preserve his or her independence and autonomy, have an effective legal remedy 
before an independent and impartial tribunal in proceedings which meet the 
DAKA 
 
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requirements of Articles 47 and 48 of the Charter, against the decision to appoint 
him or her. 
9 Secondly, these doubts relate to the question of whether a national court of final 
instance (the Supreme Court), whose three-judge panel includes two judges 
appointed, without their consent, to sit on that panel by the First President of the 
Supreme Court, and moved from their regular chamber to a chamber competent to 
hear the case, without being given the opportunity to appeal against the decision 
before an impartial and independent tribunal in a procedure meeting the 
requirements of Articles 47 and 48 of the Charter, constitutes an independent, 
impartial tribunal previously established by law and providing effective legal 
protection to individuals in areas covered by EU law. 
10 If the Court of Justice finds that a judge, appointed to sit in a chamber other than 
the chamber in which he or she regularly sits, should have the right to an effective 
legal remedy against such a decision before an independent and impartial tribunal 
in proceedings meeting the requirements of Articles 47 and 48 of the Charter, and 
that a three-judge panel of the Supreme Court which includes two judges who, 
without their consent, have been appointed to another chamber without first being 
given the opportunity to appeal against these conditions, is not an independent, 
impartial tribunal previously established by law and providing effective legal 
protection to individuals in areas covered by EU law within the meaning of the 
second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of 
the Charter, an appeal heard in that composition would be inadmissible, and the 
President of the Supreme Court in charge of the Civil Chamber would be obliged 
to change its composition. 
11 The present case is linked to EU law in two respects. Firstly, the Civil Chamber of 
the Supreme Court is responsible for cases concerning questions of the 
interpretation and application of EU law. It is therefore necessary to examine 
whether the Civil Chamber or its panels composed of judges appointed, by order 
of the First President of the Supreme Court, to sit in that chamber and other 
chambers of the same court, fulfil the requirements of the second subparagraph of 
Article 19(1) TEU, which would have repercussions for all cases heard by such 
panels in the Civil Chamber. Secondly, the orders of the First President of the 
Supreme Court relate to judges of that court who usually exercise their functions 
in the Chamber of Labour and Social Security, which hears cases considering 
issues relating to the interpretation and implementation of EU law, and where it 
needs to be examined whether the provisions of national law and the ability, used, 
in this case, to appoint them without ensuring for those judges the right to appeal 
against the decision before an impartial and independent tribunal in procedures 
which meet the requirements of Articles 47 and 48 of the Charter, infringes their 
independence and impartiality. 
12 By way of analogy, the referring court cites the judgment of the Court of Justice 
of 6 October 2021, W. Ż. (Izba Kontroli Nadzwyczajnej i Spraw Publicznych Sądu 
Najwyższego – Powołanie) (Chamber of Extraordinary Control and Public Affairs 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-422/23 
 
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of the Supreme Court – Appointment) (C-487/19, EU:C:2021:798). It points out 
that, while the appointment of a judge of the Supreme Court without his or her 
agreement to sit for a specified time in another chamber does not officially 
constitute a transfer of the judge to another court or another division of the same 
court, its consequences are, nevertheless, just as far-reaching and almost as severe 
as those of such a transfer. This assessment is reinforced by the fact that a judge 
transferred from his or her home chamber to sit in another chamber of the 
Supreme Court, on the one hand has to handle the full extent of cases in his or her 
home chamber, while on the other having to hear cases in the chamber to which he 
or she has been assigned. Moreover, judges in this situation are suddenly faced 
with cases whose nature differs completely from those they have dealt with 
previously and for which they are normally prepared and competent. Such 
assignment is therefore a significant obstacle to a judge’s performance of his or 
her duties, and the risk of the judge being so assigned may be used as a means of 
exerting pressure on the judge, and thus as a disciplinary measure which would 
influence the direction of his or her judicial decision-making. 
13 The referring court points out that the allocation of cases, based on their 
substance, among individual chambers of the Supreme Court is not a merely 
formal and random matter, but is fundamentally based on the fact that the State 
judicial system provides a foundation for different types of cases requiring 
different qualifications and varying professional training. When judges apply for a 
position at the Supreme Court, they specify the chamber in which they would like 
to work, and during the nomination procedure their qualifications are verified to 
ensure that they will handle cases which are within the competence of that 
chamber. It is therefore also important that, in accordance with the necessary 
standard of a right to a tribunal, individuals can also be certain that, at the last 
instance of the national courts (the Supreme Court), their cases will be heard by a 
court composed exclusively of judges having the appropriate professional 
qualifications and having training to hear the type of case in question, rather than 
by a court composed of judges some of whom normally deal with different types 
of cases.