Information;Order — ECLI:EU:C:2025:738
Date: 2025-09-30
Language of the case: Polish
Court formation: Ninth Chamber
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Poland

Summary C-542/24 – 1 
Case C-542/24 [Maski] i 
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 August 2024 
Referring court: 
Sąd Okręgowy w Słupsku (Poland) 
Date of the decision to refer: 
24 July 2024 
Appellant: 
A. B. 
Respondent: 
Skarb Państwa – Państwowe Gospodarstwo Leśne Lasy Państwowe 
Nadleśnictwo C. 
       
Subject matter of the main proceedings 
Consideration by the referring court, which is a court of second instance, of the 
appeal lodged by A. B. against the decision of the court of first instance 
dismissing his application for the establishment of a right of way on immovable 
property owned by the Skarb Państwa – Państwowe Gospodarstwo Leśne Lasy 
Państwowe Nadleśnictwo C. (Public Treasury – State Forests National Forest 
Holding C.). 
The referring court is uncertain whether, on account of its single-judge formation, 
it constitutes, in the circumstances of the specific case, a court which fulfils the 
conditions relating to an independent and impartial tribunal previously established 
by law. 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-542/24 
 
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Subject matter and legal basis of the request 
The request for a preliminary ruling pursuant to Article 267 TFEU concerns the 
interpretation of Article 2, the second subparagraph of Article 19(1), and Article 
6(1) TEU, in conjunction with the first and second paragraphs of Article 47 of the 
Charter of Fundamental Rights of the European Union. 
Question referred for a preliminary ruling 
Do Article 2, the second subparagraph of Article 19(1), and Article 6(1) of the 
Treaty on European Union, in conjunction with the first and second paragraphs of 
Article 47 of the Charter of Fundamental Rights, guaranteeing an effective remedy 
before a tribunal and the right to a fair and public hearing within a reasonable time 
by an independent and impartial tribunal previously established by law, preclude a 
provision of national law under which it is a rule that, following an appeal, the 
court of second instance must examine a case in civil proceedings in a single-
judge formation, and not in a professional collegiate formation (three professional 
judges), and a derogation from that rule, in all but a few statutory exceptions, in 
view of the complexity of the case or the precedent which it sets – consisting in 
the designation of a formation of three professional judges rather than a single 
judge – may be made only by way of an unchallengeable order of the president of 
the court, adopted at his or her discretion, irrespective of the substantive 
assessment of the judge designated to adjudicate in the case in a single-judge 
formation and not amenable to review? 
Provisions of European Union law relied on 
TEU 
Article 2, second paragraph of Article 19(1), and Article 6(1). 
Charter of Fundamental Rights of the European Union 
First and second paragraphs of Article 47. 
Case-law of the Court of Justice relied on 
Judgment of 26 March 2020, Review Simpson v Council and HG v Commission , 
C-542/18 RX-II and C-543/18 RX-II, EU:C:2020:232, paragraph 57. 
Judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, 
C-64/16, EU:C:2018:117, paragraph 44. 
Judgment of 5 June 2023, Commission v Poland (Independence and private life of 
judges), C-204/21, EU:C:2023:442, paragraphs 63 to 79. 
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Judgment of 20 April 2021, Repubblika, C-896/19, EU:C:2021:311, paragraphs 
62 to 65. 
Judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the 
system of justice), C-216/18 PPU, EU:C:2018:586, paragraphs 48 to 53. 
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 120 to 130. 
Provisions of Polish law relied on 
Constitution of the Republic of Poland 
Articles 2, 10, 31(3), 45(1), 173, 175(1), 176(1), 177, 178(1) and 183(1). 
Article 45(1) 
Everyone is entitled to a fair and public hearing, without undue delay, by an 
independent and impartial tribunal with jurisdiction. 
Ustawa z dnia 27 lipca 2001 r. – Prawo o ustroju sądów powszechnych (Law of 
27 July 2001 on the organisation of the ordinary courts) 
Articles 1(1) to (3), 2(1), 8, 9, 9a, 21(1), 22, 24(1), 27(1) and (2), 37a(1) and (2) 
and 37b. 
Article 2(1) 
Judicial tasks shall be performed by judges. 
Article 22(2) 
As regards management of the administrative activities of the court, the president 
of the court shall be subordinate to the president of the higher court and the 
Minister for Justice. 
Article 24(1) 
The president of a regional court shall be appointed by the Minister for Justice 
from among judges of a court of appeal, a regional court or a district court […]. 
Article 27(1) and (2) 
1. The president and vice-president of a court can be dismissed by the Minister 
for Justice while in office [in the cases specified in the present provision]. 
2. The dismissal of the president or vice-president of a court shall be effected 
after consulting the kolegium (general assembly) of the relevant court […]. 
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Ustawa z dnia 17 listopada 1964 r. – Kodeks postępowania cywilnego (Law of 
17 November 1964 establishing the Code of Civil Procedure) 
Articles 47, 367(1) to (3), 3671, 5051 and 50510. 
Article 47(1) and (4) 
1. The court shall examine cases at first instance in a single-judge formation, 
unless otherwise provided under a specific rule. 
[…] 
4. The president of the court may order that a case be examined in a three-
judge formation if he or she considers it advisable in view of the particular 
complexity or the case or the fact that it sets a precedent. 
Article 367(1) to (3) [in the version in force from 1 July 2023 to 27 September 
2023] 
1. Appeals against the judgment of a court of first instance may be brought 
before a court of second instance. 
2. Appeals brought against the judgment of a district court shall be examined 
by the regional court, and appeals brought against a judgment of the regional court 
at first instance shall be examined by the Sąd Apelacyjny (Court of Appeal). 
3. The court shall examine the case in a three-judge formation. In camera, the 
court shall rule in a single-judge formation, except when it adopts a decision 
referred to in Article 224(3) or a judgment. 
Article 367(1) to (3) [in the version in force from 28 September 2023] 
1. Appeals against the judgment of a court of first instance may be brought 
before a court of second instance. 
2. Appeals brought against the judgment of a district court shall be examined 
by the regional court, and appeals brought against a judgment of the regional court 
at first instance shall be examined by the Sąd Apelacyjny (Court of Appeal). 
3. (repealed) 
Article 3671 [in the version in force from 28 September 2023] 
1. The court [of second instance] shall examine the case in a single-judge 
formation except in cases: 
(1) concerning property rights in which the value of the subject of the challenge 
in just one of the appeals lodged exceeds one million zlotys, 
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(2) examined at the first instance by a regional court as the court having 
substantive jurisdiction, subject to paragraph 1, 
(3) examined at first instance in a three-judge formation under Article 47(4) 
– which are amenable to examination in a three-judge formation. 
[…] 
3. Wherever a law provides that a court of second instance is to examine a case 
in a single-judge formation, the president of the court can order that the case be 
examined in a three-judge formation if he or she considers it advisable in view of 
the particular complexity or the case or the fact that it sets a precedent. 
Rozporządzenie Ministra Sprawiedliwości z dnia 18 czerwca 2019 r. – Regulamin 
urzędowania sądów powszechnych (Regulation of the Minister for Justice of 
18 June 2019 laying down rules concerning the operation of the ordinary courts) 
Paragraph 46(3). 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant, A. B., claimed that a right of way should be established on a strip 
of land currently constituting a forest track on immovable property owned by a 
party to the proceedings, the Public Treasury – State Forests National Forest 
Holding C. 
2 The Public Treasury – State Forests National Forest Holding C. contended that the 
application should be dismissed. 
3 In its decision of 27 November 2023, the Sąd Rejonowy w Lęborku (District 
Court, Lębork), seised of the proceedings as regards the substance, dismissed the 
application. 
4 A. B. lodged an appeal against that decision with the Sąd Okręgowy w Słupsku 
(Regional Court, Słupsk), alleging infringement of substantive and procedural 
law. He requested that the order under appeal be varied by allowing the 
application as to the substance (establishment of a right of way in his favour in 
accordance with the application). 
5 The appeal was ruled admissible. The case was registered at the Sąd Okręgowy w 
Słupsku and it was stated that the appeal was subject to examination in a single-
judge formation, after which the submission thereof to the reporting judge was 
ordered by order of 21 February 2024. 
6 In its order of 7 May 2024, the reporting judge, having carried out a formal 
analysis and a preliminary substantive analysis, decided to submit the case file to 
the President of the Sąd Okręgowy w Słupsku for him to consider issuing an order 
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for the case to be examined in a formation of three professional judges in view of 
its particular complexity within the meaning of Article 3671(3) of the Code of 
Civil Procedure. 
7 In his reply of 8 May 2024, the President of the Sąd Okręgowy w Słupsku gave 
notice that he had found no indication, as referred to in that provision, that the 
case should be examined in such a formation. The President of the Sąd Okręgowy 
w Słupsku therefore did not issue an order for the case to be examined in a 
formation of three professional judges. 
8 Subsequently, the case was submitted to the previous reporting judge for further 
action. Having informed the parties of the stage of the proceedings, the reporting 
judge referred the case to be heard in camera for the purpose of making a 
reference for a preliminary ruling. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 The national court had serious doubts as whether, on account of its single-judge 
formation, it constitutes, in the circumstances of the specific case, a court which 
fulfils the conditions relating to an independent and impartial tribunal previously 
established by law. It kept in mind the fact that the guarantees which determine 
what constitutes a tribunal and how it is composed, represent the cornerstone of 
the right to a fair trial [judgment of 26 March 2020, Simpson v Council and HG v 
Commission (Review of judgments), C-542/18 RX-II and C-543/18 RX-II, 
EU:C:2020:232, paragraph 57]. What is crucial in this case is not the personal 
aspect of the formation of the court, but its size in the specific circumstances of 
the provisions of national and EU law. The serious doubts are closely related to 
the fact that that formation was indirectly determined by a body of internal 
administrative supervision, that is to say the president of the court, by the refusal 
to grant the reporting judge’s request for an order that the case be examined in a 
formation of three professional judges in view of the particular complexity of the 
case. The reporting judge, following a multi-faceted assessment of the case, 
concluded that the adherence to the guarantees relating a fair trial requires that the 
case be examined in a three-judge formation in view of the particular complexity 
thereof, but the president of the court did not concur with that assessment. 
10 By its question, the national court seeks to ascertain whether the instrument 
introduced into the Polish legal order as from 28 September 2023, contained in 
Article 3671 of the Code of Civil Procedure, conflicts impermissibly with the 
guarantees laid down in Article 2, the second paragraph of Article 19(1), and 
Article 6(1) TEU, in conjunction with the first and second paragraphs of Article 
47 of the Charter of Fundamental Rights. Consequently, the court would like to 
ascertain whether, in a situation where the president of the court has refused, 
pursuant to the Article 3671 of the Code of Civil Procedure, to order that the case 
be examined in a formation of three professional judges in view of the particular 
complexity of the case, the examination of the case by the court in a single-judge 
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formation allows retention of the guarantees of an effective remedy before a 
tribunal and the right to a fair and public hearing within a reasonable time by an 
independent and impartial tribunal previously established by law. In addition, the 
referring court has doubts as to whether the refusal to order the designation of a 
formation of three professional judges to examine the case, contrary to the 
reporting judge’s assessment of the need for such a formation, resulted an 
impermissible interference in sphere of judicial independence and a party’s right 
to a fair hearing – interference which is formally made possible by Article 3671(3) 
of the Code of Civil Procedure. 
11 The referring court takes the view that Article 3671 of the Code of Civil Procedure 
makes possible impermissible interference in the sphere of judicial independence 
and infringes a party’s guarantee of an effective remedy before a tribunal and the 
right to a fair and public hearing within a reasonable time by an independent and 
impartial tribunal previously established by law. The existence of that rule in the 
national legal order is, in the view of the referring court, contrary to Article 2, the 
second subparagraph of Article 19(1), and Article 6(1) TEU, in conjunction with 
the first and second paragraphs of Article 47 of the Charter of Fundamental 
Rights. 
The relevance of the correct formation of the court and the rule relating to the 
collegiate formation 
12 In national civil proceedings, it was a well-established tradition for the court to 
examine cases at first instance in a single-judge formation, unless a specific 
provision provided otherwise, and at second instance in a three-judge formation. 
As the Sąd Najwyższy correctly pointed out in its resolution of 26 April 2023 (III 
PZP 6/22), at the time when the Constitution of the Republic of Poland entered 
into force (on 17 October 1997), ruling in a collegiate formation by a court of 
second instance was a well-established rule of civil procedure, which was given 
legislative expression in the rules of the code. It thus formed part of the existing 
standard of the right to a tribunal, which was adopted by the new constitution now 
in force. The existence of that standard was due primarily to the well-established 
conviction that only adjudication at second instance in a formation of three 
professional judges makes it possible to ensure actual review of the judgment of 
the court of first instance and guarantees exercise of a party’s right to a fair 
hearing. That is because it increases the likelihood of a substantively correct 
decision and strengthens the judicial independence of the individual members of 
the adjudicating formation. 
13 The formation of a court in civil proceedings is not merely a technical issue. It has 
major significance as regards organisational structure and procedure. The 
formation of the court examining the case is of fundamental importance for the 
parties to the proceedings under the first and second paragraphs of Article 47 of 
the Charter of Fundamental Rights. This is because it concerns their fundamental 
procedural rights. The choice of the formation of the court (including its size) is 
not merely formal in nature but has a direct impact on the exercise of a party’s 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-542/24 
 
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right to a fair civil trial. A court established by law is an adjudicating court in a 
correct formation. At the same time, the correct formation of the court is a 
guarantee of functional independence. 
14 The collegiate formation is regarded as one of the guarantees of judicial 
independence and impartiality and serves to pluralise adjudication. In the course 
of deliberations, the reasons for and against a particular judgment are considered, 
which allows different points of view to be examined and the discussion to be 
systemised. The pluralisation of the adjudication contributes to the stability of 
case-law and significantly increases the likelihood of a correct ruling. 
Guarantees of judicial independence and the principle of judicial administration 
of proceedings 
15 In the present case, the assessment of the case as particularly complex was made 
by the reporting judge designated to adjudicate in the case in a single-judge 
formation. Therefore, in this case there is an independent and impartial entity 
administering judicial proceedings. 
16 According to paragraph 5 of Chapter I of Recommendation CM/Rec(2010)12 of 
the Committee of Ministers on judges: independence, efficiency and 
responsibilities (Adopted by the Committee of Ministers on 17 November 2010 at 
the 1098th meeting of the Ministers’ Deputies), judges should have unfettered 
freedom to decide cases impartially, in accordance with the law and their 
interpretation of the facts. According to paragraph 6 of Chapter I of that 
recommendation, judges should have sufficient powers and be able to exercise 
them in order to carry out their duties and maintain their authority and the dignity 
of the court. All persons connected with a case, including public bodies or their 
representatives, should be subject to the authority of the judge. According to 
paragraph 10 of Chapter I of that recommendation, only judges themselves should 
decide on their own competence in individual cases. 
17 The referring court shares the view that administrative supervision cannot extend 
to the sphere of activities involving the exercise of judicial duties. A judge must 
be guaranteed freedom to adopt decisions irrespective of the stage of the 
proceedings. The activity of the court consists of all jurisdictional acts performed 
at each stage of the judicial application of the law. Therefore, all acts relating to 
the administration of proceedings, both those of a preparatory and review nature 
and those of an adjudicating nature, should be classified as the administration of 
justice, and not judicial administration. A proper understanding of the principle of 
judicial administration of proceedings requires that all acts in a case, from the 
moment it is received by the court with jurisdiction, should be carried out by the 
reporting judge. Above all, that judge should make an initial examination of the 
case and, if necessary, issue appropriate the orders. 
18 There can be no doubt in this regard that a correctly formed court is one of the 
fundamental guarantees of judicial independence. The issue here is not only a 
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correctly formed court in the sense that it conforms with the applicable rules of 
national law. It is crucial that the national legislature construes the rules in such a 
way that, on the basis thereof, it is possible to form the court in such a way that 
the party’s right to a fair hearing can be exercised. As pointed out in the case-law 
of the ECtHR, the right of access to a court – that is, the right to institute 
proceedings before a court in civil matters – is inherent in the right to a fair trial 
enshrined in Article 6(1) ECHR, which sets out the safeguards applicable both to 
the organisation and composition of the court and the conduct of the proceedings 
(judgment of the ECtHR of 24 October 2023 in Pająk and Others v. Poland, 
CE:ECHR:2023:1024JUD002522618). The phrase ‘established by law’ covers not 
only the legal basis for the very existence of a ‘tribunal’ but also the composition 
of the bench in each case (judgment of the ECtHR of 9 January 2013 in Oleksandr 
Volkov v. Ukraine, CE:ECHR:2013:0109JUD002172211). 
Position of the president of the court 
19 The president of the court, to whom the reporting judge applied for the relevant 
order, is a body of the court (Article 21(1) of the Law on the organisation of the 
ordinary courts), appointed by the Minister for Justice (Article 24(1) thereof) to 
lead the court and represent it externally, analyse the case-law and perform other 
acts provided for in the law and separate regulations (Article 22 thereof). The 
president of the court also carries out internal administrative supervision of the 
administrative activities of the court. With regard to management of the 
administrative activities of the court, the president or the court is subordinate to 
the president of the higher court and the Minister for Justice (Article 22(2) 
thereof). 
20 It should be noted that an order as referred to in Article 3671(3) of the Code of 
Civil Procedure does not fall within the scope of administrative supervision. That 
is because it does not concern administrative acts. Instead, it covers the formation 
of the court and is thus concerned with the area of judicial independence. 
Legislative changes 
21 Article 3671 of the Code of Civil Procedure was introduced into the national legal 
order under the Ustawa z dnia 7 lipca 2023 r. o zmianie ustawy – Kodeks 
postępowania cywilnego, ustawy – Prawo o ustroju sądów powszechnych, 
ustawy – Kodeks postępowania karnego oraz niektórych innych ustaw (Law of 
7 July 2023 amending the Law establishing the Code of Civil Procedure, the Law 
on the organisation of the ordinary courts, the Law establishing Code of Criminal 
Procedure and certain other laws (Dz.U. of 2023, item 1860). Pursuant to that law, 
Article 367(3) of the Code of Civil Procedure was repealed at the same time. As a 
result of those amendments, it has become a rule that an appeal is to be examined 
by a court of second instance in a single-judge formation. The formation of three 
professional judges is provided for in cases (1) concerning property rights in 
which the value of the subject of the challenge in just one of the appeals lodged 
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exceeds one million zlotys, (2) examined at the first instance by a regional court 
as the court having substantive jurisdiction, having regard to paragraph 1, and (3) 
examined at first instance in a three-judge formation under Article 47(4) of the 
Code of Civil Procedure. In addition, a case may be examined in a formation of 
three professional judges where the law provides that the court of second instance 
is to examine the case in a single-judge formation, but the president of the court 
orders that the case be examined in a three-judge formation where he or she 
considers it advisable in view of the particular complexity or the case or the fact 
that it sets a precedent. 
22 The introduction of that rule into the Polish legal order marks a break with the 
long-standing tradition of a collegiate professional formation of the court of 
second instance hearing appeals, in force both at the time of the entry into force of 
the Constitution of the Republic of Poland and at the time of Poland’s accession to 
the European Union. 
23 It should be noted that although the organisation of justice in the Member States, 
in particular, the establishment, composition, powers and functioning of the 
national courts, and the rules governing the process for appointing judges or those 
applicable to the status of judges and the performance of their duties, falls within 
the competence of those States, the fact remains that, when exercising that 
competence, the Member States are required to comply with their obligations 
deriving from EU law and, in particular, from Articles 2 and 19 TEU. The Court 
of Justice points out that compliance by a Member State with the values contained 
in Article 2 TEU is a condition for the enjoyment of all the rights deriving from 
the application of the Treaties to that Member State. Compliance with those 
values cannot be reduced to an obligation which a candidate State is required to 
comply with in order to accede to the European Union and which it may disregard 
after its accession. In that regard, under the second subparagraph of Article 19(1) 
TEU Member States are obliged to establish a system of legal remedies and 
procedures ensuring for individuals compliance with their right to effective 
judicial protection in all the fields covered by EU law. Member States are to 
ensure that, in the light of the value of the rule of law, any regression of their laws 
on the organisation of justice is prevented, by refraining from adopting rules 
which would undermine the independence of judges (judgment of 5 June 2023, 
Commission v Poland (Independence and private life of judges), C-204/21, 
EU:C:2023:442). 
24 In the view of the referring court, there has been, in the light of the value of the 
rule of law, a regression of national law on the organisation of justice. For there to 
be effective review, it must be a rule that a case be examined at second instance in 
ordinary proceedings in a formation of three professional judges, and that such a 
rule was applicable both when the Constitution of the Republic of Poland entered 
into force and when the Republic of Poland acceded to the European Union. Even 
assuming that effective review is ensured as a rule by adjudication at second 
instance in a single-judge formation and only exceptionally in a formation of three 
professional judges, the introduction of an instrument by which the existence of 
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that exception is decided by the president of a court in an act which is not open to 
challenge or amendable to review leads to a significant reduction of the guarantee 
of a fair hearing and undermines judicial independence. The formation in which 
the court examines the case is not decided by an independent and impartial judge, 
but by a body of administrative supervision, the president of the court, who is 
appointed and dismissed by the Minister for Justice, who is also the Public 
Prosecutor General. The example of the present case shows that the judge’s 
assessment may prove to be irrelevant to the president of the court when deciding 
on the formation of the court. In that respect, that body does not fulfil the 
conditions necessary to decide on such an important issue as the formation of the 
court of second instance as it has not been endowed by law with the relevant 
qualities allowing it to adopt an independent, impartial and substantively justified 
decision. 
Competence to make a substantive assessment of the case in terms of the 
designation of three professional judges to examine it 
25 In national practice, the nature of an order of the president as referred to in Article 
3671 of the Code of Civil Procedure is not entirely clear. It is said that it is 
procedural in nature and that it may be altered only as a result of a change in the 
circumstances of the case. On the other hand, there seems to be no doubt that it is 
also structural in nature since it shapes the formation of the court. In that respect, 
it can be assumed that it does not fall within the scope of the administrative 
supervision of the president of the court as it does not concern administrative acts. 
It concerns a matter of fundamental importance, namely the formation of the 
court. 
26 As the law stands at present, the examination of a case in a formation of three 
professional judges in proceedings before a court of second instance depends on 
an unchallengeable decision of the president of the court, that is to say an 
administrative agent appointed by the Minister for Justice, who is also the Public 
Prosecutor General. Thus, the body supervising the courts has influence over the 
formation of the court examining the case. Such rules – especially in the current 
organisational structure, having regard to the position of the Minister for Justice, 
who is at the same time the Public Prosecutor General – on the status of the 
presidents of courts, provide an obvious basis for assuming that this has created 
the possibility of excessive influence by the administrative agent and the 
executive on the constitutional and European standard, which is the examination 
of a case by a court in a formation established by law. It should be noted that the 
competence of the president of the court as an administrative agent should be 
limited to acts of an administrative nature, and that does not concern the correct 
formation of the court. 
27 The conditions relating to the ‘complexity of the case’ and its ‘setting a precedent’ 
are undefined. The assessment as to whether a particular case is complex or sets a 
precedent requires multi-faceted considerations in the absence of precise statutory 
criteria for that assessment. 
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28 In the present case, the assessment of the case as particularly complex, which, in 
the view of the reporting judge, required the designation of a collegiate formation, 
was a multi-faceted assessment based on a thorough analysis of the case file in 
terms of its factual, evidentiary and legal aspects. The significance of the principle 
of the collegiate formation of the second instance court for the exercise of the 
rights of a party to the trial was also considered. The reporting judge considered 
that only a collegiate formation is capable of ensuring full protection of the rights 
of a party as provided for in the Constitution of the Republic of Poland and in EU 
law, in particular in the first and second paragraphs of Article 47 of the Charter of 
Fundamental Rights. 
29 The referring court’s fundamental point of uncertainty in that regard is whether 
the president of the court should make a substantive assessment of the case in 
terms of whether it fulfils the criterion relating to ‘particular complexity’ or 
‘setting a precedent’, and if so, whether he or she has the power to do so. In 
national practice, it is assumed that an order of the president of the court in that 
regard cannot be general in nature, but should be adopted on a case-by-case basis. 
Consequently, it should be assumed that the president of the court should assess 
each case coming before it in terms of whether there is a need to designate a three-
judge formation. In practice, however, it is clear that the president of the court 
does not have such technical and organisational capabilities. Moreover, carrying 
out such an analysis, infringes, in the view of the referring court, the principle of 
judicial independence and impermissibly encroaches on the administration of 
justice. It is only the reporting judge who, having examined the case file, is in a 
position reliably to assess whether there is a need to designate a formation of three 
professional judges. In practice, it is the reporting judge who, after making such 
an assessment, requests the president of the court to consider the designation of a 
formation of three professional judges. In the circumstances of the present case, 
however, the request of the reporting judge was refused by the president of the 
court, who did not concur with the reporting judge’s assessment that the case was 
particularly complex. 
30 The position that only the reporting judge has the power to assess whether a case 
is ‘particularly complex’ or ‘sets a precedent’ is supported by reasons relating to 
the principle of the judicial administration of proceedings. The possibility for the 
president of the court to refuse to accept the assessment of the reporting judge and 
for the president of the court not to order that the case be examined in a three-
judge formation results in an undesirable situation from the point of view of the 
guarantees provided for a party to the proceedings. That lies in the fact that the 
decision on the formation of the court is not made by an independent and impartial 
judge after an initial substantive assessment of the case, but by a body of internal 
administrative supervision appointed by the Minister for Justice, who is also the 
Public Prosecutor General. In the view of the court in this case, this weakens the 
standard of the right to a tribunal having competence from the point of view of its 
formation as provided for by statute. 
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31 The referring court has fundamental doubts as to whether, in a situation where the 
president of a court has refused, in the situation described, to order that a case be 
examined in a formation of three professional judges in view of the particular 
complexity of the case, the examination of the case in a single-judge formation 
will retain the guarantees of an effective remedy before a tribunal and the right to 
a fair and public hearing within a reasonable time by an independent and impartial 
tribunal previously established by law. It was the reporting judge designated to 
examine the case in a single-judge formation who assessed it as particularly 
complex and considered that there was a need to hear it in a formation of three 
professional judges. Dismissal of that assessment by a body of internal 
administrative supervision, namely the president of the court, disregards, in the 
view of the referring court, the principle of judicial independence and the right of 
a party to an effective remedy and a fair hearing. Article 3671(3) of the Code of 
Civil Procedure conferring that competence on the president of the court leads to a 
situation where a party to proceedings may be arbitrarily deprived of a proper 
review (an effective legal remedy) without the possibility of challenging the 
decision of the president of the court or the failure to adopt such a decision. The 
refusal of the president of the court to issue the relevant order may cause the 
parties to proceedings to have significant doubts as to whether their case will be 
examined with all the legal guarantees provided for in the Charter of Fundamental 
Rights. It should be noted that the president of the court is not an independent and 
impartial entity and, in that regard, Article 3671(3) of the Code of Civil Procedure 
contains terms so imprecise that it leaves that body broad scope for interpretation. 
That poses a real risk of arbitrary decisions being taken which are not justified in 
the circumstances of a particular case. The ensuing situation raises serious doubts 
in view of the requirement that any activity relating to the administration of justice 
should allow for building the confidence of a party as to the reliability and 
correctness of the decisions made by a body having with the relevant qualities. 
32 The answer to the question referred for a preliminary ruling is therefore of 
fundamental importance to the examination of the case as it concerns an issue as 
basic as whether the court is sitting in the correct formation. A finding that the 
provisions of EU law referred to in the question preclude rules of national law 
such as Article 3671 of the Code of Civil Procedure would mean that the president 
of the court is not authorised to issue an order as to the formation of the court of 
second instance and it would therefore be necessary to find another entity under 
national law with the relevant qualities and jurisdiction to adopt an appropriate 
decision in that regard.