Information;Order — ECLI:EU:C:2025:206
Date: 2025-03-03
Language of the case: Polish
Court formation: Ninth Chamber
Subject matter: Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Poland

Summary C-586/24 – 1 
Case C-586/24 [Rabal] 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: 
6 September 2024 
Referring court: 
Sąd Najwyższy (Poland) 
Date of the decision to refer: 
19 August 2024 
Party initiating the proceedings before the referring court: 
I.G. 
  
Subject matter of the main proceedings 
Proceedings in a case concerning approval of the heir being released from the 
legal consequences of a failure to submit a declaration of waiver of the succession 
Subject matter and legal basis of the request 
Article 267 TFEU – Interpretation of the second subparagraph of Article 19(1) 
TEU, read in conjunction with Article 47 of the Charter of Fundamental Rights of 
the European Union, with regard to the concept of ‘independent tribunal’ 
Questions referred for a preliminary ruling 
A. Must the second subparagraph of Article 19(1) of the Treaty on European 
Union, interpreted in light of Article 47 of the Charter of Fundamental Rights, be 
understood as follows: 
1) a court is not independent (including in a case falling within the scope of 
European Union law) if a person sitting on the panel of that court: 
 
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-586/24 
 
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(a) was appointed to the position of judge of the national court of last instance 
(Sąd Najwyższy; the Polish Supreme Court) in an obviously non-transparent and 
sham appointment procedure that ignored any assessment of his actual 
competence to serve as a judge of the Supreme Court (especially since that person 
had never been a judge or, indeed, had never practised any other legal profession), 
and with the application of a sham appeal procedure that deprived the body 
constitutionally empowered to propose candidates for judicial appointments of its 
decision-making independence; 
(b) was appointed in a procedure involving the Krajowa Rada Sądownictwa 
(National Council of the Judiciary) that had no democratic legitimacy; 
(c) has a personal interest in confirming the correctness of procedure by which 
he was appointed and gives rulings on the court’s lack of independence solely on 
the basis that a judge included in the panel of that court was appointed in a 
procedure involving the National Council of the Judiciary which, under national 
law, includes members with the necessary democratic legitimacy; 
(d) contrary to the nemo judex in causa sua principle, rules on the effectiveness 
of Supreme Court Resolution No BSA 1-4110-1/20 of 23 January 2020, 
previously issued with his participation: 
- despite the fact that the above resolution clearly violates European Union 
law and its interpretation resulting from the case-law of the Court of Justice of the 
European Union; 
- despite the fact that the above resolution was adopted with the participation 
of another person who clearly did not meet the statutory requirements for a judge 
of the Supreme Court, and who therefore cannot be considered a judge of the 
Supreme Court, and therefore any rulings made with the participation of that 
person must be considered non-existent in accordance with the position taken in 
domestic case-law; 
(e) invokes the criteria ‘developed’ in Supreme Court rulings that ostensibly 
demonstrate the lack of independence of other judges, which he himself does not 
adhere to, and evaluates persons who, unlike him, have held positions at all levels 
of the judicial system and were favourably assessed as candidates for judicial 
appointments by the National Council of the Judiciary in different periods when 
the Council included different members; 
(f) has benefited from the change of government by being a member of a body 
dependent on the executive; 
2) reasonable and serious doubts may still arise in the minds of individuals 
about the independence and impartiality of a judge who was appointed to the 
position of judge of the Civil Chamber of the Supreme Court as a result of being 
designated by the National Council of the Judiciary, which was allegedly 
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dependent on the executive during the previous two terms of the Polish 
Parliament, in a situation where: 
- there has been a change of government, and the procedure provided for in 
Article 7 of the Treaty on European Union has been closed with respect to the 
Republic of Poland; 
- the judge in question met all the criteria required for appointment to the 
position of judge of the Supreme Court (in particular, he held positions at all 
levels of the judicial system and obtained the required academic degree); 
- the judge in question was favourably assessed as a candidate for judicial 
appointment by the National Council of the Judiciary in different periods when the 
Council included different members, 
and if so, what would the judge’s lack of independence result from, how would it 
be manifested, and on whom would that judge be dependent? 
B. If question A.1) is answered in the affirmative, must the second 
subparagraph of Article 19(1) of the Treaty on European Union, interpreted in 
light of Article 47 of the Charter of Fundamental Rights, be understood as 
meaning that the national court of last instance (the Supreme Court) is obliged to 
form a panel (to hear a case concerning the ‘impartiality and independence test’) 
without the participation of that person and to hear the motion without the 
participation of that person (or persons) in a different composition as provided for 
in national law? 
Provisions of European Union law relied on 
Second subparagraph of Article 19(1) TEU 
Article 47(1) of the Charter of Fundamental Rights of the European Union 
Provisions of national law relied on 
Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland) of 
2 April 1997: Articles 179 and 180; 
Ustawa z dnia 8 grudnia 2017 r. o Sądzie Najwyższym (Law of 8 December 2017 
on the Supreme Court): Article 29(1), (2), (3), (4), (5), (6), (7), (15) and (21); 
Ustawa z dnia 17 listopada 1964 r. – Kodeks postępowania cywilnego (Law of 
17 November 1964 establishing the Code of Civil Procedure): Articles 49(1) and 
379(4). 
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Succinct presentation of the facts and procedure in the main proceedings 
1 By order dated 31 May 2023, the Sąd Rejonowy w Radomiu (District Court in 
Radom, Poland) dismissed the application brought by I.G., with the participation 
of H.G., T.P. and M.G., for approval of the heir being released from the legal 
consequences of a failure to submit a declaration of waiver of the succession. 
2 By order dated 16 November 2023, the Sąd Okręgowy w Radomiu (Regional 
Court in Radom, Poland) dismissed the applicant’s appeal against the above order 
of the District Court. 
3 An appeal on a point of law against the above order of the Regional Court in 
Radom was brought by the applicant I.G. 
4 By letter dated 19 July 2024, the applicant requested – pursuant to Article 29(5) of 
the uSN (Law on the Supreme Court) – a declaration that Supreme Court Judge 
XY, selected for the panel hearing case No I CSK 1762/24 on the acceptance of 
the appeal on a point of law for examination, did not meet the requirements of 
independence and impartiality, and requested that she be recused from hearing the 
case at issue. The applicant justified his request by the speed of the judge’s 
promotion – she had been a Supreme Court Judge since 10 October 2018, while in 
2000-2003 she had undergone judicial training ending in a judicial exam, in 2003-
2007 she was an assistant judge, in 2007-2010 she was a judge of the District 
Court in Lublin, in 2011-2016 she was a judge of the District Court Lublin-
Wschód in Lublin with its seat in Świdnik and Chair of the First Division dealing 
with Civil Matters, in 2016-2018 she was a judge of the Regional Court in Lublin, 
and in 2017-2018 she was delegated to the Sąd Apelacyjny (Court of Appeal) in 
Lublin. In addition, she was President of the Supreme Court in charge of the Civil 
Chamber, and in 2022 she changed the composition of the court after one of the 
judgments of the Court of Justice. 
5 The five-member panel selected by lot to hear the above application included, 
among others, Supreme Court Judge Tomasz Szanciło as presiding judge and 
rapporteur, Supreme Court Judges AG and BT as members of the adjudicating 
panel, and Supreme Court Judge ZC as an alternate member of the panel. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
6 The issue which has arisen in the present case combines several interconnected 
matters relating to two procedural institutions provided for in national law (Polish 
civil procedure), namely the recusal of a judge (under the Code of Civil 
Procedure) and the ‘impartiality test’, that is to say, an examination of the 
requirements relating to the independence and impartiality of a judge – in this case 
a judge of the Supreme Court (under the Ustawa o Sądzie Najwyższym; Law on 
the Supreme Court), while a similar solution is provided for (in a different legal 
act) in relation to judges of ordinary courts. 
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Question A.1) 
7 The first issue concerns the status (in the context of dependence) of a person who 
was appointed to serve as a Supreme Court Judge in the circumstances described 
in the question and who, moreover, lacks the sufficient democratic legitimacy 
required in light of general constitutional principles, including the norms 
enshrined in the Constitution of the Republic of Poland. That person does not see 
the flaws in his own appointment procedure, and by challenging a method for 
selecting judges that differs from the one he believes to be correct, he actually 
seeks to legitimise his own flawed appointment procedure. To that end, the person 
in question invokes the criteria ‘developed’ in Supreme Court rulings (primarily in 
his ‘own’ rulings, that is to say, rulings given with the participation of that person, 
who has a direct interest in the assessment of his own appointment procedure). 
Those criteria – which he himself does not meet – supposedly demonstrate the 
lack of independence of other judges. Crucially, that judge, when giving rulings, 
makes biased assessments that disregard key constitutional arguments (including 
those arising from the Court’s case-law) with respect to persons who, unlike him, 
have held positions at all levels of the judicial system and were favourably 
assessed as candidates for judicial appointments by the National Council of the 
Judiciary (‘the NCJ’) when it performed its constitutional duties in different 
periods and included different members. Moreover, the judge in question has 
benefited (for instance, through material gain) from the change of government, 
having been appointed by the Prime Minister to a body dependent on the 
executive (an internal unit of the Council of Ministers). At the same time, he can 
be dismissed from that body at any moment by the Prime Minister without any 
reason being given, which stands in clear contradiction to those developed 
Supreme Court criteria and directly demonstrates the subordination of that 
Supreme Court judge to, and his dependence on, the executive. In addition, that 
judge sees no obstacle to being included in the same panel, for instance, as a 
person who has been appointed to the position of judge of the Supreme Court 
despite not meeting the formal requirements for that position. 
8 The provisions of national (and international) law do not specify the standard of 
independence or impartiality. They do not even define what independence and 
impartiality are within the meaning of the law, or what can or should constitute an 
infringement thereof. Moreover, under Polish law, the terms ‘impartiality’ and 
‘independence’ have different scopes and meanings. Nor do those provisions 
indicate whether the sole criterion for assessing a lack of independence and 
impartiality is the judge’s conduct or other circumstances beyond the judge’s 
control. In the order of the Supreme Court of 23 February 2023, No I ZB 44/22, it 
was held that the individual circumstances relating to the appointment of the judge 
in question must be assessed: ‘the circumstances surrounding the appointment of a 
judge against the background of Article 29(5) of the Law of the Supreme Court 
should be understood not as circumstances of a general nature, relating to 
systemic arrangements in the process of appointing judges (and thus, in essence, 
circumstances relating to the manner of their appointment), but as the individual 
circumstances relating to the appointment of a particular judge, with respect to 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-586/24 
 
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whom the application to carry out an independence and impartiality test has been 
submitted’ (see, also, the order of the Supreme Court of 3 November 2022, No V 
KB 10/22). 
9 In light of the case-law of the Trybunał Konstytucyjny (Constitutional Court, 
Poland), the independence of a judge (individual criterion) in the constitutional 
sense consists of several key elements, which include: (1) impartiality vis-à-vis 
the parties to the proceedings; (2) independence from non-judicial bodies 
(institutions); (3) the judge’s independence from the judicial authorities and other 
judicial bodies; (4) independence from the influence of political factors, especially 
political parties; and (5) the judge’s internal independence. A particularly flagrant 
breach of the duties associated with the principle of independence is a violation of 
the judge’s duty to maintain impartiality, which may consist, among other things, 
in giving rulings in line with the suggestions or instructions given to the judge by 
third parties, as well as anticipating those suggestions with a view to the benefits 
to be obtained from them. 
10 The referring court draws attention to the resolution of the combined three 
Chambers of the Supreme Court – the Civil Chamber, the Criminal Chamber, and 
the Chamber of Labour Law and Social Security – of 23 January 2020 (No 
BSA 1-4110-1/20, ‘the 2020 resolution’), which was, in fact, not issued by all the 
judges from those three chambers (some Supreme Court judges were excluded 
from adjudicating without a legal basis). That resolution defined subjective 
‘criteria’, not derived from any legal norms or well-established standards, which 
can be used to assess whether a court that includes judges appointed to judicial 
positions with the participation of the NCJ constituted in accordance with the 
provisions of the 2017 law is correctly composed, that is to say, whether and in 
what circumstances, in connection with an allegedly defective appointment, a 
judge’s independence and impartiality are undermined; consequently, the 
resolution formulated the conditions for determining that proceedings – with 
respect to cases heard under the Code of Civil Procedure – are invalid due to the 
aforementioned circumstances. The resolution set out abstract assessment criteria, 
which were different for ordinary court judges and Supreme Court judges. 
Moreover, it introduced a temporal division related to the effects of the 
application of the interpretation of Polish law allegedly derived in that regard from 
European Union law in light of the Court’s case-law. The resolution provided the 
point of departure for the rulings issued by panels of the Supreme Court that 
included judges appointed prior to 2018. 
11 In its judgment of 20 April 2020, the Constitutional Court found the 
aforementioned resolution to be an act that set out general and abstract norms, and 
that finding in turn provided the basis for assessing the resolution as incompatible 
with the Constitution of the Republic of Poland, Article 2 and Article 4(3) TEU, 
and Article 6(1) of the ECHR. 
12 The 2020 resolution, which provided the basis for the authority to examine a 
judge’s independence and impartiality, was based, as is apparent from its grounds, 
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on the Court’s 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, as well as on the Supreme Court rulings indicated in 
its grounds. The above judgment of the Court of Justice, similarly to its later 
judgment of 2 March 2021, A.B. and Others (Appointment of judges to the 
Supreme Court – Actions), C-824/18, EU:C:2021:153, was implemented in the 
relevant scope by the Republic of Poland through the enactment and entry into 
force of the ustawa z dnia 9 czerwca 2022 r. o zmianie ustawy o Sądzie 
Najwyższym oraz niektórych innych ustaw (Law of 9 June 2022 amending the 
Law on the Supreme Court and certain other laws, Dziennik Ustaw (Journal of 
Laws) of 2022, item 1259). Therefore, the aforementioned resolution was 
deprived of any basis not only due to the ruling of the Constitutional Court, but 
also due to the entry into force of the amending law, which implements the above 
judgments of the Court of Justice. Since the change in the regulations, the 
circumstances surrounding the appointment of a judge cannot form the sole basis 
for challenging a ruling given with the involvement of that judge or for 
questioning his or her independence and impartiality. At the same time, in 
transposing the standard resulting from the Court’s interpretation to Polish 
legislation, the legislature introduced the ‘impartiality test’. 
13 The referring court points out that the 2020 resolution was adopted with the 
participation of a person who – in light of the basic criterion developed therein, 
that is to say, the defectiveness of the judicial appointment procedure – never 
actually became a judge of the Supreme Court. It describes the circumstances of 
the appointment of GK – a judge involved in adopting that resolution – who, in 
the view of the referring court, did not, at the time of his appointment as a 
Supreme Court judge, meet the mandatory requirement of ten years of judicial 
service, given that in the case of that judge ‘the Council has decided to apply a 
broad interpretation in this regard’ by ordering a vote on ‘the candidate’s 
qualifications’. The referring court notes that GK completed his legal training at a 
branch of the Wojskowa Służba Wewnętrzna (Internal Military Service) and 
subsequently heard cases during martial law in Poland [1981–83]. He was also a 
member of the Polska Zjednoczona Partia Robotnicza (Polish United Workers’ 
Party [the communist party]) and, according to media reports, failed to disclose 
that fact in the statement he was obliged by law to submit as a Supreme Court 
judge. 
14 The referring court points out that, firstly, as a result of the above, all the 
judgments given with GK’s participation were issued by a court in a composition 
contrary to the law, as it included a person who, unlike those appointed to the 
Civil Chamber of the Supreme Court in 2018, did not even meet the formal 
requirements to become a judge of the Supreme Court, nor did he meet the basic 
ethical requirements for that position. In addition, as one of the authors of the 
2020 resolution, GK actively assessed the eligibility of persons appointed during 
the democratic era [in Poland]. GK engaged in such ‘judicial activities’ until his 
retirement in 2024. 
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15 Secondly, the referring court notes that although the persons selected by lot to 
serve on the panel adjudicating in the present case were fully aware of the above 
facts, they did not object to the inclusion of a person such as GK in the 
adjudicating panels of the Supreme Court. This is particularly true of Supreme 
Court Judge ZC, who on several occasions heard cases together with GK in the 
same chamber, not only with respect to the adoption of the 2020 resolution. 
Supreme Court Judges BT and AG sat on the same panel as GK at least on 
23 January 2020. 
16 In the view of the referring court, the 2020 resolution was, moreover, adopted in 
flagrant violation of the rules of procedure, since, in a procedure not envisaged by 
law and without any legal basis, three judges (one from each chamber) issued an 
order recusing seven judges of the Civil Chamber of the Supreme Court from 
participating in the proceedings related to the adoption of the resolution; allegedly, 
the resolution (which was, after all, abstract in nature) ‘directly concerned’ those 
judges. Above all, no procedure existed then (or now) for recusing judges in that 
type of case, and this is true both with respect to national and EU law, as 
confirmed by the Court of Justice in its order of 9 January 2024, Sąd Najwyższy, 
C-658/22, EU:C:2024:38. That order, however, has not been respected by the 
Supreme Court judges appointed before 2018 (which illustrates their instrumental 
approach to the application of EU law and the Court’s case-law). Those subject to 
the ‘assessment’ were also unable to challenge the order regarding their ‘recusal’, 
which had the lasting effect of depriving those ‘recused’ judges of the opportunity 
to present their position on appeal. The 2020 resolution de facto amounted to 
personal vetting and was an example of legislative activity that obviously and 
flagrantly violated the principle of the separation of powers, since its purpose was 
to prevent judges appointed to the Supreme Court after 2018 in accordance with 
constitutional and statutory norms from adjudicating cases. 
17 The intention of the adjudicating panel adopting the above resolution was 
therefore to reduce the composition of the Supreme Court exclusively to judges 
appointed before 2018. Thus, the nemo judex in causa sua principle is primarily 
applicable to those who adopted the 2020 resolution, namely the ‘old’ judges who 
ruled in their own case and in accordance with their own particular interests in 
order to consolidate their position within the Supreme Court both in terms of 
prestige and in strictly material terms (for instance, in connection with receiving 
duty allowances). The resolution in question contains arguments that amount to 
unsubstantiated insinuations based on ‘knowledge derived from media reports’. 
Those insinuations were later reproduced by those who adopted the resolution in 
Supreme Court rulings, and also cited in proceedings before the Court of Justice 
and the European Court of Human Rights. The arguments contained in the 2020 
resolution are not truthful, and this concerns in particular the highly publicised 
matter of the Naczelny Sąd Administracyjny (Supreme Administrative Court; ‘the 
SAC’) having issued a protective order with respect to an NCJ resolution. 
18 Under national law, the provisions of the Code of Civil Procedure on cassation 
appeals apply to proceedings before the SAC. The Prezydent Rzeczypospolitej 
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Polskiej (President of the Republic of Poland), who supposedly should have 
suspended the appointments of Supreme Court judges based on that order, is not 
(and was not in that case either) a party to the proceedings before the SAC, and 
thus any such order would not be served on him. That alone means that the 
protective order cannot have any effect on the President of the Republic of Poland. 
Nevertheless, there is also no justification for the application of a protective order 
in public proceedings related to a prerogative of the President of the Republic of 
Poland in order to bind the President, since protective orders are exclusively 
applied and provided for in private-law disputes. Civil proceedings are completely 
different from public proceedings. The provisions of the Code of Civil Procedure 
were to be applied ‘appropriately’, which required taking into account the 
principles of public law, rather than applied directly. Issuing the protective order 
was clearly contrary to the law in that context. In addition, no protective order was 
served at any stage of the proceedings or subsequently on the judges appointed to 
the position of Supreme Court judges in 2018, including Supreme Court Judge 
Tomasz Szanciło. Those persons were not parties to the proceedings before the 
SAC, and they were not even recognised as such by the SAC, which in itself 
means that any ‘protective order’ could not have had any legal effect on them. If 
those persons had been parties to the proceedings, then – under the Code of Civil 
Procedure – the order (as well as other documents) should have been served on 
them, and as a result it would have been subject to appeal. The assumption that 
those individuals had ‘knowledge’ of the protective order, as expressed in the 
2020 resolution, is completely false. In a state governed by the rule of law, a 
‘protective order’ cannot have any legal effect on a person who is not a party to 
civil proceedings, much less can such a person be required to learn about the 
content and scope of a ‘protective order’ from the media, for instance. Those 
circumstances demonstrate that the aforementioned resolution and the rulings 
based on it have been made in bad faith, clearly violating the standard of judicial 
impartiality of the persons making those rulings. 
19 Moreover, it does not follow from the protective order that the enforcement of the 
NCJ resolution was suspended with respect to Tomasz Szanciło, among others. 
The order indicated that the resolution would be suspended ‘in the contested part’, 
which the SAC did not designate. 
20 To conclude this section of the considerations, the referring court stresses that the 
application of the 2020 resolution and the alleged interpretation of Polish law in 
accordance with European Union law to judgments given before the adoption date 
of the 2020 resolution and to judgments that were to be given in proceedings 
pending on that date is directly contrary to the position expressed in the 
established case-law of the Court. Indeed, it is for the Court of Justice alone to 
decide in each case on any limitations on the temporal effects of the Court’s 
interpretation of the relevant provision (see the following judgments: of 
2 February 1988, Barra and Others, 309/85, EU:C:1988:42; of 15 April 2010, 
Barth, C-542/08, EU:C:2010:193; and of 15 September 1998, Edis, C-231/96, 
EU:C:1998:401). It is only quite exceptionally that the Court may, in application 
of the general principle of legal certainty inherent in the European Union legal 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-586/24 
 
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order, be moved to restrict the opportunity to rely on a provision which it has 
interpreted (see the judgments: of 10 January 2006, Skov and Bilka, C-402/03, 
EU:C:2006:6, paragraph 51; of 3 June 2010, Kalinchev, C-2/09, EU:C:2010:312; 
of 14 April 2015, Manea, C-76/14, EU:C:2015:216; and of 20 December 2017, 
Caterpillar Financial Services, C-500/16, EU:C:2017:996). Indeed, a rule as 
interpreted by the Court may and must be applied to legal relationships arising and 
established before the judgment in regard to the request for interpretation is 
issued, provided that in other respects the conditions for bringing before the courts 
having jurisdiction an action relating to the application of that rule are satisfied 
(see the judgments: of 2 February 1988, Blaizot and Others, 24/86, 
EU:C:1988:43; of 10 January 2006, Skov and Bilka, C-402/03, EU:C:2006:6; of 
18 January 2007, Brzezinski, C-313/05, EU:C:2007:33; of 14 April 2015, Manea, 
C-76/14, EU:C:2015:216; and of 20 December 2017, Caterpillar Financial 
Services, C-500/16, EU:C:2017:996). 
21 Despite the above circumstances, the judges selected by lot to adjudicate in the 
present case (Supreme Court Judges AG, BT, and ZC – as an alternate judge) 
invoke the 2020 resolution and in doing so deliberately fail to take into account 
that they themselves participated in an appointment procedure that was sham and 
that failed to observe the minimum standards required in a state governed by the 
rule of law. 
22 For several years now, national case-law and public debate have contributed to 
creating the false impression that appointments to the position of judge of the 
Supreme Court under the legislation introduced in 2017 are somehow flawed. This 
issue is related to that part of the NCJ that is composed elected judges. In light of 
the Constitution of the Republic of Poland, the requirements established therein 
can be fulfilled not by the ‘co-optation and corporation model’ (in place before the 
amendments introduced by the 2017 law), which benefited, among others, the 
members of the adjudicating panel in the present case, but rather by the current 
framework, which consists in appointing the ‘judicial part’ of the NCJ in line with 
the standard of the ‘chain of democratic legitimacy’ of that body (derived from the 
German phrase eine ununterbrochene Legitimationskette vom Volk; the concept 
itself is well established in the case-law of the German Federal Constitutional 
Court). 
23 In the view of the referring court, what is at issue here is an acceptable framework 
for selecting members of the NCJ from among judges who make up the majority 
of that constitutional public body; that framework is derived from the principle of 
a democratic state and the principle of the sovereignty of the people. Those 
principles require that all exercise of state power – and therefore also that relating 
to the NCJ and the courts, in particular those explicitly listed in the Constitution of 
the Republic of Poland, namely the Supreme Court and the SAC – is attributable 
to the will of the people. 
24 Irrespective of the manner in which the ‘judicial part’ of the NCJ was selected, 
arguments continue to be put forward (because this does not in any way follow 
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from the Constitution of the Republic of Poland) that the selection of NCJ 
members exclusively by a professional group of judges under the ‘co-optation and 
corporation model’ (provided for in legislation prior to 2018) follows from 
‘constitutional convention’. That approach would suggest that convention and past 
interpretation can be treated as unchangeable sources of law. This is clearly an 
erroneous assumption, since those are not sources of law, and it would also mean 
that no court would be able to interpret any legal provision differently from the 
interpretation given at an earlier date. In that context, it should be noted, in 
contrast to the arguments raised by the European Court of Human Rights, that the 
framework for the selection of judge-members of the NCJ was not explicitly 
confirmed in the case-law of the Constitutional Court, since before 2017 the 
Constitutional Court had never ruled on the constitutionality of that framework. 
25 On constitutional grounds, one could defend the view that only the manner of 
appointing the ‘judicial part’ of the NCJ according to the standard of the ‘chain of 
democratic legitimacy’ of that body meets constitutional and EU requirements. 
The principle of an unbroken chain of legitimacy applies to all branches of 
government – the legislature, executive, and judiciary – although in the case of the 
latter the democratic mandate is indirect and is derived during the appointment 
procedure from the two bodies involved in that procedure, namely the NCJ and 
the President of the Republic of Poland. In that regard, claims that, for instance, 
Germany is an established democracy, whereas Poland should be considered a 
country where democracy is not firmly established and analogous legal solutions 
are de facto not analogous, appear to be entirely unfounded. Standards must be 
uniform across the European Union, and it is not permissible to divide countries 
into well-established and less well-established democracies (whatever that vague 
notion is supposed to mean). 
26 The referring court points out that the judges selected by lot to the adjudicating 
panel, and appointed to their positions before 2018, authoritatively state (ruling in 
their own case) that there were no irregularities in their appointment procedures. 
Meanwhile, aside from the undemocratic composition of the NCJ participating in 
their appointments, an obviously non-transparent and sham appointment 
procedure was in effect at that time, bypassing any assessment of the actual 
competences needed to serve as a judge of the Supreme Court, and with the 
application of a sham appeal procedure that deprived the body constitutionally 
empowered to propose candidates for judicial appointments of its decision-making 
independence. In that context, the referring court describes in detail the careers of 
judges AG, BT, and ZC, presenting the view that their appointments as Supreme 
Court judges were not based on objective criteria, as they had not previously 
practised as judges. 
27 In the view of the referring court, prior to 2018, competitions for judicial positions 
at the Supreme Court were a sham: with few exceptions, only ‘designated’ 
candidates, that is to say, those agreed upon in certain circles of the judicial 
community, took part. In principle, no one else had the opportunity to successfully 
apply for the position of Supreme Court judge, as the Law on the Supreme Court 
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in effect at that time gave the General Assembly of Judges of the Supreme Court 
the right to decide which of the candidates entering the competition would be 
subject to assessment by the NCJ. Those who submitted their applications in the 
competition and were not approved by the General Assembly of Judges had no 
opportunity to have their achievements assessed by the NCJ or to appeal the 
decision made by the Supreme Court judges. Even if the NCJ at that time 
attempted to be ‘independent’ by stating that a given candidate was unsuitable for 
office, as was the case with AG and ZC, an appeal was possible to the Supreme 
Court, that is, to the very court where the candidates were due to serve, and that 
appeal was heard by judges who had not only already given their approval, but 
had also formally expressed their views on the candidates. The NCJ was thus 
unable to fulfil its constitutional obligations in that regard. In fact, the NCJ did not 
actually decide who was the ‘right’ candidate for the Supreme Court; it was 
merely a body that gave the appearance of exercising the powers entrusted to it. 
28 Only in 2018 did the first transparent competition for the Civil Chamber of the 
Supreme Court take place before the newly appointed NCJ. As many as 34 
candidates applied for 7 positions (the candidates were judges of regional courts 
and courts of appeal seeking ‘natural promotion’ and motivated by the desire for 
professional development within the judiciary, as well as members of academia 
and practitioners of other legal professions with academic degrees). 
29 The referring court points out that, unlike the aforementioned judges selected by 
lot to the adjudicating panel in the present case, Supreme Court Judge Tomasz 
Szanciło – the presiding judge and rapporteur in the present case, who is 
submitting this reference for a preliminary ruling – has held positions at all levels 
of the judicial system, beginning as a court trainee and subsequently serving as an 
assistant judge, a district court judge, a regional court judge and an appeal court 
judge, before becoming a judge of the Supreme Court. At the time of his 
appointment to the latter position, he had 18 years of experience in the judiciary, 
including more than 15 years as a judge, having served for several years in the 
Court of Appeal in Warsaw, first on the basis of a delegation from the president of 
that court, then a ministerial delegation, and finally as a judge of that court. At the 
same time, he worked in academia, obtaining a doctorate and then a post-doctoral 
degree in law. This means that, in 2018, he not only met the statutory 
requirements related to judicial experience but could also apply for the position as 
he fulfilled the formal condition of holding a post-doctoral degree in law. 
30 The current state of affairs is that persons who had never previously been judges, 
but who were appointed as Supreme Court judges in the non-transparent 
procedure described above, are assessing the independence and impartiality of 
judges with several decades of experience, who meet all the requirements, and 
who took part in the appointment procedure before the NCJ composed in 
accordance with the 2017 law. It should also be noted that statutory provisions are 
presumed to be compatible with the Constitution so long as the competent 
authority, that is, the Constitutional Court, does not declare them unconstitutional. 
The absence of a Constitutional Court ruling on unconstitutionality, which would 
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set aside the presumption of constitutionality, means that all public bodies, 
including the courts, are obliged to apply the provisions in question. That is 
because the courts cannot replace the legislature, as this would violate the 
fundamental principle of the separation of powers. Courts cannot replace the 
legislature and decide on the validity of the laws that they themselves are 
supposed to apply. 
31 In Supreme Court rulings given by panels on which Supreme Court Judges AG, 
BT and ZC sit, other criteria have also been formulated which, in the view of 
those panels, demonstrate the judges’ lack of independence from the political 
authorities (executive) in addition to their participation in the appointment 
procedure before the NCJ as composed under the 2017 law. Those criteria include, 
in particular, accepting positions from the Minister Sprawiedliwości-Prokurator 
Generalny (Minister of Justice-Prosecutor General), promotion that is 
simultaneous (or similarly timed) with taking up an important position in the 
judicial administration by an arbitrary decision of the Minister of Justice, an 
atypical career in the ordinary courts or Supreme Court (in the sense of 
uncommonly rapid promotions to higher courts or to functional positions), the 
secrecy of the NCJ’s deliberations on the candidate in question, the unequivocally 
unfavourable opinion of the General Assembly of Judges, the comparison of the 
candidate’s professional achievements with the professional experience of, and 
peer support for, competing candidates, and whether the candidate had any 
competitors for the promotion at all. In addition, it is asserted in those rulings that 
judges who have participated in appointment procedures since 2018 are ‘not 
presumed to be impartial and independent’ which is, of course, a statement 
unsupported by any legal provisions, with the additional caveat that ‘this does not 
apply to Supreme Court judges’, all of whom (in gremio), in every case, 
apparently fail to meet that requirement, without the possibility of any correction. 
32 In the view of the referring court, after the change of government in Poland in 
October 2023, it does not follow from court rulings, including those of the 
Supreme Court, that engaging in such conduct before 2015 or since December 
2023 rules out promotion; moreover, judges, including Supreme Court judges, sit 
on bodies dependent on the executive. Holders of functional positions in the 
courts have changed, the Minister of Justice has appointed disciplinary court 
judges, judges have taken up positions in the Ministerstwo Sprawiedliwości 
(Ministry of Justice), even though prior to the elections they had questioned 
judicial delegations to that ministry, and so forth, while judges who are politically 
active, including those selected by lot to the adjudicating panel in this case, have 
not stated that such conduct undermines judicial independence or impartiality. In 
that context, the referring court cites, among others, the positions taken by 
Supreme Court Judges AG and BT. 
33 The referring court notes that after the change of government in Poland as a result 
of the parliamentary elections on 15 October 2023, there has been an 
extraordinary increase in the activity of some Supreme Court judges, including 
those selected by lot to adjudicate in the present case, as regards examining 
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14  
whether ordinary court judges have been ‘correctly appointed’, although parties to 
proceedings before the Supreme Court hardly ever request that such 
‘examinations’ be conducted. In the view of the referring court, this is clearly 
related to the current political situation in Poland and is intended, in the court’s 
opinion, to force the legislature and the executive to take action to prevent judges 
appointed since 2018 from hearing cases and subject them to ‘vetting’ (including 
their unconstitutional removal from office on the pretext of an alleged lack of 
independence). 
34 Meanwhile, a judge subject to such a vetting is deprived of his or her right under 
Article 45(1) of the Constitution of the Republic of Poland and Article 6(1) of the 
ECHR to a tribunal of competent jurisdiction established by law, as well as the 
right to an effective remedy. The vetting procedure does not have a basis in law, 
which cannot be reconciled with the Constitution of the Republic of Poland. It is 
also inquisitorial in nature and its flaws constitute absolute grounds for appeal 
(Article 439(1)(2) of the Kodeks Postępowania Karnego) (Code of Criminal 
Procedure). 
35 In light of the above circumstances, the referring court is of the opinion that 
reasonable doubts arise as to whether a Supreme Court panel that includes such 
individuals is an independent tribunal within the meaning of the cited provisions 
of European Union law, given that what is at stake is a motion to conduct an 
impartiality test. Those individuals have a direct interest in finding that the 
judicial appointments made under the laws in effect since 2018 are flawed. In fact, 
the assessment of the first framework (in effect since 2018) is also an assessment 
of the previous one (in effect until the end of 2017), and this leads to the 
conclusion that a person involved in assessing the alleged irregularity (flaws) of 
the framework in effect since 2018 is in fact ruling on his or her own status, which 
may at the very least give rise to significant doubts about the compatibility of such 
assessments with the nemo judex in causa sua principle. 
Question A.2) 
36 As regards the second question, the above arguments in relation to Supreme Court 
Judge Tomasz Szanciło, who was selected by lot as the presiding judge and 
rapporteur in the present case, remain relevant. In light of the view presented by 
some Supreme Court judges, such a judge must be dependent on someone 
(although, to date, no one has indicated on whom and in what manner), even 
though he meets all the criteria required for appointment to the position of judge 
of the Supreme Court; in particular, he has held positions at all levels of the 
judicial system and has a post-doctoral degree in law. He was also favourably 
assessed as a candidate for judicial appointments by the National Council of the 
Judiciary in different periods when the Council included different members. The 
question also arises as to how a judge with more than 15 years of judicial 
experience, who has obtained a post-doctoral degree in law, would become 
dependent within such a short period of time (a few seconds) after being handed 
by the President of the Republic of Poland the decision on his judicial 
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15 
appointment (in this case, to the Supreme Court), when no one would have made 
such an allegation immediately prior to that moment. 
37 Both the 2020 resolution and the 3 February 2022 judgment of the European 
Court of Human Rights (Application No 1469/20, Advance Pharma sp. z o.o. v. 
Poland, ECLI:CE:ECHR:2022:0203JUD000146920), in which the ECtHR found 
that the panel of the Civil Chamber of the Supreme Court hearing the applicant’s 
case was not a ‘tribunal established by law’, contained only general statements 
about the system of judicial appointments in Poland, with no indication of who 
such a judge would be dependent on and how that dependence would be 
manifested. No cases of such conduct have been reported or formally identified. 
Instead, in its judgment, the ECtHR presented an interpretation that relied on the 
non-binding opinions of other entities and institutions and also on the obviously 
and blatantly unconstitutional 2020 resolution, concluding in effect that 
appointment procedures for judicial positions based on the regulations in effect 
since 2018 were flawed. 
38 In the view of the referring court, it is worth mentioning in that regard – in the 
context of the second subparagraph of Article 19(1) TEU, read in conjunction 
with the first paragraph of Article 47(1) of the Charter of Fundamental Rights – 
the procedural measures available to parties under national law: (a) the right to 
request verification, by way of an ‘impartiality test’, of the effect of all the 
circumstances surrounding the appointment procedure and a judge’s conduct after 
appointment on his or her impartiality and independence; (b) the right to submit 
an application for the recusal of a judge. 
39 In the view of the referring court, the above procedural measures appear to be 
sufficient to determine whether the composition of the court is correct, especially 
since, despite the publicity surrounding them and sometimes even the media’s 
exhortation to use them, they are very few in number, which means that the 
impartiality and independence of judges of Supreme Court, including those 
appointed since 2018, are in fact hardly ever questioned by the parties to 
proceedings. In civil cases (in the Civil Chamber of the Supreme Court), there 
have been a total of around 40 applications for the recusal of a judge and for the 
carrying out of an impartiality test since that time. Given the number of cases 
received by the Civil Chamber of the Supreme Court each year, which is between 
5 000 and 7 000, it essentially constitutes a tiny fraction of those cases. 
40 The measures laid down are sufficient to safeguard the party’s right to the proper 
composition of a court, provided – of course – that they are duly applied by both 
the parties and the Supreme Court. This concerns both the permissibility of the 
parties to the proceedings raising relevant pleas in law and the giving of rulings by 
the Supreme Court, or another court, in relation to a judge of the Supreme Court 
and challenging rulings made by the Supreme Court with the involvement of the 
judge in question on account of various circumstances. However, recent case-law 
points to a different trend, namely that the provisions of the Constitution of the 
Republic of Poland, national laws and EU law often merely constitute a pretext for 
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adjudicating panels (especially those composed of judges appointed to the 
Supreme Court before 2018) to make assessments and take judicial measures 
which have no basis in law. Some compositions of the Supreme Court have ruled 
that to rely solely on the circumstances of the appointment justifies treating the 
application as an application for the recusal of the judge, even though such an 
interpretation directly contradicts both the provisions of law relied on and the 
judgments of the Constitutional Court and, in addition, is not supported by any 
provisions of EU law. 
41 On the other hand, the procedural measures provided for indicate that it is not only 
that circumstance (the appointment) that should be verified, but also whether, in 
the circumstances of the case at issue, the facts surrounding the judge’s 
appointment and his or her subsequent conduct may lead to an infringement of the 
standard of independence or impartiality that will affect the outcome of the case, 
taking into account the circumstances of the person entitled and the nature of the 
case. In other words, this instrument is not always used for the purpose intended 
by the legislature, and the direction (outcome) of this subsidiary procedure is 
determined in each case by a combination of circumstances, with the determining 
factors being primarily personal, that is to say, the composition of the panel and 
the judge against whom that type of application is filed. 
42 With respect to the alleged ‘irregularity’ of judicial appointments, when referring 
to the standard arising from EU law and Article 6 of the ECHR (right of access to 
a court), no assessment is made of whether, in the particular circumstances, the 
judge or the court are dependent on the legislature or executive by reason of the 
manner (circumstances) in which the judge was appointed, and what that 
dependence consists in, or whether there are doubts as to impartiality because, 
following his or her appointment, the judge is subject to influence or pressure 
when carrying out their role [judgment of the Court of Justice 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]. In the case 
of Supreme Court judges, this also means that the lack of individual verification of 
the above criteria must be regarded as a deliberate and flagrant infringement of the 
aforementioned standard of EU law, which was to be implemented when 
verification was introduced. In this respect, the referring court reiterates the 
reasoning set forth in the order for reference in Case C-326/23. 
43 The referring court adds that there is likewise no basis in EU law for challenging 
the appointment of a judge in a Member State and thus preventing that judge from 
exercising his or her office and therefore, first and foremost, from adjudicating. 
Characteristically, such rulings are only given by Supreme Court panels that 
include judges appointed by way of the flawed procedures in place before 2018 as 
described above, while the SAC uniformly and consistently takes the opposite 
position in its case-law, namely that presidential appointments to judicial positions 
cannot be called into question; it should be mentioned that SAC panels include 
judges appointed to their positions both before and after 2018. The SAC 
uniformly considers that the fact that a particular judge adjudicating in a case was 
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appointed to his or her judicial position upon a proposal from the NCJ constituted 
under the 2017 law is not grounds for declaring the proceedings invalid. If there 
are doubts about the impartiality and independence of a specific judge, it is 
necessary to examine the specific facts meant to justify such doubts in light of the 
circumstances of the given case. In addition, the SAC points out that doubts as to 
the impartiality and independence of a judge or assistant judge must be real rather 
than potential. 
44 The referring court emphasises that the inadmissibility of developing a standard of 
sorts for determining the ‘ineffectiveness’ of a judicial appointment is confirmed 
by the requirements of such an assessment indicated in the case-law of the Court 
of Justice [see, for instance, the judgments: of 2 March 2021, A.B. and Others 
(Appointment of judges to the Supreme Court – Actions), C-824/18, 
EU:C:2021:153; of 22 March 2022, Prokurator Generalny (Chambre 
disciplinaire de la Cour suprême – Nomination), C-508/19, EU:C:2022:201; of 
29 March 2022, Getin Noble Bank, C-132/20, EU:C:2022:235; of 13 October 
2022, Perfumesco.pl, C-355/21, EU:C:2022:791; and the order of 22 December 
2022, Sąd Najwyższy, C-491/20 to C-496/20, C-506/20, C-509/20 and C-511/20, 
EU:C:2022:1046]. 
45 Leaving side the realities, when one considers the aspect of a judge’s 
independence, as well as the impossibility of challenging appointments to judicial 
posts, the question arises as to whether a judge who took part in an appointment 
procedure before a body elected in part with the participation of the legislature, 
after which a change of government took place, can be specifically ‘accused’ of 
not being impartial and independent, and if so, what would the judge’s lack of 
independence result from, how would it be manifested, and on whom would that 
judge be dependent? Indeed, there may be various doubts, including in regard to 
the current position of judges appointed before 2018 and their clear ties to the 
current government, from which they derive tangible material and image benefits. 
Question B 
46 Given the above circumstances, an answer is needed to the question whether, if 
question A.1) is answered in the affirmative, in light of the provisions of European 
Union law, the national court of last instance (the Supreme Court) is obliged to 
form a panel (to hear a case concerning the ‘impartiality and independence test’) 
without the participation of such persons and to hear the motion in a different 
composition as provided for in national law. As has been shown, those are persons 
who are obviously not impartial and who even act in bad faith, failing to properly 
compare and weigh the legal arguments and evaluate the facts of the case, and 
who instead pursue a preconceived extra-legal goal. In order to achieve that goal, 
they distort the meaning and interpretation of Union law derived from the Court’s 
existing case-law. 
47 The referring court also points out that the factors to be taken into account when 
assessing whether a body is a ‘court or tribunal’ within the meaning of the second 
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subparagraph of Article 19(1) TEU include, in particular, whether that body is 
established by law and whether that body and the persons adjudicating therein are 
impartial and independent [see the judgments of 27 February 2018, Associação 
Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117, and of 25 July 2018, 
Minister for Justice and Equality (Deficiencies in the system of justice), 
C-216/18 PPU, EU:C:2018:586]. This coincides fully with the requirements for a 
‘tribunal’ set out in the second paragraph of Article 47 of the Charter of 
Fundamental Rights in the context of the right to an effective remedy and access 
to an independent and impartial tribunal. It also corresponds to the standard of an 
independent and impartial tribunal established by law as set out in Article 6(1) of 
the ECHR. The exercise of jurisdictional functions by the Supreme Court of the 
Republic of Poland is contingent in factual and legal terms upon the realisation of 
its competences as part of the Union’s judicial structure. 
48 In the light of the foregoing, the Supreme Court has referred the above questions 
for a preliminary ruling.