62021CJ0181_RES
Joined Cases C‑181/21 and C‑269/21
G.vM.S.
and
BCandDCvX
(Requests for a preliminary rulingfrom the Sąd Okręgowy w Katowicach and from the Sąd Okręgowy w Krakowie)
Judgment of the Court (Grand Chamber) of 9 January 2024
(Reference for a preliminary ruling – Article 267 TFEU – Possibility for the referring court to take account of the preliminary ruling of the Court – Interpretation sought by the referring court necessary to enable it to give judgment – Independence of the judiciary – Conditions for the appointment of judges of the ordinary courts – Possibility of challenging an order which has definitively ruled on an application for the grant of interim measures – Possibility of removing a judge from a panel of judges of the court – Inadmissibility of the requests for a preliminary ruling)
Questions referred for a preliminary ruling – Admissibility – Limits – Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer – Questions concerning the respect of requirements inherent in an independent and impartial tribunal previously established by law, by a panel including a judge appointed in specific circumstances – Competence of the national courts to assess the legality of that panel of judges or call into question its definitive decision – None – Inadmissibility
(Art. 267 TFEU)
(see paragraphs 68-78)
Résumé
The Grand Chamber of the Court rules that two requests for a preliminary ruling submitted by Polish judges, which question whether the composition of the panel of judges, in the cases in the main proceedings, complies with the requirements inherent in an independent and impartial tribunal within the meaning of EU law, are inadmissible.
In the first case (C‑181/21), a panel of three judges at the Sąd Okręgowy w Katowicach (Regional Court, Katowice, Poland) was appointed to examine a complaint against an order dismissing a consumer’s objection to an order for payment. The Judge-Rapporteur in charge of that case expressed doubts as to the status of that panel of judges as a ‘court’, in view of the circumstances in which Judge A.Z. was appointed to the Regional Court, Katowice, Judge A.Z. also being part of that panel. The Judge-Rapporteur’s concerns related, inter alia, to the status and method of operation of the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland; ‘the KRS’ (
1
)), which is involved in such an appointment procedure.
As regards Case C‑269/21, a panel of three judges sitting within the Sąd Okręgowy w Krakowie (Regional Court, Kraków, Poland) examined the complaint lodged by a bank against an order by which a panel consisting of a single judge in that same court had granted an application for interim measures brought by consumers. That formation of three judges varied the order under appeal, rejected that request in its entirety and referred the case back to the panel consisting of a single judge. That panel consisting of a single judge has doubts as to the compatibility with EU law of the composition of the panel of judges which ruled on the bank’s complaint and, consequently, as to the validity of its decision. The panel of three judges comprised Judge A.T., appointed to the Regional Court of Krakow in 2021, following a procedure involving the KRS.
In that context, the Judge-Rapporteur, in the first case, and the single-judge formation in the second case, decided to refer questions to the Court for a preliminary ruling seeking to ascertain, in essence, whether, in the light of the particular circumstances in which the appointments of Judges A.Z. and A.T. were made, the panels in which those judges sit meet the requirements inherent in an independent and impartial tribunal previously established by law, within the meaning of EU law, and whether EU law (
2
) requires such judges to be excluded of the court’s own motion from the examination of the cases in question.
Findings of the Court
At the outset, The Court recalls that it is clear from both the wording and the scheme of Article 267 TFEU that a national court or tribunal is not empowered to bring a matter before the Court by way of a request for a preliminary ruling unless, inter alia, a case is pending before that national court in which the latter is called upon to give a decision which is capable of taking account of the preliminary ruling (
3
).
The Court then notes that, although it is true that every court is obliged to verify whether, in its composition, it constitutes an independent and impartial tribunal previously established by law, within the meaning, in particular, of the second subparagraph of Article 19(1) TEU, where a serious doubt arises on that point, the fact remains that the necessity, within the meaning of Article 267 TFEU, of the interpretation sought from the Court for a preliminary ruling means that the referring judge must be able, alone, to infer the consequences of that interpretation by assessing, in the light of that interpretation, the lawfulness of the appointment of another judge to the same panel and, where appropriate, by recusal of the latter.
That is not the case, in that respect, of the referring judge in Case C‑181/21 since it is not apparent from the order for reference or from the documents before the Court that, under the rules of national law, the judge which made the reference for a preliminary ruling in that case could, alone, act in that way. The interpretation of the provisions of EU law sought in Case C‑181/21 does not therefore meet an objective need linked to a decision which the referring judge might take, alone, in the case in the main proceedings.
As regards Case C‑269/21, the Court notes that the referring court itself points out that the order made by the panel of three judges which varied its own decision and rejected the application for interim measures made by the consumers concerned is no longer subject to appeal and must therefore be regarded as final under Polish law. Although it relies on the legal uncertainty which surrounds that order due to doubts as to the lawfulness of the composition of the panel which issued it, the referring court does not, however, put forward any provision of Polish procedural law which would confer on it the competence to carry out, moreover in a formation of one sole judge, an examination of the conformity, in particular with EU law, of a final order given on such a request by a panel of three judges. It is also apparent from the file before the Court that the order made by the panel of three judges is binding on the referring judge and that the latter does not have jurisdiction to ‘recuse’ a judge forming part of the panel of judges which made that order or to call that order into question.
Thus, the Court finds that the referring court in Case C‑269/21 does not have jurisdiction, under the rules of national law, to assess the legality, in the light, in particular, of EU law, of the panel of three judges which made the order definitively ruling on the application for interim measures and, in particular, the conditions for the appointment of Judge A.T., and to call into question, where appropriate, that order.
Since the request for the grant of interim measures by the applicants in the main proceedings was rejected in its entirety, that request was definitively dealt with by the panel of three judges. The questions referred in Case C‑269/21 therefore relate intrinsically to a stage in the procedure in the main proceedings which has been definitively closed and is separate from the main proceedings, which remains the only stage pending before the referring court. The questions referred do not therefore correspond to an objective need inherent in the resolution of that dispute, but seek to obtain from the Court a general assessment, disconnected from the needs of that dispute, of the procedure for the appointment of ordinary judges in Poland.
(
1
)	In its composition after 2018.
(
2
)	See Article 2 and Article 19(1) TEU, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union.
(
3
)	Judgment of 22 March 2022, Prokurator Generalny (Disciplinary Chamber of the Supreme Court – Appointment) (C‑508/19, EU:C:2022:201, paragraph 62 and the case-law cited).