62022CJ0225_RES
Case C‑225/22
‘R’ S.A.
v
AW ‘T’ sp. z o.o.,
(Request for a preliminary ruling from the Sąd Okręgowy w Krakowie)
Judgment of the Court (Fourth Chamber) of 4 September 2025
(Reference for a preliminary ruling – Rule of law – Independence of judges – Second subparagraph of Article 19(1) TEU – Effective legal protection in the fields covered by Union law – National legislation and case-law prohibiting national courts from calling into question the legitimacy of constitutional courts and bodies or from establishing or assessing the lawfulness of the appointment of judges of those courts or bodies – Verification, by a lower court, of compliance by a higher court with requirements relating to the guarantee of an independent and impartial tribunal previously established by law – Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Chamber of Extraordinary Control and Public Affairs) of the Sąd Najwyższy (Supreme Court, Poland) – Body that does not constitute an independent and impartial tribunal previously established by law – Primacy of EU law – Possibility of declaring a judicial decision to be null and void)
Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – Right to an independent and impartial tribunal previously established by law – Primacy and direct effect of EU law – National legislation and constitutional case-law requiring a national court to comply with a decision delivered by a formation of a higher court – Judicial panel including judges who do not satisfy the requirements of independence, impartiality and previous establishment by law – National legislation preventing that national court from verifying the regularity of the composition of that panel of judges – Not permissible
(Art. 19(1), second subpara., TEU; Charter of Fundamental Rights of the European Union, Art. 47)
(see paragraphs 44, 47, 53, 55-58,62, 63, operative part 1)
Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – Right to an independent and impartial tribunal previously established by law – Obligations of national courts – Decision of a judicial body of last instance which does not satisfy the requirements of independence, impartiality and previous establishment by law – Referral of the case back to a lower court for re-examination – Obligation to regard that decision as null and void – Conditions
(Art. 19(1), second subpara., TEU; Charter of Fundamental Rights of the European Union, Art. 47)
(see paragraphs 66-70, operative part 2)
Résumé
Hearing a reference for a preliminary ruling from the Sąd Apelacyjny w Krakowie (Court of Appeal, Cracow, Poland), the Court rules on the effects of a decision given by a judicial body which is not an independent and impartial tribunal previously established by law for the purposes of the second subparagraph of Article 19(1) TEU.
In October 2021, the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Chamber of Extraordinary Control and Public Affairs, Poland) of the Sąd Najwyższy (Supreme Court, Poland), called upon to rule on an extraordinary appeal, set aside a 2006 judgment, which had the force of res judicata, and referred the case concerned back to the referring court for re-examination.
In that context, the referring court considers, on account of irregularities vitiating the procedure for the appointment of judges of the Chamber of Extraordinary Control and Public Affairs, that that formation of the court does not constitute a tribunal established by law within the meaning of EU law. Consequently, there is no need to examine the effects of the decision of such a body.
However, the referring court observes that decisions of the Trybunał Konstytucyjny (Constitutional Court, Poland) and national legislation (
1
) prohibit it from assessing the regularity of the appointment of judges and therefore from verifying whether the Chamber of Extraordinary Control and Public Affairs may be classified as an independent and impartial tribunal previously established by law. Since it is uncertain whether that constitutional case-law and that national legislation are compatible with the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), the referring court asks the Court whether it may disapply them and consider the decision of October 2021 to be null and void.
Findings of the Court
In the first place, as regards the prohibition on examining the regularity of the appointment of judges of a formation of the Supreme Court, the Court considers that the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, and the principle of the primacy of EU law preclude legislation of a Member State and constitutional case-law which require a national court to comply with a decision delivered by a higher court where, on the basis of a decision of the Court, that national court finds that one or more judges forming part of that panel of judges do not meet the requirements of independence, impartiality and previous establishment by law, and which prevent it from verifying the regularity of the composition of that panel of judges.
In the present case, the Court notes that the 2021 decision ordering re-examination was issued by a body of last instance whose status as a court or tribunal was rejected by the Court in the judgment in Krajowa Rada Sądownictwa (Continued holding of a judicial office) (
2
) since that body does not satisfy the conditions of independence, impartiality and previous establishment by law, for the purposes of the second subparagraph of Article 19(1) TEU. In accordance with the principle of the primacy of EU law and the effects of such a decision of the Court, that fact cannot be disregarded by a court. Thus, it will be for the referring court to ascertain whether the judges who formed part of the panel of judges of the Chamber of Extraordinary Control and Public Affairs which delivered the judgment of 2021 were appointed under the same conditions as those which characterised the appointment of the three judges of the referring body in the case which gave rise to the judgment in Krajowa Rada Sądownictwa (Continued holding of a judicial office).
In that regard, it is, however, apparent from the file before the Court that the five judges who, together with two lay judges, composed the panel of judges of that chamber in the case in the main proceedings, were appointed on the same day and under the same conditions as those who constituted the referring body in the case which gave rise to that judgment. The presence, within the body concerned, of a single judge appointed in the same circumstances as those at issue in that case is sufficient to deprive that body of its status as an independent and impartial tribunal previously established by law.
Moreover, as regards the national provisions and the decisions of the constitutional court which prevent the referring court from verifying whether another court complies with the requirements stemming from EU law as regards the guarantee of an independent and impartial tribunal previously established by law, the Court has previously held that those provisions are incompatible with EU law. (
3
) The same conclusion must be drawn as regards decisions of the constitutional court, which have a scope similar to that of those provisions.
In the second place, concerning the effects of a decision issued by a body which does not satisfy the requirements of independence, impartiality and previous establishment by laws, the Court considers that, in a situation where it is found, on the basis of a decision of the Court, that a judicial body of last instance does not satisfy those requirements, a decision taken by such a body, by which the case concerned is referred back to a lower court for re-examination, must be regarded as null and void, where such a consequence is essential in view of the procedural situation at issue in order to ensure the primacy of EU law.
In that regard, no consideration based on the principle of legal certainty or linked to the alleged finality of the judgment can successfully be relied on in order to prevent a court from declaring such a decision to be null and void. It is apparent from the case file that that is the case in the main proceedings, since, even if the judgment of 20 October 2021 is final, that case was referred back to the referring court. Thus, in those circumstances, the referring court must regard that judgment as null and void.
(
1
)	Article 42a(2) of the ustawa Prawo o ustroju sądów powszechnych (Law on the organisation of the ordinary courts) of 27 July 2001 (Dz. U. No 98, item 1070), as amended by the ustawa o zmianie ustawy – Prawo o ustroju sądów powszechnych, ustawy o Sądzie Najwyższym oraz niektórych innych ustaw (Law amending the Law on the organisation of the ordinary courts, the Law on the Supreme Court and certain other laws) of 20 December 2019 (Dz. U. of 2020, item 190), provides: ‘An ordinary court or other authority cannot establish or assess the lawfulness of the appointment of a judge …’. In addition, Article 107(1) of that law makes it a disciplinary offence for a judge to call into question, inter alia, the validity of the appointment of another judge or the mandate of a constitutional body of the Republic of Poland.
(
2
)	Judgment of 21 December 2023, Krajowa Rada Sądownictwa (Continued holding of a judicial office) (C‑718/21, EU:C:2023:1015).
(
3
)	Judgment of 5 June 2023, Commission v Poland(Independence and private life of judges) (C‑204/21, EU:C:2023:442).