Case C‑204/21
European Commission
v
Republic of Poland
Judgment of the Court (Grand Chamber), 5 June 2023
(Failure of a Member State to fulfil obligations – Second subparagraph of Article 19(1) TEU – Article 47 of the Charter of Fundamental Rights of the European Union ‐ Rule of law – Effective legal protection in the fields covered by EU law – Independence of judges – Article 267 TFEU – Possibility of making a reference to the Court for a preliminary ruling – Primacy of EU law – Jurisdiction in relation to the lifting of the immunity from criminal prosecution of judges and in the field of employment law, social security and retirement of judges of the Sąd Najwyższy (Supreme Court, Poland) conferred on the Disciplinary Chamber of that court – National courts prohibited from calling into question the legitimacy of the constitutional courts and bodies or from establishing or assessing the lawfulness of the appointment of judges or their judicial powers – Verification by a judge of compliance with certain requirements relating to the existence of an independent and impartial tribunal previously established by law classified as a ‘disciplinary offence’ – Exclusive jurisdiction to examine questions relating to the lack of independence of a court or judge conferred on the Extraordinary Review and Public Affairs Chamber of the Sąd Najwyższy (Supreme Court) – Articles 7 and 8 of the Charter of Fundamental Rights – Rights to privacy and the protection of personal data – Regulation (EU) 2016/679 – Article 6(1), first subparagraph, points (c) and (e), and Article 6(3), second subparagraph – Article 9(1) – Sensitive data – National legislation requiring judges to make a declaration as to whether they belong to associations, foundations or political parties, and to the positions held within those associations, foundations or political parties, and providing for the placing online of the data contained in those declarations)
1.        Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – Respect for the rule of law – Legislative reform relating to judicial organisation and the status of judges – Concept of the national identity of a Member State – Breach of that concept on account of observance of the principles and values of the European Union – None – Jurisdiction of the Court to review the lawfulness of national measures
(Arts 2(1), 4(2) and 19(1) TEU; Charter of Fundamental Rights of the European Union, Art. 47, second para.)
(see paragraphs 62, 63, 69-74, 80)
2.        Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – Primacy and direct effect of EU law – Obligations of national courts – Exclusive jurisdiction of the Court to provide a definitive interpretation of EU law
(Art. 19(1), second subpara., TEU; Charter of Fundamental Rights of the European Union, Art. 47)
(see paragraphs 75-79)
3.        Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – Conferral on a disciplinary chamber of the Supreme Court jurisdiction in relation to the lifting of the immunity from criminal prosecution of judges and in the field of employment law, social security and retirement applicable to judges – Chamber not meeting the requirement of independence and impartiality – Not permissible – Failure to fulfil obligations
(Art. 19(1), second subpara., TEU; Charter of Fundamental Rights of the European Union, Art. 47)
(see paragraphs 91-103, operative part 1)
4.        Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – National legislation allowing classification as a disciplinary offence of the examination of compliance with the requirements relating to an independent and impartial tribunal previously established by law – Legislation not specifying in a clear and precise manner the forms of conduct which may trigger the disciplinary liability of judges – Legislation not making it possible to avoid the exposure of those judges to the risk of triggering their disciplinary liability solely on account of their decisions – Not permissible – Failure to fulfil obligations
(Arts 2 and 19(1), second subpara., TEU; Charter of Fundamental Rights of the European Union, Art. 47)
(see paragraphs 125-128, 132, 134-138, 142, 145-148, 152, 163, 165, 166, operative part 2)
5.        EU law – Principles – Right to effective judicial protection – Right to an independent and impartial tribunal previously established by law – Scope
(Charter of Fundamental Rights of the European Union, Art. 47, second para.)
(see paragraphs 129-131)
6.        Member States – Obligations – Power of the national courts to put questions to the Court of Justice – Duty of sincere cooperation – National legislation which may expose national judges to disciplinary proceedings as a result of the fact that they have made a reference for a preliminary ruling to the Court of Justice or conferring on a chamber of the Supreme Court exclusive jurisdiction to examine complaints and questions of law concerning the lack of independence of a court or a judge – Not permissible – Failure to fulfil obligations
(Art. 267, second and third paras, TFEU)
(see paragraphs 153-159, 161, 168, 275, 290, operative parts 2 and 4)
7.        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 formulated in broad and imprecise terms, prohibiting any national court from verifying compliance with the requirements relating to the guarantee of an independent and impartial tribunal previously established by law – Legislation such as to hinder the misapplication of provisions contrary to those of EU law – Not permissible – Failure to fulfil obligations
(Art. 19(1), second subpara., TEU; Charter of Fundamental Rights of the European Union, Art. 47)
(see paragraphs 200, 201, 209, 213, 215-217, 219, 223-231, operative part 3)
8.        Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – Primacy and direct effect of EU law – Right to an independent and impartial tribunal previously established by law – Centralisation of jurisdiction concerning requirements under EU law – Compliance with those requirements, which must be guaranteed across all areas of application of EU law – National legislation establishing the exclusive jurisdiction of a chamber of the Supreme Court to examine complaints and questions of law concerning the lack of independence of a court or a judge – Not permissible – Failure to fulfil obligations
(Arts 2 and 19(1), second subpara., TEU; Charter of Fundamental Rights of the European Union, Art. 47)
(see paragraphs 268-274, 276, 278-280, 285-287, operative part 4)
9.        Approximation of laws – Protection of natural persons with regard to the processing of personal data – Regulation 2016/679 – Scope – Exceptions – Processing of data in the course of an activity which falls outside the scope of EU law – Activity which is intended to safeguard national security or which falls into that category – Concept – Restrictive interpretation – Collection and placing online of information relating to certain activities of judges concerning associations or politics in the interest of preserving their political neutrality and impartiality – Precluded
(European Parliament and Council Regulation 2016/679, Arts 2(2) and 4(1))
(see paragraphs 315-324)
10.      Fundamental rights – Respect for private life – Protection of personal data – Scope
(Charter of Fundamental Rights of the European Union, Arts 7 and 8)
(see paragraphs 328, 329)
11.      Approximation of laws – Protection of natural persons with regard to the processing of personal data – Regulation 2016/679 – Conditions governing the lawfulness of the processing of personal data – Necessary processing in respect of a legal obligation on the part of the controller – Concept – Processing necessary for the performance of a task carried out in the public interest or in the exercise of official authority – Concept – Collection and placing online of information relating to certain activities of judges concerning associations or politics in the interest of preserving their political neutrality and impartiality – Included
(European Parliament and Council Regulation 2016/679, Arts 6(1), first subpara., (c) and (e))
(see paragraphs 332, 335, 336, 338-340, 349)
12.      Approximation of laws – Protection of natural persons with regard to the processing of personal data – Regulation 2016/679 – Processing concerning special categories of personal data – Concept – Collection and placing online of information relating to certain activities of judges concerning associations or politics in the interest of preserving their political neutrality and impartiality – Included
(European Parliament and Council Regulation 2016/679, Art. 9(1))
(see paragraphs 341, 343-347, 349)
13.      Approximation of laws – Protection of natural persons with regard to the processing of personal data – Regulation 2016/679 – Conditions governing the lawfulness of the processing of personal data – National legislation requiring judges to make a declaration as to whether they belong to associations, foundations or political parties and providing for the placing online of the data contained in those declarations – Objective of general interest in respect of the preservation of the political neutrality and impartiality of the judiciary – Provisions concerning information relating to membership of a political party before appointment and during performance of the office of judge before 29 December 1989 – Provisions unsuitable for the purpose of achieving that objective – Provisions concerning information relating to membership of an association or non-profit foundation – Proportionality – None – Failure to fulfil obligations
(Charter of Fundamental Rights of the European Union, Arts 7, 8 and 52(1); European Parliament and Council Regulation 2016/679, recital 39 and Article 6(1), first subpara., (c) and (e), Article 6(3) and Article 9(1) and (2)(g))
(see paragraphs 334, 337, 342, 350, 353-360, 362, 364-367, 372, 374-384, operative part 5)
Résumé
In 2017, two new chambers were established within the Sąd Najwyższy (Supreme Court, Poland), namely the Izba Dyscyplinarna (Disciplinary Chamber) and the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Extraordinary Review and Public Affairs Chamber).
By a law of 20 December 2019 amending the Law on the Supreme Court, which entered into force in 2020, those two chambers were granted new jurisdiction, in particular, to authorise the initiation of criminal proceedings against judges or to place them in provisional detention. (1) For its part, the Extraordinary Review and Public Affairs Chamber was granted exclusive jurisdiction to examine complaints and questions of law relating to the independence of a court or a judge. (2) In addition, under that amending law, the Supreme Court, including the latter chamber, may not call into question the legitimacy of the courts, the constitutional organs of the State and the organs responsible for reviewing and protecting the law, or establish or assess the lawfulness of the appointment of a judge. (3) That law also clarifies the concept of disciplinary fault on the part of judges. (4)
The same amending law also amended the Law relating to the organisation of the ordinary courts, by introducing similar provisions to those amending the Law on the Supreme Court. (5) It also determines the regime applicable to any criminal proceedings initiated against judges of the ordinary courts. (6) It requires them, furthermore, as well as judges of the Supreme Court, to make declarations concerning membership of associations, non-profit foundations and political parties, including for periods preceding the taking-up of their office and provides that that information be published online. (7) A large number of those new provisions also apply to the administrative courts. (8)
Considering that, by adopting that new disciplinary regime, the Republic of Poland had failed to fulfil its obligations under EU law, (9) the European Commission brought an action for failure to fulfil obligations before the Court of Justice under Article 258 TFEU.
In the judgment delivered in that case, the Court, sitting as the Grand Chamber, upheld the action brought by the Commission. It finds that those new national provisions undermine the independence of judges guaranteed by the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter and, moreover, infringe, first, the obligations imposed on national courts in the context of the preliminary ruling procedure and, second, the principle of primacy of EU law. In addition, the provisions establishing declaratory mechanisms in respect of judges and the online publication of the data thus collected infringe the right to respect for private life and the right to the protection of personal data enshrined in the Charter of Fundamental Rights of the European Union (‘the Charter’) and the General Data Protection Regulation (‘the GDPR’) (10).
Findings of the Court
As regards, first, the jurisdiction of the Court to rule on the complaints raised by the Commission concerning the infringements of the provisions of Article 19(1) TEU, in conjunction with Article 47 of the Charter, and of the principle of primacy of EU law, the Court recalls that the European Union is founded on values which are common to the Member States (11) and that respect for those values is a prerequisite for accession to the European Union. (12) The European Union is thus composed of States which have freely and voluntarily committed themselves to those values, respect for those values and their promotion being the fundamental premiss on which mutual trust between the Member States is based. Compliance by a Member State with those values is thus a condition for the enjoyment of all the rights deriving from the application of the Treaties to that Member State and 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. The Court notes, in that regard, that Article 19 TEU gives concrete expression to the value of the rule of law set out in Article 2 TEU (13) and provides that it is for the Member States to establish a system of legal remedies and procedures ensuring for individuals compliance with their right to effective judicial protection in the fields covered by EU law. The Court holds, consequently, that the requirements arising from respect for values and principles such as the rule of law, effective judicial protection and judicial independence are not capable of affecting the national identity of a Member State, within the meaning of Article 4(2) TEU.
The Court thus points out that, in choosing their respective constitutional model, the Member States are required to comply, inter alia, with the requirement that the courts be independent stemming from Article 2 and the second subparagraph of Article 19(1) TEU, and that they are thus required, in particular, 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.
Furthermore, the Court recalls, in that regard, that the second subparagraph of Article 19(1) TEU, interpreted in the light of Article 47 of the Charter, which imposes on the Member States a clear and precise obligation as to the result to be achieved and which is not subject to any condition, in particular as regards the independence and impartiality of the courts called upon to interpret and apply EU law and the requirement that those courts be previously established by law, has direct effect, in accordance with the principle of primacy of EU law, which means that any provision, case-law or national practice contrary to those provisions of EU law, must be disapplied. Given that the Court has exclusive jurisdiction to give a definitive interpretation of EU law, it is therefore, as required, for the national constitutional court concerned, where appropriate, to alter its own case-law which is incompatible with EU law, as interpreted by the Court. Consequently, the Court declares that it has jurisdiction to examine the complaints raised by the Commission.
Turning, secondly, to the substance of the complaints raised by the Commission, the Court holds, in the first place, that, by conferring on the Disciplinary Chamber of the Supreme Court, whose independence and impartiality are not guaranteed, jurisdiction to hear and determine cases having a direct impact on the status of judges and trainee judges, such as cases concerning the lifting of the criminal immunity of judges and in the field of employment law, social security and retirement of judges of the Supreme Court, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU.
In that regard, the Court holds that the legal order of the Member State concerned must include guarantees capable of preventing any risk of political control of the content of judicial decisions or pressure and intimidation against judges which could, inter alia, lead to an appearance of a lack of independence or impartiality on their part capable of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in individuals. (14) It is thus essential, as the Court has held previously with regard to the rules applicable to the disciplinary regime for judges, (15) that, having regard to the major consequences likely to result from them both for the career progress of judges and their living conditions, decisions authorising the initiation of criminal proceedings against them, their arrest and detention, and the reduction of their remuneration, or decisions relating to essential aspects of the employment, social security or retirement law schemes applicable to those judges, be adopted or reviewed by a body which itself satisfies the guarantees inherent in effective judicial protection, including that of independence.
In the second place, the Court finds that, by adopting and maintaining the provisions under which the examination of compliance with the EU requirements relating to an independent and impartial tribunal previously established by law may be classified as a ‘disciplinary offence’, (16) the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, and under Article 267 TFEU.
In that regard, the Court recalls that the fundamental right to a fair trial means inter alia that every court is obliged to check whether, as composed, it constitutes such a tribunal where a serious doubt arises on that point. It also notes that national courts, in various other circumstances, may be obliged to review compliance with the abovementioned requirements and that such a review may relate in particular to whether an irregularity vitiating the procedure for the appointment of a judge could lead to an infringement of that fundamental right. In those circumstances, the fact that a national court performs the tasks entrusted to it by the Treaties and complies with its obligations under those Treaties, by giving effect to provisions such as the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, cannot, by definition, be regarded as a disciplinary offence without those provisions of EU law being infringed ipso facto.
The Court observes, first of all, that the definitions of the disciplinary offences at issue are very broad and imprecise, so that they cover situations in which the judges have to examine whether they themselves, the court in which they sit, other judges or other courts satisfy the requirements arising from the provisions of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter. Nor do the national provisions at issue ensure that the liability of the judges concerned for the judicial decisions which they are called upon to give is strictly limited to completely exceptional cases and, consequently, that the disciplinary regime applicable to judges cannot be used in order to exert political control over judicial decisions. Furthermore, in the light of the particular conditions and context in which those national provisions were adopted, the Court points out that the terms chosen by the Polish legislature clearly echo a series of questions which led various Polish courts to make a reference to the Court for a preliminary ruling as regards the compatibility with the second subparagraph of Article 19(1) TEU and Article 47 of the Charter of various recent legislative amendments affecting the organisation of justice in Poland. The Court considers, consequently, that the risk that those national provisions may be interpreted in such a way that the disciplinary regime applicable to judges may be used in order to prevent the national courts concerned from making certain findings required of them by EU law and influence the judicial decisions of those courts, thus undermining the independence of those judges, is established, and that those provisions of EU law are therefore infringed in that respect. Those national provisions also infringe Article 267 TFEU in that they create a risk of disciplinary penalties being imposed on national judges for having made references to the Court for a preliminary ruling.
As regards, more specifically, the disciplinary offence based on the ‘manifest and flagrant breach of legal rules’ by Supreme Court judges, (17) the Court considers that the national provision providing for it also undermines the independence of those judges since it does not prevent the disciplinary regime applicable to those judges from being used for the purpose of creating pressure and a deterrent effect likely to influence the content of their decisions. That provision also limits the obligation of the Supreme Court to refer questions to the Court for a preliminary ruling in terms of the possibility of initiating disciplinary proceedings.
In the third place, the Court holds that, by adopting provisions prohibiting any national court from reviewing compliance with the requirements arising from EU law relating to the guarantee of an independent and impartial tribunal previously established by law, (18) the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, and the principle of primacy of EU law.
In that regard, the Court specifies that those national provisions prohibit not only ‘establish[ing]’, but also ‘assess[ing]’, in the light of their ‘lawfulness’, both the ‘appointment’ itself and the ‘power to carry out tasks in relation to the administration of justice that derives from that appointment’. In addition, those provisions prohibit any ‘calling into question’ of the ‘legitimacy’ of ‘courts and tribunals’ and of the ‘constitutional organs of the State and the organs responsible for reviewing and protecting the law’. Such formulations are capable, especially in the particular context in which they were adopted, of leading to the result that a series of acts which the courts concerned are nevertheless required to adopt, in accordance with the obligations incumbent on them in order to ensure compliance with the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, may, by reason of their content or effects, fall within the prohibitions thus laid down. Moreover, since those national provisions are capable of preventing the Polish courts from disapplying provisions contrary to those two provisions of EU law, which have direct effect, they are also liable to infringe the principle of the primacy of EU law.
In the fourth place, the Court holds that, by conferring on the Extraordinary Review and Public Affairs Chamber exclusive jurisdiction to examine complaints and questions of law concerning the lack of independence of a court or a judge, (19) the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, and under Article 267 TFEU and the principle of primacy of EU law.
In that regard, the Court states that the reorganisation and centralisation of jurisdiction at issue relate to certain constitutional and procedural requirements arising from the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, compliance with which must be guaranteed across all the substantive areas of application of EU law and before all national courts seised of cases falling within those areas. In that regard, those provisions are closely linked to the principle of the primacy of EU law, the implementation of which by national courts contributes to ensuring the effective protection of the rights which EU law confers on individuals.
In that context, in so far as, in particular, any national court called upon to apply EU law is obliged to check whether, as composed, it constitutes an independent and impartial tribunal established by law, where serious doubt appears on that point, and since such courts must also, in certain circumstances, be able to verify whether an irregularity vitiating the procedure for the appointment of a judge could lead to an infringement of the fundamental right to such a tribunal, the review, by national courts, of compliance with those requirements is precluded from falling, in a general and indiscriminate manner, within the jurisdiction of a single national body, all the more so if that body cannot, under national law, examine certain aspects inherent in those requirements. In the present case, the Court finds that the purpose of the national provisions at issue is to reserve to a single body the overall review of the requirements relating to the independence of all courts and judges, of both the judicial and administrative order, by depriving of their powers, in that regard, the national courts which previously had jurisdiction to carry out the various types of review required by EU law and to apply the case-law of the Court. It again emphasises the particular context in which the reorganisation of judicial powers at issue carried out by the amending law, which is characterised by the fact that the Polish judges are, moreover, prevented from making certain findings and assessments which they are required to make under EU law.
The Court concludes that the conferral on a single national body of the power to verify compliance with the fundamental right to effective judicial protection, where the need for such verification may arise before any national court, is, combined with the introduction of various prohibitions and disciplinary offences, liable to weaken the effectiveness of the review of observance of that fundamental right. By thus preventing the other courts without distinction from doing what is necessary in order to ensure the observance of the right of individuals to effective judicial protection by disapplying, where appropriate, national rules contrary to the requirements of EU law, the national provisions at issue also infringe the principle of the primacy of EU law. Furthermore, since the very fact of conferring exclusive jurisdiction on the Extraordinary Review and Public Affairs Chamber of the Supreme Court to settle certain questions relating to the application of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter is such as to prevent or discourage other courts from making a reference to the Court for a preliminary ruling, the national provisions at issue also infringe Article 267 TFEU.
In the fifth and last place, the Court holds that, by adopting provisions imposing on judges an obligation to communicate information relating to their activities within associations and non-profit foundations, and to their membership of a political party, before their appointment, and by providing for the publication of that information, (20) the Republic of Poland infringed the right to respect for private life and the right to the protection of personal data guaranteed by the Charter (21) and by the GDPR. (22)
In that regard, after having concluded that the GDPR was applicable and, more specifically, so were points (c) and (e) of the first subparagraph of Article 6(1) and Article 9(1) of that regulation, the Court finds that the objectives put forward by the Republic of Poland in support of the provisions at issue, consisting of reducing the risk that judges may be influenced, in the performance of their duties, by considerations relating to private or political interests, and reinforcing the confidence of individuals as regards the existence of such impartiality, fall within an objective of general interest recognised by the European Union within the meaning of Article 52(1) of the Charter or a legitimate public interest objective within the meaning of the GDPR. (23) The Court recalls, however, that, while such an objective may therefore authorise limitations on the exercise of the rights guaranteed in Articles 7 and 8 of the Charter, that is only the case, in particular, where those limitations genuinely meet such an objective and are proportionate to it.
Examining the necessity of the measures at issue, the Court notes that the Republic of Poland has not provided clear and concrete explanations as to why the publication of information relating to a judge’s membership of a political party before his or her appointment and during the exercise of his or her term of office as a judge before 29 December 1989 would be such as to currently contribute to strengthening the right of individuals to have their case heard by a court meeting the requirement of impartiality. Having regard to the particular context in which the amending law and those measures were adopted, the Court considers, moreover, that those measures were, in fact, adopted for the purpose, inter alia, of harming the professional reputation of the judges concerned and the perception of them by individuals. Accordingly, those measures are inappropriate for the purpose of attaining the legitimate objective alleged in the present case.
As regards other information, relating to judges’ current or past membership of an association or non-profit foundation, the Court considers that it cannot be ruled out, a priori, that the fact of placing such information online might contribute to revealing the existence of possible conflicts of interest liable to influence the impartial performance by judges of their duties in the handling of individual cases, since such transparency may, moreover, contribute, more generally, to strengthening the confidence of individuals in that impartiality and in justice. It notes, however, first, that, in the present case, the personal data concerned relate in particular to periods prior to the date from which a judge is required to make the declaration required. The Court holds that, in the absence of a temporal limitation as regards the previous periods concerned, it cannot be considered that the measures at issue are limited to what is strictly necessary for the purposes of helping to strengthen the right of individuals to have their case heard by a court meeting the requirement of impartiality. Secondly, as regards the balance to be struck between the objective of general interest pursued and the rights at issue, the Court finds, first of all, that the placing online of the named information at issue is, depending on the object of the associations or non-profit foundations concerned, liable to reveal information on certain sensitive aspects of the private life of the judges concerned, in particular their religious or philosophical beliefs. It observes, next, that the processing of the personal data at issue results in those data being made freely accessible on the internet to the general public and, consequently, to a potentially unlimited number of persons. It notes, lastly, that, in the particular context in which the measures at issue were adopted, the placing online of those data is liable to expose the judges concerned to risks of undue stigmatisation, by unjustifiably affecting the perception of those judges by individuals and the public in general, and to the risk that the progress of their careers would be unduly hampered. In those circumstances, the Court concludes that processing of personal data such as that at issue constitutes a particularly serious interference with the fundamental rights of the persons concerned in respect of their private life and in the protection of their personal data.
In doing so, weighing the seriousness of that interference against the importance of the alleged objective of general interest, the Court finds that, having regard to the general and specific national context in which the measures at issue were adopted and the particularly serious consequences liable to stem from them for the judges concerned, the result of that weighing exercise is not balanced. In comparison with the status quo ante resulting from the pre-existing national legal framework, the placing online of the personal data concerned represents a potentially significant interference with the fundamental rights guaranteed in Article 7 and Article 8(1) of the Charter, without that interference being capable, in the present case, of being justified by any benefits that might result from it in terms of preventing conflicts of interest on the part of judges and an increase in confidence in their impartiality.
1      Amended Law on the Supreme Court, Article 27(1).
2      Thus the Extraordinary Review and Public Affairs Chamber has jurisdiction, in particular, concerning the exclusion of judges or complaints alleging a lack of independence of a court or a judge, and to hear actions for a declaration that court decisions are unlawful, where that unlawfulness consists in the calling into question of the status of the person appointed to a judicial post who adjudicated in the case (Amended Law on the Supreme Court, Article 26(2) to (6)). It also has exclusive jurisdiction to examine questions of law in relation to the independence of a court or a judge arising before the Supreme Court (Amended Law on the Supreme Court, Article 82(2) to (5)).
3      Amended Law on the Supreme Court, Article 29(2) and (3).
4      A judge of the Supreme Court shall be accountable, at the disciplinary level, for breach of professional obligations, including in cases of manifest and flagrant breach of legal rules, acts or omissions of such a kind as to prevent or seriously undermine the functioning of a judicial authority or acts calling into question the existence of the employment relationship of a judge, the effectiveness of the appointment of a judge or the legitimacy of a constitutional organ of the Republic of Poland (Amended Law on the Supreme Court, Article 72(1)).
5      Thus, Article 42a of the amended Law relating to the ordinary courts contains the wording of Article 29(2) and (3) of the amended Law on the Supreme Court, while Article 107(1) contains the wording of Article 72(1) of the amended Law on the Supreme Court (see above).
6      See Articles 80 and 129(1) to (3) of the amended Law relating to the ordinary courts.
7      Article 88a of the amended Law relating to the ordinary courts states in paragraphs (1) and (4) that:
‘1. A judge shall be required to submit a written declaration mentioning:
1) his or her membership of an association, including the name and registered office of the association, the positions held and the period of membership;
2) the position held within a body of a non-profit foundation, including the name and registered office of the foundation and the period during which the position was held;
3) his or her membership of a political party prior to his or her appointment to a judge’s post and his or her membership of a political party during his or her term of office before 29 December 1989, including the name of that party, the positions held and the period of membership.
…
4. The information contained in the declarations referred to in paragraph 1 shall be public and published in the [Biuletyn Informacji Publicznej (Public Information Bulletin)] …’
As regards judges of the Supreme Court, see Article 45(3) of the amended Law on the Supreme Court.
8      See inter alia Article 5(1a) and (1b), Article 8(2), Article 29(1) and Article 49(1) of the amended Law relating to the administrative courts.
9      The Commission considered that the Republic of Poland had failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU – which requires Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law – under Article 47 of the Charter – relating to the right to an effective remedy and to an independent and impartial tribunal previously established by law – under the second and third paragraphs of Article 267 TFEU – which provides for the option (second paragraph), for some national courts, and the obligation (third subparagraph), for others, to make a reference for a preliminary ruling – under the principle of primacy of EU law and under Articles 7 and 8 of the Charter and points (c) and (e) of the first subparagraph of Article 6(1), Article 6(3) and Article 9(1) of the GDPR, relating to the right to privacy and the right to protection of personal data.
10      Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1).
11      Article 2 TEU.
12      Article 49 TEU.
13      See, in that regard, judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117, paragraph 32).
14      See, to that effect, judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 216).
15      See, to that effect, judgment of 15 July 2021, Commission v Poland (Disciplinary regime for judges) (C‑791/19, EU:C:2021:596, paragraph 80).
16      Points 2 and 3 of Article 107(1) of the amended Law relating to the ordinary courts and points 1 to 3 of Article 72(1) of the amended Law on the Supreme Court.
17      Point 1 of Article 72(1) of the amended Law on the Supreme Court.
18      Article 42a(1) and (2) and Article 55(4) of the amended Law relating to the ordinary courts, Article 26(3) and Article 29(2) and (3) of the amended Law on the Supreme Court, and Article 5(1a) and (1b) of the amended Law relating to the administrative courts.
19      Article 26(2) and (4) to (6) and Article 82(2) to (5) of the amended Law on the Supreme Court and Article 10 of the Law amending the Law on the Supreme Court and certain other laws.
20      Article 88a of the amended Law relating to the ordinary courts, Article 45(3) of the amended Law on the Supreme Court and Article 8(2) of the amended Law relating to the administrative courts.
21      Article 7 and Article 8(1) of the Charter.
22      Point (c) and (e) of the first subparagraph of Article 6(1), Article 6(3) and Article 9(1) of the GDPR.
23      Within the meaning of Article 6(3) and Article 9(2)(g) of the GDPR.