62020CO0491
ORDER OF THE COURT (Second Chamber)
22 December 2022 (
*1
)
[Text rectified by order of 2 March 2023]
(Reference for a preliminary ruling – Article 53(2) of the Rules of Procedure of the Court of Justice – Article 267 TFEU – Need for interpretation of EU law to enable the referring court to give judgment – None – Manifest inadmissibility)
In Joined Cases C‑491/20 to C‑496/20, C‑506/20, C‑509/20 and C‑511/20,
REQUESTS for a preliminary ruling under Article 267 TFEU from the Sąd Najwyższy (Izba Pracy i Ubezpieczeń Społecznych) (Supreme Court (Labour and Social Insurance Chamber), Poland), made by decisions of 15 July 2020, received at the Court on 24 September 2020 (C‑491/20), 25 September 2020 (C‑492/20), 28 September 2020 (C‑493/20), 2 October 2020 (C‑494/20 and C‑495/20), 6 October 2020 (C‑496/20), 9 October 2020 (C‑506/20), 22 September 2020 (C‑509/20) and 13 October 2020 (C‑511/20), in the proceedings
W.Ż.
v
A.S.,
Sąd Najwyższy,
other interested party:
Prokurator Generalny (C‑491/20),
and
W.Ż.
v
K.Z.,
Skarb Państwa – Sąd Najwyższy,
other interested party:
Prokurator Generalny (C‑492/20),
and
P.J.
v
A.T.,
R.W.,
Sąd Najwyższy,
other interested party:
Prokurator Generalny (C‑493/20),
and
K.M.
v
T.P.,
Skarb Państwa – Sąd Najwyższy,
other interested party:
Prokurator Generalny (C‑494/20),
and
T.M.
v
T.D.,
M.D.,
P.K.,
J.L.,
M.L.,
O.N.,
G.Z.,
A.S.,
Skarb Państwa – Sąd Najwyższy,
other interested party:
[As rectified by order of 2 March 2023] Prokurator Generalny (C‑495/20),
and
M.F.
v
T.P.,
other interested party:
Prokurator Generalny (C‑496/20),
and
T.B.
v
T.D.,
M.D.,
P.K.,
J.L.,
M.L.,
O.N.,
G.Z.,
A.S.,
Skarb Państwa – Sąd Najwyższy,
other interested party:
Prokurator Generalny (C‑506/20),
and
M.F.
v
J.M.,
other interested party:
Prokurator Generalny,
Rzecznik Praw Obywatelskich (C‑509/20),
and
B.S.
v
T.D.,
M.D.,
P.K.,
J.L.,
M.L.,
O.N.,
Skarb Państwa – Sąd Najwyższy,
other interested party:
Prokurator Generalny (C‑511/20),
THE COURT (Second Chamber),
composed of A. Prechal (Rapporteur), President of the Chamber, M.L. Arastey Sahún, F. Biltgen, N. Wahl and J. Passer, Judges,
Advocate General: A.M. Collins,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–
W.Ż., by S. Gregorczyk-Abram, M. Pietrzak and M. Wawrykiewicz, adwokaci,
–
A.S., by himself,
–
K.Z., by himself,
–
P.J., by S. Gregorczyk–Abram and M. Wawrykiewicz, adwokaci,
–
A.T., by himself,
–
K.M., by M. Jabłoński, adwokat,
–
T.P., by himself,
–
T.M., T.B. and B.S., by M. Gajdus, adwokat,
–
M.F., by W. Popiołek, radca prawny,
–
P.K., by himself,
–
the Sąd Najwyższy, by M. Manowska,
–
the Prokurator Generalny, by R. Hernand and M. Pasionek,
–
the Rzecznik Praw Obywatelskich, by M. Taborowski and M. Wróblewski,
–
the Polish Government, by B. Majczyna, acting as Agent,
–
the European Commission, by K. Herrmann and P.J.O. Van Nuffel, acting as Agents,
having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 53(2) of the Rules of Procedure of the Court of Justice,
makes the following
Order
1
These requests for a preliminary ruling concern the interpretation of Article 2, Article 4(2) and (3), Article 6(3), and the second subparagraph of Article 19(1) TEU, Article 267 TFEU and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2
The requests have been made in proceedings between W.Ż. (C‑491/20 and C‑492/20), P.J. (C‑493/20), K.M. (C‑494/20), T.M. (C‑495/20), M.F. (C‑496/20 and C‑509/20), T.B. (C‑506/20) and B.S. (C‑511/20), on the one hand, and A.S. (C‑491/20), K.Z. (C‑492/20), A.T. and R.W. (C‑493/20), T.P. (C‑494/20 and C‑496/20), T.D., M.D., P.K., J.L., M.L. and O.N. (C‑495/20, C‑506/20 and C‑511/20), G.Z. and A.S. (C‑495/20 and C‑506/20), J.M. (C‑509/20) and the Sąd Najwyższy (Supreme Court, Poland) (C‑491/20 and C‑493/20) and the Skarb Państwa – Sąd Najwyższy (Public Treasury – Supreme Court, Poland) (C‑492/20, C‑494/20, C‑495/20, C‑506/20 and C‑511/20), on the other, concerning applications seeking a declaration that a service relationship does not exist between various individuals holding office as judges of the Sąd Najwyższy (Supreme Court), on the one hand, and that court, on the other.
National legal framework
The Constitution
3
Article 144(2) and (3) of the Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland; ‘the Constitution’) is worded as follows:
‘2.   In order to be valid, official acts of the President of the Republic must be countersigned by the President of the Council of Ministers who thereby assumes responsibility before the Sejm [(Lower Chamber of the Polish Parliament)].
3.   The provisions of paragraph 2 above shall not apply in the following cases:
…
(17)
the appointment of judges;
…’
4
Under Article 179 of the Constitution, judges are appointed by the President of the Republic on a proposal from the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland; ‘the KRS’), for an indefinite period.
The Code of Civil Procedure
5
Article 189 of the Kodeks postępowania cywilnego (Code of Civil Procedure) states:
‘Applicants may bring an action before the court for a declaration that a legal relationship or a right exists or does not exist, provided that they have a legitimate interest in bringing proceedings.’
The Law on the Supreme Court
6
The ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 (Dz. U. of 2018, item 5) entered into force on 3 April 2018. That law, inter alia, established within the Sąd Najwyższy (Supreme Court) two new chambers, namely the Izba Dyscyplinarna (Disciplinary Chamber) and the Izba Kontroli Nadzwyczajnej i Spraw Publicznych Sądu Nawyższego (Extraordinary Review and Public Affairs Chamber).
7
Article 27(1) of the Law on the Supreme Court provides as follows:
‘The following cases shall fall within the jurisdiction of the Disciplinary Chamber:
(1)
disciplinary proceedings:
(a)
involving [Sąd Najwyższy (Supreme Court)] judges,
(b)
examined by the [Sąd Najwyższy (Supreme Court)] in connection with disciplinary proceedings under the following laws:
…
–
the Law on the organisation of the ordinary courts …,
…
…
(2)
proceedings in the field of labour law and social insurance involving [Sąd Najwyższy (Supreme Court)] judges;
…’
8
Article 73(1) of the Law on the Supreme Court provides as follows:
‘The disciplinary courts in disciplinary cases concerning judges of the [Sąd Najwyższy (Supreme Court)] are:
(1)
at first instance: the [Sąd Najwyższy (Supreme Court)], composed of two judges of the Disciplinary Chamber and one lay judge of the [Sąd Najwyższy (Supreme Court)];
(2)
on appeal: the [Sąd Najwyższy (Supreme Court)], composed of three judges of the Disciplinary Chamber and two lay judges of the [Sąd Najwyższy (Supreme Court)].’
9
The Law on the Supreme Court has been amended several times, including 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).
10
Article 26(2) of the Law on the Supreme Court, as amended by the Law of 20 December 2019, provides as follows:
‘The Extraordinary Review and Public Affairs Chamber shall have jurisdiction to hear applications or declarations concerning the removal of a judge or the designation of the court before which proceedings must be conducted, including complaints alleging a lack of independence of the court or the judge. The court dealing with the case shall submit forthwith a request to the President of the Extraordinary Review and Public Affairs Chamber so that the case may be dealt with in accordance with the rules laid down in separate provisions. …’
11
Article 29(2) and (3) of the Law on the Supreme Court, as amended by the Law of 20 December 2019, reads as follows:
‘2.   In the context of the activities of the [Sąd Najwyższy (Supreme Court)] or its organs, it shall not be permissible to call into question the legitimacy of the [courts], the constitutional organs of the State or the organs responsible for reviewing and protecting the law.
3.   The [Sąd Najwyższy (Supreme Court)] or other authority cannot establish or assess the legality of the appointment of a judge or of the authority to perform judicial tasks that derives from that appointment.’
The Law on the organisation of the ordinary courts
12
Article 110 of the ustawa – Prawo o ustroju sądów powszechnych (Law on the organisation of the ordinary courts) of 27 July 2001, as amended (Dz. U. of 2018, item 23), provides:
‘1.   In disciplinary cases involving judges, the following shall adjudicate:
(1)
at first instance:
(a)
the disciplinary courts at appeal level, composed of three judges;
…
3.   The disciplinary court within whose jurisdiction the judge who is the subject of the disciplinary proceedings holds office shall not be permitted to hear the cases referred to in paragraph 1(1)(a). The disciplinary court with jurisdiction to hear the case shall be designated by the President of the [Sąd Najwyższy (Supreme Court)] who directs the work of the Disciplinary Chamber, at the request of the Disciplinary Officer.
…’
The Law on the KRS
13
The KRS is governed by the ustawa o Krajowej Radzie Sądownictwa (Law on the National Council of the Judiciary) of 12 May 2011 (Dz. U. of 2011, No 126, item 714), as amended, inter alia, by the ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw (Law amending the Law on the National Council of the Judiciary and certain other laws) of 8 December 2017 (Dz. U. of 2018, item 3) and by the ustawa o zmianie ustawy – Prawo o ustroju sądów powszechnych oraz niektórych innych ustaw (Law amending the Law on the organisation of the ordinary courts and certain other laws) of 20 July 2018 (Dz. U. of 2018, item 1443) (‘the Law on the KRS’).
14
Article 37(1) of the Law on the KRS provides:
‘If several candidates have applied for a single position of judge, [the KRS] shall examine and evaluate all the applications lodged together. In that case, [the KRS] shall adopt a resolution including its decisions for the purposes of putting forward one proposal for appointment to the office of judge in respect of all candidates.’
15
Under Article 43(2) of that law:
‘Unless all the participants in the procedure have challenged the resolution referred to in Article 37(1), that resolution shall become final for the part comprising the decision not to present a proposal for appointment to the office of judge of the participants who did not lodge an appeal, subject to the provisions of Article 44(1b).’
16
Article 44 of that law stated:
‘1.   A participant in the procedure may appeal to the [Sąd Najwyższy (Supreme Court)] on the grounds that the [KRS] resolution is unlawful, unless separate provisions provide otherwise. …
1a.   In individual cases concerning appointment to the office of judge of the [Sąd Najwyższy (Supreme Court)], an appeal may be lodged with the [Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland)]. In those cases, it is not possible to lodge an appeal with the [Sąd Najwyższy (Supreme Court)]. An appeal to the [Naczelny Sąd Administracyjny (Supreme Administrative Court)] may not be based on a plea alleging an incorrect assessment of the candidates’ fulfilment of the criteria taken into account when making a decision on the presentation of a proposal for appointment to the position of judge of the [Sąd Najwyższy (Supreme Court)].
1b.   Unless all the participants in the procedure have challenged the resolution referred to in Article 37(1) in individual cases concerning appointment to the office of judge of the [Sąd Najwyższy (Supreme Court)], that resolution shall become final for the part comprising the decision to present the proposal for appointment to the position of judge of the [Sąd Najwyższy (Supreme Court)] and for the part comprising the decision not to present a proposal for appointment to the position of judge of that court for participants in the procedure who did not lodge an appeal.
…
4.   In individual cases concerning appointment to the office of judge of the [Sąd Najwyższy (Supreme Court)], the annulment by the [Naczelny Sąd Administracyjny (Supreme Administrative Court)] of the [KRS] resolution not to put forward a proposal for appointment to the position of judge of the [Sąd Najwyższy (Supreme Court)] is equivalent to accepting the candidacy of the participant who lodged the appeal in the procedure for the vacant position of judge of the [Sąd Najwyższy (Supreme Court)] for a position for which, on the date of delivery of the judgment of the [Naczelny Sąd Administracyjny (Supreme Administrative Court)], the procedure before [the KRS] has not ended or, in the absence of such a procedure, for the next vacant position of judge of the [Sąd Najwyższy (Supreme Court)] which is published.’
17
Paragraph 1a of Article 44 of the Law on the KRS was inserted into that article by the Law of 8 December 2017 amending the Law on the National Council of the Judiciary and certain other laws, which entered into force on 17 January 2018, and paragraphs 1b and 4 were inserted into that article by the Law of 20 July 2018 amending the Law on the organisation of the ordinary courts and certain other laws, which entered into force on 27 July 2018. Prior to the insertion of those amendments, the appeals referred to in that paragraph 1a were to be lodged with the Sąd Najwyższy (Supreme Court) in accordance with that Article 44(1).
18
By judgment of 25 March 2019, the Trybunał Konstytucyjny (Constitutional Court, Poland) declared Article 44(1a) of the Law on the KRS incompatible with Article 184 of the Constitution, on the grounds, in essence, that the jurisdiction conferred on the Naczelny Sąd Administracyjny (Supreme Administrative Court) by paragraph 1a was not justified in the light of the nature of the cases concerned, the organisational characteristics of that court or the procedure applied by that court. In that judgment, the Trybunał Konstytucyjny (Constitutional Court) also stated that that declaration of unconstitutionality ‘necessarily entails the termination of all pending court proceedings based on the repealed provision’.
19
Subsequently, Article 44 of the Law on the KRS was amended by the ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz ustawy – Prawo o ustroju sądów administracyjnych (Law amending the Law on the National Council of the Judiciary and the Law on the system of administrative courts) of 26 April 2019 (Dz. U. of 2019, item 914), which entered into force on 23 May 2019. Paragraph 1 of that Article 44, as amended, is now worded as follows:
‘A participant in the procedure may appeal to the [Sąd Najwyższy (Supreme Court)] on the grounds that the [KRS] resolution is unlawful, unless separate provisions provide otherwise. It is not possible to bring an appeal in individual cases relating to an appointment to the office of judge of the [Sąd Najwyższy (Supreme Court)].’
20
In addition, Article 3 of that law of 26 April 2019 provides that ‘proceedings in cases concerning appeals against [KRS] resolutions in individual cases regarding the appointment of [Sąd Najwyższy (Supreme Court)] judges, which have been initiated but not concluded before this law comes into force, shall be discontinued by operation of law’.
The disputes in the main proceedings
Case C‑509/20
21
The dispute in the main proceedings in Case C‑509/20 has already given rise to one reference for a preliminary ruling, which resulted in the judgment of 22 March 2022, Prokurator Generalny and Others(Disciplinary Chamber of the Supreme Court – Appointment) (C‑508/19, EU:C:2022:201; ‘the judgment in Prokurator Generalny’).
22
M.F., who holds office as a judge of the Sąd Rejonowy w P. (District Court of P., Poland), brought an action before the Sąd Najwyższy (Supreme Court) under Article 189 of the Code of Civil Procedure seeking a declaration that a service relationship does not exist between J.M. and the Sąd Najwyższy (Supreme Court), on account of irregularities allegedly affecting J.M.’s appointment to the office of judge in the Disciplinary Chamber of that court (‘the Disciplinary Chamber’). M.F. brought that action after J.M., acting in his capacity as President of the Disciplinary Chamber, issued, under Article 110(3) of the Law on the organisation of the ordinary courts, as amended, an order designating the Sąd Dyscyplinarny przy Sądzie Apelacyjnym w X. (Disciplinary Court at the Court of Appeal of X., Poland) as the disciplinary court having jurisdiction to hear the disciplinary proceedings initiated against M.F. for alleged slowness in the proceedings conducted by her and alleged delays in drawing up the grounds for her decisions.
23
In support of that action, M.F. claims that J.M.’s appointment to the position of judge of the Sąd Najwyższy (Supreme Court) was ineffective because the instrument of appointment by the President of the Republic was delivered to J.M. when the KRS resolution proposing him for appointment to that position was the subject of an appeal brought before the Naczelny Sąd Administracyjny (Supreme Administrative Court), pursuant to Article 44(1a) of the Law on the KRS, by a candidate not proposed for appointment under that resolution. In addition, the selection procedure to fill that position was conducted following a communication from the President of the Republic which did not bear the ministerial countersignature required by Article 144 of the Constitution.
24
M.F. has also made an application to have all the judges appointed to the Disciplinary Chamber removed and to have the Izba Pracy i Ubezpieczeń Społecznych (Labour and Social Insurance Chamber) of the Sąd Najwyższy (Supreme Court) (‘the Labour and Social Insurance Chamber’) designated to rule on her action instead of the Disciplinary Chamber, which would otherwise have had jurisdiction under Article 27(1)(2) of the Law on the Supreme Court. Lastly, M.F. has made a request, as an interim measure and for the duration of the main proceedings, for an order staying the disciplinary proceedings brought against her.
Cases C‑494/20 and C‑496/20
25
The circumstances of the main proceedings in Cases C‑494/20 and C‑496/20 are almost identical to those of the main proceedings in Case C‑509/20.
26
By their respective actions, K.M., a judge of the Sąd Okręgowy w K. (Regional Court of K., Poland), and M.F. seek a declaration that a service relationship does not exist between T.P., who succeeded J.M. as President of the Disciplinary Chamber, and the Sąd Najwyższy (Supreme Court), on account of alleged irregularities affecting his appointment that are similar to those mentioned in paragraph 23 of this order.
27
Those actions too were brought following the adoption, by T.P., of orders designating the disciplinary courts having jurisdiction to hear the disciplinary proceedings initiated against K.M., on account of public statements relating to ongoing disciplinary proceedings and calling into question the independence and lawfulness of acts of the KRS and the constitutionality and apolitical nature of the Disciplinary Chamber, and against M.F., on account of alleged infringements of provisions of EU law in her judicial decisions.
28
Lastly, in both of those actions in the main proceedings, K.M. and M.F. have applied for interim measures and measures of organisation of procedure similar to those mentioned in paragraph 24 of this order. K.M. has also requested that, as an interim measure, the defendant in the main proceedings be prohibited from continuing to perform his duties as judge of the Sąd Najwyższy (Supreme Court) and has requested that court to bar him from any judicial activity.
Case C‑493/20
29
By his action in the main proceedings, P.J., a judge of the Sąd Rejonowy w O. (District Court of O., Poland), seeks a declaration that a service relationship does not exist between A.T. and R.W., on the one hand, and the Sąd Najwyższy (Supreme Court), on the other, on account of irregularities allegedly affecting their appointment to the office of judge in the Disciplinary Chamber that are similar to those mentioned in paragraph 23 of this order.
30
That action was brought in response to a decision by which a panel of three judges of the Disciplinary Chamber, on which A.T. and R.W. sat, had, in the course of disciplinary proceedings against P.J., confirmed his temporary suspension from duties for the duration of those proceedings and reduced his remuneration by 40% for the duration of that suspension. That decision was adopted, in particular, on the ground that P.J. had adopted, without any legal basis, a decision requiring the head of the secretariat of the Sejm (Lower Chamber of the Polish Parliament) to produce lists of citizens and judges who had supported candidates applying for positions as members of the new KRS.
31
In his action in the main proceedings, P.J. too has applied for measures of organisation of procedure and interim measures similar to those mentioned in paragraph 28 of this order, including a request for the disciplinary proceedings referred to in the preceding paragraph to be stayed.
Case C‑492/20
32
By his action in the main proceedings, W.Ż., a judge of the Sąd Okręgowy w K. (Regional Court of K.), seeks a declaration that a service relationship does not exist between K.Z. and the Sąd Najwyższy (Supreme Court), on account of irregularities, similar to those mentioned in paragraph 23 of this order, allegedly affecting his appointment to the office of judge in the Izba Cywilna (Civil Chamber) of that court (‘the Civil Chamber’).
33
In that action, W.Ż. relies on the fact that disciplinary proceedings have been brought against him for having questioned, in an interview, the lawfulness of K.Z.’s appointment, and argues that a declaration that K.Z. does not have a service relationship would enable him to substantiate the claims he made in that interview. The referring court also mentions the fact that K.Z., in his capacity as first acting President of the Sąd Najwyższy (Supreme Court), adopted a decree repealing a decree of his predecessor and reassigning to the Disciplinary Chamber the task of keeping the records of disciplinary cases brought against judges, along with the administrative management of those cases.
34
Lastly, W.Ż. has applied for interim measures and measures of organisation of procedure similar to those mentioned in paragraph 28 of this order, including a request for the disciplinary proceedings against him to be stayed. He has also requested that evidence be taken in relation to the interview mentioned in the preceding paragraph.
Case C‑491/20
35
By his action in the main proceedings, the same W.Ż. seeks a declaration that a service relationship does not exist between A.S. and the Sąd Najwyższy (Supreme Court), on account of irregularities, similar to those mentioned in paragraph 23 of this order, allegedly affecting his appointment to the office of judge in the Extraordinary Review and Public Affairs Chamber of that court (‘the Extraordinary Review and Public Affairs Chamber’).
36
That action was brought after A.S., sitting as single judge of that chamber, adopted an order dismissing the action by which W.Ż. challenged a decision transferring him without his consent, that order having been adopted at a time when the Civil Chamber was seised of an application seeking, inter alia, the removal of all the other judges in the Extraordinary Review and Public Affairs Chamber who would otherwise have had jurisdiction to hear the action in question.
37
In that action in the main proceedings, W.Ż. has also applied for interim measures and measures of organisation of procedure similar to those mentioned in paragraph 28 of this order.
Case C‑495/20
38
[As rectified by order of 2 March 2023] By his action in the main proceedings, T.M., a judge of the Sąd Rejonowy w B. (District Court of B., Poland), seeks a declaration that a service relationship does not exist between T.D., M.D., P.K., J.L., M.L., O.N, G.Z and A.S., on the one hand, and the Sąd Najwyższy (Supreme Court), on the other, on account of irregularities, similar to those mentioned in paragraph 23 of this order, allegedly affecting the appointment of each of them to the office of judge in the Extraordinary Review and Public Affairs Chamber.
39
That action was brought after the Extraordinary Review and Public Affairs Chamber dismissed an application for the removal of its members which T.M. had made in the course of proceedings he had brought to challenge decisions of the KRS relating to a ‘finding that there is no need to rule on the exclusion of a member of the KRS from examining the case’ and to ‘an action against the allocation of cases’.
40
In the context of that action, T.M. has applied for measures of organisation of procedure and interim measures similar to those mentioned in paragraph 28 of this order and seeking, in particular, a stay of the proceedings before the Extraordinary Review and Public Affairs Chamber in which he is a party.
Cases C‑506/20 and C‑511/20
41
By their respective actions in the main proceedings in Cases C‑506/20 and C‑511/20, T.B. and B.S., both judges of the Sąd Rejonowy w S. (District Court of S., Poland), seek a declaration that none of the judges in the Extraordinary Review and Public Affairs Chamber mentioned in paragraph 38 of this order has a service relationship (T.B.’s action) and a declaration that six of those judges have no such service relationship (B.S.’s action). The pleas raised by the applicants in the main proceedings in support of those actions allege irregularities, similar to those mentioned in paragraph 23 of this order, affecting the appointment of each individual to the office of judge in the Extraordinary Review and Public Affairs Chamber.
42
As regards their interest in bringing proceedings, those applicants in the main proceedings rely on the fact that, having applied for the position of judge in the Disciplinary Chamber, neither of them was put forward by the KRS for the appointment, and on the fact that their respective actions against the KRS resolution putting forward other candidates for the appointment will, in principle, have to be heard by the Extraordinary Review and Public Affairs Chamber and, potentially therefore, by the judges who are defendants in the main proceedings.
43
In the context of their actions in the main proceedings, T.B. and B.S. have applied for measures of organisation of procedure and interim measures substantially similar to those mentioned in paragraph 28 of this order, including, in particular, a stay of the proceedings which they have brought before the Extraordinary Review and Public Affairs Chamber.
The questions referred for a preliminary ruling
44
As is apparent from the orders for reference, the Labour and Social Insurance Chamber, as variously composed from time to time, before which the present actions in the main proceedings are pending, initially decided to suspend its examination of those actions until the Court of Justice gave its ruling in Case C‑508/19, Prokurator Generalny and Others
(Disciplinary Chamber of the Supreme Court – Appointment).
45
[As rectified by order of 2 March 2023] However, in view of various matters which arose after those decisions to stay the proceedings were taken, those various judicial panels subsequently decided to make the present references for a preliminary ruling. The matters in question included, first, the request made by the President of the Disciplinary Chamber on 6 May 2020 for most of the case files for the actions in the main proceedings to be transferred and for the lodging by the Public Prosecutor, on 7 and 8 July 2020, of a request for all of those cases to be referred back to the Disciplinary Chamber. Secondly, the various panels making the reference mention the recent insertion into the Law on the Supreme Court, by the law of 20 December 2019, of a new Article 29(2) and (3) which prohibits the Sąd Najwyższy (Supreme Court) from calling into question the legitimacy of the courts and from assessing the legality of judicial appointments or of the authority of judges to perform judicial tasks. Thirdly, those judicial panels take note of a letter from the President of the Extraordinary Review and Public Affairs Chamber of 8 July 2020 stating that, having regard to the first sentence of the new Article 26(2) of the Law on the Supreme Court, also recently inserted into the Law on the Supreme Court by the Law of 20 December 2019, it is the Extraordinary Review and Public Affairs Chamber that has jurisdiction to decide whether the actions in the main proceedings fall within the jurisdiction of the Disciplinary Chamber or that of the Labour and Social Insurance Chamber, in which the various judicial panels currently seised of those actions sit.
46
It is in those circumstances that the Sąd Najwyższy (Izba Pracy i Ubezpieczeń Społecznych) (Supreme Court (Labour and Social Insurance Chamber), Poland) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
, Must Article 279 TFEU and Article 160(2) of the Rules of Procedure of the Court of Justice, in conjunction with Articles 4(3) and 19(1) TEU and the first and second indents of paragraph 1 of the operative part of the order of the Court of Justice of 8 April 2020 in Case C‑791/19 R, Commission v Poland (C‑791/19 R, EU:C:2020:277), be interpreted as meaning that the President of the Izba Dyscyplinarna Sądu Najwyższego (Disciplinary Chamber of the Supreme Court) [or, in Case C‑492/20, “a Public Prosecutor”] may not, until Case C‑791/19 R has been resolved, request the transfer of a case file concerning the establishment of the non-existence of a service relationship of a [Sąd Najwyższy (Supreme Court)] judge due to the suspension of the application of Article 3(5), Article 27 and Article 73(1) of the [Law on the Supreme Court]?
(2)
Must Article 2 and Article 4(2) TEU, in conjunction with the second subparagraph of Article 19(1) TEU and the right to a fair trial, be interpreted as meaning that:
(a)
the national court is required to disapply the prohibition on “calling into question the legitimacy of the courts” and on “[the courts’] establish[ing] or assess[ing] the legality of the appointment of a judge or the authority to perform judicial tasks that derives from that appointment”, such as that stipulated in Article 29(2) and (3) of the [Law on the Supreme Court], since the European Union’s respect for the constitutional identity of the Member States does not entitle the national legislature to enact solutions which undermine the fundamental values and principles of the European Union?
(b)
the constitutional identity of a Member State must not result in the deprivation of the right to a fair trial before an independent court or tribunal established by law where the appointment procedure preceding the delivery of the document of appointment included the irregularities described in the questions referred for a preliminary ruling in Cases C‑487/19 and C‑508/19, and the prior judicial review of that procedure was deliberately prevented in a manner that is clearly contrary to the national constitution?
(3)
Must Article 2 and Article 4(2) TEU, in conjunction with the second subparagraph of Article 19(1) TEU and the right to a fair trial, as well as Article 267 TFEU, be interpreted as meaning that the content of the concept of the constitutional identity of a Member State, as regards the right to a fair trial, may be determined in a manner binding on the court or tribunal of final instance of a Member State only within the framework of a dialogue between the Court of Justice and that court or other national courts (for instance, the Trybunał Konstytucyjny (Constitutional Court)) conducted using the preliminary ruling procedure?
(4)
Must the second subparagraph of Article 19(1) TEU [in Cases C‑494/20, C‑506/20, C‑509/20 and C‑511/20, “in conjunction with Article 267 TFEU”] and the general principle of the right to a fair trial before a court or tribunal previously established by law be interpreted as meaning that the court of final instance of a Member State must reject an application for the transfer of a case file [in Cases C‑491/20 and C‑509/20, “concerning a case in which a question has been referred for a preliminary ruling to the Court of Justice”] where such an application has been lodged by a person appointed to a judicial post under national legislation and in circumstances that result in a court or tribunal being formed which does not meet the requirements of independence and impartiality and is not a court established by law, without first having to exhaust the procedure at issue in the reference for a preliminary ruling in Case C‑508/19 or in the 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)?’
47
Next, in the orders for reference in Cases C‑491/20 to C‑495/20, C‑506/20 and C‑511/20, a fifth question was formulated in the following terms:
‘(5)
Must the second subparagraph of Article 19(1) TEU, in conjunction with Article 2 and Article 4(3) TEU and the right to a fair trial, be interpreted as meaning that a national court ruling in a case concerning the establishment of the non-existence of a service relationship of a national court judge by reason of serious irregularities during the appointment procedure is required to order interim measures and to prohibit the defendant in such a case from ruling on all other cases falling within the scope of EU law, on pain of such rulings being invalid, as well as to order other bodies to refrain from assigning cases to such a defendant or from assigning him [or her] to adjudicating panels?’
48
Finally, in all of the present joined cases, with the exception of Case C‑509/20, the referring court, acting ‘pursuant to Article 267 TFUE, in conjunction with point 27 of the Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings [(OJ 2019 C 380, p. 1)]’, has asked the last four questions set out below, which are identical to four questions already referred to the Court in Case C‑508/19, Prokurator Generalny and Others (Disciplinary Chamber of the Supreme Court – Appointment):
‘(6)   Should the second subparagraph of Article 19(1), Article 2, Article 4(3) and Article 6(3) TEU, in conjunction with Article 47 of the [Charter] and the third paragraph of Article 267 TFEU, be interpreted as meaning that the court of final instance of a Member State may, in proceedings seeking a declaration that a service relationship is non-existent, declare that a person who has received a document appointing him or her to the position of judge in that court is not a judge in the case where that document of appointment was issued on the basis of provisions which infringe the principle of effective judicial protection or under a procedure which is incompatible with that principle, in the case where a judicial review of these matters prior to the delivery of the document of appointment has intentionally been made impossible?
(7)   Should the second subparagraph of Article 19(1), Article 2 and Article 4(3) TEU and Article 47 of the [Charter], in conjunction with Article 267 TFEU, be interpreted as meaning that the principle of effective judicial protection is infringed in the case where a document appointing a person to the position of judge is delivered after a national court has requested a preliminary ruling concerning the interpretation of EU law and where that preliminary ruling will determine the compatibility with EU law of the national provisions the application of which made it possible for the document of appointment to be delivered?
(8)   Should the second subparagraph of Article 19(1), Article 2, Article 4(3) and Article 6(3) TEU and Article 47 of the [Charter] be interpreted as meaning that the principle of effective judicial protection is infringed by the failure to guarantee the right to effective judicial protection in the case where a document appointing a person to the position of judge of a court in a Member State is delivered following an appointment procedure carried out in flagrant breach of the laws of that Member State governing the appointment of judges?
(9)   Should the second subparagraph of Article 19(1), Article 2 and Article 4(3) TEU and Article 47 of the [Charter], in conjunction with the third paragraph of Article 267 TFEU, be interpreted as meaning that the principle of effective judicial protection is infringed by the establishment by the national legislature of an organisational unit within the court of final instance of a Member State which is not a court or tribunal within the meaning of EU law?’
Procedure before the Court
The application for an expedited procedure
49
The referring court has requested that the first and fifth questions referred be dealt with under an expedited procedure pursuant to Article 105 of the Rules of Procedure. In support of its request, it stated that an expedited procedure was justified, in the case of the first question, by the need to dispel any doubt as to the material scope of the order of 8 April 2020, Commission v Poland (C‑791/19 R, EU:C:2020:277), and, in the case of the fifth question, by the need to ensure that the functioning of the national judicial system satisfies the requirements of EU law.
50
Article 105(1) of the Rules of Procedure provides that, at the request of the referring court or tribunal or, exceptionally, of his or her own motion, the President of the Court may decide, after hearing the Judge-Rapporteur and the Advocate General, that a reference for a preliminary ruling is to be determined pursuant to an expedited procedure where the nature of the case requires that it be dealt with within a short time.
51
It must be borne in mind that such an expedited procedure is a procedural instrument intended to address matters of exceptional urgency (judgment of 21 December 2021, Randstad Italia, C‑497/20, EU:C:2021:1037, paragraph 37 and the case-law cited).
52
In the present case, the President of the Court decided, by decisions of 12 and 13 October and 13 November 2020, after hearing the Judge-Rapporteur and the Advocate General, that it was not appropriate to grant the requests referred to in paragraph 49 above.
53
It must be remembered at the outset that, in Case C‑508/19, Prokurator Generalny and Others (Disciplinary Chamber of the Supreme Court – Appointment), which concerned the same dispute as that in the main proceedings in Case C‑509/20 and in which questions were referred for a preliminary ruling that are identical to the sixth to ninth questions referred in the present joined cases, the President of the Court rejected, by decision of 20 August 2019, an earlier request from the referring court for the expedited procedure to be applied. Given that, the grounds for that rejection, set out in paragraphs 39 to 43 of the judgment in Prokurator Generalny, apply equally to the requests for an expedited procedure made in the present joined cases.
54
Moreover, even supposing that an expedited procedure could be initiated in respect of just some of the questions referred to the Court of Justice for a preliminary ruling, as the referring court requests in the present case, it is not apparent why the answer to the first question is especially urgent and, moreover, the referring court has not substantiated its request in that regard.
55
As regards the fifth question, it must first be recalled that the fact that a request for a preliminary ruling is made in national proceedings allowing the adoption of interim measures is not, in itself, capable of establishing that the nature of the case requires that it be dealt with within a short time (judgment in Prokurator Generalny, paragraph 40 and the case-law cited). Secondly, it must be observed that the applications for interim measures to which this fifth question relates have long been pending before the referring court, in particular before the various judicial panels of that court, which initially suspended their examination of the cases in the main proceedings pending delivery of the judgment in Case C‑508/19, Prokurator Generalny and Others (Disciplinary Chamber of the Supreme Court – Appointment). That does not suggest that the matter is of such exceptional urgency as to warrant the initiation of an expedited procedure in order to answer that question.
Joinder
56
By decision of the President of the Court of 16 November 2020, Cases C‑491/20 to C‑496/20, C‑506/20, C‑509/20 and C‑511/20 were joined for the purposes of the written and oral procedure and the judgment to be delivered.
Partial withdrawal of the questions referred for a preliminary ruling
57
After the Court of Justice, in its judgment in Prokurator Generalny, declared inadmissible the reference for a preliminary ruling before it in Case C‑508/19, the referring court was asked whether it wished to maintain the present requests for a preliminary ruling.
58
In reply, the referring court informed the Court, on 27 April 2022, that it had decided to withdraw the first, eighth and ninth questions referred for a preliminary ruling and to maintain the six remaining questions. The orders setting out the grounds for that decision were adopted by the referring court on 23 May 2022 and communicated to the Court the same day.
59
It is apparent from those statements of grounds that the referring court considers that an answer to the second to fourth questions is still needed, even if the Court of Justice answers the sixth and seventh questions in the negative or declares them inadmissible, as it did in the judgment in Prokurator Generalny. The fourth question in fact concerns difficulties of a procedural nature which the referring court must resolve concerning the question of whether the cases in the main proceedings should be transferred to the Disciplinary Chamber or to the Extraordinary Review and Public Affairs Chamber. The second and third questions are closely related to the fourth question and answers to the second and third questions are all the more necessary in view of the fact that the Trybunał Konstytucyjny (Constitutional Court) has recently delivered judgments limiting the scope of the principle of the primacy of EU law.
60
As regards the fifth question, the referring court states that it could be regarded as devoid of purpose only if the sixth and seventh questions are answered in the negative or declared inadmissible by the Court of Justice.
61
Lastly, the referring court emphasises that the sixth and seventh questions concern the issue of whether EU law requires that a specific legal remedy exist under national law for the protection of rights which individuals derive from EU law, such as that envisaged in the cases in the main proceedings.
62
First of all, by contrast with the Court’s finding in the judgment in Prokurator Generalny, the proceedings for a declaration that the judge who was the defendant in the main proceedings in Case C‑508/19 does not have a service relationship were not incidental to the disciplinary proceedings brought against the judge who was the applicant in the main proceedings in that case, the two sets of proceedings in fact being independent and the interest of the applicant in proceedings for a declaration that a service relationship does not exist being assessed only after the legal proceedings thus initiated have been ruled admissible. Moreover, in several of the present cases in the main proceedings, there are no parallel proceedings underway of the kind identified in the judgment in Prokurator Generalny.
63
Secondly, if account is taken of the entire national system of legal remedies available to individuals, as mentioned in that judgment, the conclusion should be that the action for a declaration that a service relationship does not exist here at issue is admissible, since it is the only means of ensuring that the guarantees flowing from the second subparagraph of Article 19(1) TEU and Article 47 of the Charter are observed, given the lack of any domestic law remedy in accordance with which the question of a judge’s appointment may be called directly into question once he or she has been appointed – unlawfully – by the President of the Republic.
64
The referring court also alludes to the fact that judges who do follow the guidance in the Court’s case-law on the rule of law now find themselves at risk of reprisals, both disciplinary and under criminal law, as is evidenced by a number of specific examples which it mentions. It also points out that the national case files in Cases C‑487/19 and C‑508/19 which the Court sent back to the referring courts in those cases have been retained by the new First President of the Sąd Najwyższy (Supreme Court) rather than being forwarded to those referring courts and that the composition of the latter has meanwhile been altered, with the result that they are now composed mainly of judges appointed under procedures that are vitiated by failings similar to those at issue in Case C‑487/19.
65
Lastly, as regards the circumstances specific to Cases C‑494/20, C‑496/20, C‑508/19 and C‑509/20, the referring court considers that account must also be taken of the fact that it is the Disciplinary Chamber that will ultimately be called upon to review the lawfulness of the designation, by the president of that same chamber, of the disciplinary courts having jurisdiction to hear the disciplinary proceedings brought in parallel against the applicants in the main proceedings.
Admissibility
66
Under Article 53(2) of the Rules of Procedure, where it is clear that the Court has no jurisdiction to hear and determine a case or where a request for a preliminary ruling is manifestly inadmissible, the Court may, after hearing the Advocate General, at any time decide to give a decision by reasoned order, without taking further steps in the proceedings.
67
That provision must be applied in this instance. Indeed, having regard to the findings in the judgment in Prokurator Generalny, there can be no doubt that the present requests for a preliminary ruling are inadmissible (see, by analogy, order of 6 October 2020, Prokuratura Rejonowa w Słubicach, C‑623/18, not published, EU:C:2020:800, paragraph 23).
The sixth and seventh questions
68
As regards the sixth and seventh questions referred for a preliminary ruling, it must be emphasised, first of all, that they are worded in exactly the same terms as the first two questions raised in the request for a preliminary ruling which the Court found inadmissible in the judgment in Prokurator Generalny. Secondly, that request for a preliminary ruling was submitted to the Court in the course of the same main proceedings as that which subsequently gave rise to the reference for a preliminary ruling in one of the present joined cases, namely Case C‑509/20.
69
In that context, it must be observed that, in paragraph 60 of the judgment in Prokurator Generalny, the Court recalled its settled case-law according to which the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them, and the justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered, but rather that it is necessary for the effective resolution of a dispute. Similarly, in paragraph 62 of that judgment, the Court also recalled its settled case-law according to which 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 a case is pending before it in which it is called upon to give a decision which is capable of taking account of the preliminary ruling.
70
As regards the civil proceedings for a declaration of the inexistence of a judge’s service relationship, pending before the national court in the main proceedings in Case C‑508/19, the Court recalled in paragraph 66 of the judgment in Prokurator Generalny that, in so far as that type of action, seeking a declaratory ruling, was permitted under national law and a referring court had held that the action brought before it on the basis of that law was admissible, it was not for the Court to call that assessment into question. However, the Court then went on to state, in paragraph 67 of that judgment, that that was precisely not the case in that instance.
71
Indeed, the referring court in Case C‑508/19, seised of an action of that kind, pointed out that it lacked, under the applicable national law, the jurisdiction which would have enabled it to rule on the lawfulness of the instrument by which a person concerned had been appointed judge, and that the admissibility of such an action could not be established on the basis of that national law either. The referring court in the present joined cases, which is seised of actions of the same kind, therefore has no such jurisdiction either.
72
The Court, in paragraphs 68 and 69 of the judgment in Prokurator Generalny, recalled its settled case-law according to which, in principle, the cooperation between the Court of Justice and the national courts provided for in Article 267 TFEU presupposed that the referring court had jurisdiction to rule on the dispute in the main proceedings, so that it could not be regarded as purely hypothetical, and this could be different only in certain exceptional circumstances. It then set out, in paragraph 70 et seq. of the judgment, the reasons for which such an exception could not be found to apply in that instance.
73
In this connection, the Court, first of all, as is clear from paragraph 70 of the judgment in Prokurator Generalny, read in the light of paragraphs 63 to 65 thereof, emphasised that it was apparent from the information in the order for reference in the case which led to that judgment that, while formally seeking a declaration that a service relationship did not exist between the defendant in the main proceedings and the Sąd Najwyższy (Supreme Court), which was entirely unrelated to the applicant in the main proceedings, the action brought by the latter ultimately sought to challenge the validity of that defendant’s appointment to the position of judge of the Sąd Najwyższy (Supreme Court). The Court also observed that, by so doing, the applicant was in fact attempting to have resolved a legal issue arising in the disciplinary proceedings then pending against her before another national court and concerning the effectiveness of the instrument by which the latter had been designated, which is to say, legal proceedings separate from those initiated in the main proceedings and in respect of which the same applicant has also sought from the referring court an order to stay those proceedings as an interim measure.
74
Similar findings must be made with respect to all of the sets of national proceedings which have given rise to the present references for a preliminary ruling.
75
That applies, first of all, to Case C‑509/20, which, as has been mentioned, arose from the same dispute in the main proceedings as was addressed in the judgment in Prokurator Generalny. It also applies to the disputes in the main proceedings in Cases C‑494/20 and C‑496/20, the context of which, as was explained in paragraphs 25 to 28 of this order, is identical to that of the dispute in the main proceedings in Cases C‑508/19 and C‑509/20.
76
[As rectified by order of 2 March 2023] That is also the case, in fact, for all the other disputes in the main proceedings from which the present joined cases arise. Indeed, as is clear from the information in the orders for reference, and from the matters described in paragraphs 29 to 43 of this order, while formally seeking a declaration that a service relationship does not exist between the various defendants in the main proceedings in each of those disputes and the Sąd Najwyższy (Supreme Court), the actions brought by each of the applicants in the main proceedings in Cases C‑491/20 to C‑493/20, C‑495/20, C‑506/20 and C‑511/20 ultimately seek to challenge the validity of the appointment of those defendants to the position of judge of the Sąd Najwyższy (Supreme Court), and so to have resolved legal issues arising in other proceedings in which those applicants in the main proceedings are parties before another court. It should also be observed that almost all of those applicants in the main proceedings have also sought from the referring court in the present cases, as an interim measure, an order to stay those separate legal proceedings, in which they are therefore parties.
77
Thus, and by analogy with the Court’s observations in paragraph 71 of the judgment in Prokurator Generalny regarding the identical questions referred to the Court in Case C‑508/19, the sixth and seventh questions referred to the Court in Cases C‑491/20, C‑492/20 to C‑496/20, C‑506/20 and C‑511/20 relate intrinsically to disputes other than those in the main proceedings, to which the latter are in fact merely incidental, in the sense that those questions are intended, essentially, to enable an assessment to be made of whether the consequence of certain irregularities allegedly affecting the appointment of the judges who are defendants in the main proceedings is that those judges were not or will not be entitled to adopt measures in the context of those other disputes. Similarly, in the specific context of Case C‑492/20, those questions are intended to enable an assessment to be made of whether a statement denouncing such irregularities may be characterised as a disciplinary offence in the context of the disciplinary proceedings in which the applicant in the main proceedings in that case is, moreover, a party.
78
In those circumstances, as was pointed out in paragraph 71 of the judgment in Prokurator Generalny, the Court would be obliged, in order fully to determine the scope of the same questions referred for a preliminary ruling and to provide appropriate answers to them, to have regard to the relevant factors characterising those other sets of legal proceedings, rather than to confine itself to the configuration of the current disputes in the main proceedings, as is required, however, by Article 267 TFEU.
79
In the second place, the Court noted, in paragraph 72 of the judgment in Prokurator Generalny, that, in the absence of a direct right of action against the appointment of the defendant in the main proceedings which gave rise to that judgment as President of the Disciplinary Chamber, or against the latter’s decision designating the disciplinary court responsible for hearing the disciplinary proceedings brought against the applicant in those main proceedings, the latter could have raised before that court an objection alleging a possible infringement, arising from that decision, of her right to have that disciplinary dispute determined by an independent and impartial tribunal previously established by law.
80
In paragraph 73 of the judgment in Prokurator Generalny, the Court also emphasised, in this connection, that it had already held that the national provisions thus conferring on the President of the Disciplinary Chamber the discretionary power to designate the disciplinary tribunal with territorial jurisdiction to hear disciplinary proceedings in respect of judges of the ordinary courts infringed the second subparagraph of Article 19(1) TEU (judgment of 15 July 2021, Commission v Poland(Disciplinary regime for judges), C‑791/19, EU:C:2021:596, paragraph 176). It also held, in paragraph 74 of the judgment in Prokurator Generalny, that, having regard to the direct effect of that provision, in so far as it required that courts called upon to interpret and apply EU law must be independent, impartial and previously established by law, the principle of the primacy of EU law required a disciplinary court so designated to disapply those national provisions and, consequently, to declare that it had no jurisdiction to hear the dispute before it.
81
As regards the circumstance, put forward by the referring court and mentioned in paragraph 65 of this order, that it is the Disciplinary Chamber that will ultimately be called upon to review the lawfulness of the designation, by the president of that same chamber, of the disciplinary courts having jurisdiction to hear the disciplinary proceedings in question, it is important to note that, after the present requests for a preliminary ruling were made, the Court held that, by failing to guarantee the independence and impartiality of the disciplinary chamber which is called upon to rule, at second instance, in disciplinary cases concerning judges of the ordinary courts, the Republic of Poland had failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU (judgment of 15 July 2021, Commission v Poland(Disciplinary regime for judges), C‑791/19, EU:C:2021:596, paragraph 113).
82
[As rectified by order of 2 March 2023] For the reasons already mentioned in paragraph 75 of this order, the considerations set out in paragraphs 79 to 81 of this order apply in the same way in Cases C‑494/20, C‑496/20 and C‑509/20.
83
Moreover, the same points may be made, mutatis mutandis, with regard to the other disputes in the main proceedings in the present joined cases.
84
Accordingly, it appears, first of all, that the applicant in the main proceedings in Case C‑492/20 was able to put forward arguments alleging irregularities affecting the appointment of the judge who is the defendant in the main proceedings, in the light of the second subparagraph of Article 19(1) TEU, directly to the disciplinary court seised of the disciplinary proceedings against him, for the purpose of contesting the allegedly unlawful nature of the remarks, mentioned in paragraph 33 of this order, which he made concerning the circumstances surrounding that appointment.
85
Next, with regard to Case C‑493/20, it must be observed that the applicant in the main proceedings in that case must also be allowed an opportunity to argue that the interim decision adopted by the Disciplinary Chamber in respect of him is ineffective, on the ground that it is contrary to the second subparagraph of Article 19(1) TEU, and he must be allowed that opportunity both in the disciplinary proceedings still pending against him and before any other national authorities that might be called upon to give effect to that decision.
86
In so far as concerns Case C‑491/20, it is important to remember that, in the proceedings which W.Ż. brought to challenge the decision transferring him, which resulted in the issue by Judge A.S. of the order mentioned in paragraph 36 of this order, the Civil Chamber, seised of an application for recusal in the context of those proceedings, referred questions to the Court of Justice for a preliminary ruling, which have meanwhile given rise to the judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment) (C‑487/19, EU:C:2021:798).
87
As is clear from the operative part of that judgment, the Court held that the second subparagraph of Article 19(1) TEU and the principle of the primacy of EU law must be interpreted as meaning that a national court seised of an application for recusal as an adjunct to an action by which a judge holding office in a court that may be called upon to interpret and apply EU law challenges a decision to transfer him without his consent must – where such a consequence is essential in view of the procedural situation at issue in order to ensure the primacy of EU law – declare to be null and void an order by which a court, ruling at last instance and comprising a single judge, has dismissed that action, if it follows from all the conditions and circumstances in which the process of the appointment of that single judge took place that (i) that appointment took place in clear breach of fundamental rules which form an integral part of the establishment and functioning of the judicial system concerned, and (ii) the integrity of the outcome of that procedure is undermined, giving rise to reasonable doubt in the minds of subjects of the law as to the independence and impartiality of the judge concerned, with the result that that order may not be regarded as being made by an independent and impartial tribunal previously established by law, within the meaning of the second subparagraph of Article 19(1) TEU.
88
Lastly, as regards Cases C‑495/20, C‑506/20 and C‑511/20 and the objective pursued by the applicants in the main proceedings, which is essentially to prevent the judges of the Extraordinary Review and Public Affairs Chamber from being able to rule in the actions which they have brought, moreover, before the Sąd Najwyższy (Supreme Court), mentioned in paragraphs 38 to 43 of this order, it is, once again, in the context of the proceedings relating to those actions and before the court seised of those actions that the said applicants must be able to formulate any arguments they may wish to make alleging infringement of the provisions of EU law concerned.
89
Furthermore, it is also important to note that, given the direct effect of the second subparagraph of Article 19(1) TEU, already mentioned in paragraph 80 of this order, and the consequences which that direct effect has for the principle of the primacy of EU law with regard to all the authorities of each Member State, it remains unclear exactly how any decision that might be given in the present cases in the main proceedings and which finds that the defendants in the main proceedings do not have a service relationship could produce a result for the applicants in those same proceedings that is different from that, as the case may be, which might result directly from the second subparagraph of Article 19(1) TEU in any of the sets of parallel national proceedings to which paragraphs 82 to 88 of this order refer.
90
In the third place, the Court pointed out, in paragraph 75 of the judgment in Prokurator Generalny, that it was apparent from the explanations set out in the order for reference in the case which gave rise to that judgment – all of which the referring court in the present joined cases has fully endorsed – and from the very wording of the first question referred in Case C‑508/19, which is repeated, as the sixth question, in the present joined cases, that the questions formulated by the referring court related, inter alia, to the fact that the national legal order had been deliberately overhauled by the Polish legislature in order to prevent, going forward, the process for appointing judges to the Sąd Najwyższy (Supreme Court) from being subject to effective judicial review.
91
As regards the legislative amendments thus criticised by the referring court, which successively altered Article 44 of the Law on the KRS, the Court pointed out, in essence, in paragraphs 77 to 81 of the judgment in Prokurator Generalny, that they had meanwhile been addressed in the judgment of 2 March 2021, A.B. and Others(Appointment of judges to the Supreme Court – Actions) (C‑824/18, EU:C:2021:153). In this connection, the Court recalled, in particular, the wording of the operative part of that judgment, which explained the conditions under which the national court making the reference for a preliminary ruling to the Court in that case would be entitled to hold those legislative amendments to be contrary to the second subparagraph of Article 19(1) TEU and/or Article 267 TFEU and, consequently, to disapply them, in observance of the principle of the primacy of EU law.
92
In that context, the Court pointed out, in paragraph 80 of the judgment in Prokurator Generalny, that it had held, in paragraphs 129 and 156 of the judgment of 2 March 2021, A.B. and Others(Appointment of judges to the Supreme Court – Actions) (C‑824/18, EU:C:2021:153), that such infringements of the second subparagraph of Article 19(1) TEU could arise, inter alia, where the circumstances in which the judicial remedies against the process for the appointment of judges which had previously existed were suddenly eliminated or rendered ineffective appeared to be such as to give rise to systemic doubts in the minds of subjects of the law as to the independence and impartiality of the judges appointed at the end of that process.
93
Moreover, in paragraph 81 of the judgment in Prokurator Generalny, the Court also pointed out that, in paragraphs 129 and 156 of the judgment of 2 March 2021, A.B. and Others(Appointment of judges to the Supreme Court – Actions) (C‑824/18, EU:C:2021:153), it had expressly stated that, as such, the fact that it may not be possible to exercise a legal remedy in the context of such a process of appointment might, in certain cases, not prove to be problematic in the light of the requirements arising from EU law, in particular the second subparagraph of Article 19(1) TEU.
94
In that paragraph 81, the Court went on to hold, in that last regard, that an action such as that in the main proceedings in the judgment in Prokurator Generalny sought, in essence, to obtain a form of erga omnes invalidation of the appointment of the defendant in the main proceedings to the office of judge of the Sąd Najwyższy (Supreme Court), even though national law did not authorise, and had never authorised, all subjects of the law to challenge the appointment of judges by means of a direct action for annulment or invalidation of such an appointment.
95
The same observations and findings also apply to all of the cases in the main proceedings.
96
Having regard to all of the factors thus highlighted in the judgment in Prokurator Generalny and just recalled, and to the fact that the role of the Court under Article 267 TFEU is to supply all courts or tribunals in the European Union with the information on the interpretation of EU law which is necessary to enable them to settle genuine disputes which are brought before them, taking into account in particular, in that context, the whole system of legal remedies available to private individuals, the Court finally held, in paragraph 82 of that judgment, that the questions that had been referred to it for a preliminary ruling went beyond the scope of its duties under Article 267 TFEU.
97
The matters to which the national court refers that are mentioned in paragraph 64 of this order are not such as to alter any of the reasoning set out above or the conclusion reiterated in the preceding paragraph of this order.
98
It follows from all the foregoing that the sixth and seventh questions referred for a preliminary ruling must be declared manifestly inadmissible.
The fifth question
99
In the light of the foregoing, the fifth question referred for a preliminary ruling is in turn manifestly inadmissible. Indeed, as is clear from paragraph 60 of this order, the referring court itself has stated that that question would become devoid of purpose if the sixth and seventh questions were declared inadmissible.
100
Indeed, the fifth question concerns the possibility, not itself allowed for by national law, of adopting interim measures prohibiting the defendants in some of the cases in the main proceedings from continuing to carry out their duties as judges of the Sąd Najwyższy (Supreme Court) and of requiring that court to bar the individuals in question from all judicial activity, pending the decisions as to the substance by which the referring court in those cases might, in the light of the answers to the sixth and seventh questions expected of the Court, be entitled to find that, under EU law, no service relationship exists between the judges in question and the Sąd Najwyższy (Supreme Court). In those circumstances, and since the sixth and seventh questions have been declared inadmissible and did not, therefore, receive any answer as to their substance, it cannot be held that an answer to the fifth question is necessary for the purposes of resolving the disputes in the main proceedings.
The fourth question
101
The fourth question too must be held to be manifestly inadmissible.
102
In that regard, it must be observed that the very wording of the fourth question, as reproduced in paragraph 46 of this order, makes the question extremely difficult to understand, and the reasoning in the orders for reference does not make it any easier to grasp its exact scope, some of the complex assertions made in those orders for reference, concerning in particular the relationships of subsidiarity between the second and the fourth questions, making it even harder to understand. Consequently, it is difficult to define the exact, specific problem of interpretation of EU law that might have arisen in the disputes in the main proceedings in relation to that fourth question.
103
In particular, it is unclear how the circumstances under which the President of the Disciplinary Chamber and the President of the Extraordinary Review and Public Affairs Chamber were appointed as judges of the Sąd Najwyższy (Supreme Court) could, simply by virtue of the fact that they requested the transfer of the case files in question, be capable of breaching the right of the applicants in the main proceedings to have their case heard by an independent tribunal. Indeed, only the circumstances surrounding the appointment of those judges who might be called upon to decide cases in one or other of those two chambers would appear to be potentially capable of resulting in the breach of that right.
104
It is equally unclear how the requests for the transfer of the cases in the main proceedings thus made might be such as to elicit from the referring court any decision other than the one which it would, in any event, be required to take, independently of any such ‘request’, regarding the transfer of those cases to one or other of the chambers concerned, should either of them have jurisdiction to hear them, or, by contrast, the refusal to transfer them on the ground, for example, that the chamber in question does not constitute an independent tribunal.
105
It is important to recall, in relation to those various points, that, according to settled case-law, it is essential that the national court should give at the very least some explanation of the reasons for the choice of the provisions of EU law of which it requests an interpretation and regarding the link that it establishes between those provisions and the national legislation applicable to the dispute in question (see, to that effect, judgment of 10 March 2016, Safe Interenvíos, C‑235/14, EU:C:2016:154, paragraph 115 and the case-law cited). In that regard, the information supplied and the questions asked in orders for reference must not only enable the Court to give useful answers, but must also give the governments of the Member States and other interested parties the chance to submit observations pursuant to Article 23 of the Statute of the Court of Justice of the European Union, and it is incumbent on the Court to ensure that that opportunity is safeguarded (see, to that effect, order of 12 May 2016, Security Service and Others, C‑692/15 to C‑694/15, EU:C:2016:344, paragraph 21 and the case-law cited).
The second and third questions
106
Lastly, the second and third questions are also manifestly inadmissible.
107
It should be recalled that those questions concern the prohibition on challenging the legitimacy of the courts and on determining or assessing the legality of a judge’s appointment or of his or her authority to perform judicial tasks, stipulated in Article 29(2) and (3) of the Law on the Supreme Court.
108
However, as is clear from the explanations provided by the referring court, it asked those questions in so far as such national provisions might have prevented it from finding that no service relationship existed between the defendants in the main proceedings and the Sąd Najwyższy (Supreme Court) even if the Court’s answers to the sixth and seventh questions were such as to enable it to make such findings, and might have prevented the judicial panels of the Sąd Najwyższy (Supreme Court) which made the present requests for a preliminary ruling from refusing to transfer the cases in the main proceedings to other chambers of that court, even though such a refusal might be called for in the light of the Court’s answers to the first or the fourth question.
109
In those circumstances, it is sufficient to hold that, given the inadmissibility of the fourth, sixth and seventh questions and the withdrawal of the first question, any answer that might be given to the second and third questions would be irrelevant for the purposes of resolving the disputes in the main proceedings.
110
Having regard to all of the foregoing, the present requests for a preliminary ruling must be declared manifestly inadmissible.
111
[As rectified by order of 2 March 2023] In those circumstances, there is no need to rule on the request made by A.S. for witness evidence to be taken, pursuant to Article 67 of the Rules of Procedure of the Court of Justice, that request having become devoid of purpose (see, by analogy, order of 6 October 2020, Prokuratura Rejonowa w Słubicach, C‑623/18, not published, EU:C:2020:800, paragraph 37).
Costs
112
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Second Chamber) hereby rules:
The requests for a preliminary ruling made by the Sąd Najwyższy (Izba Pracy i Ubezpieczeń Społecznych) (Supreme Court (Labour and Social Insurance Chamber), Poland) by decisions of 15 July 2020 are inadmissible.
[Signatures]
(
*1
)	Language of the case: Polish.