Provisional text
OPINION OF ADVOCATE GENERAL
SPIELMANN
delivered on 19 March 2026 (1)
Case C‑159/25 [Rowicz] (i)
B. Ż.,
V. sp. z o.o.
v
T. SA,
Ł.W.
(Request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland))
( Reference for a preliminary ruling – Member States – Obligations – Provision of remedies sufficient to ensure effective judicial protection – Observance of the principle of judicial independence – Independent and impartial tribunal established by law – Allocation of cases to judges – Irregular composition of a court – Principle that the formation of the court may not be altered – Artificial intelligence systems )
Introduction
1.        In the present case, the Court has received a request from the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) for a preliminary ruling which follows on from the cases in which the Court has clarified the scope of the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). The case requires the Court, once again, to assess the guarantees attached to the exercise of the judicial function within the national legal orders, in particular those that ensure the independence and impartiality of the courts and compliance with the requirement of a tribunal established by law.
2.        More precisely, the request for a preliminary ruling concerns a procedure for the internal organisation of the judicial system that is liable to affect those guarantees, namely the withdrawal from a judge, even by consent, of some of the cases allocated to him or her and the reallocation of those cases to another judge. The Court is thus requested, in particular, to rule on the compatibility with the requirements arising under EU law of a mechanism based on redistribution effected by means of a computerised random allocation system and on the circumstances in which such a measure may be considered to be based on rules that are sufficiently clear, foreseeable and capable of dispelling any legitimate doubt, from the viewpoint of individuals, as to the absence of external or internal influences in the determination of the judge designated to hear their case.
Legal framework
European Union law
3.        Point 1 of Article 3 of Regulation (EU) 2024/1689 laying down harmonised rules on artificial intelligence (2) defines ‘[artificial intelligence] system’ as ‘a machine-based system that is designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment, and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments’.
Polish law
The Law on the organisation of the ordinary courts
4.        Under Article 41(1) of the ustawa Prawo o ustroju sądów powszechnych (Law on the organisation of the ordinary courts) of 27 July 2001, in the version applicable in the main proceedings (3) (‘the Law on the organisation of the ordinary courts’), the Minister for Justice, after consulting the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland), is to determine, by means of a regulation, the Rules of Procedure of the ordinary courts, including, in particular, the procedure for the allocation of cases.
5.        Article 47a(1) of the Law on the organisation of the ordinary courts provides:
‘Cases shall be allocated to judges and trainee judges at random according to the specific categories of cases, with the exception of cases allocated to a duty judge.’
6.        Article 47b of that law provides:
‘1.      A change in the composition of a court may occur only where it is impossible for the court to examine the case in its current composition
or where there is a lasting obstacle to the court hearing and determining the case in its current composition. The provisions of Article 47a shall apply mutatis mutandis.
…
4.      A change in the place where a judge serves, or his or her secondment to another court, as well as the end of a secondment, shall not constitute an obstacle to the performance of [procedural] acts in cases allocated at the place where he or she currently serves, or the place where he or she currently performs his or her duties, pending the closure of those cases.
5.      The college of the court within the
jurisdiction of which the
new place where the judge serves or the place of his or her secondment falls may, at the request of the judge or of its own motion, release that judge from his or her obligations with regard to examining all or some cases, in particular because of the distance between that court and the new place where the judge serves or the place of his or her secondment, depending on the stage of proceedings in the cases being heard. Before adopting a resolution, the college of the court shall consult the presidents of the competent courts.
6.      The provisions of paragraphs 4 and 5 shall apply
mutatis mutandis
in the event of a transfer to another division of the same court and in the event of an appointment to the position of judge in a higher court.’
7.        Article 89 of that law provides:
‘1.      Requests, representations and complaints in matters relating to the office held by a judge may be submitted by the judge
only through official channels. In such matters, the judge may not address external institutions or persons, nor make such matters public.
2.      In the event of a dispute connected with the employment relationship, the judge shall have a judicial remedy.
…’
The 2019 Rules of Procedure
8.        Article 2(16) of the rozporządzenie Ministra Sprawiedliwości – Regulamin urzędowania sądów powszechnych (Regulation of the Minister for Justice laying down the Rules of Procedure of the ordinary courts) of 18 June 2019 (4) (‘the 2019 Rules of Procedure’) contains the following definition:
‘[System Losowego Przydziału Spraw (random case allocation system; ‘the SLPS’)] [means] computerised system for the random allocation of cases and judicial tasks with the assistance of a random number generator’.
9.        Article 43(1) of those rules of procedure provides:
‘Cases shall be allocated at random to judges acting as reporting judges, in accordance with the distribution of activities, by the [SLPS], separately for each register, list or other record, unless the provisions of these rules
provide for
different rules of allocation. [The SLPS] shall not be used for case allocation if only one judge participates in the allocation of cases of a particular type.’
10.      Article 49 of those rules of procedure provides:
‘1.      Cases subject to random allocation shall be registered in the [SLPS] within three working days from the date on which they are received by the court, unless the case is to be allocated after deficiencies have been remedied.
2.      The President of a division may, in certain arrangements for registration or categories of cases, suspend the allocation of cases in the event of short-term absences of certain judges, until those absences have come to an end.
…’
11.      Article 55 of those rules provides:
‘1.      A particular type of case may be allocated only to certain judges or their allocation percentages for such cases
may be increased; for other cases, the distribution of activities may provide for a reduction of those allocation percentages
or for those cases to be excluded from allocation (specialisation).
2.      A draft distribution of activities, or amendments thereto introducing or modifying a specialisation, shall be brought to the attention of the judges of the division or divisions referred to in Article 77(2). The determination of a new distribution of activities shall require the judge’s consent to being assigned the specialisation and the absence of objection from at least 85% of the judges within 14 days of the draft being communicated.
…’
12.      Article 62 of the 2019 Rules of Procedure provides:
‘1.      Following a decision entailing a change of division or place of assignment, a reporting judge may, even before the date of his or her transfer, be allocated cases in the new division, while the allocation of cases in the division in which he or she previously adjudicated shall cease. The President of the court in which the new division is situated shall determine the date on which the allocation of cases in that division is to commence and the allocation of cases in the previous division is to end. In the cases allocated, the President of the division shall set the hearing dates in consultation with the reporting judge.
2.      Where the reporting judge’s caseload so requires, the date on which the allocation of cases in the division commences may be later
or earlier than the date on which the allocation of cases in the division in which the judge previously adjudicated ends.
…’
13.      Article 66 of those rules provides:
‘1.      Where a reporting judge’s caseload is divided, the cases shall be allocated in accordance with the general rules. Absent judges whose caseloads have not been divided shall participate in the allocation.
2.      Cases for which hearing dates have already been set may be randomly allocated according to the session dates.
…’
14.      Article 68 of those rules provides:
‘1.      The distribution of activities for each judge, trainee judge and judicial officer shall take into account:
(1)      the assignment to a division or divisions of the court and, where the assignment within a division is to a designated section, the indication of that section;
(2)      the percentage share in the allocation of cases filed with the division, amounting to:
(a)      100% – for a judge assigned exclusively to a single division, not holding office and not seconded to another unit on the basis of Article 77 or Article 151a of the [Law on the organisation of the ordinary courts],
(b)      at least 90% – for a Vice-President of a division comprising up to 15 judges, for a head of section, for a press officer at a regional court within whose territorial jurisdiction the limit of judicial posts is less than 300, for a mediation coordinator at a regional court within whose territorial jurisdiction the limit of judicial posts is less than 300, for a deputy disciplinary mediator attached to a court of appeal or a regional court, for the disciplinary mediator of judges of the ordinary courts, for the deputy disciplinary mediator of judges of the ordinary courts, for the President of a disciplinary court, and for a judge entrusted with replacing a judge adjudicating in cases conducted pursuant to the Hague Convention,
(c)      at least 80% – for a
judge acting as President of a division comprising up to seven judges, for a press officer at a court of appeal, for a press officer at a regional court within whose territorial jurisdiction the limit of judicial posts is not less than 300, for a judge who is a member of the Krajowa Rada Sądownictwa [(National Judicial Council)] and for a judge seconded to the bureau of the Krajowa Rada Sądownictwa [(National Judicial Council)],
(d)      at least 75% – for a Vice-President of a division comprising more than 15 judges, for a mediation coordinator at a regional court within whose territorial jurisdiction the number of judicial posts is not less than 300, for the disciplinary mediator of the Minister for Justice, and for a judge entrusted with adjudicating in cases conducted pursuant to the Hague Convention,
(e)      at least 60% – for the inspecting judge,
(f)      at least 50% – for a judge acting as President or Vice-President of a division comprising between 8 and 20 judges,
(g)      at least 30% – for a judge acting as President or Vice-President of a court and for a judge acting as President of a division comprising more than 20 judges,
(h)      at least 15% – for a judge seconded to perform the duties of chief specialist at the Krajowa Szkoły Sądownictwa i Prokuratury [(National School of the Judiciary and Public Prosecution, Poland)]
or to direct training courses at the National School of the Judiciary and Public Prosecution,
(i)      at least 10% – for a judge seconded to perform the duties of director or deputy director of the National School of the Judiciary and Public Prosecution, as head of a department or section of the National School of Judiciary and Public Prosecution.
2.      Where more than one percentage share in the allocation of cases filed with a division applies to a given judge, the lowest percentage share
shall be taken into account.
…’
15.      Article 74(1) of the 2019 Rules of Procedure provides:
‘A printout of the random allocation report shall be placed in the file of cases allocated by the [SLPS]. In other cases, the President of the division shall
issue an order allocating the case, unless the case has been allocated by another IT tool.’
The dispute in the main proceedings, the question referred for a preliminary ruling and the procedure before the Court
16.      On 13 and 14 June 2024, two appeals (‘the appeals at issue’) were lodged before the Sąd Okręgowy w Warszawie (Regional Court, Warsaw) against judgments delivered at first instance in disputes relating to claims for payment in respect of commercial transactions within the meaning of Directive 2011/7/EU on combating late payment in commercial transactions. (5)
17.      On 17 and 18 June 2024, Judge JD, who was then in the XXIII
Division of that court, was designated at random to hear and determine those appeals by the SLPS, an IT tool based on a random number generator.
18.      By decision of 30 October 2024 of the college of the Sąd Okręgowy w Warszawie (Regional Court, Warsaw), Judge JD, who in the meantime had been transferred to another division within that court, had, at her request, 100 cases which had been allocated to her in 2024, including the two appeals at issue, withdrawn from her. In that decision, the college also identified other cases which Judge JD was to bring to a close. That decision contained no statement of reasons.
19.      Following a decision taken on 10 January 2025 by the President of the XXIII Division of the Sąd Okręgowy w Warszawie (Regional Court, Warsaw), those 100 cases were reallocated at random to new reporting judges
through the SLPS on 13 January 2025. Seventeen judges of that division were included in the random selection made by that system for the purpose of that reallocation. Judge Aneta Łazarska was assigned 56 of the 100 cases, including the two appeals at issue. Other judges received a smaller number of cases, or even none at all.
20.      The complaint lodged by Judge Łazarska against that allocation was rejected by the President of the Sąd Okręgowy w Warszawie (Regional Court, Warsaw).
21.      Judge Łazarska, the referring court, sitting as a single judge in the appeals at issue, is uncertain, in essence, in the light of the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, as to the conformity of the withdrawal of the cases, including the two appeals at issue, from Judge JD, and their reallocation. She therefore wonders whether she may be regarded as an independent and impartial tribunal previously established by law, since the allocation of those cases should also, in her view, be carried out by a transparent mechanism, based on objective criteria not open to manipulation.
22.      In particular, and in the first place, the referring court recalls that Polish law embodies the principle that the composition of the court may not be altered from the time of its designation and throughout the proceedings, except in situations prescribed by law in which it is impossible to examine the case or where there is a lasting obstacle to its examination. In Judge Łazarska’s contention, none of those situations applies and there is thus nothing to prevent Judge JD from continuing to deal with the appeals.
23.      She clarifies, in that regard, that the withdrawal of the cases from Judge JD is not the consequence of either sickness, or a transfer to another court, or an exceptional circumstance, but a mere internal transfer to another division at the same location, which cannot by
itself justify a change in the composition of the court.
24.      In the second place, the referring court calls into question the SLPS, used for the random allocation of cases and the determination of various parameters relating to their distribution. The referring court maintains that that system was put into production without a prior security test and has experienced disruption and errors, in particular during the first years of its operation, and also errors attributable to users.
25.      Furthermore, although the activities connected with the design and functioning of the SLPS are considered public, the referring court claims that the publication of the algorithm does not entail effective access to the operating rules or to the source code. That lack of transparency, together with the extent of the powers of the Minister for Justice to set the allocation procedures, gives rise to doubts as to the real impartiality of the device and its vulnerability to manipulation. Last, the referring court maintains that the SLPS does not ensure a balanced distribution of the caseload, with a risk of delays and of interference with the internal independence of the judge operating under time pressure.
26.      In the third place, the referring court adds that, contrary to the guidance provided by the judgment of 14 November 2024, S. (Modification of the formation of the court)
, (6) national law does not provide an effective remedy for the judge concerned against a written decision of the administrative body of the court with respect to the allocation of a case or the determination of the composition of the court. (7)
27.      In those circumstances, the referring court decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘In the light of Article 2 and the second subparagraph of Article 19(1) [TEU], read in conjunction with Articles 20 and 47 of the [Charter] and recital 61 of [Regulation 2024/1689], does an ordinary court of last instance of a Member State whose composition includes a judge of that court designated by a random number generator to hear the case on the basis of the [allocation] report and a prior decision of the college of the court constitute an independent and impartial tribunal previously established by law that ensures cases are heard without undue delay in a non-discriminatory manner and guarantees effective judicial protection in circumstances where:
(1)      a court administrative body such as the Kolegium Sądu Okręgowego (college of the regional court) arbitrarily released the previously assigned judge from the obligation to hear the cases already assigned to her, contrary to the provisions of national law on the assignment of cases, despite the fact that the national statutory criteria for releasing her from that obligation were not met, and did so in breach of the principle that a change in the composition of the court may only occur where it is impossible for the court to hear the case in its existing composition or where there is a lasting obstacle to it hearing the case in its existing composition;
(2)      a new judge was assigned using the SLPS random case allocation generator developed by a member of the executive branch of government, namely the Minister Sprawiedliwości (Minister for Justice), under the rules for the randomised assignment of cases in courts established by way of a regulation issued by that Minister ([Articles 43 to 76] of the [2019 Rules of Procedure] and in a manner that infringes the right to an independent and impartial tribunal and the right to a tribunal established by law;
(3)      a new judge was assigned using the SLPS random case allocation generator without knowledge of the source code or the ability to verify the operation of the SLPS algorithm for random case allocation to judges, where information on that system was published only on the Biuletyn Informacji Publicznej (Public Information Bulletin) website, or the ability to ascertain the vulnerability of the random case allocation tool to errors and manipulation, in a manner that infringes the parties’ right to a fair trial;
(4)      a new judge was assigned using the SLPS random case allocation generator developed by a member of the executive branch of government, namely the Minister Sprawiedliwości (Minister for Justice), under the rules for the randomised assignment of cases in courts established by way of a regulation issued by that Minister ([Articles 43 to 76] of the [2019 Rules of Procedure]) and in a manner that infringes the parties’ right to have their cases heard without undue delay through a failure to guarantee an even workload for judges as a result of the operation of the SLPS, in a manner that discriminates against the parties and infringes the principle of equality before the law;
(5)      this results in the judge hearing the case in proceedings that are invalid on account of the composition of the court being contrary to the provisions of law and the parties not being afforded effective judicial protection;
(6)      there is no effective remedy in national law available to the judge against a written decision of the court administrative body regarding the allocation of the case, the assignment of judges and the composition of the court, as there is no judicial remedy enabling the judge to challenge such a written decision before an impartial and independent tribunal in proceedings that meet the requirements arising from [Article] 47 of the [Charter]?’
28.      Written observations have been submitted to the Court by the Polish Government and the European Commission.
Analysis
Preliminary observations
29.      I shall begin by making a few preliminary observations, before going on to address the points of law raised by the present case.
30.      By a single question, the referring court asks the Court to interpret Article 2 and the second subparagraph of Article 19(1) TEU, in the light of Articles 20 and 47 of the Charter and also recital 61 of Regulation 2024/1689, in order to determine, essentially, whether a formation of a national court, to which cases have been allocated randomly following their withdrawal from the judge initially responsible for those cases even in the absence of any effective remedy allowing the judge concerned to challenge the reallocation of those cases, must be considered an independent and impartial tribunal previously established by law.
31.      First of all, it should be observed that the question referred reflects the referring court’s uncertainty, as a preliminary issue, as to whether it meets the requirements arising under the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter.
32.      As regards, next, the provisions relied on in support of the request for interpretation, Article 20 of the Charter (which provides that ‘everyone is equal before the law’) does not seem to me to be relevant, even though the referring court claims that the SLPS does not ensure an equal distribution of the workload between judges. The question referred for a preliminary ruling essentially concerns the classification of a formation of the court as an independent and impartial tribunal previously established by law.
33.      As regards, last, Regulation 2024/1689, the referring court maintains that the SLPS comes within the category of high-risk systems for the purposes of that regulation and that its lack of transparency reflects a failure to meet the requirements which that regulation lays down. In that regard, first, I doubt that the SLPS can be regarded as an ‘AI system’ within the meaning of point 1 of Article 3 of that regulation, since it is apparent from the elements referred to and from the observations of the Polish Government that the SLPS resembles a mechanism that applies a pre-defined algorithm to specific datasets and has no post-deployment adaptability or substantial autonomy. Second, and in any event, Article 113 of Regulation 2024/1689 provides that that regulation is to apply only from 2 August 2026. In fact, the reallocation of the appeals at issue to the referring court occurred on 13 January 2025 and that regulation was therefore not applicable to the main proceedings.
34.      I shall therefore examine the question put by the referring court in the light of the relevant provisions of EU law, namely the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter.
35.      As to the substance, it is apparent from the request for a preliminary ruling that the referring court bases its doubts, in essence, on three sets of considerations relating to the requirements of independence, impartiality and a tribunal previously established by law. First, the withdrawal of the cases from Judge JD, to whom they were initially allocated, is arbitrary and unlawful. Second, the SLPS was established by the executive, is subject to errors and provides neither the requisite transparency nor the guarantees ensuring a balanced distribution of the workload between judges. Third, there is no effective remedy allowing the judge concerned to challenge the reallocation of the cases.
36.      I shall address those matters in turn, after recalling the relevant case-law.
The relevant case-law
37.      It follows from the case-law that the second subparagraph of Article 19(1) TEU requires guarantees of independence and impartiality based on rules relating, in particular, to the composition of the body, capable of dispelling any reasonable doubt in the minds of individuals as to the imperviousness of the court to external factors and its neutrality with respect to the interests before it. That requirement, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and of the right to a fair hearing, and constitutes a cardinal guarantee that the rights conferred by EU law will be protected and that the common values of Article 2 TEU, foremost among which is the rule of law, will be safeguarded. (8)
38.      It also follows from the case-law that independence has an external aspect and an internal aspect. The external aspect requires that the court exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body, and is protected from orders, interference or pressure liable to impair its judgement or to influence the outcome of cases. The internal aspect, which is linked to impartiality, seeks to ensure that an equal distance is maintained from the parties and their interests, and requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law. Last, while the external aspect is mainly aimed at preserving independence from the legislative and executive branches in accordance with the principle of the separation of powers, it also seeks to forearm judges against undue influence even from within the court. (9)
39.      In addition, the Court recognises that the second subparagraph of Article 19(1) TEU also requires the existence of a tribunal ‘previously established by law’, in view of the inextricable links that exist between access to such a tribunal and the guarantees of judicial independence and judicial impartiality. (10)
40.      In the Court’s view, the guarantee of a ‘tribunal established by law’ also reflects the composition of the bench in each case and any other provision of domestic law which, if infringed, would render the participation of one or more judges in the examination of a case irregular. (11) It is for that reason that the rules on the allocation and reallocation of cases form part of the concept of a ‘tribunal
“previously established by law”’.
41.      Consequently, the second subparagraph of Article 19(1) TEU also requires, in that respect, that the rules governing the composition of judicial panels are such as to preclude any undue interference with the decision-making process relating to a given case by persons from outside the judicial panel responsible for that case and before whom the parties have not been able to put forward their arguments. (12)
The withdrawal of the cases from Judge JD
42.      As regards the first part of the question referred, in essence, by the referring court, which concerns the withdrawal of the cases from Judge JD, it is apparent from the request for a preliminary ruling that that measure was adopted on the basis of Article 47b(1) of the Law on the organisation of the ordinary courts. The Court is therefore requested, in essence, to clarify whether a withdrawal of cases that is irregular in the light of the requirements arising under the second subparagraph of Article 19(1)
TEU, read in the light of Article 47 of the Charter, is liable to entail the irregularity of the subsequent reallocation of some of those cases to a different judge, in this instance the referring court. (13)
43.      As the Court acknowledged in paragraph 76 of the judgment in D.K., ‘Article 47b(1) of the Law on the [organisation of the] ordinary courts provides that a change in the composition of a court may take place where there is a “lasting obstacle to the court hearing and determining the case in its current composition”, without further clarification. Although Article 47b(4) provides, in essence, that a judge is to remain seised of cases which have been assigned to him or her despite his or her transfer to another location or secondment to another court, until those cases are closed, Article 47b(5) provides that his or her cases may be withdrawn from him or her by decision of the college of the court concerned without setting out criteria in that regard. In accordance with Article 47b(6), that college may also withdraw cases from a judge in the event of a transfer of that judge to another division, but, once again, without that possibility being accompanied by specific criteria’.
44.      Subsequently, in the same judgment, the Court considered, as regards the conformity of that provision with the second subparagraph of Article 19(1) TEU, that ‘it must … be held that national legislation, such as that described in the preceding paragraph of the present judgment, not only does not lay down objective criteria governing the possibility of withdrawing from a judge one or more of his or her cases, but also allows the college of the court concerned to withdraw cases from a judge without giving reasons for such a decision. The reference to the existence of a “lasting obstacle to the court hearing and determining the case in its current composition” is too vague to be regarded as capable of preventing any arbitrariness in the decision to change the composition of the court. In addition, the Polish Government confirmed, at the hearing before the Court, that Polish law does not impose any obligation to state reasons for the withdrawal of cases from a judge under Article 47b(5) and
(6) of the Law on the [organisation of the] ordinary courts.’ (14)
45.      On the basis of those observations, the Court concluded, in paragraph 86 of the judgment in D.K., that ‘the second subparagraph of Article 19(1)
TEU must be interpreted as precluding national legislation under which a body of a national court, such as the college of that court, may withdraw from a judge of that court some or all of the cases assigned to him or her, where that legislation does not lay down criteria which must guide that body when it takes such a decision to withdraw cases or require that reasons for that decision be stated’.
46.      It follows that the solution adopted by the Court is clear and directly transposable to the present case, since it concerns the same provision as that at issue in the main proceedings. It is therefore appropriate to arrive at the same answer to the first part of the question raised by the referring court as that set out in the preceding point.
47.      I note, nonetheless, that, as the Commission has suggested, it might be maintained that the scope of the judgment in D.K. should be confined to situations in which cases are removed without the consent of the relevant judge, as happened in that case. The Commission argues, in particular, that there would be an infringement of the second subparagraph of Article 19(1) TEU only where the measure is imposed on the judge, so that the situation at issue in the present case, which is marked by a withdrawal to which Judge JD consented following her transfer, is clearly distinguished from the situation examined in the judgment in D.K.
48.      I do not support that reading. It tends to reduce the Court’s finding concerning the insufficiencies of the applicable normative framework to an assessment linked to the particular circumstances of the case that gave rise to the judgment in D.K. Conversely, it is clear from that judgment that the Court did not treat the lack of consent as the decisive criterion for the incompatibility of the withdrawal procedure in question with the second subparagraph of Article 19(1) TEU. It is clear upon reading the judgment in D.K. that the absence of foreseeable criteria and the absence of an obligation to state reasons in themselves leave room for arbitrariness and undue interference with the distribution of cases, irrespective of whether the judge concerned expresses his or her consent to the measure.
49.      It should be observed, in that regard, that, in paragraph 77 of the judgment in D.K., the Court notes that the national legislation does not lay down objective criteria governing the possibility of withdrawing from a judge cases that were assigned to him or her or the obligation to give reasons for such a decision, but makes no reference to the consent or lack of consent of the judge concerned. The same applies to paragraph 83 of that judgment, where the Court considers, generally, that where national legislation governing the withdrawal of cases does not lay down objective criteria applicable to that power and does not require that the relevant decision state the reasons on which it is based, it ‘does not rule out the possibility that that withdrawal was arbitrary, or constitutes a disguised disciplinary penalty’. Once, again, there is no reference to whether consent was given to the withdrawal.
50.      That reading is all the more persuasive because, in paragraph 82 of the judgment in D.K., the Court refers to a situation in which a judge is transferred, admittedly without his or her consent, to another court or between two divisions of the same court, in order to cite the case-law according to which such a transfer may constitute a way of exercising control over the content of judicial decisions. It is significant, however, as I have already stated in point 49 of the present Opinion, that the Court, in paragraph 83 of the judgment in D.K., does not regard the judge’s consent as a relevant factor when it examines the withdrawal of one or more cases from a judge. That, to my mind, reinforces the idea that the Court intended to formulate a general appraisal of the guarantees that are required in that context, irrespective of the subjective conduct of the judge concerned.
51.      The same conclusion, contrary to the Commission’s contention, must also be drawn from paragraphs 84 to 86 of the judgment in D.K., in which the Court emphasises the need to provide, in the provision relating to the withdrawal of cases, precise criteria and an obligation to state the reasons on which the decision is based, without making the slightest reference to the issue of the consent of the judge concerned.
52.      Consequently, I consider that the idea that the consent of the judge constitutes a relevant criterion for assessment must be rejected. In that regard, it seems to me to be helpful to recall the case-law of the Court according to which the requirements of independence and impartiality must be assessed in the light of the ability of the rules to dispel any legitimate doubt in the minds of individuals as to the imperviousness of the court to external factors and its neutrality with respect to the competing interests. (15)
53.      From the viewpoint of the individual, the determining question is not whether the judge from whom the cases were withdrawn consented, but, as the Court held in the judgment in D.K., whether the measure was taken on the basis of clear and foreseeable rules accompanied by a statement of reasons capable of precluding arbitrariness. Where the legal basis itself lacks such guarantees, doubt may arise from the outset in the minds of individuals and in my view cannot be dispelled by a mere reference to the possible consent of the judge concerned.
54.      I would add, in that regard, that consent expressed by the judge concerned is not necessarily immune to institutional dynamics that are difficult to detect from the outside, whether implicit pressure, the expectations of superiors or, in the most concerning situations, risks of collusion. It follows that the consent of the judge from whom the cases have been withdrawn cannot in itself constitute a determining factor of conformity. Were that not so, the conformity of the arrangement for the withdrawal of cases with the second subparagraph of Article 19(1) TEU would depend on a subjective element. In my view, it should instead be appraised objectively, by reference to the guarantees provided for by law.
55.      Having regard to the foregoing, I consider that the answer to the first part of the question referred in essence by the referring court must be that the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, must be interpreted as precluding national legislation under which a body of a national court, such as its college, may withdraw from a judge of that court some or all of the cases allocated to him or her, with the consequence that some of those cases are reallocated to a different formation, whether or not that withdrawal was by consent, where that legislation does not lay down the criteria to be followed by that body when adopting such a decision and does not require a statement of the reasons on which that decision is based.
The allocation of cases via the SLPS
56.      By the second part of its question, the referring court asks the Court, in essence, to examine whether the use of a computerised system for randomly allocating cases, such as the SLPS, is compatible with the requirements of an independent and impartial tribunal established by law, for the purposes of the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter.
57.      The referring court’s doubts relate, in particular, to the random nature of case allocation by the SLPS and to the alleged impossibility of verifying the functioning of the source code of the allocation algorithm. The referring court also questions the fact that the SLPS was designed by a representative of the Minister for Justice and that the rules governing the allocation of cases and the random selection are laid down by a regulatory act of that minister. According to the referring court, those factors undermine the right to an independent and impartial tribunal previously established by law, and also the parties’ right to have their case heard within a reasonable time, because of a caseload that is distributed unevenly.
58.      I refer here to the case-law referred to in point 38 above, according to which the requirement of judicial independence, arising under EU law, is aimed not only at the undue influence that may be exercised by the legislative and executive branches, but also at the influence that may come from within the court, and according to which the exercise of the judicial function must be safeguarded not only from any direct influence in the form of instructions, but also from more indirect forms of influence liable to guide the decisions of the courts.
59.      Furthermore, as recalled in the judgment in D.K., the European Court of Human Rights has acknowledged that the protection of judicial independence and legal certainty, inherent in the rule of law, requires particular clarity of the applicable rules and the appropriate safeguards to ensure objectivity and transparency, in order, above all, to avoid any appearance of arbitrariness in the assignment of particular cases to judges. (16)
60.      It should be observed, first of all, that, as the Commission points out, the referring court does not call into question a specific allocation of cases concerning it, but refers to shortcomings of a general nature, which call for an overall examination of the SLPS in the light of the second subparagraph of Article 19(1) TEU.
61.      In the main proceedings, and as is apparent from Article 47a(2) of the Law on the organisation of the ordinary courts, and also, in particular, from Article 43(1),
Article 49(1) and (2),
Article 55(1) and (2),
Article 62(1) and (2),
Article 66(1) and (2) and Article 68(1) of the 2019 Rules of Procedure, it seems that the SLPS is accompanied by guarantees designed to preclude arbitrary or discretionary case allocation. It follows from those provisions that the system combines random allocation with a rationale of proportionate case distribution. In particular, Article 68(1)(2) of the 2019 Rules of Procedure lays down nine criteria for determining
a percentage share in the allocation of cases that is taken into account in the distribution of the activities of each judge, trainee judge and judicial officer.
62.      In that regard, it follows from the case-law that the establishment of a system for the allocation of cases within the courts, which is based on the principle of the random selection of the formation of the court, with certain exceptions, ‘does not, itself, appear likely to expose the formations of the court to undue influence’. (17) It follows, moreover, from the provisions referred to in the preceding point that the functioning of the SLPS is based on criteria determined in advance. Essentially, I consider that what is required is to ensure that such a mechanism is governed by rules that are transparent, objective and known in advance, in such a way as to preclude any arbitrary use of the system and any undue interference, by persons outside the formation of the court, with the decision-taking procedure relating to a given case. In those circumstances, the use of such a system does not, as such, give rise to objections. (18)
63.      Admittedly, I am not in a position to determine whether, in practice, the SLPS makes it possible to achieve the objective of a balanced distribution of the workload between judges, or whether that was the case in the main proceedings. Those determinations come within the jurisdiction of the referring court. The fact remains, however, that, as the Commission observes, it is not apparent from the case-law of the Court that the second subparagraph of Article 19(1) TEU requires specific procedures for the internal distribution of cases within a court.
64.      As regards, next, the errors identified by the referring court in the implementation of the SLPS, in particular in 2018, it should be noted, first of all, that those errors do not concern the reallocation of the cases in the main proceedings in January 2025, being approximately eight years after the facts referred to in the request for a preliminary ruling. In any event, it should be borne in mind that, in paragraph 51 of the judgment in Sinalov, the Court pointed out that an error in the application of the allocation rules does not necessarily imply that the formation of the court concerned is exposed to undue influence. That consideration may be transposed to the present case. In spite of the deficiencies noted in 2018, it is apparent from the provisions of the 2019 Rules of Procedure that case allocation is based on predetermined, public criteria which, in principle, preclude undue interference in the random selection process.
65.      It should be observed, moreover, that, as regards the allocation of the two cases at issue in the main proceedings, the request for a preliminary ruling contains no specific element pointing to undue interference by the executive or an administrative body of the court concerned. Nor does it provide any information on the previous caseload of the referring court or on the volume of cases dealt with by the other judges sitting in the same division.
66.      The referring court also expresses doubts relating to a lack of transparency in the functioning of the SLPS, linked principally to the failure to publish its source code. (19) For my part, I do not consider that the failure to publish the source code is sufficient in itself to characterise exposure to undue influence. It is apparent, moreover, from the decision to request a preliminary ruling that the complete algorithm of the system has been published on the website of the Minister for Justice. Furthermore, as the Commission observes, since October 2024 the Minister for Justice has published the reports of the random draws made by the SLPS.
67.      I consider that publication of the algorithm, and also of the random allocation reports, constitutes a sufficient guarantee to ensure the transparency of the SLPS, without there being any need, for that purpose, also to require publication of the source code. Besides, as the Polish Government maintains, disclosure of the source code, in so far as that code is liable to reveal mechanisms designed to protect the application, could raise questions as to the security of the system. Provided that the requirement of transparency is satisfied by the publication of the algorithm and the verifiable results of the random draw, I do not see why, as matters now stand, it would be necessary to go as far as to require publication of the source code, which corresponds to the software master plan.
68.      Last, as regards the criticism directed at the powers of the Minister for Justice relating to the creation of the SLPS and the determination of the rules governing automatic case distribution, to my mind that argument is based on an excessively broad notion of the concept of interference by the executive in the competences of the judiciary.
69.      The creation of an allocation system and the laying down of general rules on distribution do not concern a specific allocation of cases, but form part of the rules of general scope applicable to all ordinary courts. In principle, they come
within the organisation of the functioning of the judiciary. That circumstance alone is therefore not sufficient, in my view, to characterise, as such, undue interference in the case allocation process. Furthermore, the request for a preliminary ruling does not identify any specific elements indicating that those general rules confer on the legislative or executive branches a right to exercise undue influence over the random allocation of cases and their assignment to a particular judge.
70.      In the light of the foregoing, I am of the view that the answer to the second part of the question referred in essence by the referring court should be that the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, does not preclude national provisions which establish an automatic random allocation system, based on a random number generator and involving no human intervention, provided that that system is accompanied by safeguards to prevent any arbitrary use of the system and any undue interference.
The alleged lack of an effective judicial remedy
71.      By the third part of the question referred, the referring court observes, in essence, that no effective remedy is available, in Polish law, for a judge who wishes to challenge the case allocation or reallocation decision taken by the administrative body of the court. It asks whether the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, requires that the judge himself or herself have a judicial remedy against such decisions.
72.      In that regard, I recall that in the judgment in Sinalov
the Court considered that:
‘53.      … the possibility of verifying compliance with the guarantees attached to the concept of a “tribunal previously established by law” … is necessary for the confidence which the courts in a democratic society must inspire in those subject to their jurisdiction. Thus, reviewing compliance with the requirement that every court, as composed, must constitute an independent and impartial tribunal previously established by law is an essential procedural requirement, compliance with which is a matter of public policy. … The Court has held that such a review must be made in the examination of an action, where necessary of [the national court’s] own motion, where a serious doubt arises on that point …
54.      Effective judicial protection cannot be guaranteed if, at the request of a party or of the court’s own motion where there is serious doubt, compliance with the rules conferring on a court the status of an “independent and impartial tribunal previously established by law” could not be the subject of judicial review and a possible penalty in the event of non-compliance, otherwise those rules could be disregarded without that entailing any consequence …’(20)
73.      It therefore follows from the judgment in Sinalov (21) that, for effective judicial protection, the Court requires judicial review of the lawfulness of the allocation of a case, without,
however, requiring that that remedy be necessarily available to a judge who disputes the allocation of cases to him or her. The Court indicates that that review must be capable of being exercised either on application by a party or of the court’s own motion in the event of serious doubt. (22)
74.      Accordingly, the absence of a specific remedy permitting the referring court to challenge the allocation of cases cannot in itself be considered contrary to the second subparagraph of Article 19(1)
TEU, (23) where national law guarantees that respect for the domestic legal rules on case allocation can be the subject of judicial review at the request of a party or of the court’s own motion.
75.      In the main proceedings, and in order to provide the referring court with indications apt to guide it in the exercise of its jurisdiction, I consider it useful to take the following elements into consideration.
76.      In the first place, as observed by the Polish Government, and as it falls to be verified by the referring court, the parties to the proceedings have the right to request that a judge recuse himself or herself and to raise complaints relating to the procedure, including those alleging that the composition of the court was irregular.
77.      In the second place, it follows from Article 89(2) of the Law on the organisation of the ordinary courts that a judicial remedy is available to judges in respect of disputes arising ‘from the employment relationship’. Subject to the checks which the referring court must carry out, in so far as the allocation of the 56 cases disproportionately increased its workload, that court could consider exercising the remedy provided for in that provision.
78.      In the light of the foregoing, I consider that the answer to the third part of the question raised in essence by the referring court must be that the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, does not require the Member State concerned to confer on the judge in question a right to a judicial remedy against the decision allocating or reallocating cases concerning him or her, provided that the lawfulness of those decisions can be reviewed in the context of the dispute before the court, at the initiative of the parties or of the court’s own motion.
Conclusion
79.      In the light of the foregoing considerations, I propose that the Court answer the question referred for a preliminary ruling by the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) as follows:
The second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union,
must be interpreted as meaning that:
–        it precludes national legislation under which a body of a national court, such as its college, may withdraw from a judge of that court some or all of the cases allocated to him or her, with the consequence that some of those cases are reallocated to a different formation, whether or not that withdrawal was by consent, where that legislation does not lay down the criteria to be followed by that body when adopting such a decision and does not require a statement of the reasons on which that decision is based;
–        it does not preclude national provisions which establish a random case allocation system, based on a random number generator and involving no human intervention, provided that that system is accompanied by safeguards to prevent any arbitrary use and any undue interference;
–        it does not require the Member State concerned to confer on the judge in question a right to a judicial remedy against the decision allocating or reallocating cases concerning him or her, provided that the lawfulness of those decisions can be reviewed in the context of the dispute before the court, at the initiative of the parties or of the court’s own motion.
1      Original language: French.
i      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
2      Regulation of the European Parliament and of the Council of 13 June 2024 laying down harmonised rules on artificial intelligence and amending Regulations (EC) No 300/2008, (EU) No 167/2013, (EU) No 168/2013, (EU) 2018/858, (EU) 2018/1139 and (EU) 2019/2144 and Directives 2014/90/EU, (EU) 2016/797 and (EU) 2020/1828 (Artificial Intelligence Act) (OJ L, 2024/1689).
3      Dz. U. of 2024, item
334.
4      Dz. U. of 2024, item
867.
5      Directive of the European Parliament and of the Council of 16 February 2011 (OJ 2011 L 48, p. 1).
6      C‑197/23, ‘the judgment in S.’, EU:C:2024:956.
7      It should be noted that the referring court’s position does not seem to be clearly established on this point. Thus, in paragraph 35 of the request for a preliminary ruling, it states that it is the decision of the college of the Sąd Okręgowy w Warszawie (Regional Court, Warsaw) that is not amenable to judicial review, adding that review of compliance with the rule on case allocation is precluded and that the proceedings before the referring court are therefore void. If that is indeed its analysis, the doubt expressed as to the absence of an effective judicial remedy is in reality directed against the decision whereby the college of that court withdrew the cases at issue from Judge JD. As the Polish Government submits, Judge JD did not dispute that decision to remove the cases from her, but, on the contrary, consented to it. In those circumstances, the question whether a remedy is available to Judge JD is, in the main proceedings, hypothetical, since no actual dispute has been brought before a court in that regard. It seems to me, therefore, that that issue should be considered in the more limited terms in which it is formulated in the sixth sub-question of the request
for a preliminary ruling and, in addition, in the light of paragraph 29 of that request, where the referring court refers expressly to the ‘written decision of the administrative body of the court concerning the allocation of the case and the designation and composition of the court’.
8      See, to that effect, judgments of 26 March 2020, Review Simpson v Council and HG v Commission (C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232, paragraph 71); of 11 July 2024, Hann-Invest and Others (C‑554/21, C‑622/21 and C‑727/21, EU:C:2024:594, paragraphs 47
and 49);
and of 6 March 2025, D.K. (Withdrawal of cases from a judge) (C‑647/21 and C‑648/21, ‘the judgment in D.K.’, EU:C:2025:143, paragraphs 65
and 66).
9      See, to that effect, judgments of 11 July 2024, Hann-Invest and Others (C‑554/21, C‑622/21 and C‑727/21, EU:C:2024:594, paragraphs 50, 51 and 54), and of 1 August 2025, Daka and Others (C‑422/23, C‑455/23, C‑459/23, C‑486/23 and C‑493/23, ‘the judgment in Daka’, EU:C:2025:592, paragraphs 75
and 76).
10      See, to that effect, the judgments in S. (paragraph 63
and the case-law cited), and in D.K. (paragraph 72).
11      See, to that effect, the judgment in D.K. (paragraph 73).
12      See the judgment in D.K. (paragraph 75).
13      See, to that effect, judgment of 13 July 2023, YP and Others (Lifting of a judge’s immunity and his or her suspension from duties) (C‑615/20 and C‑671/20, EU:C:2023:562, paragraphs 76
and 77). In that case, the Court was required to deal with a situation in which a court formation was reassigned a case following the suspension from duties of the judge to whom it had initially been assigned as a result of a resolution adopted in breach of the second subparagraph of Article 19(1)
TEU. The Court held that that formation was required to refrain from hearing and determining that case and to disapply that resolution.
14      The judgment in D.K. (paragraph 77).
15      See, to that effect, judgments 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, paragraph 123), and of 20 April 2021, Repubblika (C‑896/19, EU:C:2021:311, paragraph 53).
16      The judgment in D.K. (paragraph 71), citing the judgment of the ECtHR of 5 October 2010, DMD GROUP, a.s. v. Slovakia (CE:ECHR:2010:1005JUD001933403, § 66).
17      See judgment of 27 February 2025, Sinalov (C‑16/24, ‘the judgment in Sinalov’, EU:C:2025:116, paragraph 51).
18      See, concerning a Bulgarian system for the random selection of the formation of the court, the judgment in Sinalov (paragraph 51).
19      On the website of the online encyclopaedia Wikipedia, it is stated that ‘[e]n informatique, le code source est un texte qui présente les instructions composant un programme sous une forme lisible, telles qu’elles ont été écrites dans un langage de programmation. Le code source se matérialise généralement sous la forme d’un ensemble de fichiers texte
[(in computer programming, the source code is text which presents the instructions that make up a program in a readable form, as written in a programming language. That
source code generally takes the form of a set of text files)]’ (available at the following address: https://fr.wikipedia.org/wiki/Code_source).
20      See also the judgments in
S. (paragraph 67) and in Daka (paragraph 99). Furthermore, the Court has also held, in paragraph 56 of the judgment in Sinalov, that, ‘in respect of the competence of Member States as regards the organisation of their judicial systems …
EU law does not preclude an obligation on the part of a judge to whom a case has been allocated by the head of court management of the court concerned, where he or she has doubts regarding the lawfulness of that allocation in the light of the applicable rules of national law, to refer that case back to that head of court management, having regard to his or her legal obligations, for verification of the lawfulness of that allocation and, where appropriate, to agree to hear that case in the event that the initial allocation is confirmed. However, the lawfulness of an allocation made by that head of court management must be subject to judicial review in accordance with the rules of national law’ (emphasis added).
21      See also the judgment in
S.
(paragraphs 65
to 67).
22      See, to that effect, the judgment in Sinalov (paragraph 54).
23      It is appropriate, at this stage, to note that the referring court questions the impact of the SLPS on the risk that the proceedings will be excessively long, to the detriment of the parties’ procedural rights. However, such an allegation is not substantiated by any material in the file. In particular, the file contains no information enabling an assessment to be made of the existence of a link between the supposedly excessive caseload allocated to the referring court in the main proceedings and the prolongation of the proceedings that would ensue. In those circumstances, the argument put forward seems to be purely conjectural. In the absence of a sufficient factual basis, I consider that the argument cannot be properly assessed in the light of the material submitted to the Court.