Action brought on 1 April 2021 — European Commission v Republic of Poland

(Case C-204/21)

(2021/C 252/15)

Language of the case: Polish

Parties

Applicant: European Commission (represented by: P.J.O. Van Nuffel and K. Herrmann, acting as Agents)

Defendant: Republic of Poland

Form of order sought

The applicant claims that the Court should:

— declare that, by adopting and maintaining in force Article 42a § § 1 and 2 of the Ustawa prawo o ustroju sądów powszechnych (Law on the system of ordinary courts; ‘the LSOC’), as well as Article 55 § 4 thereof; Article 26 § 3 of the Ustawa o Sądzie Najwyższym (Law on the Supreme Court), as well as Article 29 § § 2 and 3 thereof; and Article 5 § § 1a and 1b of the Ustawa o sądach administracyjnych (Law on the administrative courts), in the wording resulting from the Ustawa z dnia 20 grudnia 2019 r. — Prawo o ustroju sądów powszechnych, ustawy o Sądzie Najwyższym oraz niektórych innych ustaw (Law of 20 December 2019 amending the Law on the system of ordinary courts, the Law on the Supreme Court and certain other laws; ‘the amending law’), as well as Article 8 of the amending law, which means that it is not permissible for any national court to review compliance with the EU requirement of being an independent and impartial tribunal previously established by law, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), in the light of the case-law of the European Court of Human Rights concerning Article 6(1) of the [European Convention on Human Rights], as well as Article 267 TFEU and the principle of the primacy of EU law;

— declare that, by adopting and maintaining in force Article 26 § 2 and § § 4 to 6 of the Law on the Supreme Court, as well as Article 82 § § 2 to 5 thereof, in the wording resulting from the amending law, and Article 10 of the amending law, which place the examination of complaints and legal issues concerning the lack of independence of a court or judge under the exclusive jurisdiction of the Izba Kontroli Nadzwyczajnej i Spraw Publicznych Sądu Najwyższego (Extraordinary Review and Public Affairs Chamber of the Supreme Court), the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, as well as Article 267 TFEU and the principle of the primacy of EU law;

— declare that, by adopting and maintaining in force points 2 and 3 of Article 107 § 1 of the LSOC, as well as points 1 to 3 of Article 72 § 1 of the Law on the Supreme Court, in the wording resulting from the amending law, allowing the review of compliance with the EU requirement of being an independent and impartial tribunal previously established by law to be classified as a disciplinary offence, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, as well as Article 267 TFEU;

— declare that, by conferring decision-making powers in cases which have a direct impact on the status and tenure of office of judges and assessors (trainee judges) (such as allowing judges and assessors (trainee judges) to be criminally prosecuted or detained, cases relating to the employment and social insurance laws concerning Supreme Court judges, and cases relating to the retirement of a Supreme Court judge) on the Izba Dyscyplinarna Sądu Najwyższego (Disciplinary Chamber of the Supreme Court), whose independence and impartiality are not guaranteed, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU;

— declare that, by adopting and maintaining in force Article 88a of the LSOC, Article 45 § 3 of the Law on the Supreme Court and Article 8 § 2 of the Law on the administrative courts, in the wording resulting from the amending law, the Republic of Poland has infringed the right to respect for private life and the right to the protection of personal data guaranteed by Article 7 and Article 8(1) of the Charter, as well as Article 6(1)(c) and (e), Article 6(3), and Article 9(1) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data; (1)

— order the Republic of Poland to pay the costs.

Pleas in law and main arguments

Due to the circumstances of its creation, its composition, and the powers conferred upon it, the Disciplinary Chamber of the Supreme Court does not constitute a judicial body that displays the characteristics of an independent tribunal within the meaning of Article 19(1) TEU, read in conjunction with Article 47 of the Charter. As a result, maintaining its jurisdiction in cases relating to other national judges, concerning the status of judges and the conditions under which the office of judge is to be exercised, infringes their independence, and is in breach of Article 19(1) TEU.

The amending law of 20 December 2019, by excluding the possibility for national courts to review compliance, by panels of judges ruling in cases concerning EU law, with the requirements of being an independent and impartial tribunal previously established by law within the meaning of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, infringes those provisions and disregards the mechanism for referring questions for a preliminary ruling provided for in Article 267 TFEU. This is because, according to the case-law of the Court of Justice, national courts are under an obligation to ensure that cases concerning rights which individuals derive from EU law are examined by an independent and impartial tribunal previously established by law. The classification of such a review as having the characteristics of a disciplinary offence is also in breach of EU law. Every national court, when adjudicating on EU law, must have the possibility to assess, of its own motion or at the request of a party, whether cases concerning EU law are examined by an independent tribunal within the meaning of EU law, without the threat of disciplinary proceedings being initiated in respect of the judges concerned. Conferring exclusive jurisdiction in relation to the examination of requests for the recusal of a judge from a particular case, or for the determination of an appropriate panel to rule on that case, based on an allegation of lack of independence of a judge or panel, on the Extraordinary Review and Public Affairs Chamber of the Supreme Court prevents other national courts from fulfilling the obligations mentioned above and from referring questions concerning the interpretation of that EU requirement to the Court of Justice for a preliminary ruling. Conversely, according to the case-law of the Court of Justice, every national court is entitled to refer questions for a preliminary ruling under Article 267 TFEU. Moreover, courts whose decisions are not subject to appeal are obliged to do so in the event of any issues of interpretation.

Obliging every judge to supply, within 30 days from his or her appointment to the office of judge, information regarding his or her membership of a professional body or association, the functions performed by him or her within non-commercial foundations, and his or her membership of a political party, as well as publishing that information in the Biuletyn Informacji Publicznej (Public Information Bulletin) before his or her appointment to the office of judge infringes a judge’s fundamental right to respect for his or her private life and to the protection of his or her personal data, and is in breach of the provisions of the GDPR.

(1) OJ 2016 L 119, p. 1.