Provisional text

OPINION OF ADVOCATE GENERAL

COLLINS

delivered on 15 December 2022 ( )

Case C‑204/21

European Commission

v

Republic of Poland

(Article 258 TFEU – Failure of a Member State to fulfil obligations – Disciplinary regime applicable to judges – Rule of law – Independence of judges – Effective legal protection in the fields covered by EU law – Second subparagraph of Article 19(1) TEU – Article 47 of the Charter of Fundamental Rights of the European Union – Article 267 TFEU – Review of compliance with EU requirement of being an independent and impartial tribunal – Exclusive jurisdiction of the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Extraordinary Review and Public Affairs Chamber) of the Sąd Najwyższy (Supreme Court, Poland) – Independence of the Izba Dyscyplinarna (Disciplinary Chamber) of the Sąd Najwyższy (Supreme Court) – Right to respect for private life – Right to the protection of personal data – Regulation (EU) 2016/679)





Table of contents





I. Scope of the action

II. Legal context – Polish law

A. The amended Law on the Supreme Court

B. The amended Law on the organisation of the ordinary courts

C. The amended Law on the organisation of the administrative courts

D. The Amending Law – Transitional provisions

III. The pre-litigation procedure

IV. The procedure before the Court

V. Legal context

VI. Legal analysis

A. Second complaint – The exclusive jurisdiction of the Extraordinary Chamber to examine complaints and questions of law concerning the lack of independence of a court or a judge

1. Arguments of the parties

2. Assessment

(a) Admissibility

(b) Substance

B. First complaint – The prohibition on national courts reviewing compliance with the EU law requirement of an effective remedy before an independent and impartial tribunal previously established by law

1. Arguments of the parties

2. Assessment

(a) Admissibility

(b) Substance

(1) Preliminary remarks – The scope of the Commission’s first and second complaints

(2) The right to an effective remedy before an independent and impartial tribunal previously established by law

C. Third complaint – Making examination of compliance with the EU requirements relating to an independent and impartial tribunal previously established by law a disciplinary offence

1. Arguments of the parties

2. Assessment

(a) Preliminary observations on the scope of the Commission’s second and third complaints

(b) Disciplinary proceedings

D. Fourth complaint – The jurisdiction of the Disciplinary Chamber to hear and determine cases having a direct impact on the status of judges and trainee judges and the performance of their office

1. Arguments of the parties

2. Assessment

E. Fifth complaint – Infringement of the fundamental right of judges to respect for their private life and the right to protection of personal data

1. Arguments of the parties

2. Assessment

VII. Costs

VIII. Conclusion





I. Scope of the action

1. This action under Article 258 TFEU arises out of the enactment on 20 December 2019 of 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) ( ) (‘the Amending Law’) by the Republic of Poland. In substance, the European Commission contends that certain provisions of the Amending Law infringe 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’), Article 267 TFEU, the principle of primacy of EU law and the right to respect for private life and the right to protection of personal data, guaranteed by Article 7 and Article 8(1) of the Charter and by 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, and repealing Directive 95/46/EC (General Data Protection Regulation) ( ) (‘the GDPR’).

2. The Commission’s action consists of five complaints.

3. The first three complaints, which are connected, allege that the Amending Law limits or excludes the possibility for a national court to ensure that individuals claiming rights under EU law have access to an independent and impartial tribunal previously established by law, thereby infringing the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter and Article 267 TFEU. The first two complaints also claim that the Amending Law infringes the principle of primacy. In cases that relate to the application or the interpretation of EU law, Member States are required to ensure respect for the fundamental right to an effective remedy before an independent and impartial tribunal previously established by law. Where it is alleged that that right has been infringed, individuals must, in principle, be able to bring that complaint before a national court. It follows that, in cases engaging individual rights at EU law, any national court must be able to ascertain an infringement of the right of individuals to have their case heard by an independent and impartial tribunal previously established by law. Any limitation or exclusion of the possibility for a national court to satisfy itself that individuals relying on rights which they derive from EU law have access to an independent and impartial tribunal previously established by law constitutes a breach of the obligations created by the aforementioned provisions. ( )

4. The fourth complaint relates to the jurisdiction the Amending Law conferred on the Izba Dyscyplinarna (Disciplinary Chamber of the Supreme Court, Poland; ‘the Disciplinary Chamber’) of the Sąd Najwyższy (Supreme Court, Poland; ‘the Supreme Court’) (‘the Disciplinary Chamber’) over matters relating to the status of judges. The Commission claims that since the Disciplinary Chamber does not meet the requisite standards of judicial independence and impartiality, the law in question affects the independence of judges whose status is subject to review by the Disciplinary Chamber and thereby infringes the second subparagraph of Article 19(1) TEU.

5. The fifth complaint concerns the obligation the Amending Law imposes on judges to provide information on their public and social activities in associations and non-profit foundations, including membership of a political party, prior to their appointment, and the publication of that information. The Commission considers that those obligations are disproportionate and infringe the right to respect for private life and the right to protection of personal data, guaranteed by Article 7 and Article 8(1) of the Charter and by Article 6(1)(c) and (e), Article 6(3) and Article 9(1) of the GDPR.

II. Legal context – Polish law

A. The amended Law on the Supreme Court

6. The ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 ( ) established two new chambers within the Supreme Court: the Disciplinary Chamber and the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (the Extraordinary Review and Public Affairs Chamber; ‘the Extraordinary Chamber’).

7. So far as is relevant to these proceedings, the Amending Law amended the Law on the Supreme Court by inserting paragraphs 2 to 6 into Article 26, point 1a into Article 27(1), paragraph 3 into Article 45, paragraphs 2 to 5 into Article 82 and changing Article 29 and Article 72(1).

8. Article 26(2) to (6) of the amended Law on the Supreme Court provides:

‘2. The [Extraordinary Chamber] shall have jurisdiction to hear applications or declarations concerning the exclusion 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 Chamber] so that the case may be dealt with in accordance with the rules laid down in separate provisions. The submission of a request to the President of the [Extraordinary Chamber] shall not stay the ongoing proceedings.

3. The request referred to in paragraph 2 shall not be examined if it concerns the establishment or the assessment of the legality of the appointment of a judge or of his or her authority to carry out judicial functions.

4. The [Extraordinary Chamber] shall have jurisdiction to hear actions for a declaration that final judgments of the [Supreme Court], the ordinary courts, the military courts and the administrative courts, including the [Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland)], are unlawful, if the unlawfulness consists in the calling into question of the status of the person appointed to a judicial post who adjudicated in the case.

5. The provisions relating to a finding that a final judgment is unlawful shall apply mutatis mutandis to the proceedings in the cases referred to in paragraph 4 and the provisions relating to the re-opening of judicial proceedings closed by a final judgment shall apply to criminal cases. It shall not be necessary to establish the probability or occurrence of harm caused by the delivery of the judgment forming the subject matter of the action.

6. An action for a declaration that a final judgment is unlawful, referred to in paragraph 4, may be brought before the [Extraordinary Chamber] without being brought before the court that delivered the contested judgment, even where a party has not exhausted the available remedies, including an extraordinary action before the [Supreme Court].’

9. Article 27(1) of the amended Law on the Supreme Court provides:

‘The following cases shall fall within the jurisdiction of the Disciplinary Chamber:

…

(1a) cases relating to authorisation to initiate criminal proceedings against judges, trainee judges, prosecutors and associate prosecutors or to place them in provisional detention.

(2) cases relating to employment and social security law that concern judges of the [Supreme Court];

(3) cases relating to the compulsory retirement of a judge of the [Supreme Court].’

10. Article 29(2) and (3) of the amended Law on the Supreme Court states:

‘2. In the context of the activities of the [Supreme Court] or its organs, it shall not be permissible to call into question the legitimacy of the tribunals and courts, the constitutional organs of the State or the organs responsible for reviewing and protecting the law.

3. The [Supreme Court] or other authority cannot establish or assess the legality of the appointment of a judge or of the power to exercise judicial functions that derives from that appointment.’

11. Article 45(3) of the amended Law on the Supreme Court provides:

‘The declaration referred to in Article 88a of the [amended Law on the organisation of the ordinary courts] shall be submitted by the judges of the [Supreme Court] to the First President of the [Supreme Court], and by the First President of the [Supreme Court] to the [Krajowa Rada Sądownictwa (National Council of the Judiciary; “the KRS”)].’

12. By Article 72(1) of the Law on the Supreme Court:

‘A judge of the [Supreme Court] shall be accountable, at the disciplinary level, for breach of professional obligations (disciplinary faults), including in cases of:

(1) obvious and gross violations of the law;

(2) acts or omissions of such a kind as to prevent or seriously undermine the functioning of a judicial authority;

(3) acts calling into question the existence of the employment relationship of a judge, the effectiveness of the appointment of a judge or the legitimacy of a constitutional organ of the Republic of Poland.’

13. In accordance with Article 73(1) of that law, the Disciplinary Chamber is the disciplinary court of second (and last) instance for judges of the ordinary courts and the disciplinary court of first and second instance for judges of the Supreme Court.

14. Article 82 of the amended Law on the Supreme Court provides as follows:

‘…

2. When it examines a case in which a question of law relating to the independence of a judge or of a court arises, the [Supreme Court] shall stay the proceedings and refer that question to a formation composed of all the members of the [Extraordinary Chamber].

3. If, when examining an application referred to in Article 26(2), the [Supreme Court] entertains serious doubts as to the interpretation of the legal provisions that must form the basis of the decision, it may stay the proceedings and refer a question of law to a formation composed of all the members of the [Extraordinary Chamber].

4. When it adopts a decision referred to in paragraph 2 or 3, the [Extraordinary Chamber] shall not be bound by the decision of a different formation of the [Supreme Court], unless that decision has acquired the force of a legal principle.

5. A decision adopted by all the members of the [Extraordinary Chamber] on the basis of paragraph 2 or 3 shall be binding on all formations of the [Supreme Court]. Any departure from a decision which has acquired the force of a legal principle shall require that a new decision be adopted by the [Supreme Court] in plenary session, the adoption of that decision requiring the presence of at least two thirds of the judges of each of the chambers. Article 88 shall not apply.’

B. The amended Law on the organisation of the ordinary courts

15. The Amending Law amended the ustawa – Prawo o ustroju sądów powszechnych (Law on the organisation of the ordinary courts) of 27 July 2001 ( ), inter alia, by inserting Article 42a, inserting paragraph 4 into Article 55, and amending Article 107(1) and Article 110(2a).

16. The text of Article 42a of the amended Law on the organisation of the ordinary courts is as follows:

‘1. In the context of the activities of the courts or the organs of the courts, it shall not be permissible to call into question the legitimacy of the tribunals and courts, the constitutional organs of the State or the organs responsible for reviewing and protecting the law.

2. An ordinary court or other authority cannot establish or assess the legality of the appointment of a judge or of the power to exercise judicial functions that derives from that appointment.

…’

17. Article 55(4) of the amended Law on the organisation of the ordinary courts provides that:

‘Judges may adjudicate in all cases in the place to which they are posted and also in other courts in the cases defined by law (jurisdiction of the judge). The provisions relating to the allocation of cases and to the appointment and modification of the formations of the court shall not limit a judge’s jurisdiction and cannot be a basis for determining that a formation is contrary to the law, that a court is improperly composed or that a person not authorised or competent to adjudicate forms part of that court.’

18. By Article 88a of the amended Law on the organisation of the ordinary courts all Polish ( ) judges must disclose certain information for subsequent publication in the Biuletyn Informacji Publicznej (Public Information Bulletin):

‘1. A judge shall be required to submit a written declaration mentioning:

(1) his or her membership of an association, including the name and registered office of the association, the positions held and the period of membership;

(2) the position held within a body of a non-profit foundation, including the name and registered office of the foundation and the period during which the position was held;

(3) his or her membership of a political party prior to his or her appointment to a judge’s post and his or her membership of a political party during his or her term of office before 29 December 1989, including the name of the party, the positions held and the period of membership.

2. The declarations referred to in paragraph 1 shall be submitted by judges to the president of the competent court of appeal and by presidents of the courts of appeal to the [Minister Sprawiedliwości (Minister for Justice)].

3. The declarations referred to in paragraph 1 shall be submitted within 30 days of the date on which the judge takes office and within 30 days of the date of the occurrence or cessation of the circumstances referred to in paragraph 1.

4. The information contained in the declarations referred to in paragraph 1 shall be public and made available in the Public Information Bulletin referred to in the Law of 6 September 2001 on access to public information no later than 30 days from the date on which the declaration is submitted to the authorised body.’

19. Under Article 107(1) of the amended Law on the organisation of the ordinary courts:

‘A judge shall be accountable, at the disciplinary level, for breach of professional obligations (disciplinary faults), including in cases of:

…

(2) acts or omissions of such a kind as to prevent or seriously undermine the functioning of a judicial authority;

(3) acts calling into question the existence of the employment relationship of a judge, the effectiveness of the appointment of a judge or the legitimacy of a constitutional organ of the Republic of Poland;

…’

20. Article 110(2a) of the amended Law on the organisation of the ordinary courts provides that:

‘The disciplinary court in the territory of which the judge facing the proceedings performs his or her duties shall have jurisdiction ratione territoriae to hear and determine the cases referred to in Article 37(5) and in point 3 of Article 75(2). In the cases referred to in Article 80 and Article 106zd, the court having jurisdiction shall be, at first instance, the [Supreme Court] sitting as a single judge of the Disciplinary Chamber and, at second instance, the [Supreme Court] sitting in a formation of three judges of the Disciplinary Chamber.’

C. The amended Law on the organisation of the administrative courts

21. The Amending Law amended the ustawa – Prawo o ustroju sądów administracyjnych (Law on the organisation of the administrative courts) of 25 July 2002, ( ) inter alia, by inserting paragraphs 1a and 1b into Article 5, paragraph 2 into Article 8 and by amending Article 29(1) and Article 49(1).

22. Article 5(1a) and (1b) of the amended Law on the organisation of the administrative courts states:

‘1a. In the context of the activities of an administrative court or its organs, it shall not be permissible to call into question the legitimacy of the tribunals and courts, the constitutional organs of the State or the organs responsible for reviewing and protecting the law.

1b. An administrative court or other authority cannot establish or assess the legality of the appointment of a judge or of the power to exercise judicial functions that derives from that appointment.’

23. Article 8(2) of the amended Law on the organisation of the administrative courts provides that:

‘The declaration referred to in Article 88a of the [amended Law on the organisation of the ordinary courts] shall be submitted by the judges of a [wojewódzki sąd administracyjny (regional administrative court)] to the competent president of a regional administrative court, by the president of a regional administrative court and the judges of the [Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland)] to the President of the [Naczelny Sąd Administracyjny (Supreme Administrative Court)], and by the President of the [Naczelny Sąd Administracyjny (Supreme Administrative Court)] to the [KRS]’.

24. Under Article 29(1) of that law, the disciplinary offences provided for in points 2 and 3 of Article 107(1) of the amended Law on the organisation of the ordinary courts are also to apply to the judges of the administrative courts.

25. In accordance with Article 49(1) of the amended Law on the organisation of the administrative courts, the disciplinary offences provided for in Article 72(1) of the amended Law on the Supreme Court are also to apply to the judges of the Naczelny Sąd Administracyjny (‘the Supreme Administrative Court’).

D. The Amending Law – Transitional provisions

26. In accordance with Article 8 of the Amending Law, Article 55(4) of the amended Law on the organisation of the ordinary courts applies to cases begun or terminated before the date of the entry into force of the Amending Law, that is to say, 14 February 2020.

27. By Article 10 of the Amending Law:

‘1. The provisions of the [Law on the Supreme Court], in the version resulting from this Law, shall also apply to cases amenable to examination by the [Extraordinary Chamber] that were begun and have not been terminated by a final judgment, including a decision on appeal, before the date of entry into force of the present Law.

2. The court dealing with a case referred to in paragraph 1 shall refer it immediately, and no later than seven days after the entry into force of the present law, to the [Extraordinary Chamber], which may revoke the acts previously carried out in so far as they prevent examination of the case from proceeding in accordance with the law.

3. Acts carried out by the courts and by the parties or participants in the proceedings in the cases referred to in paragraph 1 after the date of entry into force of the present Law, in breach of paragraph 2, shall not produce procedural effects.’

III. The pre-litigation procedure

28. Taking the view that, by the adoption of the Amending Law, the Republic of Poland had failed to fulfil its obligations under the combined provisions set out at point 1 of the present Opinion, on 29 April 2020 the Commission addressed a letter of formal notice to that Member State. The Republic of Poland replied by a letter dated 29 June 2020, whereby it disputed all of the allegations that it had infringed EU law.

29. On 30 October 2020, the Commission issued a reasoned opinion in which it maintained its contention that the Amending Law infringed the provisions of EU law set out in the letter of formal notice.

30. On 3 December 2020, the Commission issued a supplementary letter of formal notice in respect of the judicial activities of the Disciplinary Chamber in cases relating to the status of judges and trainee judges pursuant to Article 27(1)(1a), (2) and (3) of the amended Law on the Supreme Court as inserted by the Amending Law.

31. In its reply of 30 December 2020 to the Commission’s reasoned opinion of 30 October 2020, the Republic of Poland denied the alleged infringements. On 4 January 2021, the Republic of Poland replied to the Commission’s supplementary letter of formal notice of 3 December 2020, claiming that the complaints concerning the lack of independence of the Disciplinary Chamber were unfounded.

32. On 27 January 2021, the Commission issued a supplementary reasoned opinion in respect of the judicial activities of the Disciplinary Chamber in cases relating to the status of judges and trainee judges. By letter of 26 February 2021, the Republic of Poland replied that the complaint contained in the supplementary reasoned opinion was unfounded.

IV. The procedure before the Court

33. By application lodged on 1 April 2021, the Commission brought the present action before the Court under Article 258 TFEU. The Commission seeks five declarations that:

‘– by adopting and maintaining in force Article 42a(1) and (2) and Article 55(4) of [the amended Law on the organisation of the ordinary courts], Article 26(3) and Article 29(2) and (3) of [the amended Law on the Supreme Court], Article 5(1a) and (1b) of [the amended Law on the organisation of the administrative courts], and Article 8 of the Amending Law, which prohibit any national court from reviewing compliance with the EU requirements relating to 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], in the light of the case-law of the European Court of Human Rights [(“the ECtHR”)] concerning Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 [(“the ECHR”)], and under Article 267 TFEU and the principle of primacy of EU law;

– by adopting and maintaining in force Article 26(2) and (4) to (6) and Article 82(2) to (5) of the amended Law on the Supreme Court and Article 10 of the Amending Law, which place the examination of complaints and questions of law concerning the lack of independence of a court or judge under the exclusive jurisdiction of the [Extraordinary Chamber], the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, and under Article 267 TFEU and the principle of primacy of EU law;

– by adopting and maintaining in force points 2 and 3 of Article 107(1) of the amended Law on the organisation of the ordinary courts and points 1 to 3 of Article 72(1) of the amended Law on the Supreme Court, under which the examination of compliance with the EU requirements relating to an independent and impartial tribunal previously established by law may be classified as a “disciplinary offence”, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, and under Article 267 TFEU;

– by conferring on the [Disciplinary Chamber], whose independence and impartiality are not guaranteed, jurisdiction to hear and determine cases having a direct impact on the status of judges and trainee judges and the performance of their office, such as, first, applications for authorisation to initiate criminal proceedings against judges and trainee judges or to detain them and, second, cases relating to employment and social security law that concern judges of the Supreme Court and cases relating to the compulsory retirement of those judges, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU;

– by adopting and maintaining in force Article 88a of the amended Law on the organisation of the ordinary courts, Article 45(3) of the amended Law on the Supreme Court and Article 8(2) of the amended Law on the organisation of the administrative courts, the Republic of Poland has infringed the right to respect for private life and the right to protection of personal data, guaranteed by Article 7 and Article 8(1) of the Charter and by Article 6(1)(c) and (e), Article 6(3) and Article 9(1) of [the GDPR].’

34. The Commission also requests that the Republic of Poland be ordered to pay the costs.

35. In its defence, lodged on 17 June 2021, the Republic of Poland contends that the Court should dismiss the present action as unfounded in its entirety and order the Commission to pay the costs of the proceedings.

36. The Commission and the Republic of Poland lodged a reply and a rejoinder on 28 July 2021 and 7 September 2021, respectively.

37. By separate document lodged on 1 April 2021, the Commission brought an application for interim measures pursuant to Article 279 TFEU, asking the Court to order the Republic of Poland, pending the judgment of the Court on the substance of these proceedings, to suspend the application of a number of the provisions introduced by the Amending Law.

38. By order of 14 July 2021, ( ) the Vice-President of the Court granted the Commission’s application for interim measures pending delivery of the judgment closing the present proceedings and reserved the costs. ( )

39. On 16 August 2021, the Republic of Poland, considering that the judgment of the Trybunał Konstytucyjny (Constitutional Court, Poland) of 14 July 2021, delivered in Case P 7/20 (‘the judgment of the Trybunał Konstytucyjny (Constitutional Court), Case P 7/20’) constituted a change in circumstances, requested the Court to cancel its order of 14 July 2021 pursuant to Article 163 of the Rules of Procedure of the Court of Justice. That Member State also requested that the Grand Chamber of the Court examine the application. ( )

40. By order of 6 October 2021, ( ) the Vice-President of the Court dismissed the Republic of Poland’s requests and reserved the costs. In her order, the Vice‑President of the Court stated that the principle of the primacy of EU law requires all Member State bodies to give full effect to EU provisions and that the law of the Member States may not undermine the effect accorded to those provisions. Under the second subparagraph of Article 19(1) TEU, which is clear, precise and unconditional, every Member State must ensure that courts or tribunals that are liable to rule on the application or interpretation of EU law meet the requirements of effective judicial protection. National provisions on the organisation of justice in the Member States may be subject to review in the light of the second subparagraph of Article 19(1) TEU in the context of an action for failure to fulfil obligations, and, consequently, to interim measures seeking their suspension in that context. That assessment is unaltered by the fact that a national constitutional court declares such interim measures contrary to the constitutional order of the Member State concerned. By virtue of the principle of the primacy of EU law, a Member State cannot rely on rules of national law, even of a constitutional order, to undermine the unity and effectiveness of EU law. ( )

41. In the meantime, on 7 September 2021, the Commission claimed that, from the information the Republic of Poland had provided by letter of 16 August 2021, it was not apparent that it had adopted all of the measures necessary to implement the interim measures set out in the order of 14 July 2021. The Commission argued that, in order to ensure the full effectiveness of the order of 14 July 2021, the effective application of EU law and compliance with the principles of the rule of law and the integrity of the EU legal order, it was necessary that the Court order the Republic of Poland to pay a daily penalty payment in an amount likely to encourage that Member State to give full effect to the said interim measures as soon as possible. The Republic of Poland contended that it had adopted all of the measures necessary to enforce the order of 14 July 2021.

42. By order of 27 October 2021, ( ) the Vice-President of the Court ordered the Republic of Poland to pay the Commission a periodic penalty payment of EUR 1 000 000 per day, from the date of notification of that order until that Member State complies with the obligations arising from the order of 14 July 2021 or, if it fails to do so, until the date of delivery of the judgment closing the present proceedings and reserved the costs.

43. By decision of 30 September 2021, the President of the Court granted the Kingdom of Belgium, the Kingdom of Denmark the Kingdom of the Netherlands, the Republic of Finland and the Kingdom of Sweden leave to intervene in the present case in support of the form of order sought by the Commission. Those Member States submitted written observations to the Court.

44. By decision of 7 October 2021, the President of the Court granted the present case priority treatment under Article 53(3) of the Rules of Procedure.

45. On 28 June 2022, a hearing was held at which the Kingdom of Belgium, the Kingdom of Denmark, the Kingdom of the Netherlands, the Republic of Poland, the Republic of Finland, the Kingdom of Sweden, and the Commission presented oral argument and answered questions from the Court.

V. Legal context

46. With a view to the resolution of the issues before the Court in this infringement action, reference should be made to the following well-established propositions of law.

47. The European Union is founded upon values common to the Member States in a society where justice prevails. ( ) Mutual trust between the Member States and, in particular, their courts and tribunals, is based on the premiss that a set of common values is shared. It follows that a Member State’s compliance with the values enshrined in Article 2 TEU is a condition for the enjoyment of all of the rights derived from the application of the Treaties to that Member State. ( )

48. Respect for the rule of law is one of these common values, of which Article 19(1) TEU is a concrete manifestation. Its second subparagraph requires Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law. The first sentence of the second paragraph of Article 47 of the Charter, which reflects the general principle of effective judicial protection, also provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. ( ) Moreover, the second subparagraph of Article 19(1) TEU and Article 47 of the Charter have direct effect and confer rights on individuals that they may rely on before national courts. ( )

49. It is for the Member States ( ) to establish a system of legal remedies and procedures to ensure effective legal protection ( ) in the fields covered by EU law whereby the courts and tribunals within that system that may rule on the application or interpretation of EU law satisfy the requirements of effective judicial protection. ( ) Member States thus have the task of designating the courts and/or institutions empowered to review the validity of national provisions, to prescribe legal remedies and procedures to contest their validity and, where an action is well founded, to strike them down and to determine the effects thereof. ( ) Save where EU law provides otherwise, it does not impose any particular judicial model ( ) on Member States, nor does it require that they adopt any specific system of remedies, provided that the remedies available comply with the principles of equivalence and effectiveness. ( ) When exercising that competence, Member States must comply with their obligations under EU law. ( ) That approach reflects the principles of subsidiarity and proportionality in Article 5 TEU and the procedural autonomy of the Member States. ( )

50. The second subparagraph of Article 19(1) TEU precludes national provisions on the organisation of justice that reduce the protection of the value of the rule of law, in particular, guarantees of judicial independence. The Court has, moreover, held that a Member State cannot amend its legislation so as to reduce the protection of the rule of law. Member States must thus refrain from adopting rules that undermine the independence of the judiciary. ( )

51. The requirement that courts are independent, which is inherent in the task of adjudication, is a constituent of the right to effective judicial protection, which in turn is part of the fundamental right to a fair trial for which Article 47 of the Charter provides. Viewed in that context, the independence of Member State judges is of fundamental importance to the EU legal order. ( )

52. The requirement that the courts are independent has two aspects. The first, external in nature, requires a court to exercise its functions autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions. The second aspect, internal in nature, is linked to impartiality. It seeks to ensure that, as regards the subject matter of legal proceedings, courts maintain an equal distance from the parties thereto and their respective interests. That aspect of independence requires that courts be objective and have no interest in the outcome of the proceedings other than the strict application of the rule of law. ( )

53. The requirement of impartiality also has two aspects. First, the members of the court or tribunal must themselves be subjectively impartial, that is, none of them may show bias or personal prejudice. In the absence of evidence to the contrary a presumption of personal impartiality applies. Second, the court or tribunal must be objectively impartial, that is to say, it must offer guarantees sufficient to exclude any legitimate doubt in that respect. ( )

54. Finally, by requiring that a tribunal be ‘previously established by law’, Article 47 of the Charter seeks to ensure that the organisation of the judicial system is regulated by law emanating from the legislature in compliance with the rules governing the exercise of its power, thereby precluding such organisation being left to the discretion of the executive. That requirement covers not only the legal basis for the very existence of a tribunal, but also any other provision of domestic law which, if breached, would render the participation of one or more judges in the examination of a case irregular, such as rules governing the composition of a panel hearing a case. ( )

55. The requirement that a tribunal be established by law is infringed where an irregularity committed during the appointment of judges ( ) is of such a kind and of such gravity as to create a real risk that other branches of the State, in particular the executive, could exercise undue influence to undermine the integrity of the appointment process. That is the case where the application of fundamental rules that form an integral part of the establishment and functioning of that judicial system is in play. ( ) Such an irregularity may give rise to a reasonable doubt in the minds of individuals as to the independence ( ) and the impartiality of the judge or judges so appointed.

56. The requirements of independence, impartiality and of prior establishment by law are inherently linked and overlap. A breach of one of those requirements may entail a breach of another or indeed of all of them. ( )

57. Member States, in particular, their judicial arms, must protect the rights granted to individuals pursuant to the second subparagraph of Article 19(1) TEU and Article 47 of the Charter in two ways.

58. First, it is a corollary of the right to an independent and impartial tribunal previously established by law that everyone has the possibility to invoke that right. ( ) Moreover, where the existence of an independent and impartial tribunal is disputed on a ground that does not immediately appear to be manifestly devoid of merit, ( ) every court ( ) is obliged to check whether, as composed, it constitutes such a tribunal. That jurisdiction is necessary to sustain the confidence that courts in a democratic society must inspire in those subject to their rulings. Such a check is thus an essential procedural requirement, compliance with which is a matter of public policy and must be verified either when raised by the parties or of the court’s own motion. ( ) In exceptional cases the courts of one Member State may be called on to assess whether a person’s fundamental right to an independent and impartial tribunal previously established by law has been breached in another Member State. ( )

59. Second, courts must respect the principle of the primacy of EU law. ( ) Within the exercise of the jurisdiction conferred upon them, courts called upon to apply EU law are obliged to adopt all measures necessary to ensure that EU law is fully effective, if need be by disapplying any national provisions or national case-law that is contrary to EU law. ( ) In order to disapply a provision of national law, the court entrusted by national law with applying EU law must be in a position to assess and establish whether a provision of national law is contrary to EU law. In accordance with the principle of primacy of EU law, ( ) there is a clear distinction between the exercise of a power to disapply, in a specific case, a provision of national law deemed contrary to EU law and a power to strike down such a provision, with the consequence that that provision is no longer valid for any purpose. ( )

60. As regards the role of national constitutions and national constitutional courts raised in the rejoinder, ( ) the Court has ruled that the European Union must respect the Member States’ national identities in accordance with Article 4(2) TEU. EU law does not require Member States to choose a particular constitutional model. However, the Member States’ respective constitutional orders must ensure the independence of their courts. Provided that a constitutional court can guarantee effective judicial protection, the second subparagraph of Article 19(1) TEU does not preclude national rules whereby the ordinary courts of a Member State are bound by a constitutional court decision that national legislation is consistent with that Member State’s constitution. The same cannot be said where the application of those national rules prevents such ordinary courts from assessing the compatibility with EU law of national legislation which the constitutional court of that Member State has found to be consistent with a national constitutional provision that provides for the primacy of EU law. By virtue of the latter principle, a Member State cannot rely on rules of national law, even of a constitutional order, in order to undermine the unity and effectiveness of EU law. The principle of the primacy of EU law binds all emanations of the Member States, and domestic law, including its constitutional provisions, cannot present themselves as an obstacle thereto. It is for the Court to clarify the scope of the principle of the primacy of EU law in the exercise of its exclusive jurisdiction to give definitive interpretations of EU law. ( )

61. In the present Opinion I shall first address the Commission’s second complaint, which relates to an alleged monopoly of jurisdiction to adjudicate upon allegations of a lack of independence in a court and thus to determine the right of access to an independent court. That complaint is narrower in scope than the first, which concerns the right to an independent and impartial tribunal previously established by law in accordance with the second subparagraph of Article 19(1) TEU and Article 47 of the Charter. Furthermore, the decision proposed with respect to the second complaint may have consequences for that to be taken with regard to the first.

VI. Legal analysis

A. Second complaint – The exclusive jurisdiction of the Extraordinary Chamber to examine complaints and questions of law concerning the lack of independence of a court or a judge

1. Arguments of the parties

62. By its second complaint, the Commission argues that, by placing the examination of complaints and questions of law concerning the lack of independence of a court or a judge under the exclusive jurisdiction of the Extraordinary Chamber, the Republic of Poland failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, under Article 267 TFEU and the principle of primacy of EU law. The complaint is based upon the adoption and maintenance in force of Article 26(2) and (4) to (6) and Article 82(2) to (5) of the Law on the Supreme Court, in the version resulting from the Amending Law, as well as Article 10 of the Amending Law.

63. At the hearing, the Commission confirmed that it considers that the Extraordinary Chamber has exclusive jurisdiction to review questions on the independence of courts, formations of courts and judges. It stated that such questions may not be examined on appeal before other courts. The Commission also observed that the monopoly on the review of independence by the Extraordinary Chamber is extremely limited since Article 26(3) of the amended Law on the Supreme Court provides that the Extraordinary Chamber has no jurisdiction to review questions on independence relating to the appointment of a judge or his or her authority to carry out judicial functions. The Commission also confirmed that the first three complaints do not contradict one another, as the Republic of Poland claims, since the applicable provisions of Polish law ensure that it is not possible to review the procedure for the appointment of a judge.

64. The second complaint consists of four parts. First, Article 26(2) of the amended Law on the Supreme Court confers exclusive jurisdiction on the Extraordinary Chamber to rule on applications for the recusal of judges from, and the designation of courts having jurisdiction to hear, a case where it is alleged a court or a judge lacks independence. A court before which such an application is made must refer that application to the Extraordinary Chamber without delay. The Extraordinary Chamber’s ruling binds that court irrespective as to whether that Chamber has jurisdiction to rule on the substance of the case.

65. In paragraph 166 of the A. K. judgment, the Court held that a court hearing a dispute which, according to national law, should be examined by a court which does not meet the requirements of independence or impartiality, is under an obligation to disapply that national provision in order to ensure effective judicial protection within the meaning of Article 47 of the Charter and to enable that dispute to be resolved by a court that meets those requirements.

66. By conferring exclusive jurisdiction on the Extraordinary Chamber to determine these issues, Article 26(2) of the amended Law on the Supreme Court deprives national courts, except the Extraordinary Chamber, of the right to refer a question to the Court pursuant to Article 267 TFEU on the requirement of independence within the meaning of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter. The Commission considers that Article 26(2) of the amended Law on the Supreme Court prevents national courts from examining, of their own motion ( ) or at the request of a party to the proceedings, ( ) whether a judge hearing a case governed by EU law satisfies the requirement of independence within the meaning of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter. The independence of a court or judge is a horizontal issue that may arise in any case and any court hearing a case concerning EU law should be able to examine it. Nor is the grant of exclusive jurisdiction to determine such issues justified by a need to establish specialised courts for that purpose.

67. Second, the Commission argues that, pursuant to Article 82(2) of the amended Law on the Supreme Court, the Extraordinary Chamber has exclusive jurisdiction to rule on questions of law in cases pending before the Supreme Court relating to the independence of a judge or a court. In accordance with Article 82(3) to (5) of the amended Law on the Supreme Court, in such cases the Extraordinary Chamber, sitting in plenary formation, adopts a decision that binds all formations of the Supreme Court and can be overturned only by resolution of the a plenary formation of the Supreme Court taken by at least two thirds of the judges of each of its chambers. When it adopts its decision, the Extraordinary Chamber is not bound by any other Supreme Court decision, save where the latter has the status of a ‘ruling of principle’. The Commission considers that the foregoing provisions deprive the other Supreme Court chambers from ruling on such matters and thereby breach the second subparagraph of Article 19(1) TEU and Article 47 of the Charter.

68. Third, the Commission claims that Article 26(4) to (6) of the amended Law on the Supreme Court also breaches those provisions of EU law since it confers on the Extraordinary Chamber exclusive jurisdiction to hear actions seeking a declaration that final rulings or judgments of any Polish court, including the other chambers of the Supreme Court and of the Supreme Administrative Court, are unlawful where the alleged illegality relates to the status of the judge who ruled on the case. Such actions may be brought before the Extraordinary Chamber without being heard by the court that issued the judgment in question, irrespective of whether a party has exhausted any other available remedies.

69. Fourth, the Commission claims that the transitional provisions of Article 10 of the Amending Law also breach EU law. Under those provisions, the Polish courts were required to refer to the Extraordinary Chamber, before 21 February 2020, the cases pending on 14 February 2020 that concerned matters falling within the exclusive jurisdiction of the Extraordinary Chamber pursuant to Article 26(2) and (4) to (6) and Article 82(2) to (4) of the amended Law on the Supreme Court. Following the referral of such cases, the Extraordinary Chamber, ‘may revoke previous acts in so far as they prevent further examination of the case in accordance with the law’. The Amending Law further deprives acts carried out in such cases after 14 February 2020, in particular by judges, of procedural effect.

70. The Commission considers that the powers of the Extraordinary Chamber referred to above infringe Article 267 TFEU and the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter. They are also contrary to the obligation on national courts to apply the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter, in accordance with the principle of the primacy of EU law.

71. The Commission emphasises that, as concerns questions relating to the independence of judges and courts, all national courts must be able to apply the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter in order to guarantee individuals the fundamental right to an effective remedy. In the context of a dispute before it, a court of a Member State acting within its jurisdiction is under an obligation to apply the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, and to disapply any national provision contrary to a provision of EU law that has direct effect. The national provisions at issue deprive all Polish courts, with the exception of the Extraordinary Chamber, of the right to rule on incidental questions, such as the recusal of a judge in the formation of a court and the designation of a court’s jurisdiction. Those provisions also prevent national courts from ensuring effective judicial protection through the disapplication of national provisions that confer jurisdiction, in cases that fall within the scope of EU law, on courts and judges that do not satisfy the requirements of Article 19(1) TEU and Article 47 of the Charter.

72. The Commission also considers that, since 14 February 2020, the provisions challenged in these proceedings deprive other national courts of their right and, in the case of the courts of last instance, of their obligation, to refer questions for a preliminary ruling under Article 267 TFEU as regards the interpretation of the requirements of the independence and impartiality of a court or tribunal as a matter of EU law. In particular, national courts other than the Extraordinary Chamber are deprived of the opportunity to resolve those issues. Nor are Article 26(4) to (6) and Article 82(2) to (4) of the Law on the Supreme Court limited to incidental questions since they confer exclusive jurisdiction on the Extraordinary Chamber. That right and that obligation are inherent to the system of cooperation established by Article 267 TFEU, and to the duties that the second subparagraph of Article 19(1) TEU confers on a judge charged with applying EU law.

73. According to the Commission, the transitional provisions in Article 10 of the Amending Law also infringe Article 267 TFEU since they prevent national courts from maintaining questions referred for a preliminary ruling prior to 14 February 2020. Article 10(2) of the Amending Law allows the Extraordinary Chamber to revoke acts carried out by a national court and, in particular, to withdraw questions that the latter had referred for a preliminary ruling. It is clear from the Court’s case-law that, in order to ensure the effectiveness of the powers Article 267 TFEU confers upon a national court, it must be able to maintain a request for a preliminary ruling.

74. The reply emphasises that the Commission does not question the right of national legislatures to make laws on the jurisdiction of courts. Rather, it questions the monopoly granted to the Extraordinary Chamber to examine a court’s or a judge’s compliance with the requirement of independence under EU law when such matters may arise before all national courts. The Commission does not maintain that a court seised of a question concerning the requirement of independence pursuant to EU law must always examine it. In a Member State with 10 000 judges, jurisdiction to apply the second subparagraph of Article 19(1) TEU and Article 47 of the Charter may not, however, be reserved to a chamber of 20 judges. The Commission also observes that the Extraordinary Chamber was established pursuant to the Law on the Supreme Court of 8 December 2017 and that its members were appointed on the proposal of the KRS. Given that the role of the KRS in the appointment of judges often gives rise to requests for their recusal, the Extraordinary Chamber itself may not be impartial and objective in matters of judicial independence. ( )

75. At the hearing, the Commission, in response to a question from the Court, confirmed that the question of independence of a court, a formation or a judge cannot be raised before a higher court on appeal. The Extraordinary Chamber thus has exclusive jurisdiction over all questions relating to the independence of a court, a formation or a judge.

76. The Republic of Poland considers that the second complaint is unfounded and should be rejected in its entirety.

77. As regards the alleged breach of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, the Republic of Poland considers that the Commission misinterprets the A. K. judgment. It follows from that judgment that, if a case involving EU law has been referred to a court which lacks jurisdiction and a party submits that the examination of the case by a court having jurisdiction will breach its rights under Article 47 of the Charter, the court lacking jurisdiction may accede to that objection and refer the case to another independent court which would have jurisdiction were it not for the rules that reserved jurisdiction to a court which is not independent. According to the Republic of Poland, the A. K. judgment does not decide that the second subparagraph of Article 19(1) TEU prevents Member States from adopting rules on the jurisdiction of courts. Moreover, the respective positions of a court that must refer a case to the court that has jurisdiction to hear it, and that of a court seised of an application for recusal directed against the judge, confronted with a question of law or a doubt about the legality of a final decision, are fundamentally different. The Commission’s position would result in a breach of the right to a court established by law and, in cases concerning the recusal of a judge, of the right to an independent court. The allocation of jurisdiction to courts in all cases coming before them is a sine qua non of access to a court established by law.

78. The Republic of Poland emphasises that the Member States have exclusive competence to adopt provisions on the jurisdiction of their courts. While Member States must comply with the second subparagraph of Article 19(1) TEU, that provision cannot regulate the allocation of jurisdiction as between national courts. The Republic of Poland observes that the Commission has not challenged the independence of the Extraordinary Chamber. The second complaint is thus based on an assertion that national courts have a right to hear certain categories of cases, which right, in the opinion of the Commission, would undermine the substantive jurisdiction conferred on other courts. In that regard, it observes that the referring courts involved in the case that gave rise to the A. K. judgment did not have jurisdiction to rule on the substance of the cases before them and transferred them to a court with jurisdiction to do so. That transfer is regulated by Article 200(1)4 of the Code of Civil Procedure, which provides that each court must examine whether it has jurisdiction and, if not, refer the case to the court with jurisdiction to determine that question.

79. As regards Article 26(2) of the amended Law on the Supreme Court on the recusal of judges, the Republic of Poland claims that a judge or a formation of a court hearing an application for its recusal must refer that application to another formation or to a higher court. Article 26(2) of the amended Law on the Supreme Court therefore does not deprive the appropriate judge, formation or court of jurisdiction to rule on such incidental questions. At the hearing, the Republic of Poland, in response to a question from the Court, confirmed that the issue of the independence of a court, a formation or a judge may be raised on appeal.

80. In the opinion of the Republic of Poland, an action for a declaration that a final judgment is unlawful pursuant to Article 26(4) to (6) of the amended Law on the Supreme Court is not a preliminary or incidental question, but must be brought before a specialised court with jurisdiction to determine that issue. The procedure is initiated by way of an extraordinary action against a final judgment that a party alleges infringed substantive law or procedural rules and caused it damage. According to the Republic of Poland, affording any person the possibility to raise such a matter before any court in any procedure would undermine, inter alia, the principles of res judicata and legal certainty. It is obvious the court that delivered the judgment under challenge cannot entertain such an application. Nor is it evident from the A. K. judgment why the Commission considers that, in order for there to be an effective remedy in the event of a breach of Article 47 of the Charter, the court that delivered the judgment the subject matter of that challenge must hear that application. Conferral of jurisdiction upon a specialised chamber to hear such questions strengthens the parties’ procedural safeguards and does not undermine the right to a court.

81. The Republic of Poland submits that the Commission’s submissions on Article 82(2) to (5) of the amended Law on the Supreme Court and the competence of the Extraordinary Chamber on questions of law relating to the independence of a judge or a court are unfounded. Pursuant to Article 1 point 1 letter a) of the amended Law on the Supreme Court, the Supreme Court has jurisdiction to adopt resolutions resolving all questions of law in cases that fall within its jurisdiction. Article 82(2) to (5) of the amended Law on the Supreme Court moreover confers jurisdiction on the Extraordinary Chamber to interpret the law. It therefore does not limit the right of other courts to assess facts. In addition, courts have a right, but not an obligation, to submit such questions to the Extraordinary Chamber.

82. The Republic of Poland submits that Article 26(2) and (4) to (6) and Article 82(2) to (5) of the amended Law on the Supreme Court and Article 10 of the Amending Law do not limit the courts’ jurisdiction to refer questions for preliminary ruling to the Court pursuant to Article 267 TFEU. In any event, the Extraordinary Chamber is a court of final instance which, pursuant to Article 267 TFEU, is required to refer a question for a preliminary ruling in the event of doubt regarding the interpretation of the second subparagraph of Article 19(1) TEU.

83. The Republic of Poland considers that since the Commission has failed to explain how the provisions of national law in question in the second complaint breach the principle of primacy, that plea should be rejected. ( )

84. As for the transitional measures in Article 10 of the Amending Law, the Republic of Poland claims that that provision has already expired. The Commission produced no evidence, based on either the text of that provision or the practice of the Extraordinary Chamber, to show that that chamber has or could use that provision in order to withdraw requests for preliminary rulings made by other Polish courts or to undermine the effectiveness of Court judgments. Moreover, Article 200(1) of the Code of Civil Procedure and by Article 35(1) of the Code of Criminal Procedure, the legality of which the Commission has not challenged, govern the jurisdiction of the courts.

85. The rejoinder points out that the Commission’s claims as described in point 74 of the present Opinion on the lack of independence of the Extraordinary Chamber were not contained in the application. As new pleas, they must be rejected pursuant to Article 127(1) of the Rules of Procedure.

2. Assessment

(a) Admissibility

86. The Commission’s allegations of the lack of independence of the Extraordinary Chamber due to the involvement of the KRS in the appointment of the judges sitting in that chamber and its limited human resources due to the fact that it consists of 20 judges only ( ) were raised for the first time in the reply. ( )

87. Suffice it to point out that, in accordance with Article 127(1) of the Rules of Procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact that came to light in the course of the procedure.

88. During the pre-contentious stage of these proceedings, and at the time it introduced the present action, the Commission knew ( ) that the Extraordinary Chamber had been established pursuant to the Law on the Supreme Court of 8 December 2017. The Commission thus knew the number of judges sitting in that chamber and the manner of their appointment, notably the role of the KRS. In so far as the Commission’s allegations pertain to those matters, they must be rejected as inadmissible.

89. The Disciplinary regime for judges judgment ( ) found that there were legitimate doubts as to the independence of the KRS and of its role in the appointment of the members of the Disciplinary Chamber of the Supreme Court. According to the Court, this, together with other factors, gave rise to reasonable doubts in the minds of individuals as to the independence and impartiality of that Disciplinary Chamber. The Court thus held that, by failing to ensure the independence and impartiality of the Disciplinary Chamber, the Republic of Poland had failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU.

90. Whilst the Commission’s omission to make an analogous claim with respect to the Extraordinary Chamber at any stage in the course of these proceedings is a matter for it, it appears somewhat surprising. In that context, it may be observed that the Court’s judgment on the Republic of Poland’s failure to guarantee the independence and impartiality of the Disciplinary Chamber was based on a number of factors not limited to doubts about the independence of the KRS. ( ) Thus even if the Court could rely on its finding on the independence of the KRS in the Disciplinary regime for judges judgment, ( ) this would in itself be insufficient to justify a finding in these proceedings that the Extraordinary Chamber is not independent. ( )

91. Moreover, in its judgment of 8 November 2021 in Dolińska-Ficek and Ozimek v. Poland, ( ) the ECtHR unanimously held that the Republic of Poland had violated Article 6(1) ECHR since the Extraordinary Chamber was not a ‘tribunal established by law’. ( ) In reaching that conclusion, the ECtHR relied extensively on the Court’s case-law concerning recent reforms of the judiciary in Poland. The ECtHR’s ruling was based on a finding that there had been manifest breaches of domestic law that had adversely affected the operation of fundamental rules of procedure for the appointment of judges to the Extraordinary Chamber. Those irregularities in the appointment process compromised the legitimacy of the Extraordinary Chamber to such an extent that it lacked the attributes of a ‘tribunal’ that is ‘lawful’ for the purposes of Article 6(1) ECHR. In that regard, the ECtHR stated in unequivocal terms that ‘the recommendation of candidates for judicial appointment to the [Extraordinary Chamber] – a condition sine qua non for appointment by the President of the Republic of Poland ( ) – was entrusted to the [KRS], a body that lacked sufficient guarantees of independence from the legislature and the executive’. ( )

92. The judgment of the ECtHR is not binding on the Court as the EU has not acceded to the ECHR. However, under Article 52(3) of the Charter, the Court must ensure that its interpretation of the second paragraph of Article 47 of the Charter safeguards a level of protection which does not fall below that established in Article 6(1) ECHR, as interpreted by the ECtHR. ( ) The standard set by the final judgment in Dolińska-Ficek and Ozimek v. Poland ( ) may thus be relevant in any future proceedings before the Court. It may also be observed in passing that, in accordance with Article 46 ECHR, the Republic of Poland must abide by the final judgment in Dolińska-Ficek and Ozimek v. Poland ( ) and take appropriate measures to comply with it swiftly. ( )

(b) Substance

93. The Commission relies heavily upon the A. K. judgment in order to substantiate its second complaint. In that case, the Disciplinary Chamber’s exclusive jurisdiction to hear actions brought by national judges based on EU law ( ) was questioned due to that chamber’s alleged lack of independence and impartiality by reference to Article 19(1) TEU and Article 47 of the Charter. Since there is considerable disagreement between the Commission and the Republic of Poland as regards the interpretation of that judgment, I cite paragraphs 165 and 166 thereof:

‘165. A provision of national law which granted exclusive jurisdiction to hear and rule on a case in which an individual pleads, as in the present cases, an infringement of rights arising from rules of EU law in a particular court which does not meet the requirements of independence and impartiality arising from Article 47 of the Charter would deprive that individual of any effective remedy within the meaning of that article and of Article 9(1) of Directive 2000/78, and would fail to comply with the essential content of the right to an effective remedy enshrined in Article 47 of the Charter …

166. It follows that, where it appears that a provision of national law reserves jurisdiction to hear cases, such as those in the main proceedings, to a court which does not meet the requirements of independence or impartiality under EU law, in particular, those of Article 47 of the Charter, another court before which such a case is brought has the obligation, in order to ensure effective judicial protection, within the meaning of Article 47, in accordance with the principle of sincere cooperation enshrined in Article 4(3) TEU, to disapply that provision of national law, so that that case may be determined by a court which meets those requirements and which, were it not for that provision, would have jurisdiction in the relevant field, namely, in general, the court which had jurisdiction, in accordance with the law then in force, before the entry into force of the amending legislation which conferred jurisdiction on the court which does not meet those requirements …’ ( )

94. It is evident from the foregoing that the A. K. judgment did not impugn the exclusive jurisdiction national law conferred on the Disciplinary Chamber to rule on cases brought by judges in relation to rights granted under Directive 2000/78. Rather, the Court held that national law may not reserve exclusive jurisdiction to a court that does not meet the requirements of independence and impartiality required by Article 47 of the Charter. ( ) It is also clear from the aforecited passages that the Court did not consider that any other national court that met those requirements would or should have had jurisdiction to rule on the matter. The Court simply held that the court that enjoyed jurisdiction under national law to rule on such matters under earlier legislation had jurisdiction to hear the case. ( )

95. The A. K. judgment confirms the right of each Member State, in accordance with the principle of procedural autonomy, to define its own judicial architecture and to establish procedural rules for actions that permit individuals to safeguard the rights they derive from EU law. Aside from the established requirement that the national courts must be independent, impartial and previously established by law, ( ) the rules governing such actions must respect the principles of equivalence and effectiveness. The requirements stemming from those principles apply to the designation of the courts and tribunals having jurisdiction to hear and determine actions based on EU law and to the procedural rules that govern such actions. Observance of those requirements falls to be analysed by reference to the role of the rules concerned in the procedure viewed as a whole, to the conduct of that procedure and to the special features of those rules before national courts. ( )

96. The Commission has not argued that Article 26(2) and (4) to (6) and Article 82(2) to (5) of the amended Law on the Supreme Court and Article 10 of the Amending Law do not comply with the principle of equivalence. Rather, the Commission’s complaint focuses on the principle of effectiveness and notably on the right to an effective remedy. It asserts, as a matter of principle, that questions relating to the independence of a court or a judge are horizontal issues that may arise in every case and that all national courts hearing a case concerning EU law should be able to examine them. Jurisdiction to determine such issues ought accordingly not to be reserved to specialised courts.

97. An examination of Article 26(2) of the amended Law on the Supreme Court discloses that it grants the Extraordinary Chamber exclusive jurisdiction to rule on complaints alleging, inter alia, the lack of independence of a judge or a court and to provide a remedy in that context. All courts, including those dealing with a case concerning EU law, must therefore transfer a complaint ( ) alleging a lack of independence of a court or a judge to the President of the Extraordinary Chamber. That transfer does not stay the proceedings before the court hearing the matter. ( )

98. The phrase ‘shall have jurisdiction’ in Article 26(2) of the amended Law on the Supreme Court is unequivocal and, in my view, suffices to ensure that the question of the independence of a court, a formation or a judge lies within the exclusive jurisdiction of the Extraordinary Chamber. ( ) The text of that provision thus does not appear to support the Republic of Poland’s claim that questions on independence can be raised on appeal. Moreover, when the Court raised this matter at the hearing, the Republic of Poland failed to adduce convincing evidence that such points can be properly taken in appeal proceedings. That having been said, the Commission has not claimed, nor does it appear from Article 26(2) of the amended Law on the Supreme Court, that the issue of the independence of a judge or a court must be brought before the Extraordinary Chamber by way of a separate, independent action. Rather, an issue pursuant to Article 26(2) of the amended Law on the Supreme Court is treated as a procedural incident or a motion before the Extraordinary Chamber. The Commission has not argued that the requirement to transfer such a procedural incident or motion to the Extraordinary Chamber is so burdensome as to undermine the full effectiveness of the rights granted to individuals under the second subparagraph of Article 19(1) TEU and Article 47 of the Charter. Nor is there any evidence to suggest that the transfer of those issues to the Extraordinary Chamber creates procedural disadvantages liable to render excessively difficult the exercise of the rights Article 19(1) TEU and Article 47 of the Charter confer on individuals. Whilst it may be the case that questions relating to the independence of a court, a formation or a judge are horizontal issues that are not required to be heard before specialised courts, there is nothing unlawful about their being determined by another court or formation. Such a practice may even promote the enhanced and uniform application of the applicable rules, thereby ensuring effective legal protection in fields covered by EU law in full respect of the principle of primacy.

99. If the national rule in question undermined the effectiveness of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter ( ) by, for example, granting a monopoly to rule on the independence of a court to another court which itself lacked independence, the principle of primacy of EU law would require the court seised of such an action ( ) to adopt all the measures necessary to ensure that those provisions of EU law are fully effective by, if necessary, disapplying national provisions or national case-law contrary thereto. ( )

100. In the absence of a breach of the principle of equivalence or effectiveness, I therefore consider that national jurisdictional rules that limit or restrict the courts or formations that can rule on questions of the independence of a court, a formation or a judge, do not breach the second subparagraph of Article 19(1) TEU and Article 47 of the Charter or the principle of primacy of EU law.

101. It follows that Article 26(2) of the amended Law on the Supreme Court does not prevent national courts from examining whether they satisfy the requirement of independence within the meaning of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter. ( ) It simply grants exclusive jurisdiction to the Extraordinary Chamber to rule on the independence of a court, a formation or a judge upon the transfer of such a question to it.

102. The Commission’s arguments summarised in points 67 and 68 of the present Opinion with regard to Article 26(4) to (6) and Article 82(2) to (5) of the amended Law on the Supreme Court merely describe the content of those provisions. ( ) As is clear from point 66 of the present Opinion, the Commission asserts, as a matter of principle, that questions on the independence of judges and courts are horizontal in nature. Accordingly, those provisions of national law infringe the second subparagraph of Article 19(1) TEU and Article 47 of the Charter by depriving all Polish courts, with the exception of the Extraordinary Chamber, of the right to rule on questions on the independence of courts or judges that arise in proceedings to which those provisions of national law refer. The Commission has, however, not demonstrated that those provisions of national law and the procedures and rules on jurisdiction laid down therein undermine the full effectiveness of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter or the principle of primacy of EU law. Rather it has failed to rebut the arguments of the Republic of Poland that the treatment of such proceedings by a specialised court complies with the second subparagraph of Article 19(1) TEU and Article 47 of the Charter.

103. As for the Commission’s allegation that Article 26(2) and (4) to (6) and Article 82(2) to (5) of the amended Law on the Supreme Court infringe Article 267 TFEU, aside from the fact that those provisions do not refer to that article in any way, it has not shown that they prevent or hinder, in law or in fact, ( ) a national court, other than the Extraordinary Chamber, seised of a case where the matter of independence of a court, a formation or a judge is raised, from making a request for a preliminary ruling pursuant to Article 267 TFEU. ( )

104. In that regard, it is clear from both the text 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 reference for a preliminary ruling unless a case is pending before it in which it is called upon to give a decision that is capable of taking account of that preliminary ruling. ( )

105. It follows that, beyond the exercise of the exclusive jurisdiction Article 26(2) and (4) to (6) ( ) and Article 82(2) to (5) of the amended Law on the Supreme Court confer upon the Extraordinary Chamber, the question of the independence of courts, formations and judges is a horizontal matter that may arise before any court or tribunal, as the Commission has rightly submitted. A court seised of questions on the independence of a court, a formation or a judge in proceedings before it may, where necessary, request a preliminary ruling from the Court.

106. Article 267 TFEU gives national courts the widest discretion to refer matters to the Court where they consider that a case pending before them raises questions that involve the interpretation of provisions of EU law necessary to resolve the case before them. National courts are free to exercise that discretion at whatever stage of the proceedings that they consider appropriate. ( ) In addition, it is settled case-law that, even where national law requires a court to follow the rulings of another court, that fact alone does not deprive the first court of the right to refer questions on the interpretation and validity of EU law for a preliminary ruling under Article 267 TFEU. The first court is free, in particular where it considers that another court’s ruling could require it to give a judgment contrary to EU law, to refer questions to the Court. ( ) Moreover, a judgment in which the Court gives a preliminary ruling is binding on the national court as regards the interpretation of the provisions of EU law in question for the purposes of the decision in the main proceedings. ( )

107. It follows from the foregoing that courts in the Republic of Poland can refer to the Court any question they consider necessary for a preliminary ruling, at whatever stage of the proceedings they consider appropriate, even at the end of a procedure such as that laid down in Article 26(2) of the amended Law on the Supreme Court. They can also adopt any measure necessary to ensure provisional judicial protection of the rights conferred under EU law and disapply, at the end of the procedure, the national legislative provision at issue or the judgment of the Extraordinary Chamber if they consider it to be contrary to EU law. As a court of final instance the Extraordinary Chamber is, in principle, obliged to make a reference to the Court under the third paragraph of Article 267 TFEU where a question relating to the interpretation of the TFEU is raised before it.

108. As for the Commission’s allegations concerning the transitional measures in Article 10 of the Amending Law, it is settled case-law that the question as to whether a Member State has failed to fulfil its obligations is to be determined by reference to the situation that prevailed at the end of the period for compliance laid down in the reasoned opinion. ( ) Article 10 of the Amending Law entered into force on 14 February 2020. The Commission, in response to a question of the Court at the hearing, confirmed that it had no evidence that that provision continued to produce effects after the expiry of the period laid down in the reasoned opinion, namely 30 December 2020. It therefore accepted that Article 10 of the Amending Law had ‘expired’ by that date. It follows that the Commission’s complaint in respect of Article 10 of the Amending Law is inadmissible.

109. In any event, in the absence of any evidence that would question the legitimacy of the transfer of exclusive jurisdiction to the Extraordinary Chamber to rule on the matter of the independence of a court, a formation or a judge pursuant to Article 26(2) and (4) to (6) and Article 82(2) to (5) of the amended Law on the Supreme Court, the Commission’s claims in respect of the transitional measures contained in Article 10 of the Amending Law, which merely provide for the temporal application of the aforementioned provisions, cannot prosper.

110. The Commission also seeks a declaration that, by applying the national provisions complained of in the present complaint, the Republic of Poland infringed the primacy of EU law. It is sufficient to observe that the claim in relation to primacy concerns the implementation by the Republic of Poland of the second subparagraph of Article 19(1) TEU, Article 47 of the Charter and Article 267 TFEU. It is therefore not a separate head of claim and it is unnecessary to adjudicate upon it. ( )

111. I accordingly propose that the Court dismiss the second complaint.

B. First complaint – The prohibition on national courts reviewing compliance with the EU law requirement of an effective remedy before an independent and impartial tribunal previously established by law

1. Arguments of the parties

112. The Commission claims that, by prohibiting national courts from reviewing compliance with the EU law requirement of an effective remedy before 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, in the light of the case-law of the ECtHR concerning Article 6(1) ECHR and under Article 267 TFEU and the principle of primacy of EU law.

113. The Commission argues first, that Article 42a(1) and (2) of the amended Law on the organisation of the ordinary courts, Article 29(2) and (3) of the amended Law on the Supreme Court and Article 5(1a) and (1b) of the amended Law on the organisation of the administrative courts prohibit those national courts from reviewing the legality of the appointment of judges or the legitimacy of judicial bodies in the Republic of Poland, and thus whether a court in which a judge sits has been previously established by law within the meaning of Article 19(1) TEU, in conjunction with Article 47 of the Charter, read in the light of the ECtHR judgment, Guðmundur Andri Ástráðsson v. Iceland. ( ) In its reply, the Commission contends that the text of the aforecited provisions of Polish law does not appear to distinguish between judicial review of the act of appointment of a judge by the President of the Republic and judicial review to ensure that the guarantees provided by the second subparagraph of Article 19(1) TEU are met. The propriety of the procedure leading to the appointment of a judge affects not only the validity of the act of appointment but also the application of the EU law requirement of access to an independent and impartial tribunal previously established by law pursuant to the second subparagraph of Article 19(1) TEU and Article 47 of the Charter. Paragraph 134 of the A. K. judgment stated that it is necessary to ensure that both the substantive conditions and the detailed procedural rules for the appointment of judges cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of those judges to external factors and as to their neutrality with respect to the interests before them.

114. Second, the Commission claims that Article 55(4) of the amended Law on the organisation of the ordinary courts prevents Polish courts from assessing whether members of a formation may legitimately exercise judicial functions. It prohibits courts from finding, either of their own motion or at the parties’ request, on the basis of the ‘provisions relating to the allocation of cases and to the appointment and modification of the formations of the court’, that a formation of the court is contrary to the law, that it is inadequately staffed or that a person is unauthorised or incompetent to adjudicate. That provision therefore prevents courts from verifying, by reviewing the legality of a judgment, whether a court is an independent and impartial tribunal previously established by law and thus whether it had jurisdiction to hear the case. In addition, pursuant to Article 8 of the Amending Law, Article 55(4) of the amended Law on the organisation of the ordinary courts also applies to pending cases. The reply clarified that, pursuant to Article 55(4) of the amended Law on the organisation of the ordinary courts, once a judge is appointed in accordance with the rules on the allocation of cases, that judge is deemed to have jurisdiction lawfully to rule in a case. This prevents the requirements of an independent and impartial tribunal previously established by law from being examined in an appeal against a judgment.

115. The Commission considers that the aforementioned national provisions prevent a Polish court from complying with its obligation to verify, of its own motion or at the request of a party, whether, due to its composition, it constitutes an independent and impartial tribunal previously established by law. In addition, those provisions prevent courts from ascertaining, where that issue is important for their own judgment (for example, in an action to annul a decision due to the irregular composition of a court), whether another court complies with the EU requirements of an independent and impartial tribunal previously established by law within the meaning of the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter, read in the light of the case-law of the ECtHR on Article 6(1) ECHR, having regard to the circumstances surrounding the appointment of a judge or the legitimacy of a judicial body.

116. According to the Commission, judicial review of the requirement of an independent tribunal established by law in accordance with the second subparagraph of Article 19(1) TEU and Article 47 of the Charter does not require the introduction of a specific mechanism for that purpose. Nor does it necessarily require that a national judge annul the act of appointment of a judge or dismiss the person appointed. It is thus irrelevant that, pursuant to the Constitution of the Republic of Poland, the act of appointment of a judge cannot be called into question. It is for the national court hearing the matter to determine the consequences of any breach of the requirement of an independent tribunal previously established by law on the basis of the applicable national law, taking due account of the effectiveness of EU law and matters such as the principle of legal certainty.

117. The Republic of Poland claims the Commission has not made out its claim on the alleged infringement of Article 267 TFEU and the principle of primacy. In addition, it argues that the Commission did not refer to Article 26(3) of the amended Law on the Supreme Court and did not explain how that provision infringes EU law.

118. The Republic of Poland draws a clear distinction between the judicial review of the act of appointment of a judge and its effects and the judicial review of the safeguards that a court must ensure pursuant to the second subparagraph of Article 19(1) TEU. Polish law does not authorise the first form of judicial review and the Court took no objection to this in its A. K. judgment. ( ) Under the Constitution of the Republic of Poland and the consistent case-law of the Polish courts, the power to appoint judges is a prerogative of the President of the Republic. That power is not, and has never been, subject to judicial review on the ground that to permit such challenges undermines the principle of the irremovability of judges. This is in line with the Court’s case-law, which states that the conditions for dismissal of a judge must be provided for by law, justified and proportionate. It is also consistent with the case-law of the ECtHR, according to which the organisation of justice should not be left to the discretion of the judiciary. By contrast, Polish law provides for judicial review of the right to an independent tribunal and of the provision of the guarantees provided by EU law. The Republic of Poland adds that the Commission’s interpretation of the contested provisions is unsupported by case-law.

119. The Republic of Poland considers that Article 42a(1) and (2) and Article 55(4) of the amended Law on ordinary courts, Article 29(2) and (3) of the amended Law on the Supreme Court and Article 5(1a) and (1b) of the amended Law on the organisation of the administrative courts do not restrict national courts’ power to review the availability of the guarantee granted to individuals by the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter.

120. In that regard, the Republic of Poland observes, first, that in the event of doubt as to the impartiality of a judge, his or her recusal may be sought pursuant to Articles 48 to 54 of the Code of Civil Procedure, ( ) Articles 40 to 44 of the Code of Criminal Procedure ( ) or Articles 18 to 24 of the Law on Administrative Procedure. ( )

121. Second, a case where the jurisdiction of a particular court is called into question or doubts are raised as to an individual’s right to an independent and impartial court established by law may be referred to another court having jurisdiction under national law ( ) that complies with the second subparagraph of Article 19(1) TEU.

122. Third, if the composition of the court seised was contrary to law or if a recused judge sat in a case, the appellate court is required to set aside the proceedings of its own motion and to annul that judgment in accordance with Article 379(4) of the Code of Civil Procedure, Article 349(1)(1) of the Code of Criminal Procedure and Article 183(2)(4) of the Law on Administrative Procedure, respectively. A finding of a breach of Article 47 of the Charter may lead to an appellate court annulling the proceedings and setting aside a judgment on the ground that it was not delivered by an independent and impartial court previously established by law. The appellate court may not, however, impugn the mandate or the jurisdiction of the judge who issued the condemned judgment.

123. In its rejoinder, the Republic of Poland indicated that the purpose of Article 42a(1) and (2) of the amended Law on ordinary courts, Article 29(2) and (3) of the amended Law on the Supreme Court and Article 5(1a) and (1b) of the amended Law on the organisation of the administrative courts is to prevent judges’ mandates or employment relationships being called into question in proceedings other than those envisaged by the Constitution of the Republic of Poland and the laws implementing it. Article 45 of the Constitution of the Republic of Poland, international treaties and the Charter moreover guarantee the right to an independent and impartial tribunal previously established by law. National legislation falls to be interpreted in the light of all of those provisions. Irregularities in the appointment of a judge or a breach of the right to a tribunal previously established by law do not entail the annulment of the act of appointment of a judge or of the proceedings in which that judge participated. ( )

124. The Republic of Poland considers that the Commission misinterprets Article 55(4) of the amended Law on the organisation of the ordinary courts. It claims that that provision does not prevent a review as to whether a court is correctly composed. It merely codifies the case-law of the Supreme Court which provides that, where a case is dealt with in breach of the provisions on the allocation of cases between the judges of a court which has jurisdiction, that does not constitute a ground for extraordinary review under Article 387 of the Code of Civil Procedure and Article 439(1)(2) of the Code of Criminal Procedure as it would lead to the proceedings and the judgment under review being set aside. An infringement of that nature may, nonetheless, constitute a ground for ordinary review. A party may accordingly seek the annulment of a judgment on the basis that an infringement of the applicable Rules of Procedure negatively affected the outcome of the case from his or her perspective. Moreover, a party may seek a judge’s recusal if his or her participation in the case infringes the right to an impartial court.

125. The Republic of Poland claims that, contrary to the Commission’s assertion in point 114 of the present Opinion, Article 55(4) of the amended Law on the organisation of the ordinary courts does not refer to review by the courts of the question as to whether a court that issued a judgment was an independent and impartial court previously established by law. That provision merely concerns the consequences of a breach of the rules on the allocation of cases and the composition of courts. It follows that the Commission’s complaint in respect of Article 8 of the Amending Law, which provides that Article 55(4) of the amended Law on the organisation of the ordinary courts also applies to pending cases, must also be rejected.

2. Assessment

(a) Admissibility

126. The Republic of Poland submits that the infringements of Article 267 TFEU and the principle of primacy of EU law alleged in the Commission’s first complaint are not made out. In addition, it claims that the Commission failed to provide any justification or proof that Article 26(3) of the amended Law on the Supreme Court infringed EU law. The Republic of Poland also considers that the Commission produced its explanations or evidence in support of those allegations out of time and the Court ought not to take account of them.

127. In proceedings brought under Article 258 TFEU for failure to fulfil obligations, it is for the Commission to prove that an obligation has not been fulfilled by placing before the Court all the information required to enable the Court to establish that fact, the Commission not being entitled to rely upon any presumption. ( ) By virtue of Article 21 of the Statute of the Court of Justice of the European Union and Article 120(c) of the Rules of Procedure, the application under Article 258 TFEU must indicate the specific complaints on which the Court is asked to rule and, at the very least in summary form, the legal and factual particulars on which those complaints are based. ( ) The merits of an Article 258 TFEU action are thus to be examined exclusively by reference to the claims advanced in the application.

128. In its first complaint, the Commission merely referred to Article 267 TFEU without explaining, even in summary form, how the provisions of Polish law that it identified infringed that provision. That the Commission, in its reasoned opinion of 30 October 2020, explained the relevance of Article 267 TFEU in the context of this complaint does not suffice for the purposes of Article 21 of the Statute of the Court and Article 120(c) of the Rules of Procedure. Moreover, contrary to the claim in the reply, the Court cannot presume the existence of a ‘functional link’ between the alleged infringement of Article 267 TFEU and the provisions of Polish law in question. In so far as the Commission may have explained that ‘functional link’ in the context of its second complaint, that complaint is made in respect of different provisions of Polish law.

129. By contrast, I consider that paragraph 75 of the application explains in summary form why the Commission considered that the provisions of Polish law identified in its first complaint infringe the principle of primacy of EU law. Moreover, since Article 26(3) of the amended Law on the Supreme Court essentially repeats Article 29(3) thereof, ( ) it was sufficient that the Commission refer to Article 26(3) in its first complaint since it may be clearly deduced from the terms in which that complaint was expressed, taken as a whole, why it considered that the latter provision infringed EU law.

130. In the light of the foregoing, I propose that the Court reject, as inadmissible, the Commission’s arguments in respect of Article 267 TFEU in the context of the first complaint.

(b) Substance

(1) Preliminary remarks – The scope of the Commission’s first and second complaints

131. The Republic of Poland claims that the grounds raised in the Commission’s second complaint are inconsistent with and contradict its first complaint. The Commission considers that that claim is groundless.

132. The second complaint concerns the exclusive jurisdiction that national law grants to the Extraordinary Chamber to rule on questions on the independence of courts, formations of courts and judges. The first complaint criticises, inter alia, the fact that certain provisions of Polish law prohibit all national courts, including the Extraordinary Chamber, ( ) from reviewing the legality of the appointment of judges in Poland. The first complaint therefore asserts that no court in Poland has jurisdiction to review the legality of the appointment of judges in Poland pursuant to EU law. I therefore consider that the Commission’s first two complaints are consistent with one another.

(2) The right to an effective remedy before an independent and impartial tribunal previously established by law

133. The Republic of Poland does not dispute that the ordinary courts, the Supreme Court and the administrative courts must comply with the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, in the light of the case-law of the ECtHR concerning Article 6(1) ECHR and the principle of primacy of EU law. In addition, it does not contest that the courts in question must verify respect for the right to an independent and impartial court previously established by law in accordance with the Simpson judgment. The Republic of Poland claims that the national provisions the Commission identified merely prevent the act of appointment of a judge by the President of the Republic from being impugned. In that context, it highlights a number of other provisions of Polish law which afford judges the possibility to verify respect for access to an impartial tribunal previously established by law.

134. Contrary to the Republic of Poland’s claims, in the present proceedings the Commission neither challenges the President of the Republic prerogative to appoint judges nor that the act of appointment of a judge may not be impugned under Polish law. ( )

135. In paragraph 133 of the A. K. judgment, the Court observed that the fact that the President of the Republic appoints judges does not create a relationship of subordination of the latter to the former or doubts as to the impartiality of the persons so appointed, if, once appointed, judges are free from influence. Furthermore, paragraphs 129 to 136 of the judgment in A.B. and Others (Appointment of judges to the Supreme Court – Actions) ( ) state that, although it may not be possible to exercise a right to a legal remedy in the context of an appointment process to judicial posts at a national supreme court, that may not create problems for the application, of the requirements arising from EU law, provided other effective judicial remedies are available. The position may be different where judicial remedies that previously existed have been abolished and other relevant factors characterising an appointment process in a specific national legal and factual context give rise to systemic doubts in the minds of individuals as to the independence and impartiality of the judges appointed under that process. ( )

136. The Commission’s first complaint is thus limited to the allegation that all ordinary courts, administrative courts and the Supreme Court, including the Extraordinary Chamber, ( ) ar