Case C-661/23, Jeszek: Request for a preliminary ruling from the Wojskowy Sąd Okręgowy w Warszawie (Poland) lodged on 9 November 2023 — Criminal proceedings against R. S.
Date: 2023-11-09
Institutions: Court of Justice
Subjects: armed forces, dismissal, incapacity for work, judge, military court, primacy of EU law, public prosecutor's department, right to justice, separation of powers








C_202401085EN.000101.fmx.xml












Official Journal of the European Union


EN
Series C













C/2024/1085


5.2.2024





Request for a preliminary ruling from the Wojskowy Sąd Okręgowy w Warszawie (Poland) lodged on 9 November 2023 — Criminal proceedings against R. S.
(Case C-661/23, Jeszek (1))
(C/2024/1085)
Language of the case: Polish

Referring court

Wojskowy Sąd Okręgowy w Warszawie

Parties to the main proceedings

R. S., Prokuratura Rejonowa Warszawa-Ursynów w Warszawie

Questions referred







1.


Must EU law, including Article 2 of the Treaty on European Union (TEU) and the value of the rule of law enshrined therein, as well as the second subparagraph of Article 19(1) thereof, read in conjunction with Article 47 of the Charter of Fundamental Rights, be interpreted as precluding provisions of national law such as:






(a)


Article 233 of the ustawa z dnia 11 marca 2022 r. o obronie Ojczyzny (Law of 11 March 2022 on the Defence of the Homeland), as amended by the ustawa z dnia 28 lipca 2023 r. o zmianie ustawy — Kodeks cywilny oraz niektórych innych ustaw (Law of 28 July 2023 amending the Civil Code and certain other laws) (Dziennik Ustaw (Journal of Laws) of 2023, item 1615), pursuant to which a national military court judge is to be deprived of his or her right to remain in the position of judge at a given court after being discharged from professional military service (including as a result of being declared permanently unfit for professional military service), which includes the right to sit on the adjudicating panels of that court in cases assigned to him or her prior to the entry into force of those provisions;










(b)


Article 13 of the Law of 28 July 2023 amending the Civil Code and certain other laws (Dziennik Ustaw of 2023, item 1615), pursuant to which, upon the entry into force of the provisions referred to in point (a) above, a national military court judge who is discharged from professional military service in the circumstances described above is to be retired by operation of law?
Is the fact that the provision referred to in point (b) concerns, and will continue to concern, only a single judge sitting on the panel of the referring court (ad hominem law), and that at the same time prosecutors have retained their similar right to remain in the position of prosecutor for military affairs despite being discharged from professional military service, relevant to the answer to be given to this question?














2.


Must EU law, including the provisions indicated in Question 1, be interpreted as meaning that the retirement by operation of law of a national military court judge, in the circumstances referred to in that question, is ineffective, as a result of which that judge may continue to sit on the panel of the referring court, and all state bodies, including judicial bodies, are obliged to enable him or her to continue to sit on that panel in accordance with the previously existing rules?










3.


Must EU law — including (i) Article 2 TEU and the value of the rule of law enshrined therein, Article 4(3) TEU and the principle of sincere cooperation enshrined therein, the second subparagraph of Article 19(1) TEU, Article 267 TFEU, and the principles of effectiveness and primacy, and (ii) Article 2 TEU and the value of democracy enshrined therein, Article 4(2) TEU, and the principle of the separation of powers — be interpreted as meaning that the power, or obligation, of a national court to suspend the application of provisions of national law, including statutory provisions, which are the subject of the reference for a preliminary ruling derives directly from EU law?
Is the fact that national law does not provide for the possibility of suspension of the application of provisions of national law by the court which has made a reference for a preliminary ruling, and that a ruling ordering such suspension, until the referring court has taken into account the points of interpretation of EU law contained in the Court’s response to that reference, is necessary in the circumstances of the case in the main proceedings, relevant to the answer to be given to this question?






(1)  The present case has been given a fictitious name which does not correspond to the real name of any of the parties to the proceedings.


ELI: http://data.europa.eu/eli/C/2024/1085/oj
ISSN 1977-091X (electronic edition)