Case C-719/24, Miasto stołeczne Warszawa and Others: Request for a preliminary ruling from the Sąd Najwyższy (Poland) lodged on 22 October 2024 – M.S.
Date: 2024-10-22
Institutions: Court of Justice
Subjects: appointment of staff, democracy, higher court, independence of the judiciary, judge, legitimacy








C_202501404EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2025/1404


10.3.2025






Request for a preliminary ruling from the Sąd Najwyższy (Poland) lodged on 22 October 2024 – M.S.


(Case C-719/24, Miasto stołeczne Warszawa and Others)

(C/2025/1404)
Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings


Party initiating incidental proceedings before the referring court: M.S.

Other parties to the proceedings: Miasto stołeczne Warszawa, E.S., and Komisja do spraw reprywatyzacji nieruchomości warszawskich

Questions referred







1.


Must the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 and Article 4(2) thereof, interpreted in the light of Article 47 of [the Charter of Fundamental Rights of the European Union (‘the Charter’)], be understood as precluding national legislation that changes the existing method for selecting members of the council of the judiciary in a Member State by introducing democratic legitimacy with respect to the judicial part of that council?










2.


Must the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 and Article 4(2) thereof, interpreted in the light of Article 47 of [the Charter], be understood as meaning that a judge is not impartial and independent, and an adjudicating panel which includes such a judge is not an independent court ‘previously established by law’, where:






—


a judge of the national court of last instance (the Supreme Court) was selected with the participation of the council of the judiciary, whose judicial part lacked democratic legitimacy;










—


the composition of that council was challenged as unconstitutional by a national body whose exclusive competences include examining the constitutionality of national law;










—


the substantive conditions and procedural rules governing the adoption by that council of a decision to recommend a person for a judicial position in the national court of last instance (the Supreme Court) may give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judge concerned to external factors and his neutrality with respect to the conflicting interests put before him after the judge in question has been appointed to the national court of last instance (the Supreme Court) by way of a clearly non-transparent and sham competition procedure, and where, following the appointment, that judge:






(a)


personally takes steps to confirm that the procedure by which he was appointed was correct and rules that a court lacks independence merely due to the appointment of another judge in a procedure involving the council of the judiciary whose composition he publicly challenges and refers to as compromised, where that council includes members with the required democratic legitimacy in accordance with national law, and which, according to the judge in question, is an improperly composed council that is dependent on the political authorities and does not guarantee the independence of the (future) adjudicating panel;










(b)


rules, in disregard of the nemo judex in causa sua principle, on the effectiveness of rulings previously given with his participation that challenge the composition of the council of the judiciary and point to the lack of independence of a court which includes a judge appointed in a procedure with the involvement of that council in its contested composition;










(c)


cites criteria allegedly ‘developed’ in the rulings of national courts, the Court of Justice of the European Union, and the European Court of Human Rights, that supposedly demonstrate the lack of impartiality and independence of other judges, which criteria he himself does not observe, and in the context of impartiality and independence evaluates other judges who in their professional careers have been promoted to positions at all levels of the judiciary, have obtained the required academic degrees or gained the experience required under national law in another legal profession, and have been favourably assessed as candidates for judicial appointments by councils of the judiciary in different periods when those councils included different members;










(d)


makes public statements about the status of judges appointed with the involvement of the council of the judiciary whose composition he challenges, denying that those judges possess the attributes of impartiality and independence, and describing them as, inter alia, ignoramuses, careerists and cynics who are not actual judges and should be removed from the judiciary, citing the alleged case-law of the Court of Justice of the European Union and the European Court of Human Rights without formulating any specific allegations against those judges concerning their conduct both before and after their appointment to judicial positions;










(e)


publicly supports the proposals for the reform of national law being drafted and presented by representatives of the current government, which proposals concern the future regulation of the status of judges appointed with the involvement of the council of the judiciary whose composition he challenges, and which are to result in the removal of all judges from positions to which they were appointed in procedures involving that council, contrary to national constitutional law, and in disciplinary proceedings aimed at expelling judges from the judicial profession for participating in that promotion procedure;










(f)


derives various benefits from the change of government, including through participation in the activities of bodies dependent on that government;










(g)


receives government representatives in his capacity as president of the national court of last instance (the Supreme Court), without any procedure for such meetings being provided for in national law, in order to initiate proceedings in the Supreme Court in a specific case whose resolution is in the interests of the government, and which is done by, inter alia, disregarding the applicable provisions of national law as to the order in which cases are received by that court and its jurisdiction;










(h)


in his capacity as president of the national court of last instance (the Supreme Court), in connection with the expiry of his term of office, refuses to convene an assembly of judges for the purpose of electing, in accordance with national law, his successor to that position, denying the judges whose status he challenges the right to take part in that assembly and pointing to the urgent need to remove them from the judiciary and thus restore the rule of law?


















3.


If the question set out in [Question 2] is answered in the affirmative, must the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 and Article 4(2) thereof, interpreted in the light of Article 47 of [the Charter], be understood as meaning that the national court of last instance (the Supreme Court) is obliged to form a panel without the participation of that person and to hear the case without the participation of that person (or those persons) in a different composition as provided for in national law?






ELI: http://data.europa.eu/eli/C/2025/1404/oj
ISSN 1977-091X (electronic edition)