A.B. and Others v Krajowa Rada Sądownictwa and Others.
Date: 2021-03-02
In that regard, it should be noted, first, that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court of Justice make no provision for the interested parties referred to in Article 23 of that statute to submit observations in response to the Advocate General’s Opinion (judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 26 and the case-law cited).
Second, under the second paragraph of Article 252 TFEU, the Advocate General, acting with complete impartiality and independence, is to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s submissions or by the reasoning which led to those submissions. Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he or she examines in the Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 27 and the case-law cited).
In that regard, it should be noted that, although the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law (judgments of 24 June 2019, Commission v Poland (Independance of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 52 and the case-law cited, and of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 36 and the case-law cited). That may be the case, in particular, as regards national rules relating to the substantive conditions and procedural rules governing the adoption of decisions appointing judges and, where applicable, rules relating to the judicial review that applies in the context of such appointment procedures (see, to that effect, judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, ‘the judgment in A. K. and Others’, EU:C:2019:982, paragraphs 134 to 139 and 145).
Moreover, the objections thus put forward by the Public Prosecutor relate, in essence, to the actual scope of the provisions of EU law referred to in paragraph 1 of this judgment and, therefore, to the interpretation of those provisions. An interpretation of that nature clearly falls within the jurisdiction of the Court under Article 267 TFEU (see, by analogy, judgment in A. K. and Others, paragraph 74).
In that regard, it should be noted, on the one hand, as regards, more specifically, the rule thus contained in Article 3 of the Law of 26 April 2019, that the Court has already held, in relation to similar national provisions, that those provisions cannot, in principle and without a decision of the court which has made a reference to the Court ordering the discontinuance of the case in the main proceedings or to the effect that there is no need to rule on that case, lead the Court to find that it is no longer necessary for it to answer the questions before it which were referred for a preliminary ruling (judgment in A. K. and Others, paragraph 102).
Moreover, it is apparent from the Court’s case-law that it considers a reference for a preliminary ruling submitted, pursuant to Article 267 TFEU, as being validly pending before it so long as the reference has not been withdrawn by the court from which it emanates (see, to that effect, judgment of 9 March 1978, Simmenthal, 106/77, EU:C:1978:49, paragraph 10).
Moreover, a judgment in which the Court were to affirm the existence, under EU law, of an obligation for the referring court to disapply the national rules at issue, by continuing to assume the jurisdiction previously vested in it, would be binding on that court, and could not be affected by provisions of domestic law, including constitutional provisions (see, by analogy, judgment in A. K. and Others, paragraph 112).
As regards, moreover, Article 47 of the Charter, it must be recalled that that provision, which constitutes a reaffirmation of the principle of effective judicial protection, enshrines the right to an effective remedy before a tribunal for everyone whose rights and freedoms guaranteed by EU law are infringed (see, to that effect, judgment of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraph 55 and the case-law cited).
Thus, the recognition of that right, in a given case, presupposes, as is apparent from the first paragraph of Article 47 of the Charter, that the person invoking that right is relying on rights or freedoms guaranteed by EU law (judgment of 6 October 2020, État luxembourgeois (Judicial protection against requests for information in tax law), C‑245/19 and C‑246/19, EU:C:2020:795, paragraph 55).
With regard to Article 267 TFEU, it should be recalled that the keystone of the judicial system established by the Treaties is the preliminary ruling procedure provided for in that provision, which, by setting up a dialogue between one court and another, specifically between the Court of Justice and the courts and tribunals of the Member States, has the object of securing uniformity in the interpretation of EU law, thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties (Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014, EU:C:2014:2454, paragraph 176 and the case-law cited, and judgment of 24 October 2018, XC and Others, C‑234/17, EU:C:2018:853, paragraph 41).
According to the Court’s settled case-law, Article 267 TFEU gives in that regard national courts the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving the interpretation of provisions of EU law, or consideration of their validity, which are necessary for the resolution of the case before them (judgments of 5 October 2010, Elchinov, C‑173/09, EU:C:2010:581, paragraph 26, and of 24 October 2018, XC and Others, C‑234/17, EU:C:2018:853, paragraph 42 and the case-law cited).
Moreover, in the case of a court or tribunal such as the referring court against whose decisions there is no judicial remedy under national law within the meaning of the third paragraph of Article 267 TFEU, that discretion is even replaced, subject to certain exceptions recognised by the Court’s case-law, by an obligation to make a reference to the Court for a preliminary ruling (see, to that effect, judgment of 5 April 2016, PFE, C‑689/13, EU:C:2016:199, paragraph 32 and the case-law cited, and the judgment in A. K. and Others, paragraph 103).
As is apparent from settled case-law, a rule of national law cannot prevent a national court from exercising that discretion, or complying with that obligation, which are an inherent part of the system of cooperation between the national courts and the Court of Justice established in Article 267 TFEU and of the functions of the court responsible for the application of EU law entrusted by that provision to the national courts (see, to that effect, judgment in A. K. and Others, paragraph 103 and the case-law cited). Similarly, in order to ensure the effectiveness of that discretion and that obligation, a national court must be able to maintain a reference for a preliminary ruling after it has been made (see, to that effect, judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 58).
Furthermore, a national rule the effect of which may inter alia be that a national court will choose to refrain from referring questions for a preliminary ruling to the Court in order to avoid having the case withdrawn from it is detrimental to the prerogatives thus granted to national courts and tribunals by Article 267 TFEU and, consequently, to the effectiveness of the cooperation between the Court and the national courts and tribunals established by the preliminary ruling mechanism (see, to that effect, judgment of 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraph 25).
It is ultimately for the referring court to rule whether that is the case here. It must be borne in mind that Article 267 TFEU does not empower the Court to apply rules of EU law to a particular case, but only to rule on the interpretation of the Treaties and of acts adopted by the EU institutions. According to settled case-law, the Court may, however, in the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of EU law which may be useful to it in assessing the effects of one or other of its provisions (judgment of 16 July 2015, CHEZ Razpredelenie Bulgaria, C‑83/14, EU:C:2015:480, paragraph 71 and the case-law cited, and the judgment in A. K. and Others, paragraph 132).
First, it should be recalled that the Polish legislature has recently already adopted a legislative measure declaring that there is no need to adjudicate in other disputes pending before a national court and which also concerned the compatibility of legislative reforms that had affected the Polish judicial system with provisions of EU law relating to the independence of the courts, whereas, in those disputes also, questions were referred to the Court for a preliminary ruling on such compatibility (see, in that regard, judgment in A. K. and Others, paragraphs 90 and 102 to 104).
In that regard, it should be recalled that the Polish courts that referred questions to the Court for a preliminary ruling in the cases that gave rise to the judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234) indicated before the Court that the two judges who made those references had been the subject of an investigation prior to the initiation of potential disciplinary proceedings relating in particular to possible ‘ultra vires conduct’ for having made those references (judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraphs 20 and 21).
If that court were to reach to such a conclusion, it would then be necessary to find that such legislation is detrimental not only to the prerogatives granted to national courts and tribunals in Article 267 TFEU and to the effectiveness of the cooperation between the Court and the national courts and tribunals established by the preliminary ruling mechanism (see, to that effect, judgment of 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraph 25), but also, and more generally, to the task with which the Court is entrusted under the first subparagraph of Article 19(1) TEU and which consists in ensuring that in the interpretation and application of the Treaties the law is observed, as well as to the third subparagraph of Article 4(3) TEU.
Article 19 TEU, which gives concrete expression to the value of the rule of law affirmed in Article 2 TEU, entrusts the responsibility for ensuring the full application of EU law in all Member States and the judicial protection that individuals derive from EU law to national courts and tribunals and to the Court of Justice (judgment of 5 November 2019, Commission v Poland (Independence of the ordinary courts), C‑192/18, EU:C:2019:924, paragraph 98 and the case-law cited).
In that regard, as provided for by the second subparagraph of Article 19(1) TEU, it is for the Member States to establish a system of legal remedies and procedures ensuring for individuals compliance with their right to effective judicial protection in the fields covered by EU law (see, to that effect, judgment of 5 November 2019, Commission v Poland (Independence of the ordinary courts), C‑192/18, EU:C:2019:924, paragraph 99 and the case-law cited).
As is apparent from settled case-law, the principle of the effective judicial protection of individuals’ rights under EU law, referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and which is now reaffirmed by Article 47 of the Charter (judgment of 5 November 2019, Commission v Poland (Independence of the ordinary courts), C‑192/18, EU:C:2019:924, paragraph 100 and the case-law cited).
As regards the material scope of the second subparagraph of Article 19(1) TEU, that provision refers to the ‘fields covered by Union law’, irrespective of whether the Member States are implementing Union law within the meaning of Article 51(1) of the Charter (judgment of 5 November 2019, Commission v Poland (Independence of the ordinary courts), C‑192/18, EU:C:2019:924, paragraph 101 and the case-law cited).
Under the second subparagraph of Article 19(1) TEU, every Member State must thus in particular ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by EU law and which, therefore, are liable to rule, in that capacity, on the application or interpretation of EU law, meet the requirements of effective judicial protection (judgment of 5 November 2019, Commission v Poland (Independence of the ordinary courts), C‑192/18, EU:C:2019:924, paragraph 103 and the case-law cited).
In that regard, it is, in the first place, common ground that the Sąd Najwyższy (Supreme Court) and, in particular, its Civil and Criminal Chambers, may be called upon to rule on questions concerning the application or interpretation of EU law and that, as a ‘court or tribunal’, within the meaning of EU law, they come within the Polish judicial system in the ‘fields covered by Union law’ within the meaning of the second subparagraph of Article 19(1) TEU, meaning that they must meet the requirements of effective judicial protection (judgment of 24 June 2019, Commission v Poland (Independance of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 56 and the case-law cited).
In the second place, it should be recalled that, to ensure that such bodies are in a position to ensure the effective judicial protection thus required under the second subparagraph of Article 19(1) TEU, maintaining their independence is essential, as confirmed by the second paragraph of Article 47 of the Charter, which refers to access to an ‘independent’ tribunal as one of the requirements linked to the fundamental right to an effective remedy (judgment of 24 June 2019, Commission v Poland (Independance of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 57 and the case-law cited).
As the Court has repeatedly stated, that requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded (judgment of 5 November 2019, Commission v Poland (Independence of the ordinary courts), C‑192/18, EU:C:2019:924, paragraph 106 and the case-law cited).
According to settled case-law, the guarantees of independence and impartiality required under EU law presuppose rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, that are such as to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it (judgment in A. K. and Others, paragraph 123 and the case-law cited).
In accordance with the principle of the separation of powers which characterises the operation of the rule of law, the independence of the judiciary must in particular be ensured in relation to the legislature and the executive (judgment in A. K. and Others, paragraph 124 and the case-law cited).
In that regard, it is necessary that judges are protected from external intervention or pressure liable to jeopardise their independence. The rules set out in paragraph 117 above must, in particular, be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned (judgment in A. K. and Others, paragraph 125 and the case-law cited).
As regards the circumstances in which decisions to appoint judges to the Sąd Najwyższy (Supreme Court) are made, the Court has already had occasion to state that the mere fact that the judges concerned were appointed by the President of the Republic does not give rise to a relationship of subordination of those judges to the latter or to doubts as to the judges’ impartiality, if, once appointed, they are free from influence or pressure when carrying out their role (judgment in A. K. and Others, paragraph 133 and the case-law cited).
However, the Court has also stated that it is still necessary to ensure that the substantive conditions and procedural rules governing the adoption of those appointment decisions are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them, once appointed as judges, and that it is important, inter alia, in that perspective, that those conditions and procedural rules are drafted in a way which meets the requirements set out in paragraph 119 of this judgment (judgment in A. K. and Others, paragraphs 134 and 135 and the case-law cited).
Having noted that, under Article 179 of the Constitution, the judges of the Sąd Najwyższy (Supreme Court) are appointed by the President of the Republic on a proposal from the KRS, that is to say the body empowered under Article 186 of the Constitution to ensure the independence of the courts and of the judiciary, the Court stated, in paragraph 137 of the judgment in A. K. and Others, that the participation of such a body, in the context of a process for the appointment of judges, may, in principle, be such as to contribute to making that process more objective, by circumscribing the President of the Republic’s discretion in exercising the powers of his or her office.
In such a context, the degree of independence enjoyed by the KRS in respect of the Polish legislature and the executive in exercising the responsibilities attributed to it may become relevant when ascertaining whether the judges which it selects will be capable of meeting the requirements of independence and impartiality arising from EU law (see, to that effect, judgment in A. K. and Others, paragraph 139).
Similarly, the Court observed, in paragraph 145 of the judgment in A. K. and Others, that, for the purposes of that assessment and in the light of the fact that the decisions of the President of the Republic appointing judges to posts at the Sąd Najwyższy (Supreme Court) are not amenable to judicial review, the terms defining the scope of the action which may be brought challenging a resolution of the KRS, including the KRS’s decisions concerning proposals for appointment to a post of judge of that court, could also be important and, in particular, the issue whether such an action allows an effective judicial review to be conducted of such resolutions, covering, at the very least, an examination of whether there was no ultra vires or improper exercise of authority, error of law or manifest error of assessment.
In paragraphs 143 and 144 of the judgment A. K. and Others, the Court thus already identified, from among the relevant factors to be taken into account for the purposes of assessing the requirement of independence which must be satisfied by a body such as the KRS, first, the fact that the KRS, as newly composed, was formed by reducing the ongoing four-year term in office of the members of that body at that time, second, the fact that, whereas the 15 members of the KRS elected among members of the judiciary were previously elected by their peers, those judges are now elected by a branch of the Polish legislature, third, the potential for irregularities which could adversely affect the process for the appointment of certain members of the newly formed KRS, and, fourth, the way in which that body exercises its constitutional responsibilities of ensuring the independence of the courts and of the judiciary and its various powers. In such a context, the possible existence of special relationships between the members of the KRS thus established and the Polish executive, such as those referred to by the referring court and mentioned in paragraph 44 of this judgment, may similarly be taken into account for the purposes of that assessment.
As is apparent from settled case-law, a provision of national law which prevents the procedure laid down in Article 267 TFEU from being implemented must be set aside without the court concerned’s having to request or await the prior setting aside of that provision of national law by legislative or other constitutional means (see, to that effect, judgments of 14 December 1995, Peterbroeck, C‑312/93, EU:C:1995:437, paragraph 13 and the case-law cited, and of 5 October 2010, Elchinov, C‑173/09, EU:C:2010:581, paragraph 31 and the case-law cited). The same must apply with regard to an amendment to national law the specific effects of which are to prevent the Court from ruling on requests for a preliminary ruling submitted to it and to preclude any possibility of a national court repeating similar requests in the future. As was noted in paragraph 95 of this judgment, such a rule infringes Article 267 TFEU in a similar manner.
The second subparagraph of Article 19(1) TEU requires Member States to provide remedies that are sufficient to ensure effective legal protection, within the meaning in particular of Article 47 of the Charter, in the fields covered by EU law (judgment in A. K. and Others, paragraph 168 and the case-law cited), meaning that the latter provision must be duly taken into consideration for the purposes of interpreting the second subparagraph of Article 19(1) TEU (order of 6 October 2020, Prokuratura Rejonowa w Słubicach, C‑623/18, not published, EU:C:2020:800, paragraph 28).
By holding, in that regard, that Article 47 of the Charter is sufficient in itself and does not need to be made more specific by provisions of EU or national law in order to confer on individuals a right which they may rely on as such (judgments of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 78, and of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraph 56), in particular in so far as that provision requires the court called upon to hear an appeal based on EU law to satisfy the requirement of independence laid down by that provision (see, to that effect, judgment in A. K. and Others, paragraph 166), the Court has acknowledged inter alia that that requirement presented the clarity, precision and unconditionality required for it to be concluded that it has direct effect.
Moreover, it should be noted, in any event, that the effects of the principle of the primacy of EU law are binding on all the bodies of a Member State, without, inter alia, provisions of domestic law relating to the attribution of jurisdiction, including constitutional provisions, being able to prevent that. In accordance with settled case-law, rules of national law, even constitutional provisions, cannot be allowed to undermine the unity and effectiveness of EU law (judgments of 15 January 2013, Križan and Others, C‑416/10, EU:C:2013:8, paragraph 70 and the case-law cited, and of 4 December 2018, Minister for Justice and Equality and Commissioner of An Garda Síochána, C‑378/17, EU:C:2018:979, paragraph 49 and the case-law cited).
In those circumstances, and in the light, in particular, of the fact that the national legislature has not designated a court or tribunal, other than the referring court, which meets the requirements of independence under EU law and which is called upon to rule on the disputes in the main proceedings after receiving an answer from the Court of Justice to the questions referred to it in its request for an initial preliminary ruling, the only effective manner for that court to remedy the infringements of Article 267 TFEU and the second subparagraph of Article 19(1) TEU resulting from the adoption of the Law of 26 April 2019 is, in this case, to continue to assume the jurisdiction under which it has submitted the request to the Court under the national rules hitherto applicable (see, by analogy, judgment in A. K. and Others, paragraph 166 and the case-law cited).