Miasto Łowicz and Prokurator Generalny zastępowany przez Prokuraturę Krajową, formerly Prokuratura Okręgowa w Płocku v Skarb Państwa – Wojewoda Łódzki and Others.
Date: 2020-03-26
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In the course of the written part of the procedure before the Court, the Sąd Okręgowy w Łodzi (Regional Court, Łódź), by letters of 7 and 11 December 2018, and the Sąd Okręgowy w Warszawie (Regional Court, Warsaw), by letters of 30 October and 12 December 2018, informed the Court that both judges who had referred the questions to the Court for a preliminary ruling in those cases had received from an assistant to the disciplinary officer responsible for cases relating to judges in the ordinary courts a summons to attend a hearing, as witnesses, concerning the grounds which led them to refer those questions and the issue whether judicial independence could have been undermined by the fact that the two judges in question did not adopt their respective orders for reference independently.
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In those letters, the two referring courts also note, first, that during those hearings questions relating to the confidentiality of deliberations were put to the judges concerned. Secondly, those judges both received from the assistant to the disciplinary officer an order to file a written statement concerning potential ‘ultra vires conduct’ for having referred those questions for a preliminary ruling, in breach of the conditions laid down in Article 267 TFEU.
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Furthermore, it should be recalled 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 and, in particular, from the second subparagraph of Article 19(1) TEU (judgment of 5 November 2019, Commission v Poland(Independence of the ordinary courts), C‑192/18, EU:C:2019:924, paragraph 102 and the case-law cited).
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Furthermore, it must be noted that, according to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (judgments of 15 May 2003, Salzmann, C‑300/01, EU:C:2003:283, paragraph 31, and of 29 June 2017, Popławski, C‑579/15, EU:C:2017:503, paragraph 16 and the case-law cited).
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However, it has also been consistently held that the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them (judgments of 18 October 1990, Dzodzi, C‑297/88 and C‑197/89, EU:C:1990:360, paragraph 33, and of 19 December 2013, Fish Legal and Shirley, C‑279/12, EU:C:2013:853, paragraph 29 and the case-law cited). The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute (judgments of 15 June 1995, Zabala Erasun and Others, C‑422/93 to C‑424/93, EU:C:1995:183, paragraph 29, and of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 28 and the case-law cited).
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As is apparent from the actual wording of Article 267 TFEU, the question referred for a preliminary ruling must be ‘necessary’ to enable the referring court to ‘give judgment’ in the case before it (see, to that effect, judgment of 17 February 2011, Weryński, C‑283/09, EU:C:2011:85, paragraph 35).
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The Court has thus repeatedly held that it is clear from both the wording 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 request for a preliminary ruling unless a case is pending before it in which it is called upon to give a decision which is capable of taking account of the preliminary ruling (judgments of 21 April 1988, Pardini, 338/85, EU:C:1988:194, paragraph 11; of 4 October 1991, Society for the Protection of Unborn Children Ireland, C‑159/90, EU:C:1991:378, paragraphs 12 and 13; and of 27 February 2014, Pohotovosť, C‑470/12, EU:C:2014:101, paragraph 28 and the case-law cited).
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Provisions of national law which expose national judges to disciplinary proceedings as a result of the fact that they submitted a reference to the Court for a preliminary ruling cannot therefore be permitted (see, to that effect, order of the President of the Court of 1 October 2018, Miasto Łowicz and Prokuratura Okręgowa w Płocku, C‑558/18 and C‑563/18, not published, EU:C:2018:923, paragraph 21). Indeed, the mere prospect, as the case may be, of being the subject of disciplinary proceedings as a result of making such a reference or deciding to maintain that reference after it was made is likely to undermine the effective exercise by the national judges concerned of the discretion and the functions referred to in the preceding paragraph.