1 This request for a preliminary ruling concerns the interpretation of Article 2, Article 4(3), Article 6(3), and the second subparagraph of Article 19(1) TEU, Article 267 TFEU, Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the principle of primacy of EU law.
2 The request has been made in proceedings between ‘R’ S.A. and AW ‘T’ sp. z o.o. concerning the setting aside, by the Sąd Najwyższy (Supreme Court, Poland), on an extraordinary appeal brought by the Prokurator Generalny (Prosecutor General, Poland), of the judgment of the Sąd Apelacyjny w Krakowie (Court of Appeal, Cracow, Poland), which had given final judgment in that dispute, and of the referral of the case concerned back to that court.
3 Article 179 of the Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland) provides: ‘The President of the Republic shall appoint judges, on a proposal from the Krajowa Rada Sądownictwa [(National Council of the Judiciary, Poland)], for an indefinite period.’
4 Article 42a of the ustawa Prawo o ustroju sądów powszechnych (Law on the organisation of the ordinary courts) of 27 July 2001 (Dz. U. No 98, item 1070), as amended by 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) of 20 December 2019 (Dz. U. of 2020, item 190), which entered into force on 14 February 2020 (‘the Law on the ordinary courts’), provides: ‘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 courts], the constitutional organs of the State and the organs responsible for reviewing and protecting the law. 2. An ordinary court or other authority cannot establish or assess the lawfulness of the appointment of a judge or of the power to carry out tasks in relation to the administration of justice that derives from that appointment.’
5 Article 107(1) of the Law on the ordinary courts is worded as follows: ‘A judge shall be accountable, at the disciplinary level, for breach of professional obligations (disciplinary offences), including in cases of: (1) manifest and flagrant breach of legal rules; (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; …’
6 The ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 (Dz. U. of 2018, item 5) established, in particular, a body within the Sąd Najwyższy (Supreme Court, Poland) referred to as the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Chamber of Extraordinary Control and Public Affairs, Poland; ‘the Chamber of Extraordinary Control and Public Affairs’).
7 Under Article 26 of the Law on the Supreme Court, as amended by the Law of 20 December 2019 amending the Law on the ordinary courts, the Law on the Supreme Court and certain other laws, referred to in paragraph 4 of the present judgment: ‘1. ‘The areas of jurisdiction of the [Chamber of Extraordinary Control and Public Affairs] shall include extraordinary complaints, electoral disputes and challenges concerning the validity of national or constitutional referendums, and determination of the validity of elections and referendums, as well as other cases in the field of public law, including disputes relating to the protection of competition, energy regulation, telecommunications and rail transport, and appeals against decisions of the Przewodniczący Krajowej Rady Radiofonii i Telewizji [(President of the National Television and Radio Broadcasting Council, Poland)] as well as complaints concerning the excessive duration of proceedings before ordinary and military courts and the Sąd Najwyższy [(Supreme Court)]. 2. The [Chamber of Extraordinary Control and Public Affairs] shall have jurisdiction to hear applications or declarations concerning the recusal 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 [Chamber of Extraordinary Control and Public Affairs] 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 [Chamber of Extraordinary Control and Public Affairs] shall not stay the ongoing proceedings. 3. The request referred to in paragraph 2 shall not be examined if it concerns the establishment and the assessment of the legality of the appointment of a judge or of his or her authority to carry out judicial functions. …’
8 By application of 9 August 2004, AW ‘T’ requested that B.O., and the companies ‘R’ and ‘K’ be prohibited from placing on the market, inter alia, crossword puzzle magazines on the ground that placing those magazines on the market would infringe the provisions of the ustawa - Prawo o własności przemysłowej (Law on industrial property rights) of 30 June 2000 (Dz. U. of 2003, item 1117), and the ustawa o zwalczaniu nieuczciwej konkurencji (Law on combating unfair competition) of 16 April 1993 (Dz. U. of 2003, item 1503).
9 In a judgment of 25 October 2005, the Sąd Okręgowy w Krakowie (Regional Court, Cracow, Poland) prohibited 28 magazines protected by a registered trade mark from being placed on the market and dismissed the remainder of AW ‘T’s claim.
10 By judgment of 9 November 2006 (‘the 2006 judgment’), following the appeal brought by the companies B.O. and ‘R’, the Sąd Apelacyjny w Krakowie (Court of Appeal, Cracow, Poland) varied that judgment by reformulating the prohibition on placing on the market referred to in the preceding paragraph.
11 Only B.O. brought an appeal on a point of law against that judgment before the Sąd Najwyższy (Supreme Court). On 21 February 2008, that court set aside that judgment in respect of B.O., in so far as concerns the part varying that judgment, and referred the case back to the appeal court for re-examination. On 27 May 2010, the Sąd Apelacyjny w Krakowie (Court of Appeal, Cracow) delivered a final judgment in respect of B.O.
12 On 27 January 2020, the Prosecutor General brought an extraordinary appeal before the Sąd Najwyższy (Supreme Court) in support of the company ‘R’ against the 2006 judgment. The Prosecutor General maintained that the Sąd Apelacyjny w Krakowie (Court of Appeal, Cracow) had, in that judgment, infringed the principle of the prohibition of reformatio in peius because, by varying the judgment of the Sąd Okręgowy w Krakowie (Regional Court, Cracow) of 25 October 2005, referred to in paragraph 9 of the present judgment, it had extended the prohibition imposed in particular on ‘R’. The 2006 judgment had prohibited the placing on the market of certain series of crossword puzzle magazines, whereas the judgment in question prohibited the placing on the market only of specific magazines, designated by titles and publication references and bearing the trade marks concerned.
13 By judgment of 20 October 2021 (‘the judgment of 20 October 2021’), the Chamber of Extraordinary Control and Public Affairs, composed of five judges and two lay judges, upheld that extraordinary appeal. By that judgment, it set aside, with regard to the company ‘R’, the 2006 judgment, which had the force of res judicata, and referred the case concerned back for re-examination to the Sąd Apelacyjny w Krakowie (Court of Appeal, Cracow), which is the referring court.
14 In the context of that re-examination, AW ‘T’ asked the referring court to issue it with a copy of the judgment of 2006 and to append to it a statement confirming that that judgment is final, arguing that the judgment of 20 October 2021 should be treated as null and void.
15 In support of that request, AW ‘T’ referred, first, to the judgment of the European Court of Human Rights of 8 November 2021, Dolińska-Ficek and Ozimek v. Poland (CE:ECHR:2021:1108JUD004986819), from which it is apparent that the Chamber of Extraordinary Control and Public Affairs does not constitute a ‘tribunal established by law’.
16 Second, AW ‘T’ relied on the judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court - Appointment) (C‑487/19, EU:C:2021:798), from which it inferred that a decision given in an irregularly constituted formation of a court is not binding on other courts and should be disregarded without first having to be set aside.
17 Third, AW ‘T’ expressed reservations in terms of the possibility of bringing an extraordinary appeal against a decision with the force of res judicata, lodged 14 years after the adoption of that decision, particularly when that appeal was aimed at protecting the exclusively financial interests of a State-owned company.
18 In that regard, the referring court explains that the five judges of the Chamber of Extraordinary Control and Public Affairs which delivered the judgment of 20 October 2021 were all appointed on the same day, namely 10 October 2018, following the closure of the same procedure. During that procedure, the Krajowa Rada Sądownictwa (National Council of the Judiciary) issued a resolution in which it recommended to the President of the Republic of Poland that the persons concerned be appointed to the office of judge of the Sąd Najwyższy (Supreme Court). Subsequently, an appeal was brought against that resolution before the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland), which suspended the enforcement of that resolution on a provisional basis. However, the President of the Republic of Poland appointed those persons to the office of judge of the Sąd Najwyższy (Supreme Court) before the Naczelny Sąd Administracyjny (Supreme Administrative Court) had ruled on that appeal.
19 In that context, the referring court notes that the formation of the Sąd Najwyższy (Supreme Court) that delivered the judgment of 20 October 2021 was composed, inter alia, of the judges E.S., T.D., P.K., A.R. and M.S., and that, on account of the irregularities associated with the procedure that led to their appointment as judges in the Chamber of Extraordinary Control and Public Affairs, that formation of the court does not constitute a tribunal previously established by law within the meaning of EU law. Consequently, there is no need to examine the effects of the decision of such a body.
20 In that regard, the referring court observes, in the first place, that the Trybunał Konstytucyjny (Constitutional Court, Poland) has delivered decisions seeking to prevent national courts from interpreting the concept of ‘tribunal established by law’ as it exists in EU law in the context of the verification, by those courts, of the lawfulness of the appointment of judges. In the second place, national legislation, in particular Article 42a of the Law on the ordinary courts, also prohibits those courts from establishing or assessing the regularity of the appointment of a judge or of the ability to exercise judicial functions resulting from the status of judge. In addition, Article 107(1) of that law makes it a disciplinary offence for a judge to call into question, inter alia, the validity of the appointment of another judge or the mandate of a constitutional body of the Republic of Poland. In addition, that offence entails the obligation to impose the most severe disciplinary penalty possible, namely the transfer to another place of work or the removal of the judge concerned.
21 Consequently, before examining AW ‘T’s request seeking a declaration that the 2006 judgment has the force of res judicata, it is necessary to determine whether a national court is bound by the decisions of the Trybunał Konstytucyjny (Constitutional Court) and by the provisions of the Law on the ordinary courts, referred to in the preceding paragraph, which prohibit it from assessing whether, in the light of the arrangements for appointing judges of the Chamber of Extraordinary Control and Public Affairs referred to in paragraph 19 of the present judgment, that chamber may be regarded as an independent and impartial tribunal previously established by law, ensuring effective judicial protection for individuals.
22 The referring court also explains that there are today, in the Polish judicial system, courts which do not meet the requirements of an independent and impartial tribunal previously established by law, within the meaning of EU law, which nevertheless deliver decisions. Thus, the question arises as to whether the fact that the court which has given final judgment in a dispute was not a court or tribunal, within the meaning of EU law, infringes the right to effective judicial protection in the fields covered by EU law. That question is all the more important in the case of courts of last instance of a Member State, in particular, where their judicial activity has the effect of calling into question decisions having the force of res judicata delivered in closed court proceedings. In that regard, it should also be noted that, following a reform dating from 2017, it is possible, under Polish law, to lodge an extraordinary appeal against decisions which have had the force of res judicata for almost 25 years.
23 In that context, the referring court notes, inter alia, that it appears that the case-law of the Court of Justice and that of the European Court of Human Rights authorise review of the composition of courts by courts of last instance. However, they have not yet ruled on a situation such as that before the referring court, namely the ability of a lower court to review the composition of a higher court which has referred a case back to it for re-examination where, under the national legislation, that lower court is bound by the assessment of that higher court.
24 In those circumstances the Sąd Apelacyjny w Krakowie (Court of Appeal, Cracow) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must the second subparagraph of Article 19(1), Article 2, Article 4(3) and Article 6(3) [TEU], in conjunction with Article 47 of the [Charter] and [Article 267 TFEU], and the principle of the primacy of EU law be interpreted as permitting a national court to disregard a decision of a constitutional court which is mandatory under national law, including constitutional law, in so far as that decision precludes an examination by the national court as to whether, having regard to the way in which the judges were appointed, the judicial body is an independent and impartial court previously established by law within the meaning of European Union law? (2) Must the second subparagraph of Article 19(1), Article 2, Article 4(3) and Article 6(3) TEU, in conjunction with Article 47 of the Charter and Article 267 TFEU, be interpreted as precluding national rules adopted by a Member State: (a) prohibiting the national court from assessing the lawfulness of the appointment of a judge and consequently examining whether the judicial body is a court within the meaning of [EU] law and (b) providing for the disciplinary liability of a judge for judicial actions connected with the examination in question? (3) Must the second subparagraph of Article 19[(1)], Article 2, Article 4(3) and Article 6(3) TEU, in conjunction with Article 47 of the Charter and [Article 267] TFEU, be interpreted as meaning that an ordinary court which satisfies the requirements laid down on a court within the meaning of EU law is not bound by a judgment of a court of final instance - sitting with members who were appointed to the office of judge in flagrant breach of national law governing the nomination process for the office of a judge of the Sąd Najwyższy (Supreme Court), as a result of which that court does not fulfil the requirement of an independent and impartial court previously established by law and of ensuring that individuals are afforded effective legal protection - issued as a result of an extraordinary appeal procedure (extraordinary appeal), setting aside a final judgment and referring the case back to the ordinary court for re-examination? (4) If the answer to the third question is in the affirmative, must the second subparagraph of Article 19(1), Article 2, Article 4(3) and Article 6(3) TEU, in conjunction with Article 47 of the Charter and Article 267 TFEU, be interpreted in such manner that [a] non-binding [judgment] means that[:] [(a)] a judgment given by a court of final instance, established in the manner described in [question] 3, is not a judgment in a legal sense (is a non-existent judgment) within the meaning of EU law, and the assessment in that regard may be made by an ordinary court which satisfies the requirements laid down on a court within the meaning of EU law, [(b)] or is the judgment given by the court of final instance, established in the manner described in [question] 3, a judgment that does exist in a legal sense, but the ordinary court retrying the case is entitled and obliged to disapply the application of provisions of national law concerning the consequences of that judgment to the extent necessary to ensure that individuals are afforded effective legal protection?’
25 The referring court requested that the Court deal with the present case under an expedited preliminary ruling procedure pursuant to Article 105 of the Rules of Procedure of the Court of Justice. In support of that request, it submitted, in essence, that, first, it is necessary to provide an answer as quickly as possible to the questions referred for a preliminary ruling in order swiftly to determine the case in the main proceedings, which forms part of lengthy proceedings. Second, it emphasises the essential importance of that answer for the protection of the Polish judicial system and for the judicial protection of litigants, in particular in view of the structural nature of the infringements described in the request for a preliminary ruling. Third, it refers to the fundamental importance of those questions in the light of the continuing destabilisation of justice and the legal certainty of litigants in Poland.
26 Article 105(1) of the Rules of Procedure provides that, at the request of the referring court or tribunal or, exceptionally, of his own motion, the President of the Court may decide, after hearing the Judge-Rapporteur and the Advocate General, that a reference for a preliminary ruling is to be determined pursuant to an expedited procedure where the nature of the case requires that it be dealt with within a short time.
27 It must be borne in mind, in that regard, that such an expedited procedure is a procedural instrument intended to address matters of exceptional urgency. Furthermore, it is also apparent from the Court’s case-law that the expedited procedure may not be applied where the sensitive and complex nature of the legal problems raised by a case does not lend itself easily to the application of such a procedure, in particular where it is not appropriate to shorten the written part of the procedure before the Court (judgment of 29 March 2022, Getin Noble Bank, C‑132/20, EU:C:2022:235, paragraph 52 and the case-law cited).
28 In the present case, by decision of 11 May 2022, the President of the Court, after hearing the Judge-Rapporteur and the Advocate General, refused the request that the present case be determined pursuant to an expedited procedure. As regards the first argument put forward by the referring court, it should be borne in mind that it is settled case-law that the fact that a national court must ensure that the case before it is resolved swiftly, on account of the duration of a dispute, is not such as to justify the application of the expedited preliminary ruling procedure (see, to that effect, judgment of 6 October 2021, TOTO and Vianini Lavori, C‑581/20, EU:C:2021:808, paragraph 29). As regards the second and third arguments put forward by the referring court, it should be noted, first, that the structural nature of the infringements described in those questions referred is no more extensive than that at issue in numerous other cases brought before the Court, in recent years, by Polish courts, in which requests for an expedited preliminary ruling procedure have also been rejected. Second, the fact that the questions referred are of particular importance because of the continuing destabilisation of justice in Poland does not in itself mean that they must be dealt with within a short time, within the meaning of Article 105(1) of the Rules of Procedure.
29 As a preliminary point, it is important to bear in mind that, according to settled case-law, the Court itself must examine the circumstances in which cases are referred to it by the national court in order to assess whether it has jurisdiction or whether the request submitted to it is admissible (judgment of 22 March 2022, Prokurator Generalny (Disciplinary Chamber of the Supreme Court - Appointment), C‑508/19, EU:C:2022:201, paragraph 59 and the case-law cited).
30 In that regard, the Court notes, in the first place, that, in the context of a request for a preliminary ruling under Article 267 TFEU, the Court may interpret EU law only within the limits of the powers conferred upon it (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, EU:C:2019:982, paragraph 77 and the case-law cited).
31 The scope of the Charter, in so far as the action of the Member States is concerned, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States when they are implementing EU law. That provision confirms settled case-law, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations (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, EU:C:2019:982, paragraph 78 and the case-law cited).
32 In the present case, as regards Article 47 of the Charter, the referring court has not provided any indication that the disputes in the main proceedings concern the interpretation or application of a rule of EU law being implemented at national level.
33 Therefore, in accordance with Article 51(1) thereof, Article 47 of the Charter is not, as such, applicable to those cases.
34 However, since the second subparagraph of Article 19(1) TEU requires all Member States to establish such legal remedies as are necessary to ensure effective judicial protection in the fields covered by EU law, in particular within the meaning of Article 47 of the Charter, that provision must be duly taken into account for the purposes of interpreting the second subparagraph of Article 19(1) TEU (judgment of 3 July 2025, Lita and Jeszek, C‑646/23 and C‑661/23, EU:C:2025:519, paragraph 54 and the case-law cited).
35 In the second place, it should be recalled that, under the second subparagraph of Article 19(1) TEU, Member States are to provide remedies sufficient to ensure effective judicial protection for individual parties in the fields covered by EU law. It is therefore for the Member States to establish a system of legal remedies and procedures ensuring effective judicial review in those fields (judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 32 and the case-law cited).
36 As regards the scope ratione materiae 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 (judgment of 11 July 2024, Hann-Invest and Others, C‑554/21, C‑622/21 and C‑727/21, EU:C:2024:594, paragraph 35 and the case-law cited).
37 The second subparagraph of Article 19(1) TEU is intended, inter alia, to apply to any national body which can rule, as a court or tribunal, on questions concerning the interpretation or application of EU law and which therefore fall within the fields covered by that law (judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 34 and the case-law cited).
38 That is true of the referring court, which may be called upon to rule on questions relating to the application or interpretation of EU law and, as a ‘court or tribunal’ within the meaning of EU law, comes under the Polish judicial system in the ‘fields covered by Union law’, within the meaning of the second subparagraph of Article 19(1) TEU, so that that court must meet the requirements of effective judicial protection (judgment of 11 July 2024, Hann-Invest and Others, C‑554/21, C‑622/21 and C‑727/21, EU:C:2024:594, paragraph 37 and the case-law cited).
39 Therefore, in the present case, the Court has jurisdiction to interpret the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter.
40 The four questions concern the interpretation not only of the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, but also of Article 2, Article 4(3) and Article 6(3) TEU and, as regards only the first question, the principle of the primacy of EU law, read in conjunction with Article 267 TFEU.
41 However, it is apparent from the grounds of the order for reference that the referring court’s questions relate, in essence, (i) to the right to be heard by an independent and impartial tribunal previously established by law, which derives from the second subparagraph of Article 19(1) TEU and (ii) to the principle of the primacy of EU law.
42 In those circumstances, it is necessary to examine the questions referred for a preliminary ruling in the light solely of the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, and of the principle of the primacy of EU law.
43 By its first to third questions, which it is appropriate to examine together, the referring court asks, in essence, whether the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, and the principle of the primacy of EU law must be interpreted as precluding legislation of a Member State and case-law of the Constitutional Court of that Member State under which a national court is required to comply with a decision delivered by a panel of judges of a higher court, where, on the basis of a decision of the Court of Justice that national court finds that one or more judges forming part of that panel of judges do not satisfy the requirements of independence, impartiality and previous establishment by law, within the meaning of that provision, and that, in addition, it is prevented, under national law, from verifying the regularity of the composition of that panel of judges on the basis of the same information as that which had been accepted in that decision of the Court.
44 At the outset, it should be recalled that, although the organisation of justice in the Member States, in particular, the establishment, composition, powers and functioning of national courts, falls within the competence of those 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 Article 19 TEU (judgment of 11 July 2024, Hann-Invest and Others, C‑554/21, C‑622/21 and C‑727/21, EU:C:2024:594, paragraph 44 and the case-law cited).
45 In that regard, the principle of effective judicial protection referred to in the second subparagraph of Article 19(1) TEU is a general principle of EU law which has been enshrined, inter alia, in 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’), to which the second paragraph of Article 47 of the Charter corresponds (see, to that effect, judgment of 11 July 2024, Hann-Invest and Others, C‑554/21, C‑622/21 and C‑727/21, EU:C:2024:594, paragraph 45 and the case-law cited).
46 Moreover, in so far as the Charter sets out rights corresponding to rights guaranteed under the ECHR, Article 52(3) of the Charter is intended to ensure the necessary consistency between the rights contained in the Charter and the corresponding rights guaranteed under the ECHR, without thereby adversely affecting the autonomy of EU law. According to the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17), the second paragraph of Article 47 of the Charter corresponds to Article 6(1) ECHR. The Court must therefore ensure that its interpretation in the present case safeguards a level of protection which does not fall below the level of protection established in Article 6(1) ECHR, as interpreted by the European Court of Human Rights (judgment of 11 July 2024, Hann-Invest and Others, C‑554/21, C‑622/21 and C‑727/21, EU:C:2024:594, paragraph 46 and the case-law cited).
47 That said, it should be recalled that every Member State must, in accordance with the second subparagraph of Article 19(1) TEU, ensure that the bodies which are called upon, as ‘courts or tribunals’ within the meaning of EU law, to rule on questions relating to the application or interpretation of EU law and which thus come within its judicial system in the fields covered by EU law, meet the requirements of effective judicial protection, including that of independence (judgment of 11 July 2024, Hann-Invest and Others, C‑554/21, C‑622/21 and C‑727/21, EU:C:2024:594, paragraph 47 and the case-law cited).
48 In the present case, first, the referring court is in a situation in which, following the delivery of a final judgment in the case in the main proceedings, that judgment was, almost 14 years later, the subject of an extraordinary appeal brought by the Prosecutor General before the Chamber of Extraordinary Control and Public Affairs, which set aside that judgment and referred the case back to the referring court for re-examination. It is apparent from the case file that, under national law, the judgment of 20 October 2021 is binding on the latter court. Second, it is common ground that the Chamber of Extraordinary Control and Public Affairs, as a national body that may also rule on questions relating to the application or interpretation of EU law, is subject to the requirements of effective judicial protection arising from the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter.
49 It should be noted in that regard that, in the judgment of 21 December 2023, Krajowa Rada Sądownictwa (Continued holding of a judicial office) (C‑718/21, EU:C:2023:1015), the Court held that the panel of judges of the Chamber of Extraordinary Control and Public Affairs which had made a reference to it for a preliminary ruling in the case which gave rise to that judgment did not have, because of the manner in which its constituent judges were appointed, the status of an independent and impartial tribunal previously established by law, for the purposes of the second subparagraph of Article 19(1) TEU, read in the light of the second paragraph of Article 47 of the Charter, with the result that that panel of judges did not constitute a ‘court or tribunal’ within the meaning of Article 267 TFEU (see, to that effect, judgment of 21 December 2023, Krajowa Rada Sądownictwa (Continued holding of a judicial office), C‑718/21, EU:C:2023:1015, paragraphs 46 to 58, and order of 29 May 2024, Rzecznik Praw Obywatelskich (Polish extraordinary appeal), C‑720/21, EU:C:2024:489, paragraph 24). The Court reached that conclusion in the light of its own case-law on the interpretation of those provisions, and of the findings and assessments made by the European Court of Human Rights in the judgment of 8 November 2021, Dolińska-Ficek and Ozimek v. Poland (CE:ECHR:2021:1108JUD004986819), concerning Article 6(1) ECHR, in conjunction with those made by the Naczelny Sąd Administracyjny (Supreme Administrative Court) in a judgment of 21 September 2021.
50 The Court held that the combination of both the systemic and circumstantial factors which it had set out in paragraphs 47 to 57 and 62 to 76 of the judgment of 21 December 2023, Krajowa Rada Sądownictwa (Continued holding of a judicial office) (C‑718/21, EU:C:2023:1015), was such as to give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of those judges and the panel in which they sit to external factors, in particular, the direct or indirect influence of the national legislature and executive and their neutrality with respect to the interests before them. Those factors were thus capable of leading to a lack of appearance of independence or impartiality on the part of those judges and that body likely to undermine the trust which justice in a democratic society governed by the rule of law must inspire in those individuals (judgment of 21 December 2023, Krajowa Rada Sądownictwa (Continued holding of a judicial office), C‑718/21, EU:C:2023:1015, paragraph 77).
51 Furthermore, the findings set out by the Court in the judgment of 21 December 2023, Krajowa Rada Sądownictwa (Continued holding of a judicial office) (C‑718/21, EU:C:2023:1015), concerning the factors characterising the appointment, in the Chamber of Extraordinary Control and Public Affairs, of the three judges constituting the referring body which had referred to it a request for a preliminary ruling in the case which gave rise to that judgment apply, in the same way, to all the judges of the Chamber of Extraordinary Control and Public Affairs appointed in the same circumstances (see, to that effect, order of 29 May 2024, Rzecznik Praw Obywatelskich (Polish extraordinary appeal), C‑720/21, EU:C:2024:489, paragraphs 27 and 28).
52 Moreover, although, in the judgment of 21 December 2023, Krajowa Rada Sądownictwa (Continued holding of a judicial office) (C‑718/21, EU:C:2023:1015), the Court ruled on the status of the referring body as a ‘court or tribunal’ of a Member State, within the meaning of Article 267 TFEU, it should be noted that the condition relating to the guarantee of judicial independence in that context coincides, in essence, with that required of a body capable of ruling, as a court or tribunal, on questions concerning the interpretation or application of EU law, and, in that respect, subject to the requirements arising from the second subparagraph of Article 19(1) TEU (see, to that effect, judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraphs 35, 38 and 45, and of 29 March 2022, Getin Noble Bank, C‑132/20, EU:C:2022:235, paragraph 72).
53 Thus, in a situation such as that in the main proceedings, in which what is at issue is a judicial decision issued by a body of last instance whose status as a court or tribunal has been rejected by the Court since that body does not satisfy the conditions of independence, impartiality and previous establishment by law, for the purposes of the second subparagraph of Article 19(1) TEU, that fact cannot be disregarded by a court, in accordance with the principle of the primacy of EU law and the effects attaching to such a decision of the Court.
54 As regards the specific consequences, for the case in the main proceedings, of the finding in paragraph 53 of the present judgment, it should be borne in mind that, although, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has exclusive jurisdiction to find and assess the facts in the case before it and to interpret and apply national law, the fact remains that it is for the Court to provide the national court that referred a question for a preliminary ruling with guidance on the interpretation of EU law that may be necessary for the outcome of that case, while taking into account the indications contained in the order for reference (see, to that effect, judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court - Appointment), C‑487/19, EU:C:2021:798, paragraph 78 and the case-law cited).
55 Thus, it will ultimately be for the referring court to ascertain whether the judges who formed part of the panel of judges of the Chamber of Extraordinary Control and Public Affairs which delivered the judgment of 20 October 2021 were appointed under the same conditions as those which characterised the appointment of the three judges constituting the referring body in the case which gave rise to the judgment of 21 December 2023, Krajowa Rada Sądownictwa (Continued holding of a judicial office) (C‑718/21, EU:C:2023:1015).
56 In that regard, it is, however, apparent from the file before the Court that the five judges who, together with two lay judges, composed the panel of judges of the Chamber of Extraordinary Control and Public Affairs which ruled on the extraordinary appeal at issue in the main proceedings, were appointed on the same day and under the same conditions as those who constituted the referring body in the case which gave rise to the judgment of 21 December 2023, Krajowa Rada Sądownictwa (Continued holding of a judicial office) (C‑718/21, EU:C:2023:1015).
57 The Court has already held that the presence, in the body concerned, of a single judge appointed in the same circumstances as those at issue in the case which gave rise to that judgment is sufficient to deprive that body of its status as an independent and impartial tribunal previously established by law, for the purposes of the second subparagraph of Article 19(1) TEU, read in the light of the second paragraph of Article 47 of the Charter (see, to that effect, order of 29 May 2024, Rzecznik Praw Obywatelskich (Polish extraordinary appeal), C‑720/21, EU:C:2024:489, paragraph 29 and the case-law cited).
58 Furthermore, as regards the fact that the provisions of national law and the decisions of the Trybunał Konstytucyjny (Constitutional Court), referred to in paragraph 20 of the present judgment, prevent the referring court, according to its information, from examining the regularity of a panel of judges of the Sąd Najwyższy (Supreme Court), in the present case the Chamber of Extraordinary Control and Public Affairs which set aside a final judgment of the referring court in the main proceedings and referred that case back to it for re-examination, it is apparent from settled case-law 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, including constitutional provisions, being able to prevent that (judgment of 22 February 2022, RS (Effect of the decisions of a constitutional court), C‑430/21, EU:C:2022:99, paragraph 51 and the case-law cited).
59 In particular, as regards those provisions of national law, the Court, after the present request for a preliminary ruling was made, had already held, in essence, that the Republic of Poland, by adopting and maintaining in force national rules which prohibit national courts, on pain of disciplinary penalties, from verifying whether they or the judges of whom they are composed or other judges or courts satisfy the requirements of EU law relating to independence, impartiality and previous establishment by law of the courts and judges concerned, has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter and under the principle of the primacy of EU law (see, to that effect, judgment of 5 June 2023, Commission v Poland (Independence and private life of judges), C‑204/21, EU:C:2023:442, paragraphs 201 and 386).
60 In the case which gave rise to the judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442), the Court upheld the first and second complaints put forward by the European Commission, which concerned, inter alia, the compatibility with the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, of Article 42a(1) and (2) of the Law on the ordinary courts, prohibiting any national court from verifying compliance with the requirements stemming from EU law relating to the guarantee of an independent and impartial tribunal previously established by law, and Article 107(1), (2) and (3) of that law, which allow the examination of compliance with those requirements to be classified as a disciplinary offence.
61 Second, as regards the decisions of the Trybunał Konstytucyjny (Constitutional Court), referred to in paragraphs 20 and 58 of the present judgment, it should be added that it is apparent from settled case-law that a national court which has exercised the discretion conferred on it by the second paragraph of Article 267 TFEU must, where appropriate, disregard the rulings of a higher national court if it considers, having regard to the interpretation given by the Court, that they are not consistent with EU law, if necessary refusing to apply the national rule requiring it to comply with the decisions of that higher court. That solution also applies where an ordinary court is bound, under national procedural rule, by a decision of a national constitutional court which it considers to be contrary to EU law (see, to that effect, judgment of 22 February 2022, RS (Effect of the decisions of a constitutional court), C‑430/21, EU:C:2022:99, paragraphs 75 and 76).
62 Thus, given that, in the judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442), the Court held that the provisions of the Law on the ordinary courts in respect of which the referring court has doubts in the present case are incompatible with EU law, the same conclusion must be drawn as regards those decisions of the Trybunał Konstytucyjny (Constitutional Court), which have a scope similar to that of those provisions as regards the prohibition of verification by any national court of whether another body complies with the requirements stemming from EU law as regards the guarantee of an independent and impartial tribunal previously established by law.
63 In the light of all the foregoing considerations, the answer to the first to third questions is that the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, and the principle of the primacy of EU law must be interpreted as precluding legislation of a Member State and case-law of the constitutional court of that Member State under which a national court is required to comply with a decision delivered by a formation of a higher court, where, on the basis of a decision of the Court, that national court finds that one or more judges forming part of that panel of judges do not meet the requirements of independence, impartiality and previous establishment by law, within the meaning of that provision, and that, in addition, it is prevented, under national law, from verifying the regularity of the composition of that panel of judges on the basis of the same factors as those taken into account in that decision of the Court.
64 By its fourth question, the referring court asks, in essence, whether the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, must be interpreted as meaning that, in a situation where it is found, on the basis of a decision of the Court, that a judicial body of last instance does not satisfy the requirements of independence, impartiality and previous establishment by law, within the meaning of that provision, a decision taken by such a body, by which the case concerned is referred back to a lower court for re-examination, must be regarded as null and void or as an effective decision which that lower court is nevertheless entitled to disregard and to refuse to apply.
65 In that regard, it should be noted that that question is raised in the event that the referring court finds, on the basis of the guidance provided in the judgment of 21 December 2023, Krajowa Rada Sądownictwa (Continued holding of a judicial office) (C‑718/21, EU:C:2023:1015), that the panel of judges of the Chamber of Extraordinary Control and Public Affairs, which set aside the 2006 judgment and referred the case in the main proceedings back to the Sąd Apelacyjny w Krakowie (Court of Appeal, Cracow) for re-examination, does not satisfy the requirements of independence, impartiality and previous establishment by law, for the purposes of the second subparagraph of Article 19(1) TEU.
66 Thus, in those circumstances, first, attention should be drawn to the importance, both for the EU legal order and for the national legal systems, of the principle of res judicata. In order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that decisions of courts or tribunals which have become definitive after all rights of appeal have been exhausted or after expiry of the time limits provided for in that connection can no longer be called into question (judgment of 9 April 2024, Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision), C‑582/21, EU:C:2024:282, paragraph 37 and the case-law cited).
67 Second, the Court has already held that, given that the second subparagraph of Article 19(1) TEU imposes on the Member States a clear and precise obligation as to the result to be achieved and which is not subject to any condition as regards the independence which must characterise the courts called upon to interpret and apply EU law, the referring court will be required to ensure, within the limits of its jurisdiction, the full effectiveness of that provision, which, in the present case and subject to the premiss set out in paragraph 65 of the present judgment, will require that the judgment of 20 October 2021 be declared null and void (see, to that effect, judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court - Appointment), C‑487/19, EU:C:2021:798, paragraph 159 and the case-law cited).
68 In that regard, it should also be noted that, if the referring court considers that the judgment of 20 October 2021 was delivered by a body that does not constitute an independent and impartial tribunal previously established by law within the meaning of EU law, no consideration based on the principle of legal certainty or linked to the alleged finality of the judgment can, in the present case, be relied on in order to prevent a court such as the Sąd Apelacyjny w Krakowie (Court of Appeal, Cracow) from declaring such a decision to be null and void, where such a consequence is essential, in view of the procedural situation at issue, in order to ensure the primacy of EU law (see, to that effect, judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court - Appointment), C‑487/19, EU:C:2021:798, paragraphs 160 and 161 and the case-law cited).
69 It is apparent from the case file that that is the case in the main proceedings, since, even if the judgment of 20 October 2021 is final, the case was referred back to the referring court. Thus, in those circumstances, the referring court must regard that judgment as null and void.
70 In the light of all the foregoing considerations, the answer to the fourth question is that the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, must be interpreted as meaning that, in a situation where it is found, on the basis of a decision of the Court, that a judicial body of last instance does not satisfy the requirements of independence, impartiality and previous establishment by law, for the purposes of that provision, a decision taken by such a body, by which the case concerned is referred back to a lower court for re-examination, must be regarded as null and void, where such a consequence is essential in view of the procedural situation at issue in order to ensure the primacy of EU law.
71 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.