JUDGMENT OF THE COURT (Grand
Chamber)
15 July
2021(*)
(Failure
of a Member State to fulfil obligations – Disciplinary regime applicable
to judges – Rule of law – Independence of judges – Effective
legal protection in the fields covered by Union law – Second subparagraph
of Article 19(1) TEU – Article 47 of the Charter of Fundamental
Rights of the European Union – Disciplinary offences resulting from the
content of judicial decisions – Independent disciplinary courts or
tribunals established by law – Respect for reasonable time and the rights
of the defence in disciplinary proceedings – Article 267 TFEU –
Restriction of the right of national courts to submit requests for a
preliminary ruling to the Court of Justice and of their obligation to do so)
In Case
C‑791/19,
ACTION
for failure to fulfil obligations under Article 258 TFEU, brought on
25 October 2019,
European
Commission, represented
initially by K. Banks, S.L. Kalėda and H. Krämer, and
subsequently by K. Banks, S.L. Kalėda and P.J.O. Van
Nuffel, acting as Agents,
applicant,
supported
by:
Kingdom
of Belgium, represented
by C. Pochet, M. Jacobs and L. Van den Broeck, acting as Agents,
Kingdom
of Denmark, represented
initially by M. Wolff, M. Jespersen and J. Nymann-Lindegren, and
subsequently by M. Wolff and J. Nymann-Lindegren, acting as Agents,
Kingdom
of the Netherlands, represented
by M.K. Bulterman and J. Langer, acting as Agents,
Republic
of Finland, represented
by M. Pere and H. Leppo, acting as Agents,
Kingdom
of Sweden, represented
by C. Meyer-Seitz, H. Shev, A. Falk, J. Lundberg and
H. Eklinder, acting as Agents,
interveners,
v
Republic
of Poland, represented
by B. Majczyna, D. Kupczak, S. Żyrek, A. Dalkowska and
A. Gołaszewska, acting as Agents,
defendant,
THE
COURT (Grand Chamber),
composed
of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President,
A. Arabadjiev, A. Prechal (Rapporteur), M. Vilaras,
M. Ilešič, A. Kumin and N. Wahl, Presidents of Chambers,
T. von Danwitz, C. Toader, K. Jürimäe, C. Lycourgos,
N. Jääskinen, I. Ziemele and J. Passer, Judges,
Advocate
General: E. Tanchev,
Registrar:
M. Aleksejev, Head of Unit,
having
regard to the written procedure and further to the hearing on 1 December
2020,
after
hearing the Opinion of the Advocate General at the sitting on 6 May 2021,
gives
the following
Judgment
1 By
its application, the European Commission claims that the Court should declare that:
– by
allowing the content of judicial decisions to be classified as a disciplinary
offence involving judges of the ordinary courts (Article 107 § 1 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), in the version resulting from the successive amendments
published in the Dziennik Ustaw Rzeczypospolitej Polskiej of
2019 (items 52, 55, 60, 125, 1469 and 1495) (‘the Law on the ordinary
courts’), and Article 97 §§ 1 and 3 of the ustawa o Sądzie
Najwyższym (Law on the Supreme Court) of 8 December 2017 (Dz. U. of
2018, item 5), in the consolidated version published in the Dziennik
Ustaw Rzeczypospolitej Polskiej of 2019 (item 825) (‘the new Law
on the Supreme Court’));
– by
failing to guarantee the independence and impartiality of the Izba
Dyscyplinarna (Disciplinary Chamber) of the Sąd Najwyższy (Supreme
Court, Poland) (‘the Disciplinary Chamber’), which is responsible for reviewing
decisions issued in disciplinary proceedings against judges (Article 3(5),
Article 27 and Article 73 § 1 of the new Law on the Supreme Court,
read in conjunction with Article 9a of the ustawa o Krajowej Radzie
Sądownictwa (Law on the National Council of the Judiciary) of 12 May
2011 (Dz. U. No 126, item 714), as amended by the ustawa o
zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw
(Law amending the Law on the National Council of the Judiciary and certain
other laws) of 8 December 2017 (Dz. U. of 2018, item 3) (‘the Law on
the KRS’));
– by
conferring on the President of the Disciplinary Chamber the discretionary power
to designate the disciplinary tribunal with jurisdiction at first instance in
cases concerning judges of the ordinary courts (Article 110 § 3 and
Article 114 § 7 of the Law on the ordinary courts) and, therefore, by
failing to guarantee that disciplinary cases are examined by a tribunal
‘established by law’; and
– by
conferring on the Minister for Justice the power to appoint a Disciplinary
Officer of the Minister for Justice (Article 112b of the Law on the
ordinary courts) and, therefore, by failing to guarantee that disciplinary
cases against judges of the ordinary courts are examined within a reasonable
time, and by providing that actions relating to the appointment of defence
counsel and the taking up of the defence by that counsel do not have a
suspensory effect on the course of the disciplinary proceedings
(Article 113a of that law) and that the disciplinary tribunal is to
conduct the proceedings despite the justified absence of the notified accused
judge or his or her defence counsel (Article 115a § 3 of that law) and,
therefore, by failing to guarantee respect for the rights of defence of accused
judges of the ordinary courts,
the
Republic of Poland has failed to fulfil its obligations under the second
subparagraph of Article 19(1) TEU,
and
that,
by
allowing the right of courts and tribunals to submit requests for a preliminary
ruling to the Court of Justice of the European Union to be restricted by the
possibility of triggering disciplinary proceedings, the Republic of Poland has
failed to fulfil its obligations under the second and third paragraphs of
Article 267 TFEU.
Legal
context
EU law
The EU and
FEU Treaties
2 Article 2
TEU reads as follows:
‘The
Union is founded on the values of respect for human dignity, freedom,
democracy, equality, the rule of law and respect for human rights, including
the rights of persons belonging to minorities. These values are common to the
Member States in a society in which pluralism, non-discrimination, tolerance,
justice, solidarity and equality between women and men prevail.’
3 Article 19(1)
TEU provides:
‘The
Court of Justice of the European Union shall include the Court of Justice, the
General Court and specialised courts. It shall ensure that in the
interpretation and application of the Treaties the law is observed.
Member
States shall provide remedies sufficient to ensure effective legal protection
in the fields covered by Union law.’
4 Under
Article 267 TFEU:
‘The
Court of Justice of the European Union shall have jurisdiction to give
preliminary rulings concerning:
(a) the
interpretation of the Treaties;
(b) the validity
and interpretation of acts of the institutions, bodies, offices or agencies of
the Union;
Where
such a question is raised before any court or tribunal of a Member State, that
court or tribunal may, if it considers that a decision on the question is
necessary to enable it to give judgment, request the Court to give a ruling
thereon.
Where
any such question is raised in a case pending before a court or tribunal of a
Member State against whose decisions there is no judicial remedy under national
law, that court or tribunal shall bring the matter before the Court.
…’
The Charter
5 Title
VI of the Charter of Fundamental Rights of the European Union (‘the Charter’),
entitled ‘Justice’, includes, in particular, Article 47 thereof, entitled
‘Right to an effective remedy and to a fair trial’, which is worded as follows:
‘Everyone
whose rights and freedoms guaranteed by the law of the Union are violated has
the right to an effective remedy before a tribunal in compliance with the
conditions laid down in this Article.
Everyone
is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal previously established by law. …
…’
Polish
law
The
Constitution
6 Under
Article 179 of the Constitution, the President of the Republic of Poland
(‘the President of the Republic’) is to appoint judges, on a proposal from the
Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland) (‘the
KRS’), for an indefinite period.
7 Article 187
of the Constitution provides:
‘1. The
[KRS] shall be composed as follows:
(1) the First
President of the [Sąd Najwyższy (Supreme Court)], the Minister [for]
Justice, the President of the [Naczelny Sąd Administracyjny (Supreme Administrative
Court)] and an individual appointed by the President of the Republic,
(2) 15 judges
chosen from among the judges of the [Sąd Najwyższy (Supreme Court)],
the ordinary courts, the administrative courts and the military courts,
(3) Four members
chosen by [the Sejm (Lower House of the Polish Parliament)] from among its
Deputies and two members chosen by [the Senat (Upper House of the Polish
Parliament)] from among its Senators.
…
3. The
term of office of those chosen as members of the [KRS] shall be four years.
4. The
organisational structure, the scope of activity and procedures for work of the
[KRS], as well as the manner of choosing its members, shall be specified by
statute.’
The new Law
on the Supreme Court
8 The
new Law on the Supreme Court, in its initial version, entered into force on
3 April 2018. It established, within the Sąd Najwyższy (Supreme
Court), two new chambers, namely the Disciplinary Chamber referred to in
Article 3(5) of that law and the Izba Kontroli Nadzwyczajnej i Spraw
Publicznych Sądu Nawyższego (Extraordinary Review and Public Affairs
Chamber).
9 Under
Article 6 of the new Law on the Supreme Court:
Ԥ
1. The First President of the [Sąd
Najwyższy (Supreme Court)] shall submit observations to the competent
authorities regarding irregularities or deficiencies found in the law, the
removal of which is necessary to ensure the rule of law, social justice and the
cohesion of the legal system of the Republic of Poland.
§
2. The President of the [Sąd
Najwyższy (Supreme Court)] who directs the work of the Disciplinary
Chamber shall submit observations to the competent authorities regarding
irregularities or deficiencies found in the law, the removal of which is
necessary to ensure the effective processing of cases falling within the
jurisdiction of that chamber or to limit the number of disciplinary offences.’
10 Under
Article 7 §§ 3 and 4 of that law:
Ԥ
3. The First President of the [Sąd
Najwyższy (Supreme Court)] shall have the powers of the Minister competent
for public finances with regard to the implementation of the budget of the
[Sąd Najwyższy (Supreme Court)].
§
4. The President of the [Sąd
Najwyższy (Supreme Court)] who directs the work of the Disciplinary
Chamber shall have the powers of the Minister competent for public finances
with regard to the implementation of the budget of the [Sąd Najwyższy
(Supreme Court)] relating to the functioning of the Disciplinary Chamber.’
11 Article 20
of that law states:
‘With
regard to the Disciplinary Chamber and the judges who adjudicate in the
Disciplinary Chamber, the prerogatives of the First President of the [Sąd
Najwyższy (Supreme Court)] as defined in:
– Article 14
§ 1(1), (4) and (7), Article 31 § 1, Article 35 § 2, Article 36
§ 6, Article 40 §§ 1 and 4 and Article 51 §§ 7 and 14 shall be
exercised by the President of the [Sąd Najwyższy (Supreme Court)] who
directs the work of the Disciplinary Chamber;
– Article 14
§ 1(2) and the second sentence of Article 55 § 3 shall be exercised by the
First President of the [Sąd Najwyższy (Supreme Court)] in agreement
with the President of the [Sąd Najwyższy (Supreme Court)] who directs
the work of the Disciplinary Chamber.’
12 Article 27
§ 1 of that law provides:
‘The
following cases shall fall within the jurisdiction of the Disciplinary Chamber:
(1) disciplinary
cases;
(a) concerning
judges of the [Sąd Najwyższy (Supreme Court)],
(b) examined by
the [Sąd Najwyższy (Supreme Court)] in relation to disciplinary
proceedings conducted pursuant to the following laws:
…
– [the
Law on the ordinary courts] …,
…’
13 Under
Article 35 § 2 of the new Law on the Supreme Court, the First President of
the Sąd Najwyższy (Supreme Court) may, with the consent of the judge
concerned, transfer a judge to a post in another chamber.
14 Article 73
§ 1 of that law provides:
‘The
disciplinary courts in disciplinary cases concerning judges of the [Sąd
Najwyższy (Supreme Court)] shall be:
(1) at first
instance – the [Sąd Najwyższy (Supreme Court)] composed of two
judges of the Disciplinary Chamber and one lay judge of the [Sąd
Najwyższy (Supreme Court)];
(2) at second
instance – the [Sąd Najwyższy (Supreme Court)] composed of three
judges of the Disciplinary Chamber and two lay judges of the [Sąd
Najwyższy (Supreme Court)].’
15 Article 97
of that law is worded as follows:
Ԥ
1. If the [Sąd Najwyższy (Supreme
Court)] detects an obvious violation of the law when examining a case, it
shall ‑ regardless of its other prerogatives ‑ issue a
finding of error to the relevant court. Before issuing a finding of error, it
must inform the judge or judges of the adjudicating panel of the possibility of
submitting explanations in writing within seven days. The detection of an error
and the issuance of a finding of error shall not affect the outcome of the
case.
…
§
3. Whenever a finding of error is issued,
the [Sąd Najwyższy (Supreme Court)] may file a request for a
disciplinary case to be examined by a disciplinary court. The disciplinary
court of first instance shall be the [Sąd Najwyższy (Supreme
Court)].’
16 The
transitional provisions of the new Law on the Supreme Court include, inter alia,
Article 131 thereof, which provides:
‘Until
all of the judges of the [Sąd Najwyższy (Supreme Court)] [sitting] in
the Disciplinary Chamber have been appointed, other judges of the [Sąd
Najwyższy (Supreme Court)] cannot be transferred to a post in that
chamber.’
17 Article 131
of the new Law on the Supreme Court was amended by Article 1(14) of the
ustawa o zmianie ustawy o Sądzie Najwyższym (Law amending the Law on
the Supreme Court) of 12 April 2018 (Dz. U. of 2018, item 847), which
entered into force on 9 May 2018. That article, as amended, provides:
‘Judges
occupying posts in other chambers of the [Sąd Najwyższy (Supreme
Court)] on the date of entry into force of this law may be transferred to posts
in the Disciplinary Chamber. Until the day on which all of the judges of the
[Sąd Najwyższy (Supreme Court)] [sitting] in the Disciplinary Chamber
have been appointed for the first time, a judge occupying a post in another
chamber of the [Sąd Najwyższy (Supreme Court)] shall submit to the
[KRS] a request for transfer to a post in the Disciplinary Chamber, after
obtaining the consent of the First President of the [Sąd Najwyższy
(Supreme Court)] and the President of the [Sąd Najwyższy (Supreme
Court)] who directs the work of the Disciplinary Chamber and the President of
the chamber in which the judge submitting the request for transfer occupies a
post. On a proposal from the [KRS], the [President of the Republic] shall
appoint persons to serve as judges in the Disciplinary Chamber at the [Sąd
Najwyższy (Supreme Court)] until the day on which all posts in that
chamber have been filled for the first time.’
The Law on
the ordinary courts
18 Article 107
§ 1 of the Law on the ordinary courts provides:
‘A judge
shall be liable to disciplinary action for professional misconduct, including
obvious and gross violations of the law and compromising the dignity of his
office (disciplinary offences).’
19 Article 110
§§ 1 and 3 of that law is worded as follows:
Ԥ
1. In disciplinary cases concerning judges,
the following shall adjudicate:
(1) at
first instance:
(a) disciplinary
tribunals at appellate courts, composed of three judges;
(b) the
[Sąd Najwyższy (Supreme Court)], composed of two judges of the
Disciplinary Chamber, and one lay judge of the [Sąd Najwyższy
(Supreme Court)], in cases concerning disciplinary offences having the
characteristics of intentional crimes punishable by criminal prosecution by the
public prosecutor or intentional tax offences, or in cases in which the
[Sąd Najwyższy (Supreme Court)] has made a request for the
disciplinary proceedings to be examined in the context of a finding of error;
(2) at second
instance – the [Sąd Najwyższy (Supreme Court)] composed of two
judges of the Disciplinary Chamber and one lay judge of the [Sąd
Najwyższy (Supreme Court)];
…
§
3. The disciplinary tribunal within whose
jurisdiction the judge who is the subject of the disciplinary proceedings holds
office shall not be permitted to hear the cases referred to in § 1(1)(a). The
disciplinary tribunal with jurisdiction to hear the case shall be designated by
the President of the [Sąd Najwyższy (Supreme Court)] who directs the
work of the Disciplinary Chamber at the request of the Disciplinary Officer.’
20 Article 112b
of that law provides:
Ԥ
1. The Minister for Justice may appoint a
Disciplinary Officer of the Minister for Justice to conduct a specific case
concerning a judge. The appointing of a Disciplinary Officer of the Minister
for Justice shall preclude another officer from acting in the case.
§
2. … In justified cases, in particular if
the Disciplinary Officer of the Minister for Justice dies or is unable to
perform his or her duties for a prolonged period, the Minister for Justice
shall appoint in that person’s place another judge or, in the case of a
disciplinary offence having the characteristics of an intentional crime
punishable by criminal prosecution by the public prosecutor, a judge or public
prosecutor.
§
3. The Disciplinary Officer of the Minister
for Justice may initiate proceedings at the request of the Minister for Justice
or join ongoing proceedings.
§
4. The appointing of a Disciplinary Officer
of the Minister for Justice is equivalent to a request to initiate
investigative or disciplinary proceedings.
§
5. The function of the Disciplinary Officer
of the Minister for Justice shall expire as soon as a ruling refusing to
initiate disciplinary proceedings or discontinuing disciplinary proceedings or
a ruling closing disciplinary proceedings becomes final. The expiry of the
function of the Disciplinary Officer of the Minister for Justice shall not
preclude a Disciplinary Officer of the Minister for Justice being re-appointed
by the Minister for Justice in the same case.’
21 Article 113
§§ 2 and 3 of that law provides:
Ԥ
2. If the accused judge cannot take part in
the proceedings before the disciplinary tribunal on health grounds, the
President of the disciplinary tribunal or the disciplinary tribunal itself
shall, upon reasoned application by the accused judge, appoint defence counsel,
chosen from among lawyers or legal advisers. The accused judge is required to
attach to his or her application a certificate issued by a court-authorised
doctor certifying that his or her state of health makes it impossible for him
or her to take part in the disciplinary proceedings.
§
3. In exceptional cases, where it is
apparent that the failure to submit an application was due to circumstances
beyond the control of the accused judge, defence counsel may be appointed in
the absence of the application referred to in § 2.’
22 Article 113a
of the Law on the ordinary courts is worded as follows:
‘Actions
relating to the appointment of defence counsel and the taking up of the defence
by that counsel shall not have a suspensory effect on the course of the
proceedings.’
23 Under
Article 114 § 7 of that law:
‘Upon
notification of the disciplinary charges, the Disciplinary Officer shall
request the President of the [Sąd Najwyższy (Supreme Court)] who
directs the work of the Disciplinary Chamber to designate the disciplinary
tribunal responsible for examining the case at first instance. The President of
the [Sąd Najwyższy (Supreme Court)] who directs the work of the
Disciplinary Chamber shall designate that tribunal within seven days of receipt
of the request.’
24 Article 115a
§ 3 of that law provides:
‘The
disciplinary tribunal shall conduct the proceedings despite the justified
absence of the notified accused judge or his or her defence counsel, unless
this is contrary to the interests of the disciplinary proceedings being
conducted.’
The Law on
the KRS
25 Under
Article 9a of the Law on the KRS:
‘1. The
Sejm shall select, from among the judges of the [Sąd Najwyższy
(Supreme Court)], the ordinary courts, the administrative courts and the
military courts, 15 members of the [KRS] for a joint term of office of four
years.
2. In
making the selection referred to in paragraph 1, the Sejm shall, as far as
possible, take into account the need for representation within the [KRS] of
judges from different types and levels of courts.
3. The
joint term of office of new members of the [KRS], selected from among the
judges, shall begin on the day following the day of their selection. The
members of the [KRS] appointed for the previous term of office shall perform
their duties until the day on which the joint term of office of the new members
of the [KRS] begins.’
26 The
transitional provision contained in Article 6 of the Law of
8 December 2017 amending the Law on the National Council of the Judiciary
and certain other laws, which entered into force on 17 January 2018,
provides:
‘The
term of office of the members of the [KRS] referred to in
Article 187(1)(2) of the [Constitution], selected on the basis of the
provisions currently in force, shall continue until the day preceding the
beginning of the term of office of the new members of the [KRS] without, however,
exceeding 90 days from the date of the entry into force of the present law,
unless that term of office has already expired.’
Pre-litigation
procedure
27 Taking
the view that, by adopting new provisions applicable to the disciplinary regime
for judges of the Sąd Najwyższy (Supreme Court) and of the ordinary
courts, the Republic of Poland had failed to fulfil its obligations under the
second subparagraph of Article 19(1) TEU and the second and third
paragraphs of Article 267 TFEU, the Commission sent a letter of formal
notice to that Member State on 3 April 2019. The latter replied to that
letter by letter dated 1 June 2019 in which it denied any infringement of
EU law.
28 On
17 July 2019, the Commission issued a reasoned opinion in which it
maintained that the new disciplinary regime thus introduced infringed those
provisions of EU law. Consequently, that institution invited the Republic of
Poland to take the measures necessary to comply with that reasoned opinion
within two months of its receipt. In its reply of 17 September 2019, that
Member State took the view that the complaints made by the Commission were
unfounded.
29 As
it was not satisfied with that reply, the Commission decided to bring the
present action.
Procedure
before the Court
30 By
separate document, lodged at the Registry of the Court on 25 October 2019,
the Commission, pursuant to Article 133(1) of the Rules of Procedure of
the Court of Justice, requested the Court to determine the present case
pursuant to an expedited procedure. In support of that request, the Commission
claimed that the complaints made by it in its action against the new
disciplinary regime applicable to Polish judges allege systemic breaches of the
safeguards required in order to ensure the independence of those judges. The
need for legal certainty therefore requires the case to be examined within a
short time in order to dispel doubts as to the conformity of that regime with
EU law.
31 Article 133(1)
of the Rules of Procedure states that, at the request of the applicant or
defendant, the President of the Court may, where the nature of the case
requires that it be dealt with within a short time, after hearing the other
party, the Judge-Rapporteur and the Advocate General, decide that a case is to
be determined pursuant to an expedited procedure derogating from the provisions
of those rules.
32 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 case-law of the Court 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 18 May 2021, Asociaţia
‘Forumul Judecătorilor din România’ and Others, C‑83/19, C‑127/19,
C‑195/19, C‑291/19, C‑355/19 and C‑397/19,
EU:C:2021:393 (‘the judgment in Asociaţia “Forumul
Judecătorilor din România” and Others’), paragraph 103 and the
case-law cited).
33 In
the present case, the President of the Court decided, on 26 November 2019,
having heard the Judge-Rapporteur and the Advocate General, that it was
appropriate to reject the Commission’s request as referred to in
paragraph 30 of the present judgment.
34 Indeed,
while the questions raised by the present action, which relate to fundamental
provisions of EU law, are a priori likely to be of the utmost importance for
the proper working of the European Union’s judicial system, to which the
independence of national courts is essential, the sensitive and complex nature
of those questions, which, what is more, arise in the context of wide-ranging
reforms in the field of justice in Poland, did not lend itself easily to the
application of the expedited procedure (see, by analogy, judgment in Asociaţia
‘Forumul Judecătorilor din România’ and Others, paragraph 105 and
the case-law cited).
35 However,
having regard to the subject matter of the action and the nature of the
questions which it raises, the President of the Court, by decision of
26 November 2019, granted the present case priority treatment pursuant to
Article 53(3) of the Rules of Procedure.
36 Furthermore,
by separate document lodged at the Court Registry on 23 January 2020, the
Commission lodged an application for interim measures under Article 279
TFEU and Article 160(2) of the Rules of Procedure, requesting that the
Court order the Republic of Poland, pending the judgment of the Court ruling on
the substance, to:
– suspend
the application of Article 3(5), Article 27 and Article 73 § 1
of the new Law on the Supreme Court, which constitute the basis for the
jurisdiction of the Disciplinary Chamber to rule, both at first instance and at
second instance, in disciplinary cases concerning judges;
– refrain
from referring cases pending before the Disciplinary Chamber to an adjudicating
panel which does not meet the requirements of independence as defined, inter
alia, in the 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 (‘the judgment in A. K.
and Others’)); and
– inform
the Commission, one month after being notified of the order of the Court
granting the interim measures sought at the latest, of all the measures it has
adopted in order to fully comply with that order.
37 By
order of 8 April 2020, Commission v Poland (C‑791/19 R,
EU:C:2020:277), the Court granted that application pending delivery of the
judgment closing the proceedings in the present case.
38 The
Kingdom of Belgium, the Kingdom of Denmark, the Kingdom of the Netherlands, the
Republic of Finland and the Kingdom of Sweden were granted leave to intervene
in the proceedings in support of the form of order sought by the Commission by
decisions of the President of the Court of 11, 19 and 20 February 2020.
39 Following
the written part of the procedure, during which the Republic of Poland filed a
defence and, subsequently, a rejoinder in response to the reply produced by the
Commission, as well as a response to the statements in intervention submitted
by each of the five intervening Member States referred to in the preceding
paragraph, the parties presented oral argument at a hearing on 1 December
2020. The Advocate General delivered his Opinion on 6 May 2021, on which
date the oral part of the procedure was, consequently, closed.
40 By
document lodged at the Court Registry on 10 June 2021, the Republic of Poland
requested that the oral part of the procedure be reopened. In support of that
request, it states, in essence, that it disagrees with the Advocate General’s
Opinion, from which it is allegedly apparent that the circumstances of the
present case have not been sufficiently clarified.
41 In
that regard, it should be borne in mind, first, that the Statute of the Court
of Justice of the European Union and the Rules of Procedure of the Court make
no provision for parties 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).
42 Secondly,
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 conclusion
or by the reasoning which led to that conclusion. Consequently, a party’s
disagreement with the Advocate General’s Opinion, irrespective of the questions
that he or she examines in his or her Opinion, cannot in itself constitute
grounds justifying the reopening of the oral part of the procedure (judgment of
6 March 2018, Achmea, C‑284/16, EU:C:2018:158,
paragraph 27 and the case-law cited).
43 Nevertheless,
the Court may at any time, after hearing the Advocate General, order the
reopening of the oral part of the procedure, in accordance with Article 83
of its Rules of Procedure, in particular if it considers that it lacks
sufficient information.
44 In
the present case, the Court considers, however, after hearing the Advocate
General, that, contrary to the Republic of Poland’s assertions, it has,
following the written part of the procedure and the hearing which was held
before it, all the information necessary to give a ruling. In those
circumstances, it is not necessary to order that the oral part of the procedure
be reopened.
The
action
45 In
support of its action, the Commission puts forward five complaints, the first
four alleging infringements of the second subparagraph of Article 19(1)
TEU, and the fifth alleging infringement of the second and third paragraphs of
Article 267 TFEU.
The first
four complaints, alleging infringement of the second subparagraph of
Article 19(1) TEU
The
applicability and scope of the second subparagraph of Article 19(1) TEU
– Arguments
of the parties
46 The
Commission argues that, contrary to the Republic of Poland’s assertions in its
reply to the reasoned opinion, the second subparagraph of Article 19(1)
TEU is applicable in the present case. That provision requires the Member
States to provide guarantees that national bodies which are capable of ruling,
as ‘courts or tribunals’, within the meaning of EU law, on questions concerning
the application or interpretation of that law, which is the case for the Polish
ordinary courts and the Sąd Najwyższy (Supreme Court), meet
requirements capable of guaranteeing effective judicial protection, including
those relating to the independence and impartiality of those bodies.
47 Those
requirements of independence and impartiality presuppose, in particular, rules
that are such as to dispel any reasonable doubt in the minds of individuals as
to the imperviousness of the bodies concerned to external factors and their
neutrality with respect to the interests before them. In that regard, judicial
independence concerns not only the performance of judicial duties in specific
cases, but also judicial organisation and the question whether the body
concerned offers guarantees which are such as to ensure an ‘appearance of
independence’ capable of maintaining the trust which courts and tribunals must
inspire in a democratic society.
48 To
that end, it is necessary, in particular, as is apparent from the case-law of
the Court, that the disciplinary regime applicable to judges includes essential
guarantees making it possible to avoid any risk of that regime being used as a
system of political control of the content of judicial decisions, which
requires the enactment of rules that define both the forms of conduct
constituting disciplinary offences and the penalties actually applicable, that
provide for the involvement of an independent body in accordance with a
procedure which fully guarantees the rights enshrined in Articles 47 and 48
of the Charter, in particular the rights of the defence, and that guarantee the
possibility of challenging the decisions of disciplinary bodies before a court
or tribunal.
49 In
its defence, the Republic of Poland contends, inter alia, that Articles 47
and 48 of the Charter are not applicable to disciplinary cases concerning
national judges in the absence of a situation where EU law is being implemented
for the purposes of Article 51(1) of the Charter. In particular, it argues
that the second subparagraph of Article 19(1) TEU does not constitute the
source of fundamental rights of the defence or the right to be heard within a
reasonable time. That Member State considers that the disciplinary cases
conducted on the basis of the procedural provisions challenged by the
Commission are of a purely internal nature and that, in defining those
procedures, the Polish authorities have not regulated fields covered by Union
law for the purposes of that provision, read in conjunction with Article 5
TEU and Articles 3 and 4 TFEU.
– Findings
of the Court
50 It
should be recalled at the outset that the European Union is composed of States
which have freely and voluntarily committed themselves to the common values
referred to in Article 2 TEU, which respect those values and which
undertake to promote them. In particular, it follows from Article 2 TEU
that the European Union is founded on values, such as the rule of law, which
are common to the Member States in a society in which, inter alia, justice
prevails. In that regard, it should be noted that mutual trust between the
Member States and, in particular, their courts and tribunals is based on the
fundamental premiss that Member States share a set of common values on which
the European Union is founded, as stated in that article (see, to that effect,
judgments of 24 June 2019, Commission v Poland
(Independence of the Supreme Court), C‑619/18, EU:C:2019:531,
paragraphs 42 and 43 and the case-law cited, and in Asociaţia
‘Forumul Judecătorilor din România’ and Others, paragraph 160 and
the case-law cited).
51 In
addition, compliance by a Member State with the values enshrined in
Article 2 TEU is a condition for the enjoyment of all of the rights
deriving from the application of the Treaties to that Member State. A Member
State cannot, therefore, amend its legislation in such a way as to bring about
a reduction in the protection of the value of the rule of law, a value which is
given concrete expression by, inter alia, Article 19 TEU. The Member
States are thus required to ensure that, in the light of that value, any
regression of their laws on the organisation of justice is prevented, by
refraining from adopting rules which would undermine the independence of judges
(judgments of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311,
paragraphs 63 to 65 and the case-law cited, and in Asociaţia
‘Forumul Judecătorilor din România’ and Others, paragraph 162).
52 As
is 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. The principle of the effective
judicial protection of individuals’ rights under EU law thus 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 (‘ECHR’), and which is now reaffirmed by Article 47
of the Charter (judgment in Asociaţia ‘Forumul Judecătorilor
din România’ and Others, paragraph 190 and the case-law cited).
53 As
regards the material scope of the second subparagraph of Article 19(1)
TEU, that provision moreover 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 (judgments of 24 June
2019, Commission v Poland (Independence of the Supreme
Court), C‑619/18, EU:C:2019:531, paragraph 50 and the case-law
cited, and in Asociaţia ‘Forumul Judecătorilor din România’
and Others, paragraph 192 and the case-law cited).
54 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 2 March 2021, A.B. and
Others (Appointment of judges to the Supreme Court – Actions), C‑824/18,
EU:C:2021:153 (‘the judgment in A.B. and Others’),
paragraph 112 and the case-law cited).
55 It
is common ground that both the Sąd Najwyższy (Supreme Court) –
and the Disciplinary Chamber which is part of that court – and the Polish
ordinary courts may be called upon to rule on questions relating to the
application or interpretation of EU law and that, as ‘courts or tribunals’,
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, so that those courts must meet the requirements of
effective judicial protection (judgments of 24 June 2019, Commission v Poland
(Independence of the Supreme Court), C‑619/18, EU:C:2019:531,
paragraph 56, and of 5 November 2019, Commission v Poland
(Independence of the ordinary courts), C‑192/18, EU:C:2019:924,
paragraph 104).
56 In
that regard, it should be borne in mind that although, as the Republic of
Poland points out, the organisation of justice in the Member States admittedly
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 (judgments of 24 June 2019, Commission v Poland
(Independence of the Supreme Court), C‑619/18, EU:C:2019:531,
paragraph 52 and the case-law cited, and of 5 November 2019, Commission v Poland
(Independence of the ordinary courts), C‑192/18, EU:C:2019:924,
paragraph 102).
57 Since
the second subparagraph of Article 19(1) TEU requires all Member States to
provide remedies sufficient to ensure effective judicial protection in the
fields covered by EU law, within the meaning in particular of Article 47
of the Charter, that latter provision must be duly taken into consideration for
the purpose of interpreting the second subparagraph of Article 19(1) TEU
(judgment of 20 April 2021, Repubblika, C‑896/19,
EU:C:2021:311, paragraph 45 and the case-law cited). To ensure that bodies
which may be called upon to rule on questions concerning the application or
interpretation of EU law are in a position to ensure such effective judicial
protection, 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 in Asociaţia ‘Forumul
Judecătorilor din România’ and Others, paragraph 194 and the
case-law cited).
58 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 20 April 2021, Repubblika, C‑896/19,
EU:C:2021:311, paragraph 51 and the case-law cited).
59 It
is settled case-law of the Court that 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 of 20 April 2021, Repubblika,
C‑896/19, EU:C:2021:311, paragraph 53 and the case-law cited).
60 In
that regard, it is necessary that judges are protected from external
intervention or pressure liable to jeopardise their independence. The rules
applicable to the status of judges and the performance of their duties 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, and thus
preclude a lack of appearance of independence or impartiality on their part
likely to prejudice the trust which justice in a democratic society governed by
the rule of law must inspire in individuals (judgment in Asociaţia
‘Forumul Judecătorilor din România’ and Others, paragraph 197 and
the case-law cited).
61 As
regards specifically the rules governing the disciplinary regime applicable to
judges, the requirement of independence derived from EU law, and, in
particular, from the second subparagraph of Article 19(1) TEU, means that,
in accordance with settled case-law, that regime must provide the necessary
guarantees in order to prevent any risk of its being used as a system of
political control of the content of judicial decisions. Rules which define, in
particular, both forms of conduct amounting to disciplinary offences and the
penalties actually applicable, provide for the involvement of an independent
body in accordance with a procedure which fully safeguards the rights enshrined
in Articles 47 and 48 of the Charter, in particular the rights of the
defence, and lay down the possibility of bringing legal proceedings challenging
the disciplinary bodies’ decisions constitute a set of guarantees that are
essential for safeguarding the independence of the judiciary (judgment in Asociaţia
‘Forumul Judecătorilor din România’ and Others, paragraph 198 and
the case-law cited).
62 Having
regard to the foregoing, the national rules regarding disciplinary proceedings
called into question by the Commission in the first four complaints are
amenable to review in the light of the second subparagraph of
Article 19(1) TEU and it is therefore necessary to examine whether the
infringements of that provision alleged by that institution are established.
The second
complaint
– Arguments
of the parties
63 By
its second complaint, which it is appropriate to examine first, the Commission
claims that there has been an infringement of the second subparagraph of
Article 19(1) TEU, inasmuch as the Disciplinary Chamber which is called
upon to rule, at first instance and at second instance, in disciplinary cases
concerning judges of the Sąd Najwyższy (Supreme Court) and, as the
case may be, either at second instance or both at first instance and at second
instance, in disciplinary cases concerning judges of the ordinary courts, does
not meet the necessary requirements of independence and impartiality.
64 Although,
in general, the intervention of an executive body in the process for appointing
judges is not, in itself, such as to affect the independence or impartiality of
those judges, account must, however, be taken, in the present case, of the fact
that the combination and simultaneous introduction, in Poland, of various
legislative reforms have given rise to a structural breakdown which no longer
makes it possible either to preserve the appearance of independence and
impartiality of justice and the trust which the courts must inspire in a
democratic society or to dispel any reasonable doubt in the minds of
individuals as to the imperviousness of the Disciplinary Chamber to external
factors and its neutrality with respect to the interests before it.
65 That
breakdown stems from various factors, including the fact that the Disciplinary
Chamber, vested in particular with jurisdiction in disciplinary matters in
respect of judges, was created ex nihilo while being granted,
within the Sąd Najwyższy (Supreme Court), a high degree of organisational
and financial autonomy which the other chambers of that court do not enjoy, as
well as the fact that it was provided, without any apparent justification, and
by way of derogation from the general rule applicable, that the posts to be
filled in that new chamber may be filled only by the appointment of new judges
by the President of the Republic, on a proposal from the KRS, and not by a
transfer of judges already serving in other chambers of the Sąd
Najwyższy (Supreme Court).
66 It
is also relevant, in that context, that, just before the appointments of those
new judges to posts in the Disciplinary Chamber were made, the KRS underwent a
comprehensive restructuring, through the shortening of the existing terms of
office of the members of that body, on the basis of new rules governing the
method of designating the 15 members of that body who have the status of
judge, by providing from that point that those members would no longer be
selected by the judges themselves, as was previously the case, but by the Sejm.
As a result of those innovations, 23 of the 25 members of the KRS are thus now
appointed by the legislative or executive authorities or represent those
authorities, which gives rise to the politicisation of that body and,
consequently, to an increase in the influence of those authorities on the
process for appointing judges of the Disciplinary Chamber, as has been pointed
out in particular by both the European Commission for Democracy through Law
(‘the Venice Commission’), in Opinion No 904/2017 of 11 December 2017
(CDL(2017)031), and the Group of States against Corruption (GRECO), in its ad
hoc report on Poland of 23 March 2018.
67 In
its defence, the Republic of Poland contends that both the procedure for
appointing members of the Disciplinary Chamber, which, moreover, is similar to
that in force in other Member States, and the other guarantees enjoyed by those
members once appointed, are such as to ensure the independence of that chamber.
68 The
conditions which candidates applying to perform the duties of judges of the
Sąd Najwyższy (Supreme Court) must satisfy are exhaustively defined
by national law and the procedure for appointing such judges entails, after
publication of a public call for applications, a selection made by the KRS on
the basis of which that body proposes that successful candidates be appointed,
resulting, finally, in the notice of appointment, by the President of the
Republic, who is not required to follow the KRS’s proposal.
69 Moreover,
the new composition of the KRS is hardly different from that prevailing in
respect of the national councils of the judiciary established in certain other
Member States and has contributed to strengthening the democratic legitimacy of
that body and to ensuring improved representativeness of the Polish judiciary
within that body.
70 Lastly,
the independence of judges of the Disciplinary Chamber stems, after their
appointment, from the existence of an elaborate system of safeguards relating
in particular to the indefinite duration of their term of office, their
irremovability, their immunity and their obligation to remain apolitical, as
well as various occupational incompatibilities and a particularly high level of
remuneration. As regards the high degree of administrative, financial and
judicial autonomy enjoyed by the Disciplinary Chamber, it is such as to
strengthen the independence of that body by protecting its members from the
risks associated with organic professional constraints or collegiality when
they are called upon to rule on disciplinary matters in respect of judges of
other chambers of the Sąd Najwyższy (Supreme Court).
71 Moreover,
the independence of the Disciplinary Chamber with respect to the Polish
executive is also reflected in the decisions of that body which reveal, in
particular, that, in respect of 18 appeals brought by the Minister for Justice
against decisions of disciplinary tribunals delivered at first instance in
respect of judges, in seven cases the decisions under appeal were confirmed, in
five cases they were varied by the imposition of more severe disciplinary
penalties, in two cases the Disciplinary Chamber varied exonerating decisions
and imposed disciplinary penalties, in another two cases it varied acquittal
decisions, holding that a crime had been committed but abstaining from imposing
a penalty, in one case the decision was set aside and the disciplinary
proceedings were closed due to the death of the judge concerned, and, in
another case, that chamber varied the decision in question and abstained from
imposing a penalty after reclassifying the offence in question as a minor
disciplinary offence.
72 In
its reply, the Commission argues that the judgment in A. K. and
Others, delivered after the present action was brought, has, in the meantime,
confirmed that the present complaint is well founded.
73 The
same is true of the judgment of 5 December 2019 (III PO 7/18) and the
orders of 15 January 2020 (III PO 8/18 and III PO 9/18), whereby the
Sąd Najwyższy (Izba Pracy i Ubezpieczeń Społecznych)
(Supreme Court (Labour Law and Social Security Chamber), Poland), which was the
referring court in the cases in the main proceedings which gave rise to the
judgment in A. K. and Others, held, on the basis of the
guidance provided by that judgment, that the KRS does not constitute, in its
current formation, an impartial court which is independent from the Polish
legislature and executive, and that the Disciplinary Chamber is not a
‘tribunal’ for the purposes of Article 47 of the Charter, Article 6
ECHR and Article 45(1) of the Constitution. In those decisions, the
Sąd Najwyższy (Supreme Court) points, in addition to the factors
already referred to in paragraph 65 of the present judgment, to the fact
that, first, the Disciplinary Chamber has also been given exclusive
jurisdiction as regards cases relating to judges of the Sąd Najwyższy
(Supreme Court) in the field of labour law, social security and retirement,
that is, matters which previously fell within the jurisdiction of the ordinary
courts, second, the possibilities, during the procedure for appointing the
judges concerned, for an unsuccessful candidate to challenge the resolutions of
the KRS have been considerably restricted following various successive
amendments to the Law on the KRS, third, the persons appointed as judges of the
Disciplinary Chamber have very clear links to the Polish legislature or
executive, and fourth, since its creation, the Disciplinary Chamber has, inter
alia, worked to ensure that the requests for a preliminary ruling submitted to
the Court of Justice in the cases giving rise to the judgment in A. K.
and Others be withdrawn.
74 The
findings thus established in those decisions were subsequently repeated in a
resolution of 23 January 2020, having the effect of a principle of law,
adopted by the Sąd Najwyższy (Supreme Court) in a formation bringing
together the civil, criminal and labour law and social security chambers of
that court.
75 Furthermore,
judges of the Disciplinary Chamber are in a privileged position compared with
judges of the other chambers of the Sąd Najwyższy (Supreme Court). It
is also apparent from the judgment of the Sąd Najwyższy (Supreme
Court) of 5 December 2019 (III PO 7/18) that the workload of the
Disciplinary Chamber is considerably smaller than that imposed on the other
chambers of that court, even though, as the Republic of Poland argued in its
defence, the members of the Disciplinary Chamber receive remuneration exceeding
that of judges of other chambers of the Sąd Najwyższy (Supreme Court)
by approximately 40%.
76 As
regards the safeguards allegedly protecting judges of the Disciplinary Chamber
after their appointment to which the Republic of Poland has made reference, it
is clear from the guidance provided by the judgment in A. K. and
Others that, irrespective of the existence of those safeguards, it
remains necessary to ensure, by means of an overall analysis of the provisions
of national legislation relating to the creation of the body concerned and
relating, in particular, to the powers conferred on it, its composition and the
manner in which the judges called upon to sit in that chamber are appointed,
that those various factors are not such as to give rise to reasonable doubts in
the minds of individuals as to the imperviousness of the judges concerned to
external factors and their neutrality with respect to the interests before
them, once they have been appointed.
77 In
its rejoinder, the Republic of Poland argues that it is apparent from the
Commission’s application that its second complaint concerns a legal assessment
of the provisions of national legislation which are the subject of the present
action and not the establishment of facts. The parameters linked to the
independence of the Disciplinary Chamber which, in accordance with the judgment
in A. K. and Others, had to be examined by the referring court
in the cases in the main proceedings which gave rise to that judgment, bear no
relation to the assessment of the compatibility in the abstract of those
provisions of national legislation with EU law, but fall within the factual
sphere. Thus, the decisions delivered by the Sąd Najwyższy (Supreme
Court) following the judgment in A. K. and Others are
irrelevant for the purpose of assessing the alleged failure to fulfil
obligations by that Member State in the context of the present action. For its
part, the resolution of the Sąd Najwyższy (Supreme Court) of
23 January 2020 did not concern the jurisdiction of the Disciplinary
Chamber and that resolution was, moreover, declared unconstitutional by the
Trybunał Konstytucyjny (Constitutional Court, Poland) in a judgment of
20 April 2020.
78 Lastly,
the Republic of Poland produces, as an annex to its rejoinder, some 2 300
pages in total of documentation offering a full overview of the decisions of
the Disciplinary Chamber which, in its view, support that Member State’s
conviction that that body is acting with complete impartiality and
independence. It is apparent, moreover, from a comparative overview of the
decisions delivered in the disciplinary proceedings brought on appeal by the
Minister for Justice in 2017, 2018 and 2019, also annexed to that pleading,
that, whereas, in 2017 and 2018, the Criminal Chamber of the Supreme Court
upheld 6 out of 14 appeals brought by the Minister for Justice, the
Disciplinary Chamber, in 2018 and 2019, upheld 17 out of 44 such appeals, which
shows equivalent proportions.
79 The
Kingdom of Belgium, the Kingdom of Denmark, the Kingdom of the Netherlands, the
Republic of Finland and the Kingdom of Sweden consider, for their part, that it
follows in particular from the guidance in the judgment in A. K.
and Others that the Disciplinary Chamber does not meet the
requirements of impartiality and independence derived from EU law. According to
the Kingdom of Belgium, that conclusion may, in addition, be based on various
instruments adopted in the context of international bodies, such as the
European Charter on the Statute for Judges and Opinion No 977/2019 of
16 January 2020 of the Venice Commission concerning the amendments made on
20 December 2019 to, inter alia, the Law on the ordinary courts and the
new Law on the Supreme Court.
– Findings
of the Court
80 As
can be seen from the case-law of the Court referred to in paragraph 61 of
the present judgment, it is for every Member State, under the second
subparagraph of Article 19(1) TEU, to ensure that the disciplinary regime
applicable to judges of the national courts which come within their judicial
systems in the fields covered by EU law observe the principle of the
independence of judges, inter alia by guaranteeing that decisions issued in the
context of disciplinary proceedings initiated in respect of judges of those
courts are reviewed by a body which itself meets the requirements inherent in
effective judicial protection, including the requirement of independence (order
of 8 April 2020, Commission v Poland, C‑791/19 R,
EU:C:2020:277, paragraph 35).
81 It
follows from Article 27 § 1, Article 73 § 1 and Article 97 § 3
of the new Law on the Supreme Court and from Article 110 § 1 of the Law on
the ordinary courts that disciplinary decisions that may be adopted in respect
of Polish judges now fall within the jurisdiction of the Disciplinary Chamber,
established under the new Law on the Supreme Court. That chamber is to rule, at
first instance and at second instance, in disciplinary cases concerning judges
of the Sąd Najwyższy (Supreme Court) and, depending on the case, either
at second instance or both at first instance and at second instance, in
disciplinary cases concerning judges of the ordinary courts. It thus follows
from the principles referred to in the preceding paragraph that, under EU law
and, in particular, the second subparagraph of Article 19(1) TEU, a body
such as the Disciplinary Chamber must offer all the necessary guarantees as
regards its independence and impartiality.
82 As
the Court has already explained in that regard, the mere prospect, for judges
of the Sąd Najwyższy (Supreme Court) and of the ordinary courts, of
running the risk of disciplinary proceedings which could lead to the bringing
of proceedings before a body whose independence is not guaranteed is likely to
affect their own independence (order of 8 April 2020, Commission v Poland,
C‑791/19 R, EU:C:2020:277, paragraph 90).
83 It
is important, in particular, to take into account, in that regard, the fact
that disciplinary measures may entail serious consequences for the lives and
careers of the members of the judiciary who are penalised. As the European
Court of Human Rights has also pointed out, the judicial review carried out
must thus be appropriate to the disciplinary nature of the decisions in
question. When a State initiates such disciplinary proceedings, public
confidence in the functioning and independence of the judiciary is at stake; in
a democratic State, this confidence guarantees the very existence of the rule of
law (see, to that effect, ECtHR, 6 November 2018, Ramos Nunes de
Carvalho e Sá v. Portugal, CE:ECHR:2018:1106JUD005539113, § 196, and ECtHR,
9 March 2021, Eminağaoğlu v. Turkey,
CE:ECHR:2021:0309JUD007652112, § 97).
84 By
its second complaint, the Commission submits, in essence, that, in the light of
the particular context in which the Disciplinary Chamber was created, certain
characteristics of that chamber, and the process leading to the appointment of
the judges called upon to sit in that chamber, that body does not meet the
requirements of independence and impartiality thus required under the second
subparagraph of Article 19(1) TEU.
85 In
that regard, it should be recalled at the outset that, as has been emphasised
by the Commission and the interveners, in its judgment in A. K.
and Others, the Court has already been called upon to examine a request for
a preliminary ruling from the Sąd Najwyższy (Izba Pracy i
Ubezpieczeń Społecznych) (Supreme Court (Labour Law and Social
Security Chamber)) concerning, inter alia, the question whether EU law must be
interpreted as meaning that a body such as the Disciplinary Chamber meets the
requirements of independence and impartiality as referred to in, inter alia,
Article 47 of the Charter.
86 As
is apparent from the operative part of the judgment in A. K. and
Others, the Court has ruled, in that regard, that a body does not
constitute an independent and impartial tribunal, within the meaning of that
provision, where the objective circumstances in which that body was created,
the characteristics of that body, and the way in which its members have been
appointed are capable of giving rise to reasonable doubts in the minds of
individuals as to the imperviousness of that body to external factors, in particular,
as to the direct or indirect influence of the legislature and the executive,
and its neutrality with respect to the interests before it. Such doubts may
thus lead to that body’s not being seen to be independent or impartial, which
is likely to prejudice the trust which justice in a democratic society must
inspire in those individuals.
87 As
is apparent from paragraphs 52 and 57 of the present judgment,
Article 47 of the Charter must be duly taken into consideration for the
purpose of interpreting the second subparagraph of Article 19(1) TEU.
88 For
the purpose of determining whether the Disciplinary Chamber fulfils the
criteria of independence and impartiality thus required under EU law, as the
body responsible for reviewing decisions issued in the context of disciplinary
proceedings initiated in respect of judges who may be called upon to rule on
the interpretation and application of EU law, it should be recalled at the
outset that, as has been argued by the Commission, the creation of that chamber,
by the new Law on the Supreme Court, took place in the wider context of major
reforms concerning the organisation of the judiciary in Poland; those reforms
include, in particular, the reforms resulting from the adoption of the new Law
on the Supreme Court and the respective amendments made to the Law on the
ordinary courts and the Law on the KRS.
89 In
that context, it is important, in the first place, to note that, as has been
argued by the Commission, the Disciplinary Chamber thus created ex nihilo has
been specifically granted, in accordance with Article 27, Article 73
§ 1, and Article 97 § 3 of the new Law on the Supreme Court, as well as
Article 110 § 1 of the Law on the ordinary courts, exclusive jurisdiction
to hear both disciplinary cases and labour law and social security and
retirement cases concerning judges of the Sąd Najwyższy (Supreme
Court), as well as jurisdiction to hear, as appropriate, either at second
instance, or both at first instance and at second instance, disciplinary cases
concerning judges of the ordinary courts.
90 It
should be borne in mind, in particular, that, as the Court has already pointed
out in paragraphs 148 and 149 of the judgment in A. K. and
Others, as regards, in particular, cases relating to the retiring of judges
of the Sąd Najwyższy (Supreme Court), the assigning to the
Disciplinary Chamber of jurisdiction to hear those cases took place alongside
the adoption of the provisions of the new Law on the Supreme Court which
lowered the retirement age of judges of the Sąd Najwyższy (Supreme
Court), applied that measure to judges currently serving in that court and
conferred on the President of the Republic the discretionary power to extend
the performance of active judicial duties by those judges beyond the new
retirement age set by that law. In that regard, the Court held, in its judgment
of 24 June 2019, Commission v Poland
(Independence of the Supreme Court) (C‑619/18, EU:C:2019:531),
that, by adopting those provisions of national legislation, the Republic of
Poland had undermined the irremovability and independence of judges of the
Sąd Najwyższy (Supreme Court) and failed to fulfil its obligations
under the second subparagraph of Article 19(1) TEU.
91 In
the second place, it should be noted that, as has been argued by the Commission
and as the Court also noted in paragraph 151 of the judgment in A. K.
and Others, it is apparent from the mechanism put in place by the new Law
on the Supreme Court, and in particular from Articles 6, 7 and 20 of that
law, that, although formally established as a chamber of the Sąd
Najwyższy (Supreme Court), the Disciplinary Chamber enjoys, within that
court, a particularly high degree of organisational, functional and financial
autonomy in comparison with the other chambers of that court.
92 In
that regard, the argument put forward by the Republic of Poland that, in the
present case, it is merely a matter of strengthening the independence of judges
of the Disciplinary Chamber by protecting them from the risks associated with
organic professional constraints or collegiality cannot succeed, since, in
particular, the judges who make up the Disciplinary Chamber are themselves
capable of being parties to disputes of a disciplinary nature or relating to
issues of labour law, social security or retirement, and the Polish legislature
has not considered it necessary to entrust another chamber of the Sąd
Najwyższy (Supreme Court) with jurisdiction to hear such disputes.
93 In
the third place, as regards the fact that the judges who make up the
Disciplinary Chamber are entitled to remuneration which exceeds that enjoyed by
judges assigned to the other chambers of the Sąd Najwyższy (Supreme
Court) by approximately 40%, it should be noted that, according to the explanations
provided by the Republic of Poland in its written pleadings and at the hearing,
that significant additional remuneration is exclusively justified by the
existence of a rule of incompatibility specifically applicable to judges of the
Disciplinary Chamber and preventing them from performing academic duties.
However, according to those same explanations, the persons concerned remain
free, notwithstanding that incompatibility regime, to opt for such academic
duties provided that (i) those duties are not contrary to the dignity of the
status of judge and (ii) in that case, those persons waive that additional
remuneration. It must be stated that such explanations do not, in particular,
make it possible to understand the objective reasons why the judges assigned to
the other chambers of the Sąd Najwyższy (Supreme Court) could not
also have that same power to choose between, on the one hand, the pursuit of
academic activities and, on the other, the receipt of such a significant uplift
in remuneration.
94 In
the fourth place, it is necessary to emphasise the fact, relied on by the
Commission and already noted by the Court in paragraph 150 of the judgment
in A. K. and Others, that, under Article 131 of the new
Law on the Supreme Court, the Disciplinary Chamber thus invested with the
powers referred to in paragraph 89 of the present judgment was required,
when it was initially established, to be made up solely of new judges appointed
by the President of the Republic, on a proposal from the KRS, thereby excluding
any possibility of transferring to that chamber judges already serving within
the Sąd Najwyższy (Supreme Court), even though such transfers of
judges from one chamber of the Sąd Najwyższy (Supreme Court) to
another are, in principle, permitted under that same law. Moreover, before
those appointments were made, the KRS underwent a comprehensive restructuring.
95 As
is apparent from the settled case-law referred to in paragraph 59 of the
present judgment, the guarantees necessary to ensure the independence and impartiality
of judges required under EU law presuppose, inter alia, rules governing the
appointment of judges (see, to that effect, judgment in A.B. and Others,
paragraphs 117 and 121). Similarly, it follows from the case-law of the
Court referred to in paragraph 56 of the present judgment that, when
exercising their competence, in particular that relating to the enactment of
national rules governing the process for appointing judges, 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 (see, to
that effect, judgments in A.B. and Others, paragraphs 68 and
79, and of 20 April 2021, Repubblika, C‑896/19,
EU:C:2021:311, paragraph 48).
96 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 of 20 April 2021, Repubblika, C‑896/19,
EU:C:2021:311, paragraph 54 and the case-law cited).
97 Concerning,
more specifically, the circumstances in which decisions to appoint judges of
the Sąd Najwyższy (Supreme Court) and, in particular, of the
Disciplinary Chamber, are made, it is true that the Court has already had
occasion to state that the mere fact that the judges concerned are appointed by
the President of a Member State 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 of 20 April 2021, Repubblika,
C‑896/19, EU:C:2021:311, paragraph 56 and the case-law cited).
98 However,
the Court has 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 their neutrality with respect to the interests before them, once
they have been appointed as judges, and that it is important, inter alia, in
that perspective, that those conditions and procedural rules should 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 (see, to that effect, judgment
of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311,
paragraphs 55 and 57 and the case-law cited).
99 Having
noted that, under Article 179 of the Constitution, the judges of the
Sąd Najwyższy (Supreme Court) are to be appointed by the President of
the Republic on a proposal from the KRS, namely the body entrusted under
Article 186 of the Constitution with the task of safeguarding the
independence of courts and judges, the Court stated, in paragraph 137 of
the judgment in A. K. and Others and paragraph 124
of the judgment in A.B. 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.
100 In
paragraph 138 of the judgment in A. K. and Others and
paragraph 125 of the judgment in A.B. and Others, the Court
stated, however, that this is not the case unless, inter alia, that body is itself
sufficiently independent of the legislature and the executive and of the
authority to which it is required to deliver such an appointment proposal.
101 In that
regard, it should be noted that, under Article 179 of the Constitution,
the act by which the KRS puts forward a candidate for appointment to a judge’s
post at the Sąd Najwyższy (Supreme Court) is an essential condition
for that candidate to be appointed to such a post by the President of the
Republic. The role of the KRS in that appointment process is therefore decisive
(see, to that effect, the judgment in A.B. and Others,
paragraph 126).
102 In such
a context, the degree of independence enjoyed by the KRS in respect of the
Polish legislature and executive in performing the tasks thus entrusted to it
may become relevant when ascertaining whether the judges which it selects will
themselves be capable of meeting the requirements of independence and
impartiality derived from EU law (see, to that effect, judgments in A. K.
and Others, paragraph 139, and A.B. and Others,
paragraph 127).
103 It is
true that, as has been argued by the Republic of Poland, the Court has
previously held that the fact that a body, such as a national council of the
judiciary, which is involved in the process for appointing judges is, for the
most part, made up of members chosen by the legislature cannot, in itself, give
rise to any doubt as to the independence of the judges appointed at the end of
that process (see, to that effect, judgment of 9 July 2020, Land
Hessen, C‑272/19, EU:C:2020:535, paragraphs 55 and 56). However,
it is also apparent from the case-law of the Court and, more specifically, from
the judgments in A. K. and Others and A.B. and
Others, that the situation may be different where that fact, combined with
other relevant factors and the conditions under which those choices were made,
leads to such doubts being raised.
104 In that
regard, it should be noted, first, that, as has been argued by the Commission,
whereas the 15 members of the KRS selected from among the judges were
previously selected by their peers, the Law on the KRS has recently been
amended, so that, as is apparent from Article 9a of that law, those 15
members are now appointed by a branch of the Polish legislature, with the
result that 23 of the 25 members of the KRS in that new composition have been
appointed by the Polish executive or legislature or are members thereof. Such
changes are liable to create a risk, hitherto absent from the selection procedure
previously in force, of the legislature and the executive having a greater
influence over the KRS and of the independence of that body being undermined.
105 Secondly,
as has also been emphasised by the Commission, it is apparent from
Article 6 of the Law of 8 December 2017 reproduced in
paragraph 26 of the present judgment that the thus newly constituted KRS
was established through the shortening of the existing four-year term of office,
provided for in Article 187(3) of the Constitution, of the members which
had, until that point, made up that body.
106 Thirdly,
it is important to point out that the legislative reform which thus governed
the process whereby the KRS was established in that new composition took place
at the same time as the adoption of the new Law on the Supreme Court which
carried out a wide-ranging reform of the Sąd Najwyższy (Supreme
Court) including, in particular, the creation, within that court, of two new
chambers, one being the Disciplinary Chamber, and the introduction of the
mechanism, since held to be contrary to the second subparagraph of
Article 19(1) TEU and which has already been discussed in
paragraph 90 of the present judgment, providing for a lowering of the
retirement age for judges of the Sąd Najwyższy (Supreme Court) and
the application of that measure to serving judges of that court.
107 It is,
accordingly, common ground that the premature termination of the terms of
office of certain then-serving members of the KRS and the reorganisation of the
KRS in its new composition took place in a context in which it was expected
that numerous posts would be soon be vacant within the Sąd Najwyższy
(Supreme Court), and in particular within the Disciplinary Chamber, as the
Court of Justice has already emphasised, in essence, in paragraphs 22 to
27 of the order of 17 December 2018, Commission v Poland (C‑619/18 R,
EU:C:2018:1021), in paragraph 86 of the judgment of 24 June
2019, Commission v Poland (Independence of the Supreme
Court) (C‑619/18, EU:C:2019:531), and in paragraph 134 of
the judgment in A.B. and Others.
108 It must
be held that the factors highlighted in paragraphs 104 to 107 of the
present judgment are such as to give rise to legitimate doubts as to the
independence of the KRS and its role in an appointment process such as that
resulting in the appointment of the members of the Disciplinary Chamber.
109 Furthermore,
it is apparent from paragraphs 89 to 94 of the present judgment, first,
that that appointment process applies to candidates for the post of member of a
newly created judicial chamber created to give rulings, inter alia, in
disciplinary proceedings concerning national judges and on issues relating to
the reform of the provisions relating to the Sąd Najwyższy (Supreme
Court), certain aspects of which have already led to a finding of a failure to
fulfil obligations under the second subparagraph of Article 19(1) TEU on
the part of the Republic of Poland, and, second, that that body is required to
be made up exclusively of new judges who are not already sitting within the
Sąd Najwyższy (Supreme Court) and who will receive a significantly
higher level of remuneration, and has a particularly high degree of
organisational, functional and financial autonomy in comparison with the
conditions prevailing in the other judicial chambers of the Sąd
Najwyższy (Supreme Court).
110 Those
factors, taken in the context of an overall analysis including the important
role played by the KRS – a body whose independence from the political
authorities is questionable, as is apparent from paragraph 108 of the
present judgment – in appointing members of the Disciplinary Chamber, are
such as to give rise to reasonable doubts in the minds of individuals as to the
independence and impartiality of that Disciplinary Chamber.
111 Regarding
the data relating to the case-law of the Disciplinary Chamber referred to in
paragraphs 71 and 78 of the present judgment, it is sufficient to note, in
that regard, that, besides the fact that the statistics discussed in
paragraph 71 seem rather to attest to the fact that the Disciplinary
Chamber has, in the majority of cases in which it has heard an appeal brought
by the Minister for Justice against a decision issued by a disciplinary court
of first instance, maintained or increased the disciplinary liability of the
judges concerned, the Commission’s second complaint does not, in any event, as
has been emphasised by that institution, concern the specific judicial activity
carried out by the Disciplinary Chamber and by the judges making up that
chamber, but rather concerns the fact that that chamber is not seen to be
independent and impartial for the purposes of the case-law referred to in
paragraph 86 of the present judgment. Consequently, neither the statistics
referred to by the Republic of Poland in its defence and rejoinder nor, more
generally, the 2 300 or so pages of decisions attributed to the
Disciplinary Chamber produced by the Republic of Poland in support of its rejoinder,
merely stating, in a general manner, that those decisions are not such as to
cast doubt on the independence and impartiality of that body, are capable of
calling into question the merits of the present complaint.
112 Having
regard to all the considerations set out in paragraphs 89 to 110 of the
present judgment, it must be held that, taken together, the particular context
and objective circumstances in which the Disciplinary Chamber was created, the
characteristics of that chamber, and the way in which its members were
appointed are such as to give rise to reasonable doubts in the minds of
individuals as to the imperviousness of that body to external factors, in
particular the direct or indirect influence of the Polish legislature and
executive, and its neutrality with respect to the interests before it and,
thus, are likely to lead to that body’s not being seen to be independent or
impartial, which is likely to prejudice the trust which justice in a democratic
society governed by the rule of law must inspire in those individuals. Such a
development constitutes a reduction in the protection of the value of the rule
of law for the purposes of the case-law of the Court referred to in
paragraph 51 of the present judgment.
113 It
follows, inter alia, that, by failing to guarantee the independence and
impartiality of the Disciplinary Chamber which is called upon to rule, at first
instance and at second instance, in disciplinary cases concerning judges of the
Sąd Najwyższy (Supreme Court) and, depending on the case, either at
second instance or both at first instance and at second instance, in
disciplinary cases concerning judges of the ordinary courts and by thereby
undermining the independence of those judges at, what is more, the cost of a
reduction in the protection of the value of the rule of law in that Member
State for the purposes of the case-law of the Court referred to in
paragraph 51 of the present judgment, the Republic of Poland has failed to
fulfil its obligations under the second subparagraph of Article 19(1) TEU.
114 Accordingly,
the second complaint must be upheld.
The first
complaint
– Arguments
of the parties
115 By its
first complaint, which it is appropriate to examine second, the Commission
submits that Article 107 § 1 of the Law on the ordinary courts and
Article 97 §§ 1 and 3 of the new Law on the Supreme Court infringe the
second subparagraph of Article 19(1) TEU, inasmuch as those provisions of
national legislation allow, in breach of the principle of judicial independence,
the disciplinary liability of judges of the Polish ordinary courts to be put in
issue on account of the content of their judicial decisions and thus allow the
disciplinary regime applicable to those judges to be used as a means of
exerting political control over their judicial activity.
116 First,
Article 107 § 1 of the Law on the ordinary courts defines a disciplinary
offence as encompassing, inter alia, cases of ‘obvious and gross violations of
the law’. Such wording permits an interpretation according to which the
disciplinary liability of judges extends to the performance, by those judges,
of their adjudicating duties.
117 This is,
moreover, confirmed by the interpretative practice recently developed by the
Disciplinary Officer responsible for cases concerning judges sitting in the
ordinary courts and that officer’s deputies (together, ‘the Disciplinary
Officer’). The Disciplinary Officer opened investigations in respect of three
judges in relation to the requests for a preliminary ruling which those judges
had submitted to the Court of Justice in the cases giving rise to the judgment
of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18
and C‑563/18, EU:C:2020:234), and to the order of 6 October
2020, Prokuratura Rejonowa w Słubicach (C‑623/18,
not published, EU:C:2020:800), and, by letters of 29 November 2018,
ordered each of those judges to file a written statement concerning a possible
exceeding of jurisdiction relating to those requests, before explaining, in
that regard, in a letter of 4 January 2019, that it ‘considered it [its]
duty to examine whether the referring of questions for a preliminary ruling, in
breach of the conditions clearly set out in Article 267 TFEU …
[could] constitute a disciplinary offence’.
118 Similarly,
after the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland),
in Joined Cases C‑748/19 to C‑754/19, submitted requests for a
preliminary ruling to the Court of Justice concerning the requirements to be
met regarding the independence of the panel on which a judge seconded to that
court on a decision of the Minister for Justice is sitting, the Disciplinary
Officer stated, by communication of 3 September 2019, that measures of
inquiry had been taken in order to determine whether the conduct of the judge
chairing that panel, who had made those requests, could constitute a
disciplinary offence.
119 Secondly,
Article 97 §§ 1 and 3 of the new Law on the Supreme Court authorises the
Sąd Najwyższy (Supreme Court), including the Extraordinary Review and
Public Affairs Chamber of that court when it is hearing an extraordinary
appeal, to issue a ‘finding of error’ to the court concerned in the event of an
‘obvious violation of the law’, and to submit, in that case, a request to the
Disciplinary Chamber for a disciplinary examination in respect of the judges
concerned, in accordance with Article 110 §1(1)(b) of the Law on the
ordinary courts. The concept of ‘obvious violation of the law’ in turn permits
an interpretation according to which the disciplinary liability of judges
extends to the performance, by those judges, of their adjudicating duties.
120 In its
defence, the Republic of Poland contends that the definition of disciplinary
offence contained in Article 107 § 1 of the Law on the ordinary courts is
not such as to allow political control of the content of judicial decisions. In
that regard, it argues that the Commission failed to take account of the
well-established restrictive interpretation of that provision by the Sąd
Najwyższy (Supreme Court). It follows from the settled case-law of that
court that a disciplinary offence cannot be the result of a common error in the
interpretation or application of the law stemming from a judicial decision, but
solely of ‘obvious and gross’ violations of the law, namely, in principle,
infringements of procedural rules not directly related to the decision itself,
which may be detected immediately by anyone and which have produced significant
negative effects detrimental to the interests of the parties, to other individuals
or to the administration of justice.
121 According
to the Republic of Poland, the classification of such forms of conduct, where
they arise from bad faith or deep ignorance on the part of a judge, as
disciplinary offences is justified in order to ensure effective judicial
protection for individuals and to preserve the image of fairness inherent in
the judiciary. Being limited to such cases, the prospect of possible
disciplinary proceedings would not be likely to affect the independence of the
judiciary.
122 In those
circumstances, the mere fear that the provision of national legislation at
issue might be given a different interpretation from that thus consistently
used by the Sąd Najwyższy (Supreme Court) is disconnected from
reality and purely hypothetical. The Disciplinary Officer is merely an
investigating and prosecuting body whose assessments are not binding on
disciplinary courts.
123 According
to the Republic of Poland, the same considerations must apply as regards
Article 97 §§ 1 and 3 of the new Law on the Supreme Court.
124 In its
reply, the Commission claims that the arguments put forward by the Republic of
Poland are not such as to call into question the conclusion that the concepts
referred to in paragraphs 116 and 119 of the present judgment may be
interpreted as referring to the content of judicial decisions, to which,
moreover, the disciplinary proceedings initiated after the present action was
brought continue to attest.
125 Thus, on
6 December 2019, the Disciplinary Officer initiated such proceedings in
respect of the judge referred to in paragraph 118 of the present judgment,
indicating, in a communication, that, in its view, that judge, ‘going beyond
the deliberations of the adjudicating panel, set out her personal position regarding
the existence of additional grounds for adjourning the hearing and publicly
challenged that panel, which had been established in accordance with the
legislation in force in order to hear that case, calling into question the
impartiality and independence of the judge concerned, a member of the panel,
denying him the right to sit on that panel’ and that she had, in addition,
‘exceeded her powers by adopting, when adjourning the appeal trial, unlawfully
and without consulting the other two duly appointed members of the panel, the
order for reference’.
126 For its
part, the Disciplinary Chamber, a body on which the interpretation of the
concepts referred to in paragraphs 116 and 119 of the present judgment is
now entirely dependent, has, as is apparent from a decision of 4 February
2020 (II DO 1/20) produced by the Commission, suspended a judge of the Sąd
Rejonowy w Olsztynie (District Court, Olsztyn, Poland) in respect of whom
disciplinary proceedings had been initiated from office, on the ground, inter
alia and as can be seen from a communication published on 29 November 2019
by the Disciplinary Officer, that, when examining an appeal, the actions of
that judge ‘had led to the adoption of a decision with no legal basis’ ordering
the Sejm to produce the lists of citizens and judges who had supported
applications for the posts of members of the KRS in its new composition.
127 In the
grounds of that decision, the Disciplinary Chamber held, inter alia, that, ‘if,
having regard to the type of act committed by the judge, the authority of the
court or the essential interests of the service require that he be relieved
immediately of his service obligations, the president of the court or Minister
for Justice may immediately suspend the judge’s activities pending the
disciplinary court’s decision taken within a period of less than one month. Two
of the above conditions (the authority of the court and the essential interests
of the service) apply in the present case in relation to the conduct of the
judge being in the form of an obvious and gross violation of the law
compromising the dignity of his office within the meaning of Article 107 §
1 of the [Law on the ordinary courts]’. In the same decision, the Disciplinary
Chamber also stated that ‘there is no doubt as to the unlawfulness of the
judicial decision. The judgment of the Court of Justice of the European Union
does not provide a basis for encroaching on the prerogatives of the Head of
State and for the taking of a decision, by judges, on who is and is not a
judge’.
128 Lastly,
alluding to the disciplinary proceedings referred to in paragraphs 125 and
126 of the present judgment, as well as other disciplinary proceedings
initiated in respect of judges because they had cast doubt on the validity of
the appointment of certain judges discussed in two communications of the
Disciplinary Officer dated 15 December 2019 and 14 February 2020
produced by the Commission, the Sąd Najwyższy (Supreme Court)
referred, in its resolution of 23 January 2020, referred to in
paragraph 74 of the present judgment, to the ‘fact that a political body,
such as the Minister for Justice, is carrying out, through Disciplinary
Officers appointed by him, repressive actions against judges performing
judicial duties and aiming to clarify doubts as to the way in which selection
procedures for recruiting judges are organised’.
129 In its
rejoinder, the Republic of Poland argues that the decisions of the Disciplinary
Officer and the decision of the Disciplinary Chamber referred to by the
Commission in its reply are irrelevant because the Commission’s complaint
concerns the compatibility in the abstract of legal definitions of the
disciplinary offence with the second subparagraph of Article 19(1) TEU,
and not an infringement of EU law resulting from specific actions of State
bodies. Furthermore, the judgment of the Court should relate to the situation
prevailing at the end of the period laid down in the reasoned opinion. Lastly,
the decision referred to in paragraph 125 of the present judgment concerns
the fact that a judge has exceeded her powers by deciding alone to make orders
for reference in cases which should be decided by three judges, while the
decision of the Disciplinary Chamber relates to proceedings not based on an
obvious and gross violation of the law but on a suspected misuse of powers
compromising the dignity of the office and is, moreover, an interim measure.
130 All the
Member States intervening in support of the form of order sought by the
Commission consider that the provisions of national legislation criticised in
the present complaint are capable of having a deterrent effect on the judges of
the ordinary courts in the performance of their judicial duties and that they
thus undermine the requirement, derived from the second subparagraph of
Article 19(1) TEU, that those judges be independent.
131 The
Kingdom of Denmark takes the view that, although Article 107 § 1 of the
Law on the ordinary courts is not contrary to the principle of judicial
independence on the basis of its wording alone, the vague wording of that
provision nonetheless confers a broad discretion on the disciplinary authority
for the purpose of establishing a disciplinary offence. Taken together with the
problematic composition of the bodies responsible for its application, and in
particular of the Disciplinary Chamber, as well as the way in which it is
interpreted and applied in practice, that provision of national legislation
creates a risk that the disciplinary regime might be used as a means of
exerting pressure on judges and politically controlling the content of judicial
decisions. The same is true of the definition of the offence contained in
Article 97 § 1 of the new Law on the Supreme Court, particularly in view
of the fact, which is difficult for the Kingdom of Denmark to understand, that
the Extraordinary Review and Public Affairs Chamber has the power to initiate,
of its own motion, disciplinary proceedings on the basis of errors in the
content of the decisions which it examines.
132 For its
part, the Republic of Finland argues that it is apparent from various
independent and reliable sources such as the evidence referred to in the
judgment of 26 March 2020, Miasto Łowicz and Prokurator
Generalny (C‑558/18 and C‑563/18, EU:C:2020:234), that use
has in fact been made of the possibility of initiating disciplinary proceedings
in respect of judges because of the content of their judicial decisions.
133 In its
response to the statements in intervention, the Republic of Poland contends
that the definitions of disciplinary offences contained in the legislation of
various Member States are no less broad than that contained in Article 107
§ 1 of the Law on the ordinary courts. References to general concepts are both
frequent and inevitable in this area and a negative assessment of the
provisions concerned cannot be carried out without taking account of their
content, purpose and practical application by national disciplinary courts.
– Findings
of the Court
134 As is
apparent from paragraph 61 of the present judgment, the requirement of
independence and impartiality derived from, inter alia, the second subparagraph
of Article 19(1) TEU which must be met by national courts or tribunals
who, like the Polish ordinary courts, may be called upon to interpret and apply
EU law, requires, in order to avoid any risk of the disciplinary regime
applicable to those whose task is to adjudicate being used as a system of political
control of the content of judicial decisions, that such a regime include, in
particular, rules defining the forms of conduct which constitute a disciplinary
offence.
135 By its
first complaint, the Commission submits that, in defining the forms of conduct
constituting a disciplinary offence on the part of judges of the ordinary
courts as covering, respectively, any ‘obvious and gross violations of the law’
and any ‘error’ entailing an ‘obvious violation of the law’, Article 107 §
1 of the Law on the ordinary courts and Article 97 §§ 1 and 3 of the new
Law on the Supreme Court permit such political control, as is evidenced,
moreover, by the various specific cases where those provisions have been
applied that have been referred to by that institution.
136 In that
regard, it should be noted at the outset that it is true that the disciplinary
regime applicable to judges falls within the organisation of justice and,
therefore, within the Member States’ competence, and that, in particular, the
possibility that a Member State’s authorities may put in issue the disciplinary
liability of judges can, inter alia, depending on the Member States’ choice, be
a factor which contributes to the accountability and effectiveness of the
judicial system. However, as can be seen from paragraphs 56, 57 and 61 of
the present judgment, in exercising that competence, the Member States must
comply with EU law, by safeguarding, inter alia, the independence of the courts
called upon to rule on questions concerning the application or interpretation
of EU law, in order to ensure the effective judicial protection of individuals
required by the second subparagraph of Article 19(1) TEU (see, by analogy,
judgment in Asociaţia ‘Forumul Judecătorilor din România’ and
Others, paragraphs 229 and 230).
137 In that
context, the safeguarding of that independence cannot, in particular, have the
effect of totally excluding the possibility that the disciplinary liability of
a judge may, in certain very exceptional cases, be triggered as a result of
judicial decisions adopted by that judge. Such a requirement of independence is
clearly not intended to support any serious and totally inexcusable forms of
conduct on the part of judges, which would consist, for example, in violating
deliberately and in bad faith, or as a result of particularly serious and gross
negligence, the national and EU law with which they are supposed to ensure
compliance, or acting arbitrarily or denying justice when they are called upon,
as guardians of the duty of adjudicating, to rule in disputes which are brought
before them by individuals.
138 On the
other hand, it appears essential, in order to preserve that independence and to
prevent the disciplinary regime from being diverted from its legitimate
purposes and being used to exert political control over judicial decisions or
pressure on judges, that the fact that a judicial decision contains a possible
error in the interpretation and application of national and EU law, or in the
assessment of the facts and the appraisal of the evidence, cannot in itself
trigger the disciplinary liability of the judge concerned (see, by analogy,
judgment in Asociaţia ‘Forumul Judecătorilor din România’ and
Others, paragraph 234).
139 Consequently,
it is important that the putting in issue of the disciplinary liability of a
judge as a result of a judicial decision should be limited to entirely
exceptional cases such as those referred to in paragraph 137 of the
present judgment and be governed, in that regard, by objective and verifiable
criteria, arising from requirements relating to the sound administration of
justice, and also by guarantees designed to avoid any risk of external pressure
on the content of judicial decisions and thus helping to dispel, in the minds
of individuals, any reasonable doubts as to the imperviousness of the judges
concerned and their neutrality with respect to the interests before them (see,
by analogy, judgment in Asociaţia ‘Forumul Judecătorilor din
România’ and Others, paragraph 233).
140 To that
end, it is essential that, inter alia, rules should be laid down which define,
in a manner that is sufficiently clear and precise, the forms of conduct which
may trigger the disciplinary liability of judges, in order to guarantee the
independence inherent in their task and to avoid exposing them to the risk that
their disciplinary liability may be triggered solely because of the decisions
taken by them (see, by analogy, judgment in Asociaţia ‘Forumul
Judecătorilor din România’ and Others, paragraph 234).
141 In the
present case, it should be noted that, having regard to their wording alone,
Article 107 § 1 of the Law on the ordinary courts and Article 97 §§ 1
and 3 of the new Law on the Supreme Court do not meet the requirements of
clarity and precision set out in paragraph 140 of the present judgment. It
must be pointed out that the expressions ‘obvious and gross violations of the
law’ and ‘finding of error’ entailing an ‘obvious violation of the law’ used in
those respective provisions are not such as to prevent the liability of judges
from being triggered solely on the basis of the supposedly ‘incorrect’ content
of their decisions while ensuring that that liability is always strictly limited
to entirely exceptional situations, such as those referred to in
paragraph 137 of the present judgment.
142 Furthermore,
it follows from settled case-law of the Court that the scope of national
legislative provisions which are the subject of infringement proceedings must,
as a general rule, be assessed in the light of the interpretation given to them
by national courts (see, to that effect, judgments of 18 July 2007, Commission v Germany,
C‑490/04, EU:C:2007:430, paragraph 49 and the case-law cited, and of
16 September 2015, Commission v Slovakia, C‑433/13,
EU:C:2015:602, paragraph 81).
143 In that
regard, it is true that the Republic of Poland has referred in detail before
the Court to the case-law developed over many years by the Sąd
Najwyższy (Supreme Court) with regard to the various constituent elements
of the concept of ‘obvious and gross violations of the law’ for the purposes of
Article 107 § 1 of the Law on the ordinary courts. The national case-law
thus described, the existence and content of which have not been disputed by
the Commission, does indeed appear to have adopted a particularly restrictive
interpretation in relation to that concept, displaying a clear concern to
preserve judicial independence.
144 However,
it should be noted, first of all, that the two provisions covered by the
present complaint use partially different wording, since Article 97 §§ 1
and 3 of the new Law on the Supreme Court refers only to ‘obvious’ violations
of the law. The omission, from that new provision, of the wording regarding the
‘gross’ nature of the violations of the law which, by contrast, is contained in
Article 107 § 1 of the Law on the ordinary courts – wording
which has, inter alia, been taken into account in the settled case-law of the
Sąd Najwyższy (Supreme Court) referred to in paragraph 143 of
the present judgment – is such as to give rise to doubts as to the
respective scope of those provisions. Furthermore, the fact that, on the basis
of Article 97 §§ 1 and 3 of the new Law on the Supreme Court, the chamber
concerned may, when issuing a ‘finding of error’ on the part of a judge whose
decision it is reviewing and when it considers, in that context, that that
‘error’ reflects an ‘obvious violation of the law’, directly request that a
disciplinary case in respect of that judge be examined before the Disciplinary
Chamber, could be understood as meaning that the liability of judges may be
triggered solely on the basis of the allegedly ‘incorrect’ content of their
judicial decisions in cases not limited to the entirely exceptional situations
referred to in paragraph 137 of the present judgment.
145 Next, it
should be noted that the decisions of the Sąd Najwyższy (Supreme
Court) relating to Article 107 § 1 of the Law on the ordinary courts thus referred
to by the Republic of Poland were adopted not by the current Disciplinary
Chamber of that court but by the chamber of that court which had jurisdiction
before the reform.
146 In
addition, it should be borne in mind in that regard that, as is apparent from
paragraph 61 of the present judgment, in order to ensure that the putting
in issue of the disciplinary liability of judges is accompanied by guarantees
intended to avoid any risk of external pressure on the content of judicial
decisions, the rules defining the forms of conduct constituting an offence in
the context of the disciplinary regime applicable to judges must be taken
together with the other rules characterising such a regime and, in particular,
with those which are required to provide that decisions issued in the context
of disciplinary proceedings initiated in respect of judges are taken or
reviewed by an independent and impartial court or tribunal.
147 In the
present case, as is apparent from the reasoning whereby the Court upheld the
second complaint relied on by the Commission in support of its action, the
Disciplinary Chamber recently established by the new Law on the Supreme Court,
which has been entrusted with jurisdiction to hear, depending on the case,
either as the court of second instance, or as the court of first and second
instance, disciplinary proceedings concerning judges of the ordinary courts,
does not meet that requirement of independence and impartiality.
148 Accordingly,
that fact is, in turn, liable to increase the risk that provisions such as
Article 107 § 1 of the Law on the ordinary courts and Article 97 §§ 1
and 3 of the new Law on the Supreme Court, which define disciplinary offences
in terms which do not meet the requirements of clarity and precision set out in
paragraph 140 of the present judgment and do not ensure that the putting
in issue of the liability of judges as a result of their decisions is strictly
limited to the situations referred to in paragraph 137 of the present
judgment, will be the subject of an interpretation which will thus permit the
disciplinary regime to be used in order to influence judicial decisions.
149 The
existence of a risk that the disciplinary regime will in fact be used in order
to influence judicial decisions is, moreover, confirmed by the decision of the
Disciplinary Chamber of 4 February 2020 referred to in paragraphs 126
and 127 of the present judgment.
150 In that
regard, it is necessary at the outset to reject the Republic of Poland’s line
of argument according to which that decision of the Disciplinary Chamber cannot
be taken into consideration by the Court for the purpose of assessing that
Member State’s alleged failure to fulfil obligations, on the ground that that
failure must, in accordance with settled case-law, be assessed on the date on
which the period prescribed in the reasoned opinion expired. As the Commission
correctly argued at the hearing before the Court, that decision of the
Disciplinary Chamber is merely an item of evidence produced after the reasoned
opinion was issued, intended to illustrate the complaint set out both in that
reasoned opinion and in the present action concerning the risk that, in the
context resulting from the legislative reforms recently implemented in Poland,
the disciplinary regime applicable to judges of the Polish ordinary courts
could be used in order to influence the content of judicial decisions. As has
already been noted by the Court, the taking into account of an item of evidence
produced after the reasoned opinion was issued does not constitute a change in
the subject matter of the dispute as set out in that reasoned opinion (see, to
that effect, judgment of 11 July 2002, Commission v Spain,
C‑139/00, EU:C:2002:438, paragraph 21).
151 It is
apparent from that decision of the Disciplinary Chamber that a judge may, in
principle, be accused of a disciplinary offence on the basis of
Article 107 § 1 of the Law on the ordinary courts for having ordered the
Sejm, allegedly in obvious and gross violation of the law, to produce documents
relating to the process for appointing members of the KRS in its new
composition.
152 Such a
broad interpretation of Article 107 § 1 of the Law on the ordinary courts
is a departure from the particularly restrictive interpretation of that
provision used by the Sąd Najwyższy (Supreme Court) as referred to in
paragraph 143 of the present judgment and thus reflects a reduction, within
the Member State concerned, in the protection of the value of the rule of law.
153 It
should be added that, where national legislation has been the subject of
different relevant judicial constructions, some leading to the application of
that legislation in compliance with EU law, others leading to the opposite
application, it must be held that, at the very least, such legislation is not
sufficiently clear and precise to ensure its application in compliance with EU
law (see, to that effect, judgment of 9 December 2003, Commission v Italy,
C‑129/00, EU:C:2003:656, paragraph 33).
154 Lastly,
the Commission has referred to various specific recent cases in which the
Disciplinary Officer, in the context of the new disciplinary regime introduced
by the Law on the ordinary courts, initiated disciplinary investigations in
respect of judges because of the content of the judicial decisions adopted by
those judges, without it appearing that the judges concerned had committed
breaches of their duties such as those referred to in paragraph 137 of the
present judgment. In that regard, it should be noted, more specifically, that
disciplinary proceedings have been initiated, inter alia, because of judicial
decisions whereby requests for a preliminary ruling had been submitted to the
Court of Justice seeking clarification as to the compatibility of certain
provisions of national law with the provisions of EU law relating to the rule
of law and the independence of judges.
155 Even
though the Republic of Poland contends that the complaints made by the
Disciplinary Officer in those cases do not concern obvious and gross violations
of the law for the purposes of Article 107 § 1 of the Law on the ordinary
courts, but the exceeding, by the judges concerned, of their jurisdiction or
the bringing into disrepute by those judges of their judicial office, the fact
remains that those complaints are directly related to the content of the
judicial decisions taken by those judges.
156 The mere
prospect of such disciplinary investigations being opened is, as such, liable
to exert pressure on those who have the task of adjudicating in a dispute (see,
to that effect, judgment in Asociaţia ‘Forumul Judecătorilor
din România’ and Others, paragraph 199).
157 Having
regard to all the foregoing considerations, the Court considers it to be
established that, in the particular context resulting from the recent reforms
that have affected the Polish judiciary and the disciplinary regime applicable
to judges of the ordinary courts, and in particular having regard to the fact
that the independence and impartiality of the judicial body with jurisdiction
to rule in disciplinary proceedings concerning those judges are not guaranteed,
the definitions of disciplinary offence contained in Article 107 § 1 of
the Law on the ordinary courts and Article 97 §§ 1 and 3 of the new Law on
the Supreme Court do not help to avoid that disciplinary regime being used in
order to create, with regard to those judges who are called upon to interpret
and apply EU law, pressure and a deterrent effect, which are likely to
influence the content of their decisions. Those provisions thus undermine the
independence of those judges and do so, what is more, at the cost of a
reduction in the protection of the value of the rule of law in Poland within
the meaning of the case-law referred to in paragraph 51 of the present
judgment, in breach of the second subparagraph of Article 19(1) TEU.
158 Accordingly,
the first complaint must be upheld.
The third
complaint
– Arguments
of the parties
159 By its
third complaint, the Commission submits that Article 110 § 3 and
Article 114 § 7 of the Law on the ordinary courts do not meet the
requirement derived from the second subparagraph of Article 19(1) TEU that
disciplinary cases concerning judges of the ordinary courts must be amenable to
review by a tribunal ‘established by law’, since those provisions of national
legislation confer on the President of the Disciplinary Chamber the
discretionary power to designate the disciplinary tribunal with territorial
jurisdiction to hear such cases.
160 The
Commission considers, in that regard, that, in the absence, in particular, of
any criteria laid down by law to circumscribe the exercise of that power, that
power could be used in order to assign a case to a specific disciplinary court
and, consequently, at the very least, be perceived as a means whereby the
disciplinary regime could be used for the purposes of political control of the
content of judicial decisions. Furthermore, such a risk is increased in the
present case by the fact that the Disciplinary Chamber is not an independent
and impartial body.
161 In its
defence, the Republic of Poland argues that it follows from Article 110
§ 1(1)(a) and Article 110a §§ 1 and 3 of the Law on the ordinary
courts that disciplinary cases fall within the jurisdiction of the 11
disciplinary tribunals which are established at the courts of appeal and whose
members are appointed, following an opinion of the KRS, by the Minister for
Justice from among the judges of the ordinary courts and sit, in permanent
formation, for a period of six years. It follows that those courts are indeed
established by law.
162 For his
part, the President of the Disciplinary Chamber merely designates one of those
disciplinary tribunals, taking into account factors such as procedural economy,
the level of the workload of those tribunals, distance, and possible links
between the parties to the proceedings and those tribunals. The setting of
those criteria in the law would serve no identifiable objective, in particular
in terms of the protection of the rights of the judge being prosecuted or of
the interests of justice, since all the disciplinary tribunals that may be
designated provide the same guarantees of jurisdiction and independence.
163 It is
precisely in order to ensure the impartiality of those disciplinary tribunals
that a solution was introduced consisting of designating, as having territorial
jurisdiction, a court of appeal situated in a territorial jurisdiction other
than that in which the judge concerned sits. In addition, since the members of
the disciplinary tribunal called upon to sit within that tribunal are selected
by the drawing of lots from among all the judges of that court, there is no
basis for the allegation that the power to designate the disciplinary tribunal
with territorial jurisdiction to hear the case might be used for the purposes
of political control of the content of judicial decisions.
– Findings
of the Court
164 As has
been recalled in paragraphs 61 and 80 of the present judgment, the
requirement of independence derived from, inter alia, the second subparagraph
of Article 19(1) TEU, which must be met by national courts which, like the
Polish ordinary courts, may have to interpret and apply EU law, requires that
the rules governing the disciplinary regime applicable to the judges who make
up those courts provide, inter alia, for the involvement of bodies which
themselves meet the requirements inherent in effective judicial protection in
accordance with a procedure fully guaranteeing the rights enshrined in
Articles 47 and 48 of the Charter.
165 It
should be borne in mind, moreover, that, 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 and Article 48 of the Charter is the
same as Article 6(2) and (3) ECHR. The Court must, accordingly, ensure
that its interpretation of the second paragraph of Article 47 and of
Article 48 of the Charter ensures a level of protection which does not
disregard that guaranteed by Article 6 ECHR, as interpreted by the
European Court of Human Rights (judgment of 29 July 2019, Gambino
and Hyka, C‑38/18, EU:C:2019:628, paragraph 39 and the case-law
cited).
166 Under
the first sentence of the second paragraph of Article 47 of the Charter,
everyone is entitled to a fair and public hearing within a reasonable time by
an ‘independent and impartial tribunal previously established by law’.
167 As has
been held by the Court, the guarantees of access to an independent and
impartial tribunal previously established by law, and in particular those which
determine what constitutes a tribunal and how it is composed, represent the
cornerstone of the right to a fair trial. Verification of the requirement that
a body, as composed, constitutes such a tribunal is necessary in particular for
the trust which the courts in a democratic society must inspire in individuals
(see, to that effect, judgment of 26 March 2020, Review Simpson v Council and Review
HG v Commission, C‑542/18 RX-II and C‑543/18 RX-II,
EU:C:2020:232, paragraph 57).
168 Furthermore,
it is apparent from the case-law of the European Court of Human Rights that the
expression ‘established by law’ in Article 6(1) ECHR concerns not only the
legal basis for the very existence of the tribunal but also the composition of
the bench in each case. The purpose of that expression is to prevent the
organisation of the judicial system from being left to the discretion of the
executive and to ensure that that matter is governed by a law. Nor, moreover,
in codified law countries, can the organisation of the judicial system be left
to the discretion of the judicial authorities, which does not, however, rule
out conferring on them a certain power to interpret the relevant national
legislation. Furthermore, the delegation of powers in matters relating to
judicial organisation is acceptable in so far as that possibility falls within
the framework of the national law of the State in question, including the
relevant provisions of its Constitution (see, inter alia, ECtHR, 28 April
2009, Savino and Others v. Italy, CE:ECHR:2009:0428JUD001721405, §§
94 and 95 and the case-law cited).
169 In the
present case, the provisions of Article 110 § 3 and Article 114 § 7
of the Law on the ordinary courts, which the Commission calls into question, do
not relate to the very existence of disciplinary courts called upon to rule in
disciplinary proceedings initiated in respect of judges of the Polish ordinary
courts, but to the conditions under which disciplinary proceedings concerning
those judges are assigned to such disciplinary courts.
170 By its
third complaint, the Commission does not in fact target the conditions under
which the Polish disciplinary courts are established or the judges which make
up those courts are appointed, but the conditions under which the disciplinary
court is designated which, of the disciplinary courts situated in the various
territorial jurisdictions existing in Poland, will be called upon to rule in
specific disciplinary proceedings conducted in respect of a judge.
171 In that
regard, it should be noted that, as regards Article 6(1) ECHR, the
European Court of Human Rights has held, inter alia, that the requirement that
courts must be established by law means that the reassignment of a case to a
court situated in another territorial jurisdiction cannot fall within the
discretionary power of a particular body. The European Court of Human Rights
considered, more specifically, that the fact that neither the reasons for which
such reassignment may take place nor the criteria to be fulfilled in carrying
out such reassignment have been specified in the applicable legislation is
capable of creating a situation where the court thus designated is not seen to
be independent and impartial and does not offer the degree of forseeability and
certainty required for such a court to be considered ‘established by law’ (see,
to that effect, ECtHR, 12 January 2016, Miracle Europe kft v.
Hungary, CE:ECHR:2016:0112JUD005777413, §§ 58, 63 and 67).
172 In the
present case, it should be observed that the provisions of national legislation
challenged by the Commission in the context of the present complaint confer on
the President of the Disciplinary Chamber the discretionary power to designate
the disciplinary tribunal with territorial jurisdiction to hear a disciplinary
case conducted in respect of a judge of the ordinary courts without the
criteria to be fulfilled by such a designation having been specified in the
applicable legislation.
173 As has
been argued by the Commission, where no such criteria have been laid down, such
a power could, inter alia, be used in order to direct certain cases to certain
judges while avoiding assigning them to other judges, or in order to put
pressure on the judges thus designated (see also, to that effect, ECtHR,
12 January 2016, Miracle Europe kft v. Hungary,
ECHR:2016:0112JUD005777413, § 58).
174 In the
present case, as has also been argued by the Commission, such a risk is
increased by the fact that the person responsible for designating the
disciplinary tribunal with territorial jurisdiction is none other than the
President of the Disciplinary Chamber, namely the body called upon to hear, as
the court of second instance, appeals brought against decisions issued by that
disciplinary tribunal, a disciplinary chamber whose independence and
impartiality are not guaranteed, as is apparent from paragraphs 80 to 113
of the present judgment.
175 Lastly,
contrary to the Republic of Poland’s assertions, the mere fact that the judges
responsible for ruling in a particular set of disciplinary proceedings are
selected by the drawing of lots is not such as to exclude the risk referred to
in paragraph 173 of the present judgment, because those lots are drawn
exclusively from among the members of the disciplinary tribunal designated by
the President of the Disciplinary Chamber.
176 It
follows from all of the foregoing that Article 110 § 3 and
Article 114 § 7 of the Law on the ordinary courts, inasmuch as they confer
on the President of the Disciplinary Chamber the discretionary power to
designate the disciplinary tribunal with territorial jurisdiction to hear
disciplinary proceedings in respect of judges of the ordinary courts, that is
to say, judges who may be called upon to interpret and apply EU law, do not
meet the requirement derived from the second subparagraph of Article 19(1)
TEU that such cases must be examined by a tribunal ‘established by law’.
177 The
third complaint must, accordingly, be upheld.
The fourth
complaint
– Arguments
of the parties
178 By its
fourth complaint, which consists of two parts, the Commission argues that
Articles 112b and 113a of the Law on the ordinary courts, as well as
Article 115a § 3 of that law, infringe the second subparagraph of
Article 19(1) TEU, inasmuch as they do not ensure either the examination
within a reasonable time of disciplinary cases concerning judges of those
courts or the rights of defence of the accused judge.
179 As
regards the first part of that complaint, the Commission takes the view that it
follows from Article 112b § 3 of the Law on the ordinary courts that the
Minister for Justice may appoint a Disciplinary Officer of the Minister for
Justice to replace the Disciplinary Officer who has been handling the case concerned
until that point at any stage of a set of disciplinary proceedings, including
after the case has been assigned to the disciplinary tribunal or during the
examination of an appeal against the decision of that tribunal. Moreover, under
Article 112b § 5 of that law, where a ruling refusing to initiate
disciplinary proceedings or discontinuing disciplinary proceedings or a ruling
closing such proceedings becomes final, those situations would not prevent a
Disciplinary Officer of the Minister for Justice from being re-appointed in the
same case, such that that minister would be able to maintain permanently the
charges against a judge. Compliance with the reasonable time requirement would
not therefore be guaranteed.
180 By the
second part of its fourth complaint, the Commission submits that the principle
of respect for the rights of the defence is infringed, first, by
Article 113a of the Law on the ordinary courts, inasmuch as that provision
states that proceedings before a disciplinary court may proceed without the
appointment of defence counsel to represent a judge who cannot participate in
the proceedings before that court on health grounds, or where the defence
counsel appointed by that judge has not yet taken up the defence of his or her
interests.
181 Second,
Article 115a § 3 of the Law on the ordinary courts, inasmuch as it
provides that the disciplinary court is to conduct the proceedings despite the
justified absence of the accused judge or his or her defence counsel, infringes
the principle audi alteram partem, which constitutes one of the
essential elements of the rights of the defence. In that regard, it is
irrelevant that that provision states that the proceedings are to be conducted
only if this is not contrary to the interests of those proceedings, since such
a concept cannot be equated with taking into consideration the legitimate
interests of the judge in question. The same is true of the fact that
Article 115 §§ 2 and 4 of that law provides that, at the same time as it
serves the summons to appear, the disciplinary tribunal is to invite the
accused judge to provide explanations in writing and all the evidence, as
respect for the rights of the defence also requires that that judge be allowed
to participate in the proceedings where the admissibility and probative value
of that evidence will be examined by that court.
182 In its
defence, the Republic of Poland contends that, although, by the first part of
the complaint as set out in the form of order sought in the application, the
Commission calls into question the very creation of the post of Disciplinary
Officer of the Minister for Justice, as well as Article 112b of the Law on
the ordinary courts as a whole, that institution has not specified the reasons
why the appointment of such an officer would be contrary to EU law, but has in
fact merely challenged the second sentence of Article 112b § 5 of that
law.
183 As
regards the second sentence of Article 112b § 5 of that law, the
Commission’s arguments do not relate to the normative content of that
provision, but only to the possibility that the Minister for Justice may,
despite a final decision in a disciplinary case, try to use that provision in
order to maintain permanently the same charges against a judge. In that regard,
however, the Commission has merely provided a purely hypothetical reading of
that provision of national legislation, which has never been verified in
practice and is at odds with the state of the national law applicable. The
first sentence of Article 112b § 5 of the Law on the ordinary courts
provides that the function of the Disciplinary Officer of the Minister for
Justice is to expire in the three situations referred to in that provision and
the expiry of that function is to be final, since the principle non bis
in idem stemming from Article 17 § 1(7) of the Code of Criminal
Procedure – a provision which applies, mutatis mutandis, to
disciplinary proceedings, pursuant to Article 128 of the Law on the
ordinary courts – precludes a fresh action in the same case.
184 According
to the Republic of Poland, there is, moreover, no link between the duration of
the proceedings and the fact that those proceedings are conducted by the
Disciplinary Officer or by the Disciplinary Officer of the Minister for
Justice, since the latter’s involvement has no bearing on the course of the
actions already taken or on the binding procedural time limits which apply,
without distinction, according to whether the proceedings are conducted by
either of those officers.
185 As
regards the second part of the fourth complaint, the Republic of Poland argues
that the sole purpose of Article 113a of the Law on the ordinary courts is
to ensure the effective conduct of disciplinary proceedings by preventing any
obstruction at the stage of the examination of the dispute by the disciplinary
tribunal.
186 As
regards Article 115a § 3 of that law, the condition relating to the proper
conduct of disciplinary proceedings is to be examined by an independent
tribunal which is to assess whether the investigation of all the facts, both
for and against the accused judge, allows the proceedings to be conducted in
the absence of that judge or his or her defence counsel. Moreover, the right of
the judge concerned to be heard is guaranteed at the stage of the proceedings
conducted by the Disciplinary Officer or by the Disciplinary Officer of the
Minister for Justice, as is apparent from Article 114 of that law, since
those officers may, first of all, invite that judge to submit a written
statement concerning the subject matter of the examination, must then invite
him or her, when notifying him or her of the disciplinary charges, to provide
explanations in writing and all the evidence and may, finally, interview that
judge in order to hear his or her explanations – and indeed must do so
where the person concerned so requests. Moreover, where the disciplinary
tribunal summons the parties to the hearing, it is, in accordance with
Article 115 of that law, required to ask them to produce evidence and to
ask the accused judge to provide explanations in writing.
– Findings
of the Court
187 As has
been recalled in paragraph 164 of the present judgment, the second
subparagraph of Article 19(1) TEU requires that the rules governing the
disciplinary regime applicable to judges who may have to interpret and apply EU
law lay down a procedure which fully guarantees the rights enshrined in
Articles 47 and 48 of the Charter.
188 It
should be noted at the outset that it is already apparent from the examination
and acceptance of the Commission’s first, second and third complaints that,
contrary to the requirements thus derived from the second subparagraph of
Article 19(1) TEU, the disciplinary regime applicable to judges of the
Polish ordinary courts is characterised, in particular, by the fact that the
courts involved in disciplinary proceedings do not meet the requirement of
independence and impartiality or the requirement of being established by law,
and by the fact that the forms of conduct constituting a disciplinary offence are
not defined by Polish legislation in a way that is sufficiently clear and
precise. The fourth complaint must be considered having regard in particular to
the normative context of the provisions of national legislation which the
Commission criticises by its fourth complaint.
189 Under
the second paragraph of Article 47 of the Charter, everyone is entitled to
a hearing within a reasonable time and must have the possibility of being
advised, defended and represented. For its part, Article 48(2) of the Charter
states that respect for the rights of the defence of anyone who has been
charged is to be guaranteed.
190 Moreover,
as is apparent from paragraph 165 of the present judgment, the Court must
ensure that its interpretation of the second paragraph of Article 47 and
of Article 48 of the Charter ensures a level of protection which does not
disregard that guaranteed by Article 6 ECHR, as interpreted by the
European Court of Human Rights.
191 Regarding
the first part of the fourth complaint, it must be borne in mind that the right
of persons to have their case heard within a reasonable time constitutes a
general principle of EU law enshrined in Article 6(1) ECHR and, as has
just been recalled, in the second paragraph of Article 47 of the Charter
with respect to court proceedings (see, to that effect, judgment of 5 June
2018, Kolev and Others, C‑612/15, EU:C:2018:392,
paragraph 71 and the case-law cited).
192 In the
present case, however, the Commission does not claim that the right to be tried
within a reasonable time has been infringed in a given specific case, a
situation which falls within the scope of Article 47 of the Charter, but
complains that the Republic of Poland has failed to fulfil its obligations
under the second subparagraph of Article 19(1) TEU on the ground, in
essence, that the provisions of national legislation criticised by that
institution are designed in such a way that the result of those provisions is
that that right cannot be fully guaranteed as regards disciplinary proceedings
conducted in respect of judges of the Polish ordinary courts.
193 In that
regard, it follows, in particular, from the second subparagraph of
Article 19(1) TEU that it is important, in order to preserve the
independence of judges who may be called upon to interpret and apply EU law and
in order to avoid any risk of the disciplinary regime applicable to those
judges being used as a system of political control of the content of their
judicial decisions, that the national rules governing disciplinary proceedings
relating to such judges are not designed in such a way as to prevent their case
from being heard within a reasonable time (see, by analogy, judgment in Asociaţia
‘Forumul Judecătorilor din România’ and Others, paragraph 221).
194 It
should be noted at the outset that it is not apparent, in that regard, in the
light of the arguments put forward by the Commission in support of the first
part of its fourth complaint, how the mere fact, referred to in the form of
order sought in the application, that Article 112b of the Law on the
ordinary courts, referred to in its entirety, has ‘[conferred] on the Minister
for Justice the power to appoint a Disciplinary Officer of the Minister for
Justice’ is such as to lead to a systematic exceeding of reasonable time in
disciplinary proceedings brought against judges of the Polish ordinary courts
and thus to prevent their case from being heard within such a reasonable time.
195 By
contrast, it is apparent from those arguments that the Commission’s criticisms
relate, in that regard, more specifically, to the specific provision of the
second sentence of Article 112b § 5 of the Law on the ordinary courts.
196 In that
regard, it must be stated that it follows from the very wording of
Article 112b § 5 of the Law on the ordinary courts that, in the situations
referred to in the first sentence of that provision in which the function of
the Disciplinary Officer of the Minister for Justice is to be terminated,
namely where there is a final ruling either refusing to initiate disciplinary
proceedings or closing such proceedings, such rulings do not prevent such a
Disciplinary Officer from being re-appointed by the Minister for Justice in the
same case.
197 Such a
provision, the clear wording of which thus suggests that, after a judge has
been the subject of an investigation and disciplinary proceedings which have
been closed by a final ruling, that judge may once again be subject to such
investigations and proceedings in the same case, such that that judge will
permanently remain under the potential threat of such investigations and
proceedings, notwithstanding the fact that such a ruling has taken place, is,
by its very nature, liable to prevent that judge’s case from being heard within
a reasonable time.
198 The
fact, highlighted by the Republic of Poland, that the existence of other
fundamental principles, such as the principle non bis in idem,
precludes such investigations and proceedings being initiated after the
adoption of such a final ruling does not invalidate that finding.
199 First,
the fact that the second sentence of Article 112b § 5 of the Law on the
ordinary courts may, in the light of its wording, also, as the case may be,
prove to be incompatible with fundamental principles other than that to which
the Commission referred in support of the first part of its fourth complaint
cannot in any way preclude a finding, where appropriate, that the Republic of
Poland has failed to fulfil its obligations in respect of the infringement of
the latter principle.
200 Second,
that fact is not such as to affect the conclusion that the mere existence of a
provision of national legislation worded in such a way is capable of giving
rise, in respect of the judges concerned, to the threat referred to in
paragraph 197 of the present judgment and thus of giving rise to a risk of
the disciplinary regime being used as a system of political control of the
content of the judicial decisions which those judges are called upon to give.
201 Similarly,
the fact that the Commission did not refer to any specific case in which the
second sentence of Article 112b § 5 of the Law on the ordinary courts was
applied where there had been a final ruling such as those referred to in the
first sentence of Article 112b § 5 of that law is entirely irrelevant for
the purpose of assessing the merits of the alleged failure to fulfil
obligations, which relates to the actual adoption of the contested provision of
national legislation and the undermining of the independence of judges of the
Polish ordinary courts likely to result from it.
202 It
follows from all of the foregoing that the second sentence of Article 112b
§ 5 of the Law on the ordinary courts, inasmuch as it undermines the
independence of judges of the Polish ordinary courts by failing to ensure that
their case concerning disciplinary proceedings can be heard within a reasonable
time, does not meet the requirements derived from the second subparagraph of
Article 19(1) TEU. Consequently, the first part of the fourth complaint
must be upheld inasmuch as it relates to that provision of national
legislation.
203 Concerning
the second part of that complaint, it should be recalled at the outset that the
fundamental principle of effective judicial protection of rights, reaffirmed in
Article 47 of the Charter, and the concept of ‘a fair trial’, referred to
in Article 6 ECHR, consist of various elements, which include, in
particular, respect for the rights of the defence and the right to be advised,
defended and represented (see, to that effect, judgments of 26 June
2007, Ordre des barreaux francophones et germanophone and Others, C‑305/05,
EU:C:2007:383, paragraph 31, and of 26 July 2017, Sacko,
C‑348/16, EU:C:2017:591, paragraph 32 and the case-law cited).
204 Similarly,
respect for the rights of the defence is, in all proceedings in which penalties
may be imposed, a fundamental principle of EU law which has been enshrined in
Article 48(2) of the Charter (see, to that effect, judgment of
14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission
and Others, C‑550/07 P, EU:C:2010:512, paragraph 92 and the
case-law cited).
205 It is
also apparent from the case-law of the Court that the right to be heard in all
proceedings is inherent in respect for the rights of the defence thus enshrined
in Articles 47 and 48 of the Charter (see, to that effect, judgment of
3 July 2014, Kamino International Logistics and Datema Hellmann
Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041,
paragraph 28 and the case-law cited, as well as paragraph 29), and
that such a right guarantees every person the opportunity to make known his or
her views effectively during those proceedings (see, to that effect, judgment
of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591,
paragraph 34).
206 Regarding
the right of access to a lawyer, the Court has specified that that lawyer must,
in addition, actually be able to carry out satisfactorily his or her task of
advising, defending and representing his or her client, failing which that
client would be deprived of the rights conferred on him or her by
Article 47 of the Charter and by Article 6 ECHR (see, to that effect,
judgment of 26 June 2007, Ordre des barreaux francophones et
germanophone and Others, C‑305/05, EU:C:2007:383, paragraph 32).
207 Lastly,
although it is true that, according to the settled case-law of the Court,
fundamental rights, such as respect for the rights of the defence, which
includes the right to be heard, do not constitute unfettered prerogatives and
may be restricted, this is, however, on the condition that the restrictions in
fact correspond to objectives of general interest pursued by the measure in question
and that they do not entail, with regard to the objectives pursued, a
disproportionate and intolerable interference which infringes upon the very
substance of the rights guaranteed (judgment of 26 July 2017, Sacko,
C‑348/16, EU:C:2017:591, paragraph 38 and the case-law cited).
208 In the
present case, it follows, first, from Article 113a of the Law on the
ordinary courts, read in conjunction with Article 113 §§ 2 and 3 of that
law, that, where the accused judge cannot take part in the proceedings before
the disciplinary tribunal on health grounds and where that tribunal or its
President appoints, at the request of that judge or of its own motion, defence
counsel to take up that judge’s defence, actions relating to that appointment
and that taking up of the defence do not have a suspensory effect on the
conduct of the proceedings.
209 Secondly,
Article 115a § 3 of the Law on the ordinary courts provides that
proceedings are to be conducted by the disciplinary tribunal despite the
justified absence of the accused judge or his or her defence counsel, unless
this would be contrary to the interests of the disciplinary proceedings being
conducted.
210 It must
be stated, in that regard, that such procedural rules are liable to restrict
the rights of judges against whom disciplinary proceedings have been brought to
be heard effectively by the disciplinary court and to be able to benefit from
an effective defence before that court. Those rules are not such as to ensure
that, in the event of the justified absence of the judge concerned or his or
her defence counsel during the proceedings conducted before that court, that
judge will still remain in a position to make known his or her views
effectively, if necessary with the assistance of defence counsel who also has
an effective opportunity to ensure his or her defence.
211 Nor,
contrary to the Republic of Poland’s assertions, does such a guarantee follow
either from the fact that Article 115a § 3 of the Law on the ordinary
courts specifies that the disciplinary court is to conduct the proceedings only
if this is not contrary to the interests of those proceedings or from the fact
that Article 115 of that law provides that, when it serves the summons to
appear, the disciplinary tribunal is to invite the accused judge to provide
explanations in writing and all the evidence that he or she considers useful.
212 As the
Commission emphasises in its application, those provisions are not capable of
guaranteeing respect for the rights of defence of the judge concerned in the
context of the proceedings before the disciplinary court.
213 National
procedural rules, such as those covered by the second part of the present
complaint, may, especially where, as in the present case, they are applied in
the context of a disciplinary regime displaying the shortcomings referred to in
paragraph 188 of the present judgment, prove to be such as to increase
still further the risk of the disciplinary regime applicable to those whose
task is to adjudicate being used as a system of political control of the
content of judicial decisions. The judges concerned may be led to fear, if they
rule in a particular way in the cases before them, that disciplinary
proceedings will be brought against them which thus fail to provide guarantees
capable of meeting the requirements of a fair trial and, in particular, the
requirement relating to respect for the rights of the defence. In this way, the
restrictions on the rights of the defence arising from those procedural rules
undermine the independence of judges of the Polish ordinary courts and thus do
not meet the requirements derived from the second subparagraph of
Article 19(1) TEU.
214 In those
circumstances, the second part of the fourth complaint must also be upheld and,
accordingly, the fourth complaint must be upheld in its entirety.
The fifth
complaint, alleging infringement of the second and third paragraphs
of Article 267 TFEU
– Arguments
of the parties
215 The
Commission argues that, as evidenced by the specific cases of application to
which it referred in the arguments put forward by it in support of its first
complaint, the provisions of Article 107 § 1 of the Law on the ordinary
courts and Article 97 §§ 1 and 3 of the new Law on the Supreme Court may
expose a judge to disciplinary proceedings upon the adoption of a decision to
submit a request for a preliminary ruling to the Court of Justice, which
infringes Article 267 TFEU.
216 The
possibility that disciplinary investigations and proceedings may thus be
conducted in respect of judges of the Polish ordinary courts on the ground that
those judges have submitted a request for a preliminary ruling to the Court of
Justice undermines the right to put questions to that Court which is conferred
on those judges by that provision of EU law and is likely to deter them from
exercising that right in order not to be exposed to the risk of disciplinary
penalties. The independence of the national courts would therefore be affected,
even though such independence is essential to the proper functioning of the
system of judicial cooperation between those national courts and the Court of
Justice relating to the preliminary ruling mechanism.
217 In its
defence, the Republic of Poland argues that the Commission failed to take
account of the fact that Article 114 of the Law on the ordinary courts
draws a clear distinction between two procedural stages, namely (i) the
investigation, which is opened and conducted in order to establish the possible
existence of a disciplinary offence and in order to identify the perpetrator of
that offence without being carried out in respect of one particular person, and
(ii) disciplinary proceedings which, for their part, are initiated only if the
findings of the investigation justify doing so. In the specific cases to which
the Commission refers, it is not disciplinary proceedings which have been
carried out in respect of judges who have submitted a request for a preliminary
ruling to the Court of Justice, but only investigations; investigations which
have, moreover, been closed in the meantime.
218 The
first investigation concerned a suspicion of disciplinary offences under
Article 107 § 1 of the Law on the ordinary courts committed by certain
judges as a result of their having exercised an unlawful influence over those
chairing adjudicating panels who had submitted a request for a preliminary
ruling to the Court of Justice. That first investigation was closed after
statements were filed by two of the judges concerned, who did not confirm that
they had been subject to pressure. For its part, the second investigation
concerned the suspicion that those judges had compromised the dignity of their
office following the adoption of orders for reference with reasoning which was,
in essence, identical, as well as the possibility that at least one of the
judges mentioned had made a false statement inasmuch as he had affirmed that he
himself had drafted his order for reference. That investigation also concerned
the question whether the indefinite suspension of significant and complex
criminal proceedings as a result of such a reference for a preliminary ruling,
potentially made in breach of Article 267 TFEU, could constitute a
disciplinary offence on the part of the judge concerned. However, that second
investigation was also closed, since the analysis of the evidence, including
the statements filed by the judges concerned, did not permit the conclusion
that there had been such breaches on the part of those judges.
219 According
to the Republic of Poland, since such investigations are exceptional and do not
necessarily give rise to disciplinary proceedings, they do not undermine the
independence of judges because they are intended not to call into question the
validity of the decisions which judges have adopted, but to denounce any
obvious and gross breaches of their duties, as that Member State argued in its
response to the Commission’s first complaint. The disciplinary regime
challenged in the present action has thus had no effect either on the effective
exercise by the courts concerned of their power to submit a request for a
preliminary ruling to the Court of Justice or on their ability to make
references for a preliminary ruling in the future.
220 In
addition, the mere fact that a disciplinary officer thus makes complaints or
examines a particular case cannot, in the absence of any judicial decision
confirming such an interpretation, lead to the conclusion that the act of
submitting a request for a preliminary ruling to the Court of Justice in itself
might constitute a disciplinary offence. Neither the wording of
Article 107 § 1 of the Law on the ordinary courts nor the established
interpretation of that provision to which the Republic of Poland referred in
its response to the first complaint enables the disciplinary liability of a
judge to be triggered on that ground alone.
221 According
to the five Member States intervening in support of the form of order sought by
the Commission, it is clear both from the way in which Article 107
§ 1 of the Law on the ordinary courts is interpreted and applied and the
facts brought to the Court’s attention by the referring courts in the context
of the cases giving rise to the judgment of 26 March 2020, Miasto
Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18,
EU:C:2020:234), and from the guidance provided by that judgment, that the
Republic of Poland has infringed Article 267 TFEU. It is of little
importance, in that regard, that the investigations concerned have been closed
without the judges concerned being subject to legal proceedings, since nothing
other than the deterrent effect resulting from the risk of being the subject of
such proceedings is liable to affect the decision of the judges as to the need
to submit a request for a preliminary ruling to the Court of Justice in a given
case.
– Findings
of the Court
222 It
should be recalled at the outset that the keystone of the judicial system
established by the Treaties is the preliminary ruling procedure provided for in
Article 267 TFEU 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 of 18 December 2014,
EU:C:2014:2454, paragraph 176 and the case-law cited, and judgment
in A.B. and Others, paragraph 90 and the case-law cited).
223 According
to the settled case-law of the Court, Article 267 TFEU gives 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 in A.B. and Others, paragraph 91 and
the case-law cited).
224 Moreover,
in the case of courts or tribunals 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 case-law of the Court, by an obligation to make a
reference for a preliminary ruling to the Court of Justice (judgment in A.B.
and Others, paragraph 92 and the case-law cited).
225 It is
also settled case-law that 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 (judgment in A.B. and Others,
paragraph 93 and the case-law cited).
226 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 is detrimental to the prerogatives thus granted to national courts and
tribunals by Article 267 TFEU and, consequently, to the effectiveness of
that system of cooperation (see, to that effect, judgment in A.B. and
Others, paragraph 94 and the case-law cited).
227 Provisions
of national law which expose national judges to disciplinary proceedings as a
result of the fact that they have made a reference for a preliminary ruling to
the Court of Justice cannot therefore be permitted. 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 paragraph 225
of the present judgment (judgment of 26 March 2020, Miasto
Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18,
EU:C:2020:234, paragraph 58).
228 For
those judges, not being exposed to disciplinary proceedings or measures for
having exercised such a discretion to bring a matter before the Court, which is
exclusively within their jurisdiction, also constitutes a guarantee that is
essential to judicial independence, that independence being, in particular,
essential to the proper working of the judicial cooperation system embodied by
the preliminary ruling mechanism under Article 267 TFEU (judgment of
26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18
and C‑563/18, EU:C:2020:234, paragraph 59 and the case-law cited).
229 In the
present case, it must be borne in mind that it is already apparent from the
examination which led the Court to uphold the first complaint brought by the
Commission that the definitions of the disciplinary offence contained in the
provisions of Article 107 § 1 of the Law on the ordinary courts and
Article 97 §§ 1 and 3 of the new Law on the Supreme Court do not meet
the requirements derived from the second subparagraph of Article 19(1)
TEU, since they give rise to the risk that the disciplinary regime at issue
might be used for the purpose of creating, in respect of judges of the Polish
ordinary courts, pressure and a deterrent effect which are likely to influence
the content of the judicial decisions which those judges are called upon to
give.
230 Such a
risk also concerns the decisions by which a national court is called upon to
choose to exercise its discretion under Article 267 TFEU to submit a
request for a preliminary ruling to the Court of Justice or, where appropriate,
to comply with its obligation to make such a reference for a preliminary ruling
under that provision.
231 As
attested to by the examples highlighted by the Commission and discussed, in
particular, in paragraphs 117, 118 and 125 of the present judgment, the
practice initiated by the Disciplinary Officer confirms that such a risk has,
to date, materialised through the opening of investigations concerning
decisions whereby Polish ordinary courts have submitted requests for a
preliminary ruling to the Court of Justice; investigations which have included,
in particular, interviewing the judges concerned and sending those judges
questionnaires concerning the question whether the references for a preliminary
ruling which had thus been made by those judges were likely to have given rise
to disciplinary offences.
232 In
addition, it must be stated that, in its defence, the Republic of Poland merely
minimised the scope of such practices by claiming, inter alia, that those
investigations were carried out not by the disciplinary courts themselves, but
by disciplinary officers, that the investigation stage had to be distinguished
from that relating to the disciplinary proceedings themselves, that those
investigations had in the meantime been closed and that they had, moreover,
related to the circumstances surrounding the adoption of the orders for
reference concerned and the conduct of the judges in question on that occasion,
rather than the orders themselves.
233 It must
be borne in mind, in that regard, first, that strict compliance with Member
State obligations derived from Article 267 TFEU is required in respect of
all State authorities and, therefore, in particular, in respect of a body
which, like the Disciplinary Officer, is responsible for investigating, if
necessary under the authority of the Minister for Justice, disciplinary
proceedings that may be brought against judges. Second, as has been argued by
both the Commission and the Member States intervening in support of the form of
order sought by that institution, the mere fact that the Disciplinary Officer
conducts investigations under the conditions referred to in paragraph 231
of the present judgment is sufficient to give concrete expression to the risk
of forms of pressure and of a deterrent effect referred to in
paragraph 229 of the present judgment and to undermine the independence of
the judges who are the subject of those investigations.
234 It
follows that the fifth complaint, alleging that the Republic of Poland has
failed to fulfil its obligations under the second and third paragraphs of
Article 267 TFEU by allowing the right of courts and tribunals to submit
requests for a preliminary ruling to the Court of Justice to be restricted by
the possibility of triggering disciplinary proceedings, must be upheld.
235 Having
regard to all the foregoing considerations, it must be held that:
– by
failing to guarantee the independence and impartiality of the Disciplinary
Chamber, which is responsible for reviewing decisions issued in disciplinary
proceedings against judges (Article 3(5), Article 27 and
Article 73 § 1 of the new Law on the Supreme Court, read in conjunction
with Article 9a of the Law on the KRS);
– by
allowing the content of judicial decisions to be classified as a disciplinary
offence involving judges of the ordinary courts (Article 107 § 1 of the
Law on the ordinary courts and Article 97 §§ 1 and 3 of the new Law on the
Supreme Court);
– by
conferring on the President of the Disciplinary Chamber the discretionary power
to designate the disciplinary tribunal with jurisdiction at first instance in
cases concerning judges of the ordinary courts (Article 110 § 3 and
Article 114 § 7 of the Law on the ordinary courts) and, therefore, by
failing to guarantee that disciplinary cases are examined by a tribunal
‘established by law’; and
– by
failing to guarantee that disciplinary cases against judges of the ordinary
courts are examined within a reasonable time (second sentence of
Article 112b § 5 of the Law on the ordinary courts), and by providing
that actions relating to the appointment of defence counsel and the taking up
of the defence by that counsel do not have a suspensory effect on the course of
the disciplinary proceedings (Article 113a of that law) and that the
disciplinary tribunal is to conduct the proceedings despite the justified
absence of the notified accused judge or his or her defence counsel
(Article 115a § 3 of the same law) and, therefore, by failing to guarantee
respect for the rights of defence of accused judges of the ordinary courts,
the
Republic of Poland has failed to fulfil its obligations under the second
subparagraph of Article 19(1) TEU,
and
that:
by
allowing the right of courts and tribunals to submit requests for a preliminary
ruling to the Court of Justice to be restricted by the possibility of
triggering disciplinary proceedings, the Republic of Poland has failed to
fulfil its obligations under the second and third paragraphs of
Article 267 TFEU.
Costs
236 Under
Article 138(1) of the Rules of Procedure of the Court of Justice, the
unsuccessful party must be ordered to pay the costs if they have been applied
for in the successful party’s pleadings. Since the Commission has applied for
costs and the Republic of Poland has been unsuccessful, the latter must be
ordered to pay the costs, including those relating to the proceedings for
interim relief.
237 In
accordance with Article 140(1) of the Rules of Procedure, the Kingdom of
Belgium, the Kingdom of Denmark, the Kingdom of the Netherlands, the Republic
of Finland and the Kingdom of Sweden are to bear their own costs.
On those
grounds, the Court (Grand Chamber) hereby:
1. Declares
that:
– by
failing to guarantee the independence and impartiality of the Izba
Dyscyplinarna (Disciplinary Chamber) of the Sąd Najwyższy (Supreme
Court, Poland), which is responsible for reviewing decisions issued in
disciplinary proceedings against judges (Article 3(5), Article 27 and
Article 73 § 1 of the ustawa o Sądzie Najwyższym (Law on the
Supreme Court) of 8 December 2017, in the consolidated version published
in the Dziennik Ustaw Rzeczypospolitej Polskiej of 2019
(item 825), read in conjunction with Article 9a of the ustawa o Krajowej
Radzie Sądownictwa (Law on the National Council of the Judiciary) of
12 May 2011, as amended by the ustawa o zmianie ustawy o Krajowej Radzie
Sądownictwa oraz niektórych innych ustaw (Law amending the Law on the
National Council of the Judiciary and certain other laws) of 8 December
2017);
– by
allowing the content of judicial decisions to be classified as a disciplinary
offence involving judges of the ordinary courts (Article 107 § 1 of the
ustawa – Prawo o ustroju sądów powszechnych (Law on the organisation
of the ordinary courts) of 27 July 2001, in the version resulting from the
successive amendments published in the Dziennik Ustaw Rzeczypospolitej
Polskiej of 2019 (items 52, 55, 60, 125, 1469 and 1495), and
Article 97 §§ 1 and 3 of the Law on the Supreme Court, in the consolidated
version published in the Dziennik Ustaw Rzeczypospolitej Polskiej of
2019 (item 825));
– by
conferring on the President of the Izba Dyscyplinarna (Disciplinary Chamber) of
the Sąd Najwyższy (Supreme Court) the discretionary power to
designate the disciplinary tribunal with jurisdiction at first instance in
cases concerning judges of the ordinary courts (Article 110 § 3 and
Article 114 § 7 of the Law on the organisation of the ordinary courts, in
the version resulting from the successive amendments published in the Dziennik
Ustaw Rzeczypospolitej Polskiej of 2019 (items 52, 55, 60, 125,
1469 and 1495)) and, therefore, by failing to guarantee that disciplinary cases
are examined by a tribunal ‘established by law’; and
– by failing
to guarantee that disciplinary cases against judges of the ordinary courts are
examined within a reasonable time (second sentence of Article 112b § 5 of
the Law on the organisation of the ordinary courts), and by providing that
actions relating to the appointment of defence counsel and the taking up of the
defence by that counsel do not have a suspensory effect on the course of the
disciplinary proceedings (Article 113a of that law) and that the
disciplinary tribunal is to conduct the proceedings despite the justified
absence of the notified accused judge or his or her defence counsel
(Article 115a § 3 of the same law) and, therefore, by failing to guarantee
respect for the rights of defence of accused judges of the ordinary courts,
the
Republic of Poland has failed to fulfil its obligations under the second
subparagraph of Article 19(1) TEU;
2. Declares
that, by allowing the right of courts and tribunals to submit requests for a
preliminary ruling to the Court of Justice of the European Union to be
restricted by the possibility of triggering disciplinary proceedings, the
Republic of Poland has failed to fulfil its obligations under the second and
third paragraphs of Article 267 TFEU;
3. Orders
the Republic of Poland to bear its own costs and to pay those incurred by the
European Commission, including those relating to the proceedings for interim
relief;
4. Orders
the Kingdom of Belgium, the Kingdom of Denmark, the Kingdom of the Netherlands,
the Republic of Finland, and the Kingdom of Sweden to bear their own costs.
[Signatures]
* Language of the case:
Polish.