Rule of law cases – Poland

retirement age of judges & public prosecutors; Art. 157 TFEU, Art. 5(a) & 9(1)(f) of Directive 2006/54/EC, Art. 19 TEU, Art. 47 CFR

execution of European Arrest Warrant by Polish court in Ireland, the meaning of the independence of the judiciary to be assessed in judicial test (general and invdividual; reiterating the Aranyosi and Căldăraru test; Art. 47 CFR, Council Framework Decision 2002/584/JHA)

Art. 2, 4(3) and 19 TEU, Art. 47 CFR

lack of independence of Supreme Court's Disciplinary Chamber, case closed on 3/2/2020 due to ruling in C-585/18; Art. 47 CFR, Art 9(1) Directive 2000/78/EC

preliminary reference questioning the new Polish legislation relating to the disciplinary regime for judges, request for a preliminary reference inadmissible but inadmissible requests cannot lead to disciplinary sanctions for judges; Art. 19 TEU

appointment procedure of judges of the Supreme Court involving the NCJ, referring court must assess whether the new Disciplinary Chamber is independent; Art. 47 CFR, Art. 9(1) Directive 2000/78

legislation concerning the lowering of retirement age of Supreme Court judges is incompatible with principles of irremovability of judges and judicial independence; Art. 19 TEU, Art. 47 CFR

Poland ordered to suspend the application of national legislation concerning the lowering of the retirement age for Supreme Court judges

new disciplinary regime for judges; Art. 19 TEU, Art. 47 CFR

same key issue as in C-522/18, reference withdrawn by Polish Supreme Court on 23/10/2019

reference for preliminary ruling by the Polish Supreme Administrative Court in the context of legal proceedings against the appointment procedure of the National Council of the Judiciary (KRS), effective remedy aginst KRS decisions; Art. 15 and 20 TFEU, Art. 47 CFR

composition of the “Chamber of Extraordinary Control and Public Affairs” which includes individuals appointed on basis of prima facie unlawful procedure; Art. 2, 6 and 19 TEU, Art. 47 CFR

Request for preliminary ruling inadmissible. Lack of jurisdiction of the referring court to review the validity of the appointment of a Supreme Court judge and inadmissibility of such an action under national law.

composition of criminal court and appointment process (involvement of the Polish Council for the Judiciary in the appointment of judges to the Polish Supreme Court); Art. 19 TEU, Art. 47 CFR

composition of court and appointment process, withdrawn on 20/2/2020; Art. 19 TEU, Art. 47 CFR

lack of independence and impartiality of the Disciplinary Chamber of the Supreme Court; Art. 19 TEU

CJEU ordered the immediate suspension of the activities of the Disciplinary Chamber regarding disciplinary cases concerning judges, the Polish government disregarded the ruling and allowed the Disciplinary Chamber to make further decisions, such as lifting the immunity of judges with a view to prosecuting them if necessary

understanding of the notion of a court under EU law regarding the Disciplinary Court of the Bar; Directive 2006/123; notion of court under Art. 267 TFEU

surrender to Poland on the basis of a European arrest warrant (EAW) questioned in view of existing evidence of systemic or generalised deficiencies concerning the independence of the judiciary; Framework Decision 2002/584/JHA, Art. 47 CFR

No need for interpretation of EU law to enable the referring court to give judgment, hence manifest inadmissibility.

The CJEU addressed the concerns of a German Regional Court regarding the enforcement of a custodial sentence imposed by a Polish District Court, given that the Polish judicial system itself is no longer in conformity with the principle of the rule of law enshrined in Article 2 TEU. The Court ruled that a Member State may refuse to recognise and enforce a judgment imposing a criminal sentence delivered by a court of another Member State where it has evidence of systemic or generalised deficiencies in that Member State regarding the right to a fair trial, in particular so far as concerns the independence of the courts (in abstracto test), and where there are substantial grounds for believing that those deficiencies may have had a tangible influence on the criminal proceedings brought against the person concerned (in concreto test).

Interpretation of 2nd subparagraph of Art 19(1) TEU: Disciplinary Chamber of the Supreme Court of Poland lacks independence and impartiality. It could hence not lift a judge’s immunity from prosecution and his or her suspension from duties.

Disciplinary Chamber of the Supreme Court, can the President of a court change the composition of that court because the originally designated judge has been suspended by a body that does not satisfy the requirements of effective judicial protection; Art. 2 and 19(1) TEU. On 28 June 2022, a hearing took place before the Grand Chamber. The AG’s opinion will be delivered on 15 December 2022.

Poland challenged the legality of Regulation 2020/2092 on a general regime of conditionality for the protection of the Union budget as it lacks a valid legal basis

The referring court's questions pertain to the judicial panel tasked with handling the case, including a judge appointed in violation of procedures requiring judicial self-governing bodies' involvement. They inquire if panels with such judges qualify as independent "judicial bodies" under Union law (Articles 2 and 19(1) TEU and Article 47 of the EU Charter). Moreover, the referring courts inquire whether, due to lack of Polish legal remedies against irregular judicial appointments, they should, to ensure effectiveness of Union law, apply national rules on automatic disqualification of judges appointed unlawfully from handling cases. The Court declared both requests inadmissible for being hypothetical (C-181/21) and irrelevant to the pending case (C-269/21).

Commission's action against Poland regarding the "Muzzle Law" and the (suspended) Disciplinary Chamber. On 28 June 2022, a hearing took place before the Grand Chamber. The AG’s opinion will be delivered on 15 December 2022. The Court ordered a periodic penalty payment as interim relief on 27 October 2021.

right to a fair trial before an independent and impartial tribunal previously established by law art 47 CFR

Infringement of the treaties by the Commission for failing to give full and immediate application to Regulation (EU, Euratom) 2020/2092

The referring court is concerned that the panel (of judges which is to hear the case on the merits) would include a person appointed to a judicial post in breach of the rules which require the participation of judicial self-government bodies in the appointment process. Central in this case is the concept of a tribunal established by law pursuant to Article 2, Article 19(1) and Article 6(1) to (3) TEU, read in conjunction with Article 47 of the CFREU. On 29 June 2022, a hearing took place before the Grand Chamber. The AG’s opinion will be delivered on 15 December 2022.

Article 2 and 19(1) TEU; Article 47 CFR

Judge in present case was removed from her office by order of the Minister of Justice. The referring court doubts whether an executing authority such as the Minister of Justice may, at the pre-trial phase and during the judicial proceedings, intervene in the process of direct application of EU law by linking powers of supervision of the courts with the powers arising from the exercise of the office of Attorney General.

The ECtHR found a violation of Article 6(1) ECHR, stating that the judicial formation involved in the case is not a "court established by law". Subsequently, the applicant requested the reopening of the national procedure. The preliminary question is about whether the refusal to reopen as a result of the ECtHR judgment led to the deprivation of the guarantee of effective judicial protection.

Given doubts by the majority of judges of the Civil Chamber about the regularity of the appointments of judges in the Sąd Najwyższy (Supreme Court), the latter asked a preliminary question about the regularity of the composition of the judicial formation.

Preliminary questions in a case where the referring Polish court must rule on the enforcement of four final judgments by Polish courts that cannot be considered independent and impartial. Questions relate to whether referring Polish court can under EU law (arts 19 TEU and 47 Charter) verify ex officio whether the requirements of independence and impartiality have been met and render the final judicial decisions without legal effect. The preliminary request is however decided inadmissible by the CJEU ex art 267 TFEU, as the questions don’t respond to a need inherent in the resolution of the main proceedings but are intended to obtain from the Court a general assessment.

The referring court questions the compatibility with EU law of a national mechanism for reviewing final judgments performed by a court composed by members (i) who are not professional judges (or even lawyers), (ii) whose method of appointment differs from that of judges, and (iii) who do not benefit from all the guarantees of independence provided for in respect of judges.

The defendant contests a judgment to be enforced in Ireland, alleging a violation of their right to access to court due to involvement of a judge delegated by the Polish Minister of Justice. They question the impartiality of Judge 'JG' at the highest Polish court. The referring judge seeks clarity on the standards of judicial impartiality and independence, particularly regarding JG's appointment process. Prejudicial questions inquire if appointment circumstances can impact judicial impartiality and if judges implicated in such appointments can participate in assessing judicial independence.

This case involves the Supreme Court of Poland questioning whether judges appointed under disputed circumstances, particularly those in the Chamber of Extraordinary Control and Public Affairs, should be excluded from hearing a specific case (I NO 47/18). The core issue pertains to ensuring that judicial panels adhere to EU law requirements of independence and impartiality, especially considering the legality of their appointments under Polish national law. The Supreme Court seeks guidance on whether EU law precludes these judges from participating in decisions or holding executive positions within the court if their appointments were flawed.

The main question is whether the referring court, the “Chamber of Extraordinary Control and Public Affairs” of the Supreme Court in Poland (the Sąd Najwyższy), can be classified as a "court" within the meaning of Article 267 TFEU. Contrary to the A-G, the Court answers that question in the negative. Although the Court had previously ruled (in Getin Noble Bank, C-132/20) that the Sąd Najwyższy, as such, meets the requirements of independence, that presumption may be rebutted if a final judicial decision of a national or international court would lead to the conclusion that the referring court is not an independent, impartial tribunal established by law ex Art 19(1) TEU, Art 47 Charter. With extensive reference to and analogous application of ECHR case-law (Dolinska-Ficek and Ozimek v. Poland), the Court concludes that in this case the presumption is deemed to be rebutted. The Court therefore declares the preliminary question inadmissible.

Several associations of judges sought to annul the Council implementing decision, containing the so-called milestones, attached to the recovery and resilience plan for Poland. The associations claimed the adoption of these milestones violated EU law. The General Court however decided that the action for annulment ex art 263 TFEU was inadmissible due to lack of direct concern.

Preliminary reference about the safeguarding of judges against undue influence or pressure from within the judicial system (internal judicial independence). The AG considers that art 19(1) TEU and the principles of independence of the judiciary and supremacy of EU law preclude national law that allows the transfer or dismissal of judges without consent and possibility of appeal.

Preliminary question asked whether the criteria to guide the process of determining the remuneration of judges, and evaluating a possible reduction thereof, be derived from the second subparagraph of art 19(1) TEU. The AG considers that while the latter provision does not prevent legislators from adopting laws that determine/reduce remuneration, it requires the establishment of a legal framework within which the remuneration of judges can be properly determined and that protects the independence of the judiciary.

Preliminary question relates to whether the irregular (re)assignment of a specific case to a Judge-Rapporteur in national proceedings falls within the scope of the second subparagraph of art 19(1) TEU, and whether such an irregularity amounts to a violation of the requirements of effective judicial protection before an independent, impartial and pre-established tribunal. The AG considers that art 19(1), second subparagraph, TEU, interpreted in the light of art 2 TEU and taking due account of art 47 of the EU Charter, precludes a national provision which contains an absolute prohibition of a legal remedy in the event of a breach of national rules regarding the (re)assignment of cases to judges.

The referring court questions about whether judges who have been appointed to their positions following a defective appointment procedure are not excluded from participating in a formation for review. The question also arises whether this judicial formation is 'a court established in advance by law'. The referring court also asks how a judge of a Member State should behave when he has been appointed to a judicial formation that is poorly composed and has exhausted all national options for arranging a correct composition.

The referring court questions whether a decision of the President of the Court has legal effects where the judicial formation is not an independent and impartial court within the meaning of EU law. The answer to that question is important for assessing whether a judicial body with such a composition can actually assess whether it meets the standard aimed at guaranteeing independent and impartial courts that have been established in advance by law, also in the light of Article 47 Charter.

Ability of Polish court to verify ex officio whether the requirements of independence and impartiality have been met, under Articles 19 TEU and 47 CFR

criteria to guide the process of determining the remuneration of judges, and evaluating a possible reduction thereof, be derived from Article 19(1) TEU.

Article 19(1), second subparagraph, TEU precludes a national provision which contains an absolute prohibition of a legal remedy in the event of a breach of national rules regarding the (re)assignment of cases to judges.

criteria to guide the process of determining the remuneration of judges, and evaluating a possible reduction thereof, be derived from the second subparagraph of art 19(1) TEU.

Article 19(1) TEU and the principles of independence of the judiciary and supremacy of EU law preclude national law that allows the transfer or dismissal of judges without consent and possibility of appeal