Poland / Supreme Court / III PSK 53/22

K.P. v. N. sp. z o.o.
Deciding body type
National Court/Tribunal
Deciding body
Supreme Court
Type
Decision
Decision date
17/01/2023
  • Poland / Supreme Court / III PSK 53/22

    Key facts of the case:

    The defendant N. appealed in cassation the judgment of the Lublin Regional Court of 18 January 2022. Subsequently, the parties were notified that the presiding and reporting judge was Judge R.Ż. of the Supreme Court. In a pleading of 12 December 2022, the respondent requested the exclusion of the judge appointed to hear the case under Article 49(1) of the Code of Civil Procedure in connection with Article 379(4) of the Code of Civil Procedure, or alternatively to examine the fulfilment of the requirements of independence and impartiality by judge R. Ż.

    Key legal question raised by the Court:

    The Supreme Court was faced with the question whether the participation in the examination of the case of a person appointed to the office of a judge of the Supreme Court at the request of the National Council of the Judiciary formed on the basis of the provisions of the Act of 8 December 2017 (amending the Act on the National Council of the Judiciary and certain other acts) leads to the composition of the court being contrary to the provisions of the law within the meaning of Article 379(4) of the Code of Civil Procedure.

    Outcome of the case:

    The Supreme Court began by noting that in a resolution of the combined Chambers of the Supreme Court of 23 January 2020, BSA I-4110- 1/20 it was determined that the participation of such a person in the composition of the Supreme Court leads in each case to the composition of the court being contrary to the law within the meaning of Article 379(4) of the Code of Civil Procedure. This resolution, as soon as it was adopted, acquired the force of a legal principle, which means that every panel of the Supreme Court is bound by it. The Supreme Court I noted that it according to the domestic law the composition of the Supreme Court with judges appointed to office on the basis of a motion of the National Council of the Judiciary formed in the composition and procedure provided for by the Act of 8 December 2017 amending the Act on the National Council of the Judiciary and certain other acts is contrary to Article 379(4) of the Code of Civil Procedure. In this situation, it becomes necessary to use the procedural provisions at the disposal of the national court to avoid a situation in which a decision would be issued by a national court ruling in a composition that breaches the right to a court. Further, the Supreme Court notes that, in the light of the case law of the European courts, a judgment issued with the participation of a judge who had been appointed unlawfully constitutes a violation of the right to a court guaranteed by Article 45(1) of the Constitution, the second subparagraph of Article 19(1) of the TEU and Article 47 of the Charter of Fundamental Rights of the European Union in conjunction with Article 6(1) of the Convention. As a result, irrespective of the degree of hypothetical internal impartiality (i.e. equal distance from the litigants and their respective interests with regard to the subject matter of the litigation) or external independence (working free from orders or directives from any source) of the particular person appointed to hear the case, there are grounds for the exclusion of the judge from hearing the case. Therefore, the motion to exclude the judge was found by the Supreme Court to be well founded.

  • Paragraphs referring to EU Charter

    “there is also no dispute between Article 45(1) of the Constitution and Article 47 of the EU Charter of Fundamental Rights, since these provisions refer to an independent and impartial court. Hence, the obligation to shape the composition of the court not only in accordance with national law, but at the same time in accordance with the standard of effective judicial protection that derives from the Convention and EU law (the doctrine of acte eclaire) follows. In the latter set-up, of course, the European Union does not have the competence to shape (impose) the organisation of the judiciary on its own (which is not the point here anyway), but it does have the power to assess whether the way in which a state exercises its sovereign competence corresponds to EU standards”.

  • Paragraphs referring to EU Charter (original language)

    „nie ma sporu także między art. 45 ust. 1 Konstytucji i art. 47 Karty Praw Podstawowych UE, skoro w tych przepisach jest mowa o niezawisłym i bezstronnym sądzie. Stąd wynika obowiązek ukształtowania składu sądu nie tylko w myśl prawa krajowego, lecz równocześnie w zgodzie ze standardem skutecznej ochrony sądowej, jaki wynika z Konwencji i prawa UE (doktryna acte eclaire). W tym ostatnim układzie oczywiście Unia Europejska nie ma kompetencji do samodzielnego kształtowania (narzucania) organizacji sądownictwa (zresztą nie o to tu chodzi), ale ma uprawnienie do oceny, czy sposób realizacji przez państwo jego suwerennej kompetencji odpowiada standardom unijnym”.