CJEU Case C-521/21 / Opinion

29. Therefore, in so far as the questions submitted by the referring court concern, in essence, the scope of the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, ( 5 ) vis-à-vis the procedure for the appointment of Judge S.C., such an interpretation falls within the jurisdiction of the Court under Article 267 TFEU. ( 6 )

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35. I note, in the first place, that it has consistently been held in the case-law of both the Court of Justice and the ECtHR that the right to a tribunal established by law also covers the procedure for the appointment of judges. ( 10 ) As regards the criterion of assessment of the effects which an irregularity in the appointment may have on respect for the guarantee of a tribunal established by law, it is not sufficient to refer to any irregularity whatsoever. It is necessary to focus on the nature and degree of gravity of the irregularity. Thus, the Court has accepted that an irregularity committed during the appointment of judges within the judicial system concerned entails an infringement of the first sentence of the second paragraph of Article 47 of the Charter, particularly when that irregularity is of such a kind and of such gravity as to create a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the appointment process and thus give rise to a reasonable doubt in the minds of individuals as to the independence and impartiality of the judge or judges concerned, which is the case when what is at issue are fundamental rules forming an integral part of the establishment and functioning of that judicial system. ( 11 )

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55. In my view, although the Court’s considerations in that case belong to the context of the execution of arrest warrants, they may apply by analogy in the present case, since, in the judgment in Openbaar Ministerie, the Court examines, in essence, whether the principles deriving from the case-law relating to the guarantees of independence and impartiality within the meaning of Article 47 of the Charter also extend to the guarantee of a ‘tribunal previously established by law’ in the context of the execution of a European arrest warrant.

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58. As regards the first question, in the judgment in Krajowa Rada Sądownictwa, the Court held that the panel of three judges of the Chamber of Extraordinary Control and Public Affairs from which the request for a preliminary ruling originated did not have the characteristics of an independent and impartial tribunal, previously established by law, within the meaning of the second subparagraph of Article 19(1) TEU, read in the light of the second paragraph of Article 47 of the Charter. Thus, the Court held that that panel did not meet the requirements of the second subparagraph of Article 19(1) TEU in order to be classified as a ‘court or tribunal’ within the meaning of Article 267 TFEU. ( 32 ) In reaching that conclusion, the Court took into account all the systemic and factual elements relating to the appointment, within the Chamber of Extraordinary Control and Public Affairs, of the judges composing the referring body. ( 33 ) That judgment was followed by several orders, made on the same grounds, declaring inadmissible requests for a preliminary ruling from panels of the Chamber of Extraordinary Control and Public Affairs composed, in whole or in part, of judges appointed under the same conditions. ( 34 )

59. As I observed in my Opinion in AW ‘T’, ( 35 ) the finding that the adjudicating chamber of the Chamber of Extraordinary Control and Public Affairs is not a ‘tribunal previously established by law’, for the purposes of the second subparagraph of Article 19(1) TEU, read in the light of the second paragraph of Article 47 of the Charter, is fully transposable to the present case. It is irrelevant that that finding was made in the context of assessing of whether the adjudicating formation of that chamber that had referred the request for a preliminary ruling to the Court was a ‘court or tribunal’ within the meaning of Article 267 TFEU, since the scope of the independence required for that purpose coincides with the scope of the requirement of an independent and impartial tribunal, previously established by law.

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72. I recall, however, that the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, makes no distinction between supreme courts and ordinary courts. The fundamental requirements of independence, impartiality and being a tribunal previously established by law apply uniformly to all the courts of the Member States, without consideration of the level of jurisdiction or of the hierarchical rank of the court concerned. ( 47 )

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74. In the light of all of those considerations, the answer to the first question must be that the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, must be interpreted as meaning that, in order to determine whether a court in which a person appointed to the post of judge sits meets the requirement of a ‘tribunal previously established by law’, the competent judicial authority must take into account not only the fact that the candidature of that judge was recommended by the new KRS following its reform, and of the fact that the participants in the appointment procedure had a right of appeal only to the Chamber of Extraordinary Control and Public Affairs, but also of any other relevant circumstance relating to the appointment of that person and capable of affecting the independence and impartiality of the court concerned.

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83. In its judgment of 5 June 2023, Commission v Poland (Independence and private life of judges), ( 55 ) the Court considered that ‘the fact that the national legislature reorganises the jurisdiction applicable and confers on a single national body jurisdiction to verify compliance with certain essential requirements stemming from the fundamental right to effective judicial protection enshrined in the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, whereas the need for such verification may, depending on the circumstances, be raised before any national court, is, combined with the introduction of the abovementioned prohibitions and disciplinary offences, liable to contribute to weakening even further the effectiveness of the review of observance of that fundamental right, which EU law nevertheless entrusts to all the national courts’. ( 56 )

84. In the main proceedings, the national provisions which assign to the Chamber of Extraordinary Control and Public Affairs exclusive jurisdiction to ascertain the regularity of the appointment of the person concerned to the post of judge, while requiring that any complaints relating to that appointment be rejected without being examined, ( 57 ) have the effect of depriving the judges of the ordinary courts of the possibility of determining whether another court is a tribunal previously established by law. Guaranteeing access to an independent and impartial tribunal, previously established by law – and in particular determining whether that tribunal is properly constituted – is at the heart of the right to a fair trial. As I have already observed in my Opinion in AW ‘T’, ( 58 ) the national courts must be able to ascertain whether an irregularity vitiating the procedure for the appointment of a judge could give rise to an infringement of the requirements arising from the right to effective judicial protection, within the meaning of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, and, in particular, those relating to access to an independent and impartial tribunal, previously established by law, in circumstances in which compliance with those requirements could give rise to doubts. ( 59 )

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86. The third and fourth sub-questions seek to determine whether, for the purpose of preserving the practical effect of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, it is necessary to disregard: (a) the judgment whereby the Trybunał Konstytucyjny (Constitutional Court) prohibits the exclusion of an irregularly appointed judge who does not meet the criteria of an independent and impartial tribunal, previously established by law, and (b) the judgment of that court preventing the implementation of an order of the Court of Justice laying down interim measures intended to suspend the national provisions preventing the examination, by the national courts, of compliance with the requirement of an independent and impartial tribunal, previously established by law.

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88. As stated in the context of the preceding question, that judgment prevents, de facto, the review of the validity of the procedures for the appointment of judges in the light of the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter. Therefore, and in order to guarantee the primacy and the direct effect of those provisions, the referring court must be able itself to assess the validity of the appointment of the judge concerned. It must therefore disregard a judgment of the Constitutional Court that would prevent it from examining an application for the exclusion of a judge based on the irregularity of his or her appointment, since that irregularity would run counter to the requirement of an independent and impartial tribunal, previously established by law.

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91. In refusing to accept the Court’s jurisdiction to adopt interim measures relating to the organisation and the jurisdiction of the Polish courts, the Trybunał Konstytucyjny (Constitutional Court) radically hinders the review of the legality of appointments of national judges in the light of the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter. Having regard to the case-law referred to in points 78 to 82 of this Opinion, I am of the view that it is for the referring court to take all the necessary measures to ensure, in full, the practical effect of EU law which means disregarding the judgment of the Trybunał Konstytucyjny (Constitutional Court) that prevents the implementation of the orders of the Court relating to interim measures. Failing that, the national courts would be prevented from ascertaining whether the EU requirements on independence and impartiality, and also on a tribunal previously established by law, are duly satisfied.

92. By the second part of the second question, the referring court asks, in essence, what measures may be taken to ensure the practical effect of the right to effective judicial protection before an independent and impartial tribunal, previously established by law, within the meaning of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, to preclude the panel of judges being considered not to satisfy those conditions on the sole ground that one of its members was appointed irregularly.

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96. The fact nonetheless remains that the second subparagraph of Article 19(1) TEU imposes on the Member States a clear and precise obligation as to the result to be achieved and that obligation is not subject to any condition as regards the independence which must characterise the courts called upon to interpret and apply EU law. ( 64 ) That obligation as to the result to be achieved is the natural consequence of the fact that the referring court must, according to the second subparagraph of Article 19(1) TEU, in conjunction with Article 47 of the Charter, have jurisdiction to determine whether a panel of judges or another judge is an independent and impartial tribunal, previously established by law, and to disregard national provisions, even constitutional, or practices that prevent that panel or that judge from effectively exercising that jurisdiction. If an obligation as to the result to be achieved were not placed on the national court, under the second subparagraph of Article 19(1) TEU, in conjunction with Article 47 of the Charter, the content of those provisions would be deprived of its essence.