CJEU Case C-204/21 / Judgement

1) By its application, the European Commission asks the Court to declare that:

- by adopting and maintaining in force Article 42a(1) and (2) and Article 55(4) of the ustawa – Prawo o ustroju sądów powszechnych (Law relating to the organisation of the ordinary courts) of 27 July 2001 (Dz. U. No 98, item 1070), as amended by the ustawa o zmianie ustawy – Prawo o ustroju sądów powszechnych, ustawy o Sądzie Najwyższym oraz niektórych innych ustaw (Law amending the Law relating to the organisation of the ordinary courts, the Law on the Supreme Court and certain other laws) of 20 December 2019 (Dz. U. of 2020, item 190) (‘the amending law’) (‘the amended Law relating to the ordinary courts’), Article 26(3) and Article 29(2) and (3) of the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 (Dz. U. of 2018, item 5), as amended by the amending law (‘the amended Law on the Supreme Court’), Article 5(1a) and (1b) of the ustawa – Prawo o ustroju sądów administracyjnych (Law relating to the organisation of the administrative courts) of 25 July 2002 (Dz. U. No 153, item 1269), as amended by the amending law (‘the amended Law relating to the administrative courts’), and Article 8 of the amending law, which prohibit any national court from reviewing compliance with the EU requirements relating to an independent and impartial tribunal previously established by law, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), in the light of the case-law of the European Court of Human Rights concerning Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), and under Article 267 TFEU and the principle of the primacy of EU law;

- by adopting and maintaining in force Article 26(2) and (4) to (6) and Article 82(2) to (5) of the amended Law on the Supreme Court and Article 10 of the amending law, which place the examination of complaints and questions of law concerning the lack of independence of a court or judge under the exclusive jurisdiction of the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Extraordinary Review and Public Affairs Chamber) of the Sąd Najwyższy (Supreme Court, Poland) (‘the Extraordinary Review and Public Affairs Chamber’), the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, and under Article 267 TFEU and the principle of the primacy of EU law;

- by adopting and maintaining in force points 2 and 3 of Article 107(1) of the amended Law relating to the ordinary courts and points 1 to 3 of Article 72(1) of the amended Law on the Supreme Court, under which the examination of compliance with the EU requirements relating to an independent and impartial tribunal previously established by law may be classified as a ‘disciplinary offence’, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, and under Article 267 TFEU;

- by conferring on the Izba Dyscyplinarna (Disciplinary Chamber) of the Sąd Najwyższy (Supreme Court) (‘the Disciplinary Chamber’), whose independence and impartiality are not guaranteed, jurisdiction to hear and determine cases having a direct impact on the status of judges and trainee judges and the performance of their office, such as, first, applications for authorisation to initiate criminal proceedings against judges and trainee judges or to detain them and, second, cases relating to employment and social security law that concern judges of the Sąd Najwyższy (Supreme Court) and cases relating to the compulsory retirement of those judges, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU;

- by adopting and maintaining in force Article 88a of the amended Law relating to the ordinary courts, Article 45(3) of the amended Law on the Supreme Court and Article 8(2) of the amended Law relating to the administrative courts, the Republic of Poland has infringed the right to respect for private life and the right to protection of personal data, guaranteed by Article 7 and Article 8(1) of the Charter and by points (c) and (e) of the first subparagraph of Article 6(1), Article 6(3) and Article 9(1) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1) (‘the GDPR’).

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6) Article 7 of the Charter states:

‘Everyone has the right to respect for his or her private and family life, home and communications.'

7) Article 8 of the Charter provides that:

‘1.   Everyone has the right to the protection of personal data concerning him or her.

2.   Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. …

…’

8) Article 47 of the Charter, entitled ‘Right to an effective remedy and to a fair trial’, provides:

‘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. …

…’

9) Article 52(1) of the Charter provides:

‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.'

10) Recitals 4, 10, 16, 20, 39 and 51 of the GDPR state:

'(4) The processing of personal data should be designed to serve mankind. The right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality. This Regulation respects all fundamental rights and observes the freedoms and principles recognised in the Charter as enshrined in the Treaties, in particular the respect for private and family life, home and communications, the protection of personal data, freedom of thought, conscience and religion, freedom of expression and information, freedom to conduct a business, the right to an effective remedy and to a fair trial, and cultural, religious and linguistic diversity.'

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44) On 29 April 2020, taking the view that, as a result of the adoption of the amending law, the Republic of Poland had failed, in various respects, to fulfil its obligations under the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter, the principle of the primacy of EU law, Article 267 TFEU and Article 7 and Article 8(1) of the Charter, points (c) and (e) of the first subparagraph of Article 6(1), Article 6(3) and Article 9 of the GDPR, the Commission sent a letter of formal notice to that Member State. The Republic of Poland replied by a letter dated 29 June 2020 in which it disputed all the allegations of infringement of EU law.

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58) The Commission’s action consists of five complaints. The first to third complaints allege infringements of the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter and Article 267 TFEU, while the first and second complaints also seek a declaration that there has been an infringement of the principle of the primacy of EU law. The fourth complaint alleges infringement of the second subparagraph of Article 19(1) TEU. The fifth complaint alleges infringement of Article 7 and Article 8(1) of the Charter and of points (c) and (e) of the first subparagraph of Article 6(1), Article 6(3) and Article 9(1) of the GDPR.

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61) In so doing, the Republic of Poland seeks, in essence, as is apparent from its rejoinder, to challenge both the existence of the infringements alleged by the Commission in its action, in particular those relating to infringements of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, and of the principle of the primacy of EU law, and the jurisdiction of the Court to rule on that action. According to that Member State, it is apparent from the case-law arising from the judgment of the Trybunał Konstytucyjny (Constitutional Court) of 14 July 2021 that upholding the complaints made by the Commission would amount, for the Court, to exceeding its own powers and those of the European Union. Such upholding would undermine, first, the exclusive competence of the Republic of Poland to organise justice, in breach of the principle of conferral of powers of the European Union, and, second, the national identity inherent in the fundamental political and constitutional structures of that Member State, in breach of Article 4(2) TEU.

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69) For its part, Article 19 TEU gives concrete expression to the value of the rule of law stated in Article 2 TEU (judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 32). As regards, more specifically, the second subparagraph of Article 19(1) TEU, it should be recalled that, as that provision provides, 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 that provision, 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 ECHR and which is now reaffirmed by Article 47 of the Charter (judgment of 15 July 2021, Commission v Poland (Disciplinary regime for judges), C‑791/19, EU:C:2021:596, paragraph 52 and the case-law cited).

70) 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 (judgment of 15 July 2021, Commission v Poland (Disciplinary regime for judges), C‑791/19, EU:C:2021:596, paragraph 57 and the case-law cited).

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78) The Court has ruled that the second subparagraph of Article 19(1) TEU, interpreted in the light of Article 47 of the Charter, which imposes on the Member States a clear and precise obligation as to the result to be achieved and which is not subject to any conditions, in particular as regards the independence and impartiality of the courts called upon to interpret and apply EU law and the requirement that those courts must be previously established by law, has direct effect which means that any provision, case-law or national practice contrary to those provisions of EU law, as interpreted by the Court, must be disapplied (see, to that effect, judgments of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraphs 158 and 159 and the case-law cited; of 16 February 2022, Hungary v Parliament and Council, C‑156/21, EU:C:2022:97, paragraph 162 and the case-law cited; and of 22 February 2022, RS (Effect of the decisions of a constitutional court), C‑430/21, EU:C:2022:99, paragraphs 58 and 59 and the case-law cited).

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80) In the light of all the foregoing, it must be held that, contrary to what the Republic of Poland claims, neither the principles set out in Article 4(1) and (2) and Article 5(1) TEU, nor the case-law of a national constitutional court such as that referred to in paragraph 60 of the present judgment, are such as to prevent the national provisions called into question by the Commission in its action from being subject to review by the Court, in particular in the light of the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter, and of the principle of the primacy of EU law.

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95) As regards specifically the rules governing the disciplinary regime applicable to judges, it thus follows from the settled case-law of the Court that the requirement of independence derived from EU law, and, in particular, from the second subparagraph of Article 19(1) TEU, means that 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. In that regard, rules which define, in particular, both conduct amounting to disciplinary offences and the penalties actually applicable, rules which 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, especially the rights of the defence, and rules which 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 of 15 July 2021, Commission v Poland (Disciplinary regime for judges), C‑791/19, EU:C:2021:596, paragraph 61 and the case-law cited).

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106) According to the Commission, those national provisions infringe, in the first place, the provisions of the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, in so far as they seek to prevent all the judges concerned, on pain of disciplinary penalties which may go as far as dismissal, from making assessments, as they are required to do under the case-law of the Court, as to whether, in cases concerning individual rights derived from EU law, the right of individuals to a hearing by an independent and impartial tribunal previously established by law may be guaranteed or has not been infringed.

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123) Thirdly, it submits that the disciplinary offence relating to a ‘manifest and flagrant’ breach of legal rules was introduced in point 1 of Article 72(1) of the amended Law on the Supreme Court, with the sole aim of aligning the cases in which disciplinary liability of judges of the Sąd Najwyższy (Supreme Court) is incurred with those applicable to judges of the ordinary courts provided for in point 1 of Article 107(1) of the Law relating to the organisation of the ordinary courts, with the result that those two provisions should be accorded the same scope. Point 1 of Article 107(1) of the Law relating to the organisation of ordinary courts is the subject of a well-established and very restrictive interpretation by the Sąd Najwyższy (Supreme Court), precluding such an offence from arising from the content of judicial decisions interpreting the law. In particular, the fact that a national court discharges its obligations under EU law, including that of guaranteeing a party the right to effective judicial protection, within the meaning of the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter, or the fact that such a court asks the Court about the interpretation of provisions of EU law cannot, by definition, constitute a manifest and flagrant breach of legal rules, within the meaning of the abovementioned point 1 of Article 72(1).

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130) More generally, it is apparent, in that regard, from the case-law of the Court that national courts, in certain circumstances, may be obliged to review compliance with the requirements arising from the fundamental right to effective judicial protection, for the purposes 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 (see, by way of example, judgments in A. K. and Others, paragraphs 153, 154, 164 and 166; of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraphs 139, 149, 165 and 166; and of 16 November 2021, Prokuratura Rejonowa w Mińsku Mazowieckim and Others, C‑748/19 to C‑754/19, EU:C:2021:931, paragraphs 74 and 87).

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132) In those circumstances, the fact that a national court performs the tasks entrusted to it by the Treaties and, in so doing, complies with its obligations under those Treaties, by giving effect to provisions such as the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, cannot, by definition, be regarded as a disciplinary offence on the part of judges sitting in such a court without those provisions of EU law being infringed ipso facto.

133) By the first part of the third complaint, the Commission asks the Court to declare that, by adopting and maintaining the provisions set out in points 2 and 3 of Article 72(1) of the amended Law on the Supreme Court and points 2 and 3 of Article 107(1) of the amended Law relating to the ordinary courts, the Republic of Poland has failed to fulfil its obligations under, on the one hand, the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter and, on the other hand, Article 267 TFEU.

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135) As regards, on the one hand, the alleged infringement of the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter, it should be noted, in the first place, that, contrary to what the Republic of Poland maintains, the wording of the contested national provisions does not permit the inference that those disciplinary offences relate exclusively to judicial acts the purpose of which is to rule on the actual validity of the act of appointment of a judge.

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137) As the Advocate General observed, in essence, in points 181 and 183 of his Opinion, such references are so broad and imprecise that they are, in particular, liable to lead to the application of the contested national provisions and to the initiation of disciplinary proceedings against the judges concerned in situations in which those judges examine and rule on whether they themselves or the court in which they sit or other judges or courts to which they belong satisfy the requirements arising from the provisions of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter.

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140) In that regard, it cannot be ignored, inter alia, that the words thus favoured by the Polish legislature at the time of the adoption, as a matter of urgency and on the basis of a draft law submitted to the Sejm on 12 December 2019, of the amending law of 20 December 2019 which introduced the contested national provisions into the Law on the Supreme Court, the Law relating to the organisation of the ordinary courts and the Law relating to the organisation of the administrative courts, clearly and specifically echo a series of questions raised by various Polish courts as regards compliance with EU law and, more specifically, with the requirements arising from the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, of various recent legislative amendments affecting the organisation of justice in Poland.

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143) Moreover, it is also necessary to take account, in that regard, of the fact that, in its judgment of 5 December 2019 (III PO 7/18), the Sąd Najwyższy (Izba Pracy i Ubezpieczeń Społecznych) (Supreme Court (Labour and Social Insurance Chamber)) had itself held, on the basis of the guidance provided in the judgment in A.K. and Others, that the newly formed KRS did not constitute a body independent of the Polish legislature and executive and that the Disciplinary Chamber was not a court or tribunal, within the meaning of Article 47 of the Charter, Article 6 ECHR and Article 45(1) of the Constitution.

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152) It follows from all of the foregoing that the risk that the national provisions referred to in paragraph 133 of the present judgment may be interpreted in such a way that the disciplinary regime applicable to judges, and, in particular, the penalties that that regime entails, may be used in order to prevent the national courts concerned from making certain findings or assessments, which, however, are required by the provisions of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, and, accordingly, to influence the judicial decisions expected from those courts, thus undermining the independence of the judges of which those courts are composed, is established in the present case and that those provisions of EU law are therefore infringed in those two respects.

153) As regards, moreover, the alleged infringement of Article 267 TFEU, the considerations set out in paragraphs 135 to 149 above also lead to the finding that judges of the ordinary courts, the administrative courts or the Sąd Najwyższy (Supreme Court) who refer questions to the Court for a preliminary ruling concerning the interpretation of the requirements relating to the independence and impartiality of the courts and the concept of ‘tribunal previously established by law’ stemming from the provisions of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, such as those which were referred to the Court in the context of the preliminary ruling cases referred to in paragraphs 141 and 144 of that judgment, may, by reason of the very fact that they formulated such questions and expressed their doubts underlying those questions, be criticised, in so doing, for having committed the offences laid down in the contested national provisions.

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163) In the light of all the foregoing, it must be held that the provisions of points 2 and 3 of Article 72(1) of the amended Law on the Supreme Court and points 2 and 3 of Article 107(1) of the amended Law relating to the ordinary courts infringe both the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter and those of Article 267 TFEU, with the result that the first part of the Commission’s third complaint must be upheld.

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170) By its first complaint, which it is appropriate to examine in the third place, the Commission maintains that the provisions of Article 42a(1) and (2) of the amended Law relating to the ordinary courts, Article 26(3) and Article 29(2) and (3) of the amended Law on the Supreme Court and Article 5(1a) and (1b) of the amended Law relating to the administrative courts, as well as the provisions of Article 55(4) of the amended Law relating to the ordinary courts and those of Article 8 of the amending law infringe the provisions of the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter, the principle of the primacy of EU law and Article 267 TFEU.

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174) In its defence, the Republic of Poland submits that the Commission has not discharged the burden of proof on it by failing to substantiate its claims relating to possible infringements of Article 267 TFEU and the principle of the primacy of EU law. In any event, the national provisions at issue do not deal with the submission by the national courts of questions for a preliminary ruling or concern issues of conflict between rules in the context of which that principle may have to be applied. Nor has the Commission explained how one of the national provisions at issue, namely Article 26(3) of the amended Law on the Supreme Court, could infringe the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter.

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176) The Republic of Poland asserts that, as is apparent from their literal, contextual, purposive and systemic interpretation, and contrary to the incorrect meaning attributed to them by the Commission, Article 42a(1) and (2) of the amended Law relating to the ordinary courts, Article 26(3) and Article 29(2) and (3) of the amended Law on the Supreme Court and Article 5(1a) and (1b) of the amended Law relating to the administrative courts do not prevent compliance with the guarantees required under the second subparagraph of Article 19(1) TEU and Article 47 of the Charter.

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183) As regards the alleged infringement of the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, and of the principle of the primacy of EU law, according to the Commission, the national provisions referred to in paragraph 176 of the present judgment prohibit not only ‘establish[ing]’, but also ‘assess[ing]’ the lawfulness of the appointment and the ‘power to carry out tasks in relation to the administration of justice that derives from that appointment’, without reference to the act of appointment concerned, with the result that, on the basis of such wording, the assessment of the power of a judge to rule in a given case is prohibited. That interpretation is also apparent from Article 26(3) of the amended Law on the Supreme Court, according to which a request referred to in paragraph 2 of that article cannot concern assessment of the legality of the appointment of a judge or his or her authority to carry out judicial functions.

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193) In the second place, as regards the alleged infringement of the principle of the primacy of EU law, it should, by contrast, be noted that, in the arguments relating to the first complaint that it set out in the application, the Commission refers to that principle, stating, in particular, in paragraph 75 of that application, that, by preventing the Polish courts from ruling on whether the requirements arising from the second subparagraph of Article 19(1) of the TEU in conjunction with Article 47 of the Charter are satisfied, in the situations referred to by the contested national provisions, those provisions were, for that very reason, also capable of preventing those courts from adopting, in accordance with that principle, acts which might prove necessary in order to ensure effective compliance with those requirements in such situations.

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201) In view of their relatively broad and imprecise nature, such wording appears to be such as to lead to a wide range of acts or conduct on the part of the ordinary courts, the administrative courts or the Sąd Najwyższy (Supreme Court) or their organs being capable, by reason of their content or effects, of being caught by the prohibitions thus laid down. That may, in particular, be the case where those courts are required, in accordance with their obligations, which are recalled in paragraphs 128 to 131 of the present judgment, to determine, in certain circumstances, whether they or the judges of whom they are composed or other judges or courts, called upon to rule on cases concerning EU law or which have ruled on them, satisfy the requirements arising from the second subparagraph of Article 19(1) TEU and Article 47 of the Charter relating to the independence, impartiality and previous establishment by law of the courts and judges concerned.

202) In the second place, it should be noted that the terms thus used by the Polish legislature are, as stated in paragraph 140 of the present judgment concerning the national provisions called into question by the Commission in the context of the third complaint, closely linked to a series of questions raised by various Polish courts concerning the compliance with EU law and, more specifically, with the requirements arising from the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, of various recent legislative amendments affecting the organisation of justice in Poland.

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209) Furthermore, as is apparent from the judgments referred to in paragraphs 146 and 148 of the present judgment, the answers given by the Court to the questions referred for a preliminary ruling, the wording of which is set out in paragraph 207 of the present judgment, confirmed the risk that acts or assessments which, in certain circumstances, are a matter for the national courts under the provisions of Article 19(1) TEU in conjunction with Article 47 of the Charter may in fact fall within the prohibitions laid down in the national provisions contested in the first complaint.

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212) In the third place, as regards the Republic of Poland’s claims that other national rules allow the requirements arising from the provisions of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter to be satisfied, it should be noted, first, that, as regards the national provisions concerning the recusal of judges referred to in paragraph 179 above, it follows, on the one hand, from Article 26(3) of the amended Law on the Supreme Court that the assessment of the lawfulness of the appointment of a judge or of his or her power to carry out judicial tasks is not permitted in the context of such a recusal procedure.

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219) It follows from the foregoing that the national provisions referred to in paragraph 198 above infringe the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter.

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227) In the light of the foregoing, it must be held that Article 55(4) of the amended Law relating to the ordinary courts and, consequently, Article 8 of the amending law also infringe the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter.

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229) According to settled case-law, Article 47 of the Charter has direct effect (see, inter alia, judgment of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraph 56 and the case-law cited) and it is, furthermore, recalled in paragraph 78 of the present judgment that the same is true of the second subparagraph of Article 19(1) TEU.

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231) In the light of all the foregoing, the first complaint must be upheld in so far as it alleges infringements of the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, and of the principle of the primacy of EU law.

232) By its second complaint, which it is appropriate to examine in the fourth place, the Commission submits, in essence, that questions relating to the independence of a court or judge are ‘horizontal issues’ which any national court hearing a case falling within the scope of EU law has, including in limine litis and when ruling at first instance, the obligation to examine in the light of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, and in respect of which it must be able to make a reference to the Court for a preliminary ruling on the basis of Article 267 TFEU, subsequently disapplying, if necessary in accordance with the principle of the primacy of EU law, any national provisions which are contrary to those provisions of EU law, as interpreted by the Court. Such matters do not constitute specific legal issues in a specific area of law which may, on that basis, fall within the exclusive jurisdiction of an allegedly specialised court.

238) In its defence, the Republic of Poland submits, in the first place, that the Commission misinterprets the judgment in A. K. and Others. It follows only from that judgment that, if a party claims that the examination of its case by the court which would normally have jurisdiction would result in an infringement of its rights under Article 47 of the Charter, the court seised may rule on such an objection and, if that objection is well founded, refer the case back to another court which offers the necessary guarantees of independence and which would have jurisdiction under law in the absence of provisions reserving jurisdiction to the court which does not offer such guarantees.

245) In the third place, the Republic of Poland considers that the contested national provisions do not limit the power of the Polish courts to make a reference to the Court for a preliminary ruling in so far as they act in the context of their territorial and substantive jurisdiction. Furthermore, since the Extraordinary Review and Public Affairs Chamber is a court of last instance, it is required to make a request for a preliminary ruling to the Court whenever it has doubts as to the interpretation of the second subparagraph of Article 19(1) TEU, which thus increases, in practice, the number of cases in which there may be an obligation to make a reference to the Court for a preliminary ruling and, consequently, strengthens the effectiveness of the exercise of the rights derived from Article 47 of the Charter.

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268) That being so, it must, in the third place, be observed that, unlike the powers relating to provisions of substantive EU law which were at issue, inter alia, in the cases which gave rise to the judgments referred to in paragraphs 265 and 266 of the present judgment, the reorganisation and centralisation of jurisdiction which the Commission disputes by its second complaint concern certain requirements arising from the provisions of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, namely provisions of both a constitutional and procedural nature, compliance with which must, moreover, be guaranteed across all the substantive areas of application of EU law and before all national courts seised of cases falling within those areas.

269) As recalled in paragraph 69 of the present judgment, the second subparagraph of Article 19(1) TEU gives concrete expression to the value of the rule of law set out in Article 2 TEU and, in that regard, obliges the Member States to establish a system of legal remedies and procedures ensuring respect for individuals for their right to effective judicial protection in all the fields covered by EU law, the principle of effective judicial protection referred to in the second subparagraph of Article 19(1) TEU being a general principle of EU law now enshrined in Article 47 of the Charter.

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278) By contrast, the obligations referred to in paragraph 276 of the present judgment are such as to preclude the review of compliance by the national courts and the subsequent application of the requirements arising from the provisions of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter as interpreted by the Court from being capable, in the context of a reorganisation of jurisdiction such as that disputed by the Commission in its second complaint, of falling, in a general and indiscriminate manner, within the jurisdiction of a single national body, all the more so if that body cannot, under national law, examine certain aspects inherent in those requirements.

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285) On the other hand, account must be taken of the fact that the national provisions contested in the second complaint were introduced into the Law on the Supreme Court by the amending law, as a matter of urgency and in the particular context described in paragraphs 140 to 145 of the present judgment, concurrently with the other provisions contested by the Commission in the context of the first and third complaints. As is apparent from the findings made by the Court when examining those first and third complaints, the reason given for upholding those complaints is, inter alia, the fact that the contested national provisions, because of the prohibitions and disciplinary offences they impose on judges of the Sąd Najwyższy (Supreme Court) and on all the ordinary and administrative courts, are such as to prevent those judges and courts from making certain findings and assessments which, in certain circumstances, are incumbent on them under EU law, in the light of the requirements arising from the provisions of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter.

286) In such a context, 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. That is all the more so since, as stated in paragraph 198 of the present judgment, that body cannot, in the case in point, examine a request submitted to it by a national court concerning the ‘establishment and the assessment of the legality of the appointment of a judge or of his or her authority to carry out judicial functions’.

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288) As regards, lastly, Article 10 of the amending law, it is sufficient to note that, since the purpose of that article is, in essence, to specify to what extent and how the exclusive jurisdiction conferred on the Extraordinary Review and Public Affairs Chamber by the national provisions referred to in paragraphs 281 to 283 of the present judgment must be exercised in respect of cases which were pending on the date of entry into force of that law, that article is inextricably linked to those other provisions and infringes, consequently, for the same reasons as those set out in paragraphs 268 to 287 of that judgment, both the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, and the principle of the primacy of EU law.

289) It follows from all of the foregoing that the second complaint must be upheld in so far as it alleges infringement of the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter and of the principle of the primacy of EU law.

290) As regards Article 267 TFEU, it must be stated that the very fact of conferring on a single body, namely, in the present case, the Extraordinary Review and Public Affairs Chamber, exclusive jurisdiction to settle certain questions relating to the application of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter is such as to prevent or, at the very least, discourage other courts, which have thus been deprived of any internal jurisdiction to rule on those questions themselves, from making a reference to the Court for a preliminary ruling in that regard, which, as is apparent from the principles recalled in paragraphs 155 to 158 of the present judgment, infringes Article 267 TFEU.

291) Moreover, as regards the more general context in which the amending law and the contested national provisions were adopted, it should also be recalled that, as the Commission maintains and as is apparent from guidance in several recent judgments of the Court, the attempts by the Polish authorities to discourage or prevent national courts from referring questions concerning interpretation to the Court of Justice for a preliminary ruling regarding the second subparagraph of Article 19(1) TEU and Article 47 of the Charter in relation to the recent legislative reforms that have affected the judiciary in Poland have recently increased (see, inter alia, judgment of 2 March 2021, A. B and Others (Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraphs 99 to106 and the case-law cited).

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293) By its fifth complaint, the Commission submits that Article 88a of the amended Law relating to the ordinary courts, Article 45(3) of the amended Law on the Supreme Court and Article 8(2) of the amended Law relating to the administrative courts infringe Article 7 and Article 8(1) of the Charter and points (c) and (e) of the first subparagraph of Article 6(1), Article 6(3) and Article 9(1) of the GDPR.

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308) As a preliminary point, it should be observed, in the first place, that, by its fifth complaint, the Commission asks the Court to declare that, by adopting Article 88a of the amended Law relating to the ordinary courts, Article 45(3) of the amended Law on the Supreme Court and Article 8(2) of the amended Law relating to the administrative courts, the Republic of Poland has failed to fulfil both its obligations under points (c) and (e) of the first subparagraph of Article 6(1), Article 6(3) and Article 9(1) of the GDPR and those resulting from Article 7 and Article 8(1) of the Charter.

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316) It should be noted that, in so far as the exception laid down in Article 2(2)(a) of the GDPR renders inapplicable the system of protection of personal data laid down by that regulation and thus deviates from the objective underlying it, namely to ensure the protection of the fundamental rights and freedoms of natural persons with regard to the processing of personal data, such as the right to respect for private and family life and the right to the protection of personal data, guaranteed by Articles 7 and 8 of the Charter, that exception must, like the other exceptions to such applicability laid down in Article 2(2), be interpreted strictly (see, to that effect, judgments of 14 February 2019, Buivids, C‑345/17, EU:C:2019:122, paragraph 41 and the case-law cited, and of 22 June 2021, Latvijas Republikas Saeima (Penalty points), C‑439/19, EU:C:2021:504, paragraph 62 and the case-law cited).

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326) As Article 51(1) of the Charter provides, its provisions are addressed to the Member States only when they are implementing EU law.

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328) Furthermore, since those personal data include information on identified individuals, the access of any member of the general public to those data affects the fundamental right of the persons concerned to respect for their private life, guaranteed in Article 7 of the Charter, and it is of no relevance, in that respect, that the data concerned may relate to activities of a professional nature. In addition, making available those data to the general public in that manner constitutes the processing of personal data falling under Article 8 of the Charter (see, to that effect, judgment of 22 November 2022, Luxembourg Business Registers, C‑37/20 and C‑601/20, EU:C:2022:912, paragraph 38 and the case-law cited).

329) Thus, the making available of those personal data to third parties constitutes an interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter, whatever the subsequent use of the information communicated. In that connection, it does not matter whether the information in question relating to private life is sensitive or whether the persons concerned have been inconvenienced in any way on account of that interference (see, to that effect, judgment of 22 November 2022, Luxembourg Business Registers, C‑37/20 and C‑601/20, EU:C:2022:912, paragraph 39 and the case-law cited).

330) It follows from the above that Article 7 and Article 8(1) of the Charter are applicable in the present case and that the contested national provisions must therefore comply with those articles (see, to that effect, judgment of 18 June 2020, Commission v Hungary (Transparency of associations), C‑78/18, EU:C:2020:476, paragraph 103).

The alleged infringement of the provisions of points (c) and (e) of the first subparagraph of Article 6(1), Article 6(3) and Article 9(1) of the GDPR and of Article 7 and Article 8(1) of the Charter

331) It is appropriate to emphasise at the outset, on the one hand, the close links between the GDPR and the provisions of Article 7 and Article 8(1) of the Charter, provisions in the light of which that regulation must be interpreted.

332) It is also apparent from Article 1(2) of the GDPR, read in conjunction with recitals 4 and 10 thereof, that that regulation has the objective in particular of ensuring a high level of protection of the fundamental rights and freedoms of natural persons with regard to the processing of personal data; that right is also recognised in Article 8 of the Charter and is closely connected to the right to respect for private life, enshrined in Article 7 of the Charter (judgment of 1 August 2022, Vyriausioji tarnybinės etikos komisija, C‑184/20, EU:C:2022:601, paragraph 61). As the Advocate General also observed in particular in point 235 of his Opinion, for as long as the conditions governing the legal processing of personal data under that regulation are fulfilled, such processing meets, in principle, the requirements of Articles 7 and 8 of the Charter (see, by analogy, judgment of 27 September 2017, Puškár, C‑73/16, EU:C:2017:725, paragraph 102).

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334) In that regard, it should indeed be borne in mind, first, that it follows from settled case-law that the fundamental rights to respect for private life and to the protection of personal data, guaranteed in Articles 7 and 8 of the Charter, are not absolute rights, but must be considered in relation to their function in society and be weighed against other fundamental rights. Limitations may therefore be imposed, so long as, in accordance with Article 52(1) of the Charter, they are provided for by law, respect the essence of the fundamental rights and observe the principle of proportionality. Under the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. They must apply only in so far as is strictly necessary and the legislation which entails the interference must lay down clear and precise rules governing the scope and application of the measure in question (judgment of 1 August 2022, Vyriausioji tarnybinės etikos komisija, C‑184/20, EU:C:2022:601, paragraph 70 and the case-law cited).

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337) Article 6(3) of the GDPR specifies, in respect of those two situations where processing is lawful, that the processing must be based on EU law or on Member State law to which the controller is subject, and that that legal basis must meet an objective of public interest and be proportionate to the legitimate aim pursued. Since those requirements constitute an expression of the requirements arising from Article 52(1) of the Charter, they must be interpreted in the light of the latter provision (judgment of 1 August 2022, Vyriausioji tarnybinės etikos komisija, C‑184/20, EU:C:2022:601, paragraph 69).

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345) It must also be borne in mind that, as the Court has held, a wide interpretation of the concept of ‘sensitive data’ is confirmed by the objective of the GDPR, recalled in paragraph 316 above, which is to ensure a high level of protection of the fundamental rights and freedoms of natural persons, in particular their right to privacy, with respect to the processing of personal data concerning them. Such an interpretation also complies with the purpose of Article 9(1) of the GDPR, namely to ensure enhanced protection as regards processing which, because of the particular sensitivity of the data processed, is liable to constitute, as follows from recital 51 of the GDPR, a particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data, guaranteed by Articles 7 and 8 of the Charter (see, to that effect, judgment of 1 August 2022, Vyriausioji tarnybinės etikos komisija, C‑184/20, EU:C:2022:601, paragraphs 125 and 126 and the case-law cited).

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349) It follows from all of the foregoing that, since the contested national provisions fall within the scope of points (c) and (e) of the first subparagraph of Article 6(1) and Article 9(1) of the GDPR, and of Article 7 and Article 8(1) of the Charter, it is now necessary to assess their possible justification in the light of Article 6(3) and Article 9(2)(g) of that regulation and Article 52(1) of the Charter.

350) In that regard, it is apparent from paragraphs 334, 337 and 342 of the present judgment that, in order for the contested national provisions, as legal bases for the processing of personal data at issue, to satisfy the requirements arising, respectively, from Article 52(1) of the Charter, Article 6(3) of the GDPR and Article 9(2)(g) of that regulation, those processing operations must, inter alia, meet an objective of public interest and be proportionate to the legitimate aim thus pursued (see, to that effect, judgment of 1 August 2022, Vyriausioji tarnybinės etikos komisija, C‑184/20, EU:C:2022:601, paragraph 73).

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356) It follows that the objective which the Republic of Poland claims it wished to pursue in the present case corresponds, as such, to an objective of general interest recognised by the European Union, within the meaning of Article 52(1) of the Charter, or to an objective of public interest and is, therefore, legitimate, within the meaning of Article 6(3) of the GDPR, since such an objective of public interest may, moreover, be classified as ‘substantial’ within the meaning of Article 9(2)(g) of that regulation.

357) Consequently, in accordance with those provisions of EU law, such an objective authorises limitations on the exercise of the rights guaranteed in Articles 7 and 8 of the Charter, provided, inter alia, that those limitations genuinely meet that objective and are proportionate to it (see, to that effect, judgment of 1 August 2022, Vyriausioji tarnybinės etikos komisija, C‑184/20, EU:C:2022:601, paragraph 81).

358) According to settled case-law, the proportionality of the measures which result in interference with the rights guaranteed in Articles 7 and 8 of the Charter requires compliance not only with the requirements of appropriateness and of necessity but also with that of the proportionate nature of those measures in relation to the objective pursued (judgment of 22 November 2022, Luxembourg Business Registers, C‑37/20 and C‑601/20, EU:C:2022:912, paragraph 63 and the case-law cited).

359) More specifically, derogations from and limitations on the protection of personal data should apply only in so far as is strictly necessary, it being understood that where there is a choice between several measures appropriate to meeting the legitimate objectives pursued, recourse must be had to the least onerous. In addition, an objective of general interest may not be pursued without having regard to the fact that it must be reconciled with the fundamental rights affected by the measure at issue, and by properly balancing the objective of general interest against the rights at issue, in order to ensure that the disadvantages caused by that measure are not disproportionate to the aims pursued. Thus, the question whether a limitation on the rights guaranteed in Articles 7 and 8 of the Charter may be justified must be assessed by measuring the seriousness of the interference which such a limitation entails and by verifying that the importance of the objective of general interest pursued by that limitation is proportionate to that seriousness (see, to that effect, judgments of 1 August 2022, Vyriausioji tarnybinės etikos komisija, C‑184/20, EU:C:2022:601, paragraph 98 and the case-law cited, and of 22 November 2022, Luxembourg Business Registers, C‑37/20 and C‑601/20, EU:C:2022:912, paragraph 64 and the case-law cited).

360) In the same way, recital 39 of the GDPR stresses, in particular, that the requirement of necessity is met where the objective of general interest pursued cannot reasonably be achieved just as effectively by other means less restrictive of the fundamental rights of data subjects, in particular the rights to respect for private life and to the protection of personal data guaranteed in Articles 7 and 8 of the Charter, since derogations and limitations in relation to the principle of protection of such data must apply only in so far as is strictly necessary (see, to that effect, judgments of 1 August 2022, Vyriausioji tarnybinės etikos komisija, C‑184/20, EU:C:2022:601, paragraph 85 and the case-law cited).

361) In those circumstances, it is necessary to ascertain, first, whether, assuming that they are actually guided by the pursuit of the public interest objective alleged by the Republic of Poland, the contested national provisions prove appropriate for attaining that objective. Where appropriate, it will be necessary to examine, secondly, whether the interference with the fundamental rights guaranteed in Articles 7 and 8 of the Charter resulting from those national provisions is limited to what is strictly necessary, in the sense that that objective could not reasonably be achieved just as effectively by other means less prejudicial to those fundamental rights, and, thirdly, whether that interference is disproportionate in relation to that objective, which entails, inter alia, a balancing of the importance of that objective and the seriousness of that interference (see, to that effect, judgment of 22 November 2022, Luxembourg Business Registers, C‑37/20 and C‑601/20, EU:C:2022:912, paragraph 66).

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366) The findings made in paragraphs 362 to 365 of the present judgment are sufficient to rule out the possibility that, in so far as the contested national provisions provide for the collection of information and the placing online of that information concerning a person’s membership of a political party before his or her appointment to a judicial position and during the exercise of his or her term of office before 29 December 1989, those national provisions can satisfy the requirements arising from the principle of proportionality set out in Article 52(1) of the Charter and in Article 6(3) and Article 9(2)(g) of the GDPR. It follows that, in so far as those national provisions relate to such information, they infringe both the provisions of points (c) and (e) of the first subparagraph of Article 6(1), Article 6(3) and Article 9(1) of the GDPR and those of Article 7 and Article 8(1) of the Charter.

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378) Therefore, the processing of personal data such as that established by the contested national provisions must be regarded as constituting a particularly serious interference with the fundamental rights of the persons concerned to respect for their private life and to the protection of their personal data enshrined in Article 7 and Article 8(1) of the Charter.

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382) In comparison with the status quo ante resulting from the pre-existing national legal framework, the placing online of the personal data concerned represents a potentially significant interference with the fundamental rights guaranteed in Article 7 and Article 8(1) of the Charter, without that interference being capable, in the present case, of being justified by any benefits that might result from it in terms of preventing conflicts of interest on the part of judges and increasing confidence in their impartiality.

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384) In the light of all the foregoing, it must be held that the contested provisions infringe both the provisions of points (c) and (e) of the first subparagraph of Article 6(1), Article 6(3) and Article 9(1) of the GDPR and those of Article 7 and Article 8(1) of the Charter, also in so far as they concern the collection and placing online of personal data relating to the current or past membership of an association and the current or past holding of positions within that association or within a non-profit foundation.

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386) Having regard to all the foregoing considerations, it must be held that:

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- by adopting and maintaining in force points 2 and 3 of Article 107(1) of the amended Law relating to the ordinary courts and points 1 to 3 of Article 72(1) of the amended Law on the Supreme Court, under which the examination of compliance with the EU requirements relating to an independent and impartial tribunal previously established by law may be classified as a disciplinary offence, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, and under Article 267 TFEU;

- by adopting and maintaining in force Article 42a(1) and (2) and Article 55(4) of the amended Law relating to the ordinary courts, Article 26(3) and Article 29(2) and (3) of the amended Law on the Supreme Court, Article 5(1a) and (1b) of the amended Law relating to the administrative courts, and Article 8 of the amending law, prohibiting any national court from verifying compliance with the requirements stemming from EU law relating to the guarantee of an independent and impartial tribunal previously established by law, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter and under the principle of the primacy of EU law;

- by adopting and maintaining in force Article 26(2) and (4) to (6) and Article 82(2) to (5) of the amended Law on the Supreme Court and Article 10 of the amending law, which place the examination of complaints and questions of law concerning the lack of independence of a court or judge under the exclusive jurisdiction of the Extraordinary Review and Public Affairs Chamber, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, and under Article 267 TFEU and the principle of the primacy of EU law;

- by adopting and maintaining in force Article 88a of the amended Law relating to the ordinary courts, Article 45(3) of the amended Law on the Supreme Court and Article 8(2) of the amended Law relating to the administrative courts, the Republic of Poland has infringed the right to respect for private life and the right to protection of personal data, guaranteed by Article 7 and Article 8(1) of the Charter and by points (c) and (e) of the first subparagraph of Article 6(1), Article 6(3) and Article 9(1) of the GDPR.

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On those grounds, the Court (Grand Chamber) hereby:

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(2) Declares that by adopting and maintaining in force points 2 and 3 of Article 107(1) of the ustawa – Prawo o ustroju sądów powszechnych (Law relating to the organisation of the ordinary courts) of 27 July 2001, as amended by the ustawa o zmianie ustawy – Prawo o ustroju sądów powszechnych, ustawy o Sądzie Najwyższym oraz niektórych innych ustaw (Law amending the Law relating to the organisation of the ordinary courts, the Law on the Supreme Court and certain other laws) of 20 December 2019, and of points 1 to 3 of Article 72(1) of the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017, as amended by that law of 20 December 2019, which allow the examination of compliance with the EU requirements relating to an independent and impartial tribunal previously established by law to be classified as a disciplinary offence, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, and under Article 267 TFEU;

(3) Declares that by adopting and maintaining in force Article 42a(1) and (2) and Article 55(4) of the Law relating to the organisation of the ordinary courts, as amended by the abovementioned law of 20 December 2019, Article 26(3) and Article 29(2) and (3) of the Law on the Supreme Court, as amended by that law of 20 December 2019, Article 5(1a) and (1b) of the ustawa – Prawo o ustroju sądów administracyjnych (Law relating to the organisation of the administrative courts) of 25 July 2002, as amended by the law of 20 December 2019, and Article 8 of the law of 20 December 2019, prohibiting any national court from verifying compliance with the requirements stemming from EU law relating to the guarantee of an independent and impartial tribunal previously established by law, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter of Fundamental Rights, and under the principle of the primacy of EU law;

(4) Declares that by adopting and maintaining in force Article 26(2) and (4) to (6) and Article 82(2) to (5) of the Law on the Supreme Court, as amended by the abovementioned law of 20 December 2019, and Article 10 of the law of 20 December 2019, which establish the exclusive jurisdiction of the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Extraordinary Review and Public Affairs Chamber) of the Sąd Najwyższy (Supreme Court) to examine complaints and questions of law concerning the lack of independence of a court or a judge, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter, and under Article 267 TFEU and the principle of the primacy of EU law;

(5) Declares that by adopting and maintaining in force Article 88a of the amended Law relating to the organisation of the ordinary courts, as amended by the law of 20 December 2019, Article 45(3) of the Law on the Supreme Court, as amended by the law of 20 December 2019, and Article 8(2) of the Law relating to the organisation of the administrative courts, as amended by the law of 20 December 2019, the Republic of Poland has infringed the right to respect for private life and the right to protection of personal data, guaranteed by Article 7 and Article 8(1) of the Charter of Fundamental Rights and by points (c) and (e) of the first subparagraph of Article 6(1), Article 6(3) and Article 9(1) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);

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