Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
References for a preliminary ruling – Second subparagraph of Article 19(1) TEU – Rule of law – Effective legal protection in the fields covered by Union law – Independence of judges – Primacy of EU law – Article 4(3) TEU – Duty of sincere cooperation – Lifting of a judge’s immunity from prosecution and his or her suspension from duties ordered by the Izba Dyscyplinarna (Disciplinary Chamber) of the Sąd Najwyższy (Supreme Court, Poland) – Lack of independence and impartiality on the part of that chamber – Alteration of the composition of the court formation called on to adjudicate on a case which up to that time had been entrusted to that judge – Prohibitions on national courts calling into question the legitimacy of a court, on undermining its functioning or on assessing the legality or effectiveness of the appointment of judges or of their judicial powers, subject to disciplinary penalties – Obligation on the courts concerned and the bodies which have power to designate and modify the composition of court formations to disapply the measures lifting immunity and suspending the judge concerned – Obligation on the same courts and bodies to disapply the national provisions providing for those prohibitions
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
1) The second subparagraph of Article 19(1) TEU must be interpreted as precluding national provisions which confer on a body, whose independence and impartiality are not guaranteed, jurisdiction to authorise the initiation of criminal proceedings against judges of the ordinary courts and, where such authorisation is issued, to suspend the judges concerned from their duties and to reduce their remuneration during that suspension.
2) The second subparagraph of Article 19(1) TEU, the principle of the primacy of EU law and the principle of sincere cooperation laid down in Article 4(3) TEU must be interpreted as meaning:
– first, that a formation of a national court, seised of a case and composed of a single Judge – against whom a body, whose independence and impartiality are not guaranteed, has adopted a resolution authorising the initiation of criminal proceedings and ordering that that judge be suspended from his or her duties and that his or her remuneration be reduced – is justified in disapplying such a resolution which precludes the exercise of its jurisdiction in that case and,
– secondly, that the judicial bodies which have power to designate and modify the composition of the formations of that national court must also disapply that resolution which precludes the exercise of that jurisdiction by that court formation.
3) The second subparagraph of Article 19(1) TEU and the principles of the primacy of EU law and of sincere cooperation must be interpreted as meaning:
– first, that a formation of a national court, to which a case which hitherto had been assigned to another formation of that court has been re-assigned – as a result of a resolution adopted by a body whose independence and impartiality are not guaranteed and which authorised the initiation of criminal proceedings against the single Judge comprising the latter formation and ordered his or her suspension from duties and a reduction in his or her remuneration – and which has decided to suspend the handling of that case pending a decision by the Court of Justice on a preliminary ruling, must disapply that resolution and refrain from continuing to examine that case and,
– secondly, that the judicial bodies which have power to designate and modify the composition of the formations of that national court are required, in such a situation, to assign that case back to the formation initially hearing it.
4) The second subparagraph of Article 19(1) TEU and the principles of the primacy of EU law and of sincere cooperation must be interpreted as precluding:
– first, national provisions which prohibit a national court, subject to disciplinary sanctions being imposed on the judges who make up that court, from examining whether an act adopted by a body whose independence and impartiality are not guaranteed and which has authorised the initiation of criminal proceedings against a judge and ordered his or her suspension from duties and a reduction in his or her remuneration is binding and, if necessary, from disapplying that act and,
– secondly, case-law of a constitutional court under which the acts appointing the judges who make up such a body cannot be the subject of judicial review, inasmuch as that case-law is liable to preclude that examination.
1) The requests for a preliminary ruling concern the interpretation of Article 2 and the second subparagraph of Article 19(1) TEU, of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), of the principle of the primacy of EU law, of the principle of sincere cooperation laid down in Article 4(3) TEU and of the principle of legal certainty.
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24) In those circumstances, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Must EU law – in particular Article 47 of [the Charter] and the right to an effective remedy before a tribunal and the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law expressed therein – be interpreted as precluding [national provisions such as Article 80, Article 110(2a) and Article 129 of the Law on the ordinary courts and Article 27(1)(1a) of the Law on the Supreme Court], which [allow the Disciplinary Chamber] to lift a judge’s immunity and suspend a judge from his or her duties, and thus to effectively prevent a judge from ruling on the cases assigned to him or her, particularly since:
(a) the [Disciplinary Chamber] is not a “tribunal” within the meaning of Article 47 of the Charter, Article 6 of the [Convention on Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950] and Article 45(1) of the [Constitution] (judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982);
(3) Must EU law – in particular the provisions referred to in question 2 – be interpreted as precluding legislation of a Member State, such as Article 110(2a) of the [Law on the ordinary courts] and Article 27(1)(1a) of the [Law on the Supreme Court], according to which cases relating to authorisation for the criminal prosecution or deprivation of liberty (detention) of a judge of a national court fall within the exclusive jurisdiction of a body such as the Disciplinary Chamber at both first and second instance, taking in particular into account (individually or jointly) the following facts:
(d) the [Sąd Najwyższy (Supreme Court)], in its rulings implementing the judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982), confirmed that the newly selected NCJ is not independent of the legislature and of the executive and that the Disciplinary Chamber is not a “tribunal” within the meaning of Article 47 of the Charter, Article 6 of the [Convention for the Protection of Human Rights and Fundamental Freedoms] and Article 45(1) of the [Constitution];
50) By its first to third questions, which should be examined together, the referring court in Case C‑615/20 asks, in essence, whether Article 2 TEU, the second subparagraph of Article 19(1) TEU and Article 47 of the Charter must be interpreted as precluding national provisions which confer on a body, whose independence and impartiality are not guaranteed, jurisdiction to authorise the initiation of criminal proceedings against judges of the ordinary courts and, where such authorisation is issued, to suspend the judges concerned from their duties and to reduce their remuneration during that suspension.
55) The guidance in paragraphs 91 to 103 of the judgment in Commission v Poland (Independence and private life of judges), which underpins the finding of a failure to fulfil obligations made in point 1 of the operative part of that judgment, is thus sufficient for the purposes of answering the first to third questions in Case C‑615/20, and in that case there is no need to also undertake an interpretation of Article 2 TEU and Article 47 of the Charter or to examine the other criteria mentioned in those first and third questions.
63) 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 national provision, case-law or practice contrary to those provisions of EU law, as interpreted by the Court, must be disapplied (judgment in Commission v Poland (Independence and private life of judges), paragraph 78 and the case-law cited).
86) In the judgment in Commission v Poland (Independence and private life of judges), the Court thus held, for the reasons set out in paragraphs 198 to 219 thereof and as is apparent from point 3 of the operative part thereof, that, by adopting and maintaining in force Article 42a(1) and (2) of the Law on the ordinary courts, 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 had 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 the principle of the primacy of EU law.
87) The Court also held in that judgment, for the reasons set out in paragraphs 125 to 163 thereof and as is apparent from point 2 of the operative part thereof, that by adopting and maintaining in force points 2 and 3 of Article 107(1) of the Law on the ordinary courts, which allows 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 had, inter alia, failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter.