CJEU Case C-521/21 / Judgment

MJ v AA (Rzecznik Praw Obywatelskich)
Deciding body type
Court of Justice of the European Union
Deciding body
Court (Grand Chamber
Type
Decision
Decision date
24/03/2026
ECLI (European case law identifier)
ECLI:EU:C:2026:242
  • CJEU Case C-521/21 / Judgment

    Key facts of the case:

    Reference for a preliminary ruling – Rule of law – Effective legal protection in the fields covered by EU law – Judicial independence – Second subparagraph of Article 19(1) TEU – Second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union – National legislation and case-law prohibiting national courts from calling into question the legitimacy of constitutional courts and bodies or from establishing or assessing the lawfulness of the appointment of judges or of their judicial powers – Obligation for a judge hearing an application for the recusal of another judge to ascertain whether the requirement of a ‘tribunal previously established by law’ has been met – Appointment of judges of the ordinary courts in Poland – Lack of independence of the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland) – No effective remedy for candidates for the judicial post concerned – Judge not constituting an ‘independent and impartial tribunal previously established by law’ – Possibility of removing a judge from a panel of judges of the court

    Outcome of the case:

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

    1. The second subparagraph of Article 19(1) TEU, Article 47 of the Charter of Fundamental Rights of the European Union and the principle of the primacy of EU law

      must be interpreted as precluding legislation of a Member State and case-law of that Member State’s constitutional court interpreting that legislation that confer exclusive jurisdiction on a body to adjudicate on an application seeking the recusal of a judge on the basis of the circumstances in which that judge was appointed, while depriving that body of the power to examine that application if it challenges the lawfulness of the procedure for the appointment of that judge. It is for the national court hearing such an application for recusal to disapply that legislation, as interpreted in that case-law, and itself to examine the lawfulness of that judge’s appointment, in particular by ascertaining whether that judge meets the requirement of a ‘tribunal previously established by law’ and, as the case may be, by ruling that that judge should be recused where any potential irregularities vitiating that appointment entail a failure to meet that requirement.

    2. The second subparagraph of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights

      must be interpreted as not precluding classification as an ‘independent and impartial tribunal’ of a judicial panel consisting of a single judge who was appointed to that post following an appointment procedure characterised by the fact that, in the first place, that judge’s candidature was recommended by a body that does not provide sufficient guarantees of independence to dispel all reasonable doubt in the minds of individuals as to the regularity of procedures for the appointment of judges in which that body is involved, and, in the second place, the participants in that appointment procedure did not have a right to an effective judicial remedy, where no other relevant contextual factors attending that procedure exist that are of such a kind and of such gravity, when taken together, as to call into question the independence or impartiality of that judge.

  • Paragraphs referring to EU Charter

    38. In that regard, it must be noted that those questions seek, first, to enable the referring court to assess the compatibility of the national legislation governing the appointment of judges, in particular the appointment of that judge, with, inter alia, the second subparagraph of Article 19(1) TEU, read in conjunction with the second paragraph of Article 47 of the Charter. Second, those questions seek to determine whether those provisions preclude legislation of a Member State and case-law of that Member State’s constitutional court that confer exclusive jurisdiction to review the lawfulness of a judicial appointment in a procedure for recusal on the basis of the circumstances in which that judge was appointed on a body which, like the Chamber of Extraordinary Control and Public Affairs, does not meet the requirements under the second subparagraph of Article 19(1) TEU

    39.  In those circumstances, it is necessary to examine the questions referred only in the light of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, without it being necessary to interpret also Article 6(1) to (3) TEU, since the referring court has not stated the reasons why it is asking the Court about the interpretation of that latter provision.

    40. By its second question, which it is appropriate to examine in the first place, the referring court asks, in essence, whether the second subparagraph of Article 19(1) TEU and Article 47 of the Charter must be interpreted as precluding legislation of a Member State and case-law of that Member State’s constitutional court under which, in a procedure for recusal on the basis of the circumstances in which the judge who is the subject of that procedure was appointed, the examination of the application for recusal comes within the exclusive jurisdiction of a body such as the Chamber of Extraordinary Control and Public Affairs, and any review by that body of the lawfulness of that judge’s appointment is excluded, and, if so, whether, in order to preserve the effectiveness of those provisions, the national court hearing that application for recusal is required to apply, by analogy, the national provisions relating to recusal by operation of law of a judge who is incapable of adjudicating.

    ...

    42. In that regard, the principle of effective judicial protection, referred to in the second subparagraph of Article 19(1) TEU, 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 of the Convention for the Protection of Human Rights, signed in Rome on 4 November 1950 (‘the ECHR’), and is now reaffirmed in Article 47 of the Charter (judgments of 21 December 2021, Euro Box Promotion and Others, C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, EU:C:2021:1034, paragraph 219 and the case-law cited; of 11 May 2023, Inspecţia Judiciară, C‑817/21, EU:C:2023:391, paragraph 40; and of 8 May 2024, Asociaţia ‘Forumul Judecătorilor din România’ (Associations of judges), C‑53/23, EU:C:2024:388, paragraph 35).

    43. Moreover, in so far as the Charter sets out rights corresponding to rights guaranteed under the ECHR, Article 52(3) of the Charter is intended to ensure the necessary consistency between the rights enshrined in the Charter and the corresponding rights guaranteed under the ECHR, without thereby adversely affecting the autonomy of EU law. The Court must, accordingly, ensure that its interpretation in a specific case safeguards a level of protection which does not fall below the level of protection guaranteed by Article 6(1) ECHR, as interpreted by the European Court of Human Rights (see, to that effect, judgments of 11 July 2024, Hann-Invest and Others, C‑554/21, C‑622/21 and C‑727/21, EU:C:2024:594, paragraph 46 and the case-law cited; of 1 August 2025, Dimnev, C‑404/24, EU:C:2025:595, paragraph 44; and of 4 September 2025, AW ‘T’, C‑225/22, EU:C:2025:649, paragraph 46).

    ...

    46. In that regard, after the request for a preliminary ruling was made, the Court held, in essence, in paragraphs 201 and 386 of the judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442), that the Republic of Poland, by adopting and maintaining in force national rules which prohibit national courts, on pain of disciplinary penalties, from ascertaining whether they or the judges of whom they are composed or other judges or courts satisfy the requirements of EU law relating to independence, impartiality and previous establishment by law of the courts and judges concerned, 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.

    47. In the case which gave rise to that judgment, the Court upheld the first and second complaints raised by the European Commission, which concerned, inter alia, the compatibility with the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter of Article 42a(1) and (2) 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), prohibiting any national court from examining compliance with the requirements stemming from EU law relating to the guarantee of an ‘independent and impartial tribunal previously established by law’, and of points 2 and 3 of Article 107(1) of that law, which allow the examination of compliance with those requirements to be classified as a disciplinary offence (see, to that effect, judgment of 4 September 2025, AW ‘T’, C‑225/22, EU:C:2025:649, paragraph 60).

    ...

    49. That conclusion was also based, in part, on the fact that, in essence, the national rules referred to in paragraph 46 above were, because of the prohibitions and disciplinary offences they impose on judges of the Sąd Najwyższy (Supreme Court) and all the ordinary and administrative courts, such as to prevent them from making findings and assessments which, in certain circumstances, are incumbent on them under EU law, in the light of the requirements arising from the second subparagraph of Article 19(1) TEU and Article 47 of the Charter relating to the guarantee of an ‘independent and impartial tribunal previously established by law’ (see, to that effect, judgment of 5 June 2023, Commission v Poland (Independence and private life of judges), C‑204/21, EU:C:2023:442, paragraph 285).

    50. It is clear from the second subparagraph of Article 19(1) TEU that the Member States are required to ensure that there is effective judicial review enabling, where appropriate, the lawfulness of the judicial appointment procedure to be reviewed. That obligation stems from the very requirement of a ‘tribunal previously established by law’, which presupposes that the procedure for the appointment of judges is subject to guarantees designed to prevent any interference with the independence and impartiality of judges. Thus, the second subparagraph of Article 19(1) TEU requires that a national court be able, in certain circumstances, to ascertain whether an irregularity vitiating the procedure for the appointment of a judge could have led to an infringement of the fundamental right to an effective remedy before an independent and impartial tribunal previously established by law, for the purposes of that provision and Article 47 of the Charter (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 130 and 131, 152 to 154 and 159, and of 5 June 2023, Commission v Poland (Independence and private life of judges), C‑204/21, EU:C:2023:442, paragraph 131).

    ...

    58. It must be noted, however, that it is apparent from the file before the Court, and in particular from the observations made at the hearing, that irregular appointments to judicial posts are systemic in Poland. According to that file, more than 3 000 judges, that is to say, approximately 30% of the judges of that Member State, were appointed on a proposal of the KRS in its new composition, without the candidates excluded from the appointment procedures having an effective remedy against the proposals of the KRS. In addition, many aspects of that reform have already been found, by a number of judgments of the European Court of Human Rights and the Court of Justice itself, not to meet the requirements arising, respectively, from Article 6(1) ECHR and from the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter.

    ...

    66. In the light of all the foregoing considerations, the answer to the second question is that the second subparagraph of Article 19(1) TEU, Article 47 of the Charter and the principle of the primacy of EU law must be interpreted as precluding legislation of a Member State and case-law of that Member State’s constitutional court interpreting that legislation that confer exclusive jurisdiction on a body to adjudicate on an application seeking the recusal of a judge on the basis of the circumstances in which that judge was appointed, while depriving that body of the power to examine that application if it challenges the lawfulness of the procedure for the appointment of that judge. It is for the national court hearing such an application for recusal to disapply that legislation, as interpreted in that case-law, and itself to examine the lawfulness of that judge’s appointment, in particular by ascertaining whether that judge meets the requirement of a ‘tribunal previously established by law’ and, as the case may be, by ruling that that judge should be recused where any potential irregularities vitiating that appointment entail a failure to meet that requirement.

    67. By its first question, the referring court asks, in essence, whether the second subparagraph of Article 19(1) TEU and Article 47 of the Charter must be interpreted as precluding classification as an ‘independent and impartial tribunal’ of a judicial panel consisting of a single judge who was appointed to that post following an appointment procedure characterised by the fact that, in the first place, that judge’s candidature was recommended by a body that is not independent and, in the second place, the other participants in that appointment procedure did not have a right to an effective judicial remedy with a view to challenging the lawfulness of that judge’s appointment.

    68. In that regard, as recalled in paragraph 42 above, the principle of effective judicial protection referred to in the second subparagraph of Article 19(1) TEU is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined, inter alia, in Article 6(1) of the ECHR, and is now reaffirmed in the second paragraph of Article 47 of the Charter.

    ...

    75. As regards, more specifically, the judicial appointment procedure, the Court of Justice, referring to the case-law of the European Court of Human Rights, has also held that, having regard to its fundamental implications for the proper functioning and the legitimacy of the judiciary in a democratic State governed by the rule of law, the procedure for the appointment of judges necessarily constitutes an inherent element of the concept of a ‘tribunal previously established by law’, within the meaning of the second paragraph of Article 47 of the Charter. Thus, the independence of a tribunal within the meaning of that provision may be measured, inter alia, by the way in which its members are appointed (see, to that effect, judgments of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraph 57 and the case-law cited; of 29 March 2022, Getin Noble Bank, C‑132/20, EU:C:2022:235, paragraph 120 and the case-law cited; and of 21 December 2023, Krajowa Rada Sądownictwa (Continued holding of a judicial office), C‑718/21, EU:C:2023:1015, paragraph 60).

    ...

    83.  However, it is also clear from the case-law of the Court that the fact that the KRS in its new composition does not provide sufficient guarantees of independence to dispel all reasonable doubt as to the regularity of the procedures for the appointment of judges in which it is involved does not suffice, in itself, to support the conclusion that the requirements inherent in the second subparagraph of Article 19(1) TEU and Article 47 of the Charter have not been met (see, to that effect, judgment of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraph 75 and the case-law cited).

    84. In the second place, as regards the lack of a right to an effective judicial remedy for the participants in the appointment procedure concerned, since they may bring an appeal only before the Chamber of Extraordinary Control and Public Affairs, which is itself composed of judges appointed on a proposal of the KRS in its new composition, it must be recalled that, in paragraph 77 of the judgment of 21 December 2023, Krajowa Rada Sądownictwa (Continued holding of a judicial office) (C‑718/21, EU:C:2023:1015), the Court held, in the context of an assessment of the status of the Chamber of Extraordinary Control and Public Affairs as a ‘court or tribunal’ within the meaning of Article 267 TFEU, that, taken together, the consequence of the factors, both systemic and circumstantial, which characterised the appointment, within that body, of the judges initially appointed to that chamber is that the Chamber does not have the status of an ‘independent and impartial tribunal previously established by law’ for the purposes of the second subparagraph of Article 19(1) TEU, read in conjunction with the second paragraph of Article 47 of the Charter (see, to that effect, judgment of 4 September 2025, AW ‘T’, C‑225/22, EU:C:2025:649, paragraphs 49 and 50).

    ...

    87. Thus, subject to the assessments which it will be for the referring court to make, the appeal that may be brought before the Chamber of Extraordinary Control and Public Affairs cannot be regarded as an effective remedy, since it would be brought before a court whose members do not meet the requirement of a ‘tribunal previously established by law’ for the purposes of the second subparagraph of Article 19(1) TEU, read in conjunction with the second paragraph of Article 47 of the Charter.

    88. As regards the question whether the lack, for the participants in the appointment procedure concerned, of a right to an effective judicial remedy is sufficient, in itself, for it to be held that the judge in question is not ‘previously established by law’, for the purposes of the second subparagraph of Article 19(1) TEU, read in conjunction with the second paragraph of Article 47 of the Charter, it is true that the Court has held that the fact that it may not be possible to exercise a legal remedy in the context of a procedure for judicial appointments to a national supreme court may, in certain cases, not prove to be problematic in the light of the requirements arising from EU law, in particular the second subparagraph of Article 19(1) TEU. However, the situation is different in circumstances in which all the relevant factors characterising such a procedure in a specific national legal and factual context, and in particular the circumstances in which possibilities for obtaining judicial remedies which previously existed are suddenly eliminated, are such as to give rise to systemic doubt in the minds of individuals as to the independence and impartiality of the judges appointed at the end of that procedure (see, to that effect, judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraph 129).

    ...

    90.  In those circumstances, it is necessary to determine whether the two circumstances which are the subject of the first question, taken together, support the conclusion that that judge does not meet the requirement of a ‘tribunal previously established by law’ for the purposes of the second subparagraph of Article 19(1) TEU, read in conjunction with the second paragraph of Article 47 of the Charter.

    ...

    94. In the light of all the foregoing considerations, the answer to the first question is that the second subparagraph of Article 19(1) TEU and Article 47 of the Charter must be interpreted as not precluding classification as an ‘independent and impartial tribunal’ of a judicial panel consisting of a single judge who was appointed to that post following an appointment procedure characterised by the fact that, in the first place, that judge’s candidature was recommended by a body that does not provide sufficient guarantees of independence to dispel all reasonable doubt in the minds of individuals as to the regularity of procedures for the appointment of judges in which that body is involved, and, in the second place, the participants in that appointment procedure did not have a right to an effective judicial remedy, where no other relevant contextual factors attending that procedure exist that are of such a kind and of such gravity, when taken together, as to call into question the independence or impartiality of that judge.

     

  • Paragraphs referring to EU Charter (original language)