Article 47 - Right to an effective remedy and to a fair trial
Article 48 - Presumption of innocence and right of defence
Key facts of the case:
Failure of a Member State to fulfil obligations – Disciplinary regime applicable to judges – Rule of law – Independence of judges – Effective legal protection in the fields covered by Union law – Second subparagraph of Article 19(1) TEU – Article 47 of the Charter of Fundamental Rights of the European Union – Disciplinary offences resulting from the content of judicial decisions – Independent disciplinary courts or tribunals established by law – Respect for reasonable time and the rights of the defence in disciplinary proceedings – Article 267 TFEU – Restriction of the right of national courts to submit requests for a preliminary ruling to the Court of Justice and of their obligation to do so.
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby:
1) Declares that:
the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU;
2) Declares that, by allowing the right of courts and tribunals to submit requests for a preliminary ruling to the Court of Justice of the European Union to be restricted by the possibility of triggering disciplinary proceedings, the Republic of Poland has failed to fulfil its obligations under the second and third paragraphs of Article 267 TFEU;
3) Orders the Republic of Poland to bear its own costs and to pay those incurred by the European Commission, including those relating to the proceedings for interim relief;
4) Orders the Kingdom of Belgium, the Kingdom of Denmark, the Kingdom of the Netherlands, the Republic of Finland, and the Kingdom of Sweden to bear their own costs.
48) To that end, it is necessary, in particular, as is apparent from the case-law of the Court, that the disciplinary regime applicable to judges includes essential guarantees making it possible to avoid any risk of that regime being used as a system of political control of the content of judicial decisions, which requires the enactment of rules that define both the forms of conduct constituting disciplinary offences and the penalties actually applicable, that provide for the involvement of an independent body in accordance with a procedure which fully guarantees the rights enshrined in Articles 47 and 48 of the Charter, in particular the rights of the defence, and that guarantee the possibility of challenging the decisions of disciplinary bodies before a court or tribunal.
49) In its defence, the Republic of Poland contends, inter alia, that Articles 47 and 48 of the Charter are not applicable to disciplinary cases concerning national judges in the absence of a situation where EU law is being implemented for the purposes of Article 51(1) of the Charter. In particular, it argues that the second subparagraph of Article 19(1) TEU does not constitute the source of fundamental rights of the defence or the right to be heard within a reasonable time. That Member State considers that the disciplinary cases conducted on the basis of the procedural provisions challenged by the Commission are of a purely internal nature and that, in defining those procedures, the Polish authorities have not regulated fields covered by Union law for the purposes of that provision, read in conjunction with Article 5 TEU and Articles 3 and 4 TFEU.
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52) As is provided for by the second subparagraph of Article 19(1) TEU, 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 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 and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’), and which is now reaffirmed by Article 47 of the Charter (judgment in Asociaţia ‘Forumul Judecătorilor din România’ and Others, paragraph 190 and the case-law cited).
53) As regards the material scope of the second subparagraph of Article 19(1) TEU, that provision moreover refers to ‘the fields covered by Union law’, irrespective of whether the Member States are implementing Union law within the meaning of Article 51(1) of the Charter (judgments of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 50 and the case-law cited, and in Asociaţia ‘Forumul Judecătorilor din România’ and Others, paragraph 192 and the case-law cited).
57) Since the second subparagraph of Article 19(1) TEU requires all Member States to provide remedies sufficient to ensure effective judicial protection in the fields covered by EU law, within the meaning in particular of Article 47 of the Charter, that latter provision must be duly taken into consideration for the purpose of interpreting the second subparagraph of Article 19(1) TEU (judgment of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, paragraph 45 and the case-law cited). 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, which refers to access to an ‘independent’ tribunal as one of the requirements linked to the fundamental right to an effective remedy (judgment in Asociaţia ‘Forumul Judecătorilor din România’ and Others, paragraph 194 and the case-law cited).
61) As regards specifically the rules governing the disciplinary regime applicable to judges, the requirement of independence derived from EU law, and, in particular, from the second subparagraph of Article 19(1) TEU, means that, in accordance with settled case-law, 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. Rules which define, in particular, both forms of conduct amounting to disciplinary offences and the penalties actually applicable, 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, in particular the rights of the defence, and 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 in Asociaţia ‘Forumul Judecătorilor din România’ and Others, paragraph 198 and the case-law cited).
73) The same is true of the judgment of 5 December 2019 (III PO 7/18) and the orders of 15 January 2020 (III PO 8/18 and III PO 9/18), whereby the Sąd Najwyższy (Izba Pracy i Ubezpieczeń Społecznych) (Supreme Court (Labour Law and Social Security Chamber), Poland), which was the referring court in the cases in the main proceedings which gave rise to the judgment in A. K. and Others, held, on the basis of the guidance provided by that judgment, that the KRS does not constitute, in its current formation, an impartial court which is independent from the Polish legislature and executive, and that the Disciplinary Chamber is not a ‘tribunal’ for the purposes of Article 47 of the Charter, Article 6 ECHR and Article 45(1) of the Constitution. In those decisions, the Sąd Najwyższy (Supreme Court) points, in addition to the factors already referred to in paragraph 65 of the present judgment, to the fact that, first, the Disciplinary Chamber has also been given exclusive jurisdiction as regards cases relating to judges of the Sąd Najwyższy (Supreme Court) in the field of labour law, social security and retirement, that is, matters which previously fell within the jurisdiction of the ordinary courts, second, the possibilities, during the procedure for appointing the judges concerned, for an unsuccessful candidate to challenge the resolutions of the KRS have been considerably restricted following various successive amendments to the Law on the KRS, third, the persons appointed as judges of the Disciplinary Chamber have very clear links to the Polish legislature or executive, and fourth, since its creation, the Disciplinary Chamber has, inter alia, worked to ensure that the requests for a preliminary ruling submitted to the Court of Justice in the cases giving rise to the judgment in A. K. and Others be withdrawn.
85) In that regard, it should be recalled at the outset that, as has been emphasised by the Commission and the interveners, in its judgment in A. K. and Others, the Court has already been called upon to examine a request for a preliminary ruling from the Sąd Najwyższy (Izba Pracy i Ubezpieczeń Społecznych) (Supreme Court (Labour Law and Social Security Chamber)) concerning, inter alia, the question whether EU law must be interpreted as meaning that a body such as the Disciplinary Chamber meets the requirements of independence and impartiality as referred to in, inter alia, Article 47 of the Charter.
87) As is apparent from paragraphs 52 and 57 of the present judgment, Article 47 of the Charter must be duly taken into consideration for the purpose of interpreting the second subparagraph of Article 19(1) TEU.
164) As has been recalled in paragraphs 61 and 80 of the present judgment, the requirement of independence derived from, inter alia, the second subparagraph of Article 19(1) TEU, which must be met by national courts which, like the Polish ordinary courts, may have to interpret and apply EU law, requires that the rules governing the disciplinary regime applicable to the judges who make up those courts provide, inter alia, for the involvement of bodies which themselves meet the requirements inherent in effective judicial protection in accordance with a procedure fully guaranteeing the rights enshrined in Articles 47 and 48 of the Charter.
165) It should be borne in mind, moreover, that, 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 contained in the Charter and the corresponding rights guaranteed under the ECHR, without thereby adversely affecting the autonomy of EU law. According to the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17), the second paragraph of Article 47 of the Charter corresponds to Article 6(1) ECHR and Article 48 of the Charter is the same as Article 6(2) and (3) ECHR. The Court must, accordingly, ensure that its interpretation of the second paragraph of Article 47 and of Article 48 of the Charter ensures a level of protection which does not disregard that guaranteed by Article 6 ECHR, as interpreted by the European Court of Human Rights (judgment of 29 July 2019, Gambino and Hyka, C‑38/18, EU:C:2019:628, paragraph 39 and the case-law cited).
166) Under the first sentence of the second paragraph of Article 47 of the Charter, everyone is entitled to a fair and public hearing within a reasonable time by an ‘independent and impartial tribunal previously established by law’.
187) As has been recalled in paragraph 164 of the present judgment, the second subparagraph of Article 19(1) TEU requires that the rules governing the disciplinary regime applicable to judges who may have to interpret and apply EU law lay down a procedure which fully guarantees the rights enshrined in Articles 47 and 48 of the Charter.
189) Under the second paragraph of Article 47 of the Charter, everyone is entitled to a hearing within a reasonable time and must have the possibility of being advised, defended and represented. For its part, Article 48(2) of the Charter states that respect for the rights of the defence of anyone who has been charged is to be guaranteed.
190) Moreover, as is apparent from paragraph 165 of the present judgment, the Court must ensure that its interpretation of the second paragraph of Article 47 and of Article 48 of the Charter ensures a level of protection which does not disregard that guaranteed by Article 6 ECHR, as interpreted by the European Court of Human Rights.
191) Regarding the first part of the fourth complaint, it must be borne in mind that the right of persons to have their case heard within a reasonable time constitutes a general principle of EU law enshrined in Article 6(1) ECHR and, as has just been recalled, in the second paragraph of Article 47 of the Charter with respect to court proceedings (see, to that effect, judgment of 5 June 2018, Kolev and Others, C‑612/15, EU:C:2018:392, paragraph 71 and the case-law cited).
192) In the present case, however, the Commission does not claim that the right to be tried within a reasonable time has been infringed in a given specific case, a situation which falls within the scope of Article 47 of the Charter, but complains that the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU on the ground, in essence, that the provisions of national legislation criticised by that institution are designed in such a way that the result of those provisions is that that right cannot be fully guaranteed as regards disciplinary proceedings conducted in respect of judges of the Polish ordinary courts.
203) Concerning the second part of that complaint, it should be recalled at the outset that the fundamental principle of effective judicial protection of rights, reaffirmed in Article 47 of the Charter, and the concept of ‘a fair trial’, referred to in Article 6 ECHR, consist of various elements, which include, in particular, respect for the rights of the defence and the right to be advised, defended and represented (see, to that effect, judgments of 26 June 2007, Ordre des barreaux francophones et germanophone and Others, C‑305/05, EU:C:2007:383, paragraph 31, and of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraph 32 and the case-law cited).
204) Similarly, respect for the rights of the defence is, in all proceedings in which penalties may be imposed, a fundamental principle of EU law which has been enshrined in Article 48(2) of the Charter (see, to that effect, judgment of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others, C‑550/07 P, EU:C:2010:512, paragraph 92 and the case-law cited).
205) It is also apparent from the case-law of the Court that the right to be heard in all proceedings is inherent in respect for the rights of the defence thus enshrined in Articles 47 and 48 of the Charter (see, to that effect, judgment of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 28 and the case-law cited, as well as paragraph 29), and that such a right guarantees every person the opportunity to make known his or her views effectively during those proceedings (see, to that effect, judgment of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraph 34).
206) Regarding the right of access to a lawyer, the Court has specified that that lawyer must, in addition, actually be able to carry out satisfactorily his or her task of advising, defending and representing his or her client, failing which that client would be deprived of the rights conferred on him or her by Article 47 of the Charter and by Article 6 ECHR (see, to that effect, judgment of 26 June 2007, Ordre des barreaux francophones et germanophone and Others, C‑305/05, EU:C:2007:383, paragraph 32).
