CJEU Case C-824/18 / Judgment

A.B. and Others v Krajowa Rada Sądownictwa and Others
Policy area
Justice, freedom and security
Deciding body type
Court of Justice of the European Union
Deciding body
Court (Grand Chamber)
Type
Decision
Decision date
02/03/2021
ECLI (European case law identifier)
ECLI:EU:C:2021:153
  • CJEU Case C-824/18 / Judgment

    Key facts of the case:

    Request for a preliminary ruling from the Naczelny Sąd Administracyjny.

    Reference for a preliminary ruling – Article 2 and the second subparagraph of Article 19(1) TEU – Rule of law – Effective judicial protection – Principle of judicial independence – Procedure for appointment to a position as judge at the Sąd Najwyższy (Supreme Court, Poland) – Appointment by the President of the Republic of Poland on the basis of a resolution emanating from the National Council of the Judiciary – Lack of independence of that council – Lack of effectiveness of the judicial remedy available against such a resolution – Judgment of the Trybunał Konstytucyjny (Constitutional Court, Poland) repealing the provision on which the referring court’s jurisdiction is based – Adoption of legislation declaring the discontinuance of pending cases by operation of law and precluding in the future any judicial remedy in such cases – Article 267 TFEU – Option and/or obligation for national courts to make a reference for a preliminary ruling and to maintain that reference – Article 4(3) TEU – Principle of sincere cooperation ‐ Primacy of EU law – Power to disapply national provisions which do not comply with EU law.

     

    Outcome of the case: 

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

    1) Where amendments are made to the national legal system which, first, deprive a national court of its jurisdiction to rule in the first and last instance on appeals lodged by candidates for positions as judges at a court such as the Sąd Najwyższy (Supreme Court, Poland) against decisions of a body such as the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland) not to put forward their application, but to put forward that of other candidates to the President of the Republic of Poland for appointment to such positions, which, secondly, declare such appeals to be discontinued by operation of law while they are still pending, ruling out the possibility of their being continued or lodged again, and which, thirdly, in so doing, deprive such a national court of the possibility of obtaining an answer to the questions that it has referred to the Court for a preliminary ruling:

    • Article 267 TFEU and Article 4(3) TEU must be interpreted as precluding such amendments where it is apparent – a matter which it is for the referring court to assess on the basis of all the relevant factors – that those amendments have had the specific effects of preventing the Court from ruling on questions referred for a preliminary ruling such as those put to it by that court and of precluding any possibility of a national court repeating in the future questions similar to those questions;
    • the second subparagraph of Article 19(1) TEU must be interpreted as precluding such amendments where it is apparent – a matter which it is for the referring court to assess on the basis of all the relevant factors – that those amendments are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the judges appointed, by the President of the Republic of Poland, on the basis of those decisions of the Krajowa Rada Sądownictwa (National Council of the Judiciary), to external factors, in particular, to the direct or indirect influence of the legislature and the executive, and as to their neutrality with respect to the interests before them and, thus, may lead to those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in subjects of the law.

    Where it is proved that those articles have been infringed, the principle of primacy of EU law must be interpreted as requiring the referring court to disapply the amendments at issue, whether they are of a legislative or constitutional origin, and, consequently, to continue to assume the jurisdiction previously vested in it to hear disputes referred to it before those amendments were made.

         
    2) The second subparagraph of Article 19(1) TEU must be interpreted as precluding provisions amending the state of national law in force under which:

    • notwithstanding the fact that a candidate for a position as judge at a court such as the Sąd Najwyższy (Supreme Court) lodges an appeal against the decision of a body such as the Krajowa Rada Sądownictwa (National Council of the Judiciary) not to accept his or her application, but to put forward that of other candidates to the President of the Republic of Poland, that decision is final inasmuch as it puts forward those other candidates, with the result that that appeal does not preclude the appointment of those other candidates by the President of the Republic of Poland and that any annulment of that decision inasmuch as it did not put forward the appellant for appointment may not lead to a fresh assessment of the appellant’s situation for the purposes of any assignment of the position concerned, and.
    • moreover, such an appeal may not be based on an allegation that there was an incorrect assessment of the candidates’ fulfilment of the criteria taken into account when a decision on the presentation of the proposal for appointment was made,

    where it is apparent – a matter which it is for the referring court to assess on the basis of all the relevant factors – that those provisions are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the judges thus appointed, by the President of the Republic of Poland, on the basis of the decisions of the Krajowa Rada Sądownictwa (National Council of the Judiciary), to external factors, in particular, to the direct or indirect influence of the legislature and the executive, and as to their neutrality with respect to the interests before them and, thus, may lead to those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in subjects of the law.

    Where it is proved that the second subparagraph of Article 19(1) TEU has been infringed, the principle of primacy of EU law must be interpreted as requiring the referring court to disapply those provisions and to apply instead the national provisions previously in force while itself exercising the judicial review envisaged by those latter provisions.

  • Paragraphs referring to EU Charter

    1) These requests for a preliminary ruling concern the interpretation of Article 2, Article 4(3), Article 6(1) and the second subparagraph of Article 19(1) TEU, Article 267 TFEU, Article 15(1), Article 20, Article 21(1), Article 47 and Article 52(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 2(1) and (2)(a), Article 3(1)(a) and Article 9(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16)>

    ...

    39) In the light of the foregoing, the referring court has doubts as to whether the national rules referred to in paragraphs 35 to 37 of this judgment comply with EU law. It considers, in that regard, that it follows from the Court’s case-law that it is incumbent upon Member States, in accordance with the principle of sincere cooperation laid down in Article 4(3) TEU, to ensure the application of and respect for EU law and, in this respect, as provided for in the second subparagraph of Article 19(1) TEU, to provide remedies sufficient to ensure effective legal protection for individuals in the fields covered by EU law. Such protection constitutes an essential characteristic of the rule of law referred to in Article 2 TEU and must be guaranteed in compliance with the conditions arising under Article 47 of the Charter and Article 9(1) of Directive 2000/78.

    ...

    45) In those circumstances, the Naczelny Sąd Administracyjny (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

    (1) 'Should Article 2 TEU, in conjunction with the third [subparagraph] of Article 4(3), Articles 6(1) and 19(1) TEU, in conjunction with Article 47 of the [Charter] and Article 9(1) of [Directive 2000/78] and the third paragraph of Article 267 TFEU, be interpreted as meaning that an infringement of the rule of law and of the right to an effective remedy and to effective judicial protection occurs in a situation where the national legislature, in granting the right of appeal to a court in individual cases concerning service in the office of judge of the court of last instance of a Member State [the Sąd Najwyższy (Supreme Court)], stipulates that a decision made during the selection procedure preceding the submission of a motion for appointment to the position of judge of [that] court is final and effective where not all parties to the selection procedure have appealed against the decision made with respect to the joint consideration and assessment of all candidates for appointment as [Sąd Najwyższy (Supreme Court)] judges, who also include a candidate who has no interest in appealing that decision, namely a candidate designated in the motion for appointment to the aforementioned position, which as a result:

    • undermines the effectiveness of the remedy and the competent court’s ability to carry out a genuine review of the aforementioned selection procedure, and
    • where the scope of that procedure also includes those positions as judges [of the Sąd Najwyższy (Supreme Court)] to whose holders the new lower retirement age has been applied without leaving the decision on whether to take advantage of the lower retirement age to the sole discretion of the judge concerned, in the context of the principle of the irremovability of judges – where it is found that this principle has been thereby undermined – also has an impact on the scope and outcome of the judicial review of the aforementioned selection procedure?

    (2) Should Article 2 TEU, in conjunction with the third [subparagraph] of Article 4(3) and Article 6(1) TEU, in conjunction with Articles 15(1) and 20, in conjunction with Articles 21(1) and 52(1), of the [Charter], in conjunction with Articles 2(1), 2(2)(a) and 3(1)(a) of [Directive 2000/78] and the third paragraph of Article 267 TFEU, be interpreted as meaning that:

    • an infringement of the rule of law, of the principle of equal treatment and of equal and non discriminatory access to the civil service, namely access to the office of judge [at the Sąd Najwyższy (Supreme Court)], occurs in a situation where, although a right of appeal to a competent court in individual cases concerning service in the office of judge of the aforementioned court is available, as a consequence of the rules governing the finality of the resolutions described in the first question, the appointment to a vacant position as judge [at the Sąd Najwyższy (Supreme Court)] may take place without the competent court conducting a review of the aforementioned selection procedures assuming such a review is initiated, and the absence of such a review, by infringing the right to an effective remedy, infringes the right of equal access to the civil service, and does not therefore serve the objectives of the public interest, and
    • must be interpreted as meaning that a situation in which the composition of the body in a Member State whose purpose is to safeguard the independence of the judiciary ([the KRS]), and before which the procedure concerning service in the office of judge [at the Sąd Najwyższy (Supreme Court)] takes place, is designed in such a way that representatives of the judiciary in that body are elected by the legislature, undermines the principle of institutional balance?’

    ...

    58) In those circumstances, by its decision of 26 June 2019, the Naczelny Sąd Administracyjny (Supreme Administrative Court) decided to stay the proceedings and to refer a supplementary question to the Court of Justice for a preliminary ruling (‘the third question’), worded as follows:

    ‘Should Article 2 TEU, read in conjunction with the third [subparagraph] of Article 4(3), Article 6(1) and Article 19(1) thereof, Article 47 of the [Charter], Article 9(1) of Directive 2000/78 … and the third paragraph of Article 267 TFEU, be interpreted as meaning that an infringement of the rule of law and of the right of access to the courts and the right to effective judicial protection occurs in a situation where the national legislature removes from the legal order the relevant provisions concerning the jurisdiction of the [Naczelny Sąd Administracyjny (Supreme Administrative Court)] and the right of appeal to that court against resolutions [of the KRS] and also introduces a solution whereby proceedings in the cases concerning those appeals, which have been initiated and are still pending on the date when the amendments (derogations) are introduced, are to be discontinued by operation of law, which as a result:

    • undermines the right of access to the courts in so far as it relates to the review of the resolutions [of the KRS] and the verification of whether the selection procedure in which those resolutions were adopted was properly conducted, and
    • where the national court originally having jurisdiction in those cases has referred questions to the Court … for a preliminary ruling following the successful initiation of the procedure for reviewing the [KRS] resolutions, undermines the right of access to the courts also in so far as, in the individual case pending before the court (originally) having jurisdiction to hear and determine it, it then denies that court both the possibility of successfully initiating preliminary ruling proceedings before the Court … and the right to wait for a ruling from the Court, thereby undermining the EU principle of sincere cooperation?’

    ...

    71) By its third question, which must be examined in the first place, the referring court is asking, in essence, whether (i) the provisions of Article 2, in conjunction with the third subparagraph of Article 4(3) and the second subparagraph of Article 19(1) TEU, Article 47 of the Charter and Article 9(1) of Directive 2000/78, and (ii) Article 267 TFEU, must be interpreted as precluding amendments to the national legal order which, first, deprive a national court of its jurisdiction to rule in the first and last instance on appeals lodged by candidates for positions as judges at a court such as the Sąd Najwyższy (Supreme Court) against decisions of a body such as the KRS not to put forward their applications, but to put forward those of other candidates to the President of the Republic for appointment to such positions, which, secondly, declare such appeals to be discontinued by operation of law while they are still pending, ruling out the possibility of their being continued or lodged again, and which, thirdly, in so doing, deprive such a national court of the possibility of obtaining an answer to the questions that it has referred to the Court for a preliminary ruling. If that is the case, the referring court wishes to know whether the principle of the primacy of EU law must be interpreted as requiring it to disapply those amendments and, consequently, to continue to assume the jurisdiction previously vested in it to hear disputes referred to it before those amendments were made.

    ...

    87) As regards, moreover, Article 47 of the Charter, it must be recalled that that provision, which constitutes a reaffirmation of the principle of effective judicial protection, enshrines the right to an effective remedy before a tribunal for everyone whose rights and freedoms guaranteed by EU law are infringed (see, to that effect, judgment of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraph 55 and the case-law cited).

    88) Thus, the recognition of that right, in a given case, presupposes, as is apparent from the first paragraph of Article 47 of the Charter, that the person invoking that right is relying on rights or freedoms guaranteed by EU law (judgment of 6 October 2020, État luxembourgeois (Judicial protection against requests for information in tax law), C‑245/19 and C‑246/19, EU:C:2020:795, paragraph 55).

    89) However, it is not apparent from the information in the order for reference that the disputes in the main proceedings concern the recognition of a right conferred on the appellants in the main proceedings under a provision of EU law. In particular, and as was stated in paragraphs 85 and 86 of this judgment, the provisions of Directive 2000/78 are not applicable to the disputes in the main proceedings, with the result that those provisions are also not capable of justifying the applicability of the Charter, in particular Article 47 thereof, in the context of those disputes.

    ...

    110) As is apparent from settled case-law, the principle of the effective judicial protection of individuals’ rights under EU law, 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, and which is now reaffirmed by Article 47 of the Charter (judgment of 5 November 2019, Commission v Poland (Independence of the ordinary courts), C‑192/18, EU:C:2019:924, paragraph 100 and the case-law cited).

    111) As regards the material scope of the second subparagraph of Article 19(1) TEU, that provision 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 (judgment of 5 November 2019, Commission v Poland (Independence of the ordinary courts), C‑192/18, EU:C:2019:924, paragraph 101 and the case-law cited).

    ...

    115) In the second place, it should be recalled that, to ensure that such bodies are in a position to ensure the effective judicial protection thus required under the second subparagraph of Article 19(1) TEU, 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 of 24 June 2019, Commission v Poland (Independance of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 57 and the case-law cited).

    ...

    143) The second subparagraph of Article 19(1) TEU requires Member States to provide remedies that are sufficient to ensure effective legal protection, within the meaning in particular of Article 47 of the Charter, in the fields covered by EU law (judgment in A. K. and Others, paragraph 168 and the case-law cited), meaning that the latter provision must be duly taken into consideration for the purposes of interpreting the second subparagraph of Article 19(1) TEU (order of 6 October 2020, Prokuratura Rejonowa w Słubicach, C‑623/18, not published, EU:C:2020:800, paragraph 28).

    144) As was already pointed out in paragraph 115 of this judgment, the second paragraph of Article 47 of the Charter expressly refers to access to an ‘independent’ tribunal as one of the requirements linked to the fundamental right to an effective remedy

    145) By holding, in that regard, that Article 47 of the Charter is sufficient in itself and does not need to be made more specific by provisions of EU or national law in order to confer on individuals a right which they may rely on as such (judgments of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 78, and of 29 July 2019, Torubarov, C‑556/17, EU:C:2019:626, paragraph 56), in particular in so far as that provision requires the court called upon to hear an appeal based on EU law to satisfy the requirement of independence laid down by that provision (see, to that effect, judgment in A. K. and Others, paragraph 166), the Court has acknowledged inter alia that that requirement presented the clarity, precision and unconditionality required for it to be concluded that it has direct effect.