Case C‑487/19

W.Ż.

(Reference for a preliminary ruling from the Sąd Najwyższy(Izba Cywilna))

Judgment of the Court (Grand Chamber), 6 October 2021

(Reference for a preliminary ruling – Rule of law – Effective legal protection in the fields covered by EU law – Second subparagraph of Article 19(1) TEU – Principles of the irremovability of judges and judicial independence – Transfer without consent of a judge of an ordinary court – Action – Order of inadmissibility made by a judge of the Sąd Najwyższy (Izba Kontroli Nadzwyczajnej i Spraw Publicznych) (Supreme Court (Chamber of Extraordinary Control and Public Affairs), Poland) – Judge appointed by the President of the Republic of Poland on the basis of a resolution of the National Council of the Judiciary, despite a court decision ordering that the effects of that resolution be suspended pending a preliminary ruling of the Court – Judge not constituting an independent and impartial tribunal previously established by law – Primacy of EU law – Possibility of finding such an order of inadmissibility to be null and void)

1. Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Principles of the irremovability of judges and judicial independence – Rules applicable to transfers of judges without consent – Transfer measures to be adopted on legitimate grounds only, such as distribution of available resources – Effective possibility of challenging those measures before the courts

   (Arts 2 and 19(1), second subparagraph, TEU; Charter of Fundamental Rights of the European Union, Arts 47, 48 and 51(1))

   (see paragraphs 102-118)

2. Fundamental rights – Right to effective judicial protection – Guaranteed by Article 47, second paragraph, of the Charter of Fundamental Rights of the European Union and Article 6(1) of the Convention for the Protection of Human Rights – Identical meaning and scope – Level of protection provided for by the Charter not infringing that guaranteed by that convention

   (Charter of Fundamental Rights of the European Union, Arts 47, second paragraph, and 52(3))

   (see paragraph 123)

3. EU law – Principles – Right to effective judicial protection – Right to an independent and impartial tribunal previously established by law – Scope

   (Charter of Fundamental Rights of the European Union, Art. 47, second paragraph)

   (see paragraphs 126-130, 147, 148)

4. Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – Primacy – Obligations of national courts – Appeal brought by a judge holding office in a court that may be called upon to interpret and apply EU law against a decision transferring him without his consent – Application for recusal as an adjunct to such an appeal – Order of a court ruling at last instance and sitting as a single judge dismissing that appeal – Appointment of a single judge which took place in clear breach of fundamental rules governing the judicial system concerned – Conditions of the appointment giving rise to reasonable doubt in the minds of individuals as to the independence and impartiality of the single judge concerned – Order declared null and void

   (Art. 19(1), second subparagraph, TEU; Art. 267 TFEU)

   (see paragraphs 138-146, 149-161, operative part)

Résumé

In August 2018, the judge W.Ż., who held office in a regional court in Poland, was transferred without his consent from the division of the court to which he was assigned to another division of that court. He brought an action against that transfer before the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland) (‘the KRS’), which resulted in a resolution that there was no need to adjudicate. In November 2018, W.Ż. challenged that resolution before the Sąd Najwyższy (Supreme Court, Poland), also seeking the recusal of all the judges making up the chamber that was to hear his appeal, namely the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Chamber of Extraordinary Control and Public Affairs Poland) (‘the Chamber of Extraordinary Control’). He considered that, in view of the manner in which they were appointed, the members of that chamber did not offer the necessary guarantees of independence and impartiality.

In that regard, the Sąd Najwyższy (Izba Cywilna) (Supreme Court (Civil Division), Poland), which is required to rule on that application for recusal, states, in its order for reference, that appeals were brought before the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland) against Resolution No 331/2018 of the KRS, proposing to the President of the Republic the list of new judges of the Chamber of Extraordinary Control. However, notwithstanding the suspension of the effects of that resolution ordered by that court, the President of the Republic appointed to the posts of judge of that chamber certain of the candidates put forward in that resolution.

In March 2019, although, first, those proceedings before the Supreme Administrative Court were still pending and, second, that court had made a reference to the Court of Justice for a preliminary ruling concerning another resolution of the KRS proposing to the President of the Republic a list of candidates for posts as judges of the Supreme Court, ( 1 ) a new judge was appointed to the Chamber of Extraordinary Control (‘the judge of the Chamber of Extraordinary Control’) on the basis of Resolution No 331/2018. Ruling as a single judge, without having access to the case file and without hearing W.Ż., that new judge made an order (‘the order at issue’) dismissing as inadmissible the latter’s action against the resolution of the KRS declaring that there was no need to adjudicate.

The referring court asked the Court whether a judge appointed in such circumstances constitutes an independent and impartial tribunal previously established by law, within the meaning, in particular, of the second subparagraph of Article 19(1) TEU, ( 2 ) and asked the Court to specify the possible implications for the order at issue if that judge were found not to have that status.

In its Grand Chamber judgment, the Court rules on the circumstances which must be taken into account by a national court in order to find that, in the procedure for the appointment of a judge, there are irregularities such as to prevent that court from being regarded as an independent and impartial tribunal previously established by law, within the meaning of the second subparagraph of Article 19(1) TEU, and on the consequences which, in such a case, the principle of the primacy of EU law entails for a decision such as the order at issue, made by such a judge.

Findings of the Court

The Court notes, first of all, that an ordinary court such as a Polish regional court forms part of the Polish system of legal remedies in the ‘fields covered by EU law’ within the meaning of the second subparagraph of Article 19(1) TEU. In order for such a court to be able to ensure the effective legal protection required by that provision, the preservation of its independence is essential. A transfer of a judge without consent is potentially capable of undermining the principles of irremovability of judges and judicial independence. It is capable of affecting the scope of the activities allocated to the judge concerned and the handling of cases entrusted to him and of having significant consequences for that judge’s life and career; it may therefore constitute a way of controlling the content of judicial decisions and producing effects similar to those of a disciplinary sanction. Consequently, the requirement of judicial independence requires the system applicable to transfers not consented to by judges to provide the necessary guarantees to prevent that independence from being jeopardised by direct or indirect external intervention. Such transfer measures, which can be decided only on legitimate grounds relating in particular to the distribution of available resources, should therefore be open to challenge before the courts, in accordance with a procedure fully safeguarding the rights of the defence.

The Court finds next that the appointment of the judge of the Chamber of Extraordinary Control in breach of the final decision of the Supreme Administrative Court ordering the suspension of the effects of Resolution No 331/2018 of the KRS, without awaiting the judgment of the Court of Justice in A.B. and Others (Appointment of judges to the Supreme Court – Actions) (C‑824/18), undermined the effectiveness of the preliminary ruling system laid down by Article 267 TFEU. When that appointment was made, the reply awaited from the Court in that case was liable to lead the Supreme Administrative Court to have to, if necessary, annul Resolution No 331/2018 of the KRS in its entirety.

As regards the other circumstances surrounding the appointment of the judge of the Chamber of Extraordinary Control, the Court also notes that it recently held that certain circumstances mentioned by the referring court, relating to recent changes affecting the composition of the KRS, were liable to give rise to reasonable doubts concerning the independence of that body. ( 3 ) Furthermore, that appointment and the order at issue were made even though the referring court was seised of an application for recusal in respect of all the judges then sitting in the Chamber of Extraordinary Control.

Viewed together, the abovementioned circumstances are, subject to the referring court’s final assessments, capable of leading to the conclusion that the appointment of the judge of the Chamber of Extraordinary Control was made in clear disregard of the fundamental rules governing the appointment of judges at the Supreme Court. The same circumstances may also lead the referring court to conclude that the conditions in which that appointment took place undermined the integrity of the outcome of the appointment process, by serving to create in the minds of individuals, reasonable doubts and a lack of appearance of independence or impartiality on the part of the judge of the Chamber of Extraordinary Control likely to prejudice the trust which justice in a democratic society governed by the rule of law must inspire in individuals.

Consequently, the Court holds that, by virtue of the second subparagraph of Article 19(1) TEU and the principle of the primacy of EU law, a national court hearing an application for recusal, such as that at issue in the main proceedings, must, where such a consequence is essential in view of the procedural situation at issue in order to ensure the primacy of EU law, declare an order such as the order at issue to be null and void, if it follows from all the conditions and circumstances in which the process of appointment of the judge who made that order took place that that judge does not constitute an independent and impartial tribunal previously established by law, within the meaning of that provision.

( 1 ) Namely the case giving rise to the judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions) (C‑824/18, EU:C:2021:153). In that case, brought in November 2018, the Supreme Administrative Court essentially asked whether EU law precludes certain amendments made to the provisions of the Law on the KRS concerning the remedies available in respect of KRS resolutions relating to the appointment of judges to the Supreme Court.

( 2 ) That provision states that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’.

( 3 ) See, to that effect, judgment of 15 July 2021, Commission v Poland (Disciplinary regime for judges), C‑791/19, EU:C:2021:596, paragraphs 104 to 108.