Joined Cases C‑647/21 and C‑648/21

Criminal proceedings

against

D. K. and Others

(Request for a preliminary ruling from the Sąd Okręgowy w Słupsku)

Judgment of the Court (Fifth Chamber) of 6 March 2025

(Reference for a preliminary ruling – Rule of law – Second subparagraph of Article 19(1) TEU – Principle of the irremovability of judges and judicial independence – Resolution of the college of a court withdrawing all cases from a judge – Lack of objective criteria for taking a withdrawal decision – Lack of obligation to state reasons for such a decision – Primacy of EU law – Obligation to disapply such a decision to withdraw cases)

1. Questions referred for a preliminary ruling – Jurisdiction of the Court – Limits – Obligation on Member States to establish the necessary remedies to ensure effective judicial protection – Questions concerning national rules on the adoption of decisions appointing judges and the judicial review applicable in such a context – Included

   (Art. 19(1), TEU; Art. 267 TFEU; Charter of Fundamental Rights of the European Union, Art. 47)

   (see paragraphs 42-44)

2. Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – Right to an independent and impartial tribunal previously established by law – National legislation authorising a body of a court to withdraw from a judge some or all of the cases assigned to him or her – Legislation which does not lay down criteria for a decision to withdraw cases and does not set out an obligation to state reasons for such a decision – Not permissible

   (Arts 2 and 19(1), second subpara., TEU; Charter of Fundamental Rights of the European Union, Arts 47, second para., and 52(3))

   (see paragraphs 62-86, operative part 1)

3. Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – Primacy and direct effect of EU law – Obligations of national courts – Obligation to disapply, of their own motion, any national rule or practice that is contrary to a provision of EU law with direct effect – Resolution adopted by a college of a court withdrawing cases from a judge of that court and reassigning them – Infringement of the second subparagraph of Article 19(1) TEU – Obligation for that national court to disapply that resolution and to nullify the unlawful consequences of the infringement of EU law – Obligation for the judicial bodies determining the composition of that formation hearing the case to disapply such a resolution

   (Art. 19(1) TEU; Art. 267 TFEU; Charter of Fundamental Rights of the European Union, Art. 47)

   (see paragraphs 88-97, operative part 2)

Résumé

Hearing two criminal cases which were subsequently withdrawn from the judge who submitted the present two requests for a preliminary ruling, the Court clarifies the scope and practical application of the concept of ‘internal’ judicial independence’ as recognised by the second subparagraph of Article 19(1) TEU.

As regards Case C‑647/21, the Sąd Okręgowy w Słupsku (Regional Court, Slupsk, Poland), which is the referring court, sitting as a single judge, has been seised of an appeal by D.K. against a decision by which he was sentenced, at first instance, to a term of imprisonment.

As regards Case C‑648/21, M.C. and M.F. were convicted at first instance. The court of second instance hearing their appeal acquitted M.C. and upheld the conviction of M.F. The Sąd Najwyższy (Supreme Court, Poland), hearing an appeal against the decision at second instance concerning M.C., set aside that decision and referred the case back to the referring court. In that case, the Court sits in a formation of three judges, consisting of the President of the formation, the President of the referring court and a third judge. The request for a preliminary ruling was made by the President of the formation alone, who is the same judge as in Case C‑647/21.

In September 2021, in proceedings unrelated to the cases in the main proceedings, the judge who submitted the present two orders for reference requested the President of the appellate division of the referring court to replace the President of that court in the formation hearing the case in those proceedings with another judge. She considers that, since that judge was appointed on the basis of a resolution of the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland; ‘the KRS’) in its new composition, the right to a tribunal previously established by law, within the meaning, inter alia, of Article 19(1) TEU, is infringed. That request was rejected.

In October 2021, in another case, the same judge set aside a judgment of a lower court that had been delivered by a judge who had also been appointed on the basis of a resolution of the KRS in its new composition.

In the same month, the College of the referring court adopted a resolution seeking to withdraw from that judge approximately 70 cases, including the cases in the main proceedings. According to that judge, that resolution was not served on her and she was not aware of the reasons for it. The President of that court also adopted an order transferring her from the appellate division of that court to the first instance division of that court. That order, which entered into force a few days after its adoption merely refers to the need to ensure the proper functioning of both divisions.

In those circumstances, the referring court, which is uncertain as to whether the abovementioned measures are compatible with the second subparagraph of Article 19(1) TEU, asks the Court, in essence, to clarify whether the judge who submitted the present two requests for a preliminary ruling may continue to sit in those two cases. It also asks whether it is required to disregard the College resolution and other subsequent measures.

Findings of the Court

In the first place, the Court states that the second subparagraph of Article 19(1) TEU precludes national legislation under which a body of a national court may withdraw from a judge of that court some or all of the cases assigned to him or her, where that legislation does not lay down the criteria which must guide that body when it takes such a decision to withdraw cases or require a statement of reasons for that decision.

In reaching that conclusion, it states that the rules on allocation and reallocation of cases form part of the concept of a tribunal ‘previously established by law’, which requires not only a legal basis for the very existence of the court, but also observance of the composition of the bench in each case.

In the present case, it appears that the legislation at issue provides that a change in the composition of a court is permissible where there is a ‘lasting obstacle to the court hearing and determining the case in its current composition’, without further clarification. Although that legislation provides, in essence, that a judge is to remain seised of cases which have been assigned to him or her despite his or her transfer to another place or secondment to another court, until those cases are closed, it appears that his or her cases may be withdrawn from him or her by decision of the college of the court concerned without setting out criteria in that regard. In addition, according to the same rules, the college of the court may also withdraw cases from a judge in the event of his or her transfer to another division, although that possibility is not accompanied, once again, by any specific criteria. It must therefore be held that such legislation not only does not lay down objective criteria governing the possibility of withdrawing from a judge one or more of his or her cases, but also allows the college of the court concerned to withdraw cases from a judge without giving reasons for such a decision. Moreover, the College resolution by which the cases in the main proceedings were withdrawn from the judge concerned does not appear to be capable of being justified by the transfer order, which states reasons briefly, by which the President of the referring court decided, in October 2021, to transfer the judge concerned to another division of the same court.

Furthermore, the fact that a judge’s cases are withdrawn from him or her, where the national legislation concerned does not lay down objective criteria for such a possibility of withdrawal and where it does not require a decision to withdraw cases to include the reasons on which it is based, does not rule out the possibility that that withdrawal was arbitrary, or constitutes a disguised disciplinary penalty. Thus, organisational measures such as those at issue in the main proceedings, the implementation of which is not governed by sufficiently precise criteria and is not subject to an obligation to state adequate reasons, are liable to give rise to doubts as to the possibility that the withdrawal of the cases, followed by a transfer, may have taken place in response to earlier acts of the judge concerned. Therefore, in order to avoid leaving room for the arbitrariness which might result from a non-transparent procedure liable to undermine the principles of independence and irremovability of judges, it is important that the national rules governing the withdrawal of cases lay down clearly stated objective criteria on the basis of which cases may be withdrawn from a judge as well as the obligation to state the reasons for decisions to withdraw cases, in particular where the judge concerned has not given his or her consent.

In the second place, the Court rules that the second subparagraph of Article 19(1) TEU and the principle of the primacy of EU law require a national court to disapply a resolution of the college of that court withdrawing from a judge of that court cases assigned to him or her and other subsequent acts, such as the decisions relating to the reassignment of those cases, where that resolution was adopted in breach of the second subparagraph of Article 19(1) TEU. The judicial bodies responsible for determining and modifying the composition of that formation must disapply such a resolution.

More specifically, in a situation where the national legislation governing the withdrawal of cases is found to be incompatible with the second subparagraph of Article 19(1) TEU, a formation of the court must be justified in continuing, with the same composition, the examination of the main proceedings without the judicial bodies with jurisdiction to determine and modify the composition of the formations of the national court being able to prevent that continued examination.