Case C‑791/19 R

European Commission

Republic of Poland

Order of the Court (Grand Chamber), 8 April 2020

(Interim relief — Article 279 TFEU — Application for interim measures — Second subparagraph of Article 19(1) TEU — Independence of the Izba Dyscyplinarna (Disciplinary Chamber) of the Sąd Najwyższy (Supreme Court, Poland))

EU law — Principles — Right to effective judicial protection — Principle of judicial independence — Scope

(Art. 19(1), second subpara., TEU; Charter of Fundamental Rights of the European Union, Arts 47 and 48)

(see paragraphs 29, 30, 34, 65, 66)
Member States — Obligations — Provision of remedies sufficient to ensure effective judicial protection — Compliance with the principle of judicial independence — New disciplinary chamber of the Supreme Court composed of judges appointed by the President of the Republic of Poland on a proposal from the National Council of the Judiciary — Infringement if any reasonable doubt created in the minds of subjects of the law as to the imperviousness of that Chamber to external factors and its neutrality with respect to the interests before it — Criteria — Objective conditions in which it was created, its characteristics and the process for appointing its members — Independence of the National Council of the Judiciary

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

(see paragraphs 31-33, 35, 68, 70-72)
Interim relief — Jurisdiction of the court hearing an application for interim measures — Application for interim measures made in an action for failure to fulfil obligations — Action for failure to fulfil obligations seeking to challenge the compatibility with the second subparagraph of Article 19(1) TEU of national provisions on the disciplinary regime applicable to the judges ruling on questions relating to EU law — Application falling within the jurisdiction of the court hearing applications for interim measures

(Art. 19(1), second subpara., TEU; Arts 278 and 279 TFEU)

(see paragraph 36)
Interim relief — Suspension of activity — Interim measures — Conditions for granting them — Prima facie case — Urgency — Serious and irreparable damage — Cumulative nature — Balancing of all the interests involved — Discretion of court hearing an application for interim measures

(Arts 278 and 279 TFEU; Rules of Procedure of the Court of Justice, Art. 160(3))

(see paragraph 51)
Interim relief — Suspension of activity — Interim measures — Conditions for granting them — Prima facie case — Prima facie examination of the pleas put forward in support of the main action — Action for failure to fulfil obligations — National provisions relating to the disciplinary regime applicable to the judges ruling on questions relating to EU law — Provisions relating to the court ruling in disciplinary cases concerning those judges — Complaint relating to whether the chamber established complies with the requirement of judicial independence provided for in the second subparagraph of Article 19(1) TEU — Complaint prima facie not unfounded

(Art. 19(1), second subpara., TEU; Arts 278 and 279 TFEU; Charter of Fundamental Rights of the European Union, Art. 47)

(see paragraphs 52, 64, 67, 75-78)
Interim relief — Suspension of activity — Interim measures — Conditions for granting them — Urgency — Serious and irreparable damage — Definition — Risk of compromising the independence of the court hearing disciplinary cases of judges of a Member State ruling on questions relating to EU law — Inclusion

(Art. 2 TEU; Arts 278 and 279 TFEU; Rules of Procedure of the Court of Justice, Art. 160(3))

(see paragraphs 82-86, 89, 90, 92, 93)
Interim relief — Suspension of activity — Interim measures — Conditions for granting them — Balancing of all the interests involved — Action for failure to fulfil obligations — National provisions relating to the disciplinary regime applicable to judges ruling on questions relating to EU law — Provisions relating to the court hearing disciplinary cases concerning those judges — Risk of compromising the independence of that court — Interest of the Member State concerned relating to the administration of justice in its legal order — Primacy of the general interest of the Union

(Art. 19(1), second subpara., TEU; Arts 278 and 279 TFEU; Charter of Fundamental Rights of the European Union, Art. 47)

(see paragraphs 104, 109-113)

Résumé

On 8 April 2020, in the interim order in Commission v Poland (C‑791/19 R), the Court, sitting in the Grand Chamber, ordered the Republic of Poland to suspend immediately the application of the national provisions forming the basis of the jurisdiction of the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court, Poland) (‘the Disciplinary Chamber’) to rule in disciplinary cases relating to judges and to refrain from referring the cases pending before the Disciplinary Chamber to a formation that does not satisfy the requirements of independence defined, inter alia, in the judgment of 19 November 2019, A. K. and Others. ( 1 ) The application for interim relief had been made in an action for failure to fulfil obligations brought by the Commission in October 2019, seeking a declaration that Poland, by adopting the new disciplinary regime for the judges of the Supreme Court and the ordinary courts, has failed to fulfil its obligations under the combined provisions of the second subparagraph of Article 19(1) TEU ( 2 ) and the second and third paragraphs of Article 267 TFEU. ( 3 )

Under that new system, adopted in 2017, the Disciplinary Chamber established within the Supreme Court has jurisdiction in disciplinary cases concerning judges of that court and, on appeal, those concerning judges of the ordinary courts. According to the Commission, ( 4 ) that regime does not guarantee the independence and impartiality of the Disciplinary Chamber, composed exclusively of judges selected by the Krajowa Rada Sądownictwa (National Council of the Judiciary, ‘the KRS’), the 15 members of which who were judges were elected by the Lower Chamber of the Polish Parliament, whereas, before the 2017 reform, they were elected by their peers. Following the judgment in A.K., ( 5 ) the Chamber of Labour and Social Security of the Supreme Court, sitting in the cases which gave rise to that judgment, held, in judgments of 5 December 2019 and 15 January 2020, that the Disciplinary Chamber cannot, having regard to the circumstances in which it was created, the extent of its powers, its composition and the involvement of the KRS in its constitution, be regarded as a tribunal within the meaning of both EU and Polish law. However, the Disciplinary Chamber continued to exercise its judicial functions.

In the first place, before examining the substance of the Commission’s application for interim measures, the Court dismissed the plea of inadmissibility raised by Poland. In particular, as regards its competence to order the interim measures in question, it recalled that, although the organisation of justice in the Member States falls within the competence of the Member States, they are nevertheless required, in the exercise of that competence, to comply with their obligations under EU law, in particular the second subparagraph of Article 19(1) TEU. The Court then stated that that provision, which gives concrete expression to the rule of law, confers on national courts and tribunals and on the Court of Justice the responsibility for ensuring the full application of EU law in all the Member States and the judicial protection which individuals derive from EU law. After recalling the overriding importance of preserving the independence of those bodies in order to guarantee such protection, the Court stated that it is consequently for every Member State to ensure that the disciplinary rules applicable to the judges of national courts within their system of legal remedies in the fields covered by EU law respect the principle of judicial independence. Thus, it is necessary to safeguard, in particular, the fact that decisions given in disciplinary proceedings brought against the judges of those courts are reviewed by a body which itself satisfies the guarantees inherent in effective judicial protection, including that of independence. In those circumstances, the Court has recognised that it has jurisdiction, in the context of an action for failure to fulfil obligations seeking to challenge the compatibility with EU law of national provisions relating to the disciplinary regime applicable to judges called upon to rule on questions relating to EU law, to order interim measures ordering the suspension of the application of such provisions.

In the second place, as regards the examination of the substance of the application for interim measures, the Court set out the circumstances in which an interim measure may be granted by the judge hearing an application for interim measures. It must therefore be established that the grant of such a measure is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be adopted and produce its effects before a decision is reached on the substance of the case. Where appropriate, the judge hearing such an application must also weigh up the interests involved.

As regards the condition relating to the existence of a prima facie case, the Court first of all pointed out that that condition is satisfied where at least one of the pleas in law put forward by the party seeking interim measures in support of the main action appears, prima facie, not unfounded. In the present case, without ruling on the merits of the arguments put forward by the parties in the context of the action for failure to fulfil obligations, the Court held that, having regard to the facts put forward by the Commission and to the interpretative guidance provided, in particular, by the judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court) ( 6 ) and by the judgment in A.K., the arguments relating to the lack of a guarantee of the independence and impartiality of the Disciplinary Board, relied on in the action for failure to fulfil obligations, appear, prima facie, not to be unfounded.

As regards the condition relating to urgency, the Court considered that that condition was satisfied in the present case. The mere prospect, for the judges of the Supreme Court and the ordinary courts, of facing the risk of disciplinary proceedings which could lead to the bringing of proceedings before a body whose independence is not guaranteed is liable to affect their own independence and, consequently, the effective judicial protection of the rights which individuals derive from EU law. The Court inferred from this that the application of national provisions at issue which confer jurisdiction to hear disciplinary cases relating to the judges referred to above on a body whose independence might not be guaranteed is liable to cause serious and irreparable harm to the legal order of the European Union.

Finally, the Court examined the balancing of the interests involved. In concluding that the Court was inclined to be in favour of granting the interim measures requested by the Commission, it pointed out, inter alia, that the grant of those measures would not entail the dissolution of the Disciplinary Chamber, but only the provisional suspension of its activity until final judgment had been delivered. Furthermore, it considered that, in so far as the grant of those measures would mean that the handling of the cases pending before the Disciplinary Board had to be suspended until final judgment had been delivered, the harm resulting from the suspension of those cases for the persons concerned was less than that resulting from their examination by a body whose lack of independence and impartiality cannot, prima facie, be excluded.

( 1 ) Judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, the judgment in A. K., EU:C:2019:982).

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

( 3 ) That provision provides that the Court of Justice has jurisdiction to give preliminary rulings. According to the second and third paragraphs of the article, ‘where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court’.

( 4 ) Supported by Belgium, Denmark, the Netherlands, Finland and Sweden.

( 5 ) In that judgment of 19 November 2019, A. K. and Others(Independence of the Disciplinary Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982), the Court held inter alia that EU law precludes cases concerning the application of that law ‘from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal … That is the case where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law’.

( 6 ) Judgment of 24 June 2019, Commission v Poland(Independence of the Supreme Court) (C-619/18, EU:C:2019:531).