Action brought on 27 February 2023 — Medel and Others v Commission

(Case T-116/23)

(2023/C 189/45)

Language of the case: English

Parties

Applicants: Magistrats européens pour la démocratie et les libertés (Medel) (Strasbourg, France), International Association of Judges (Rome, Italy), Association of European Administrative Judges (Trier, Germany), Stichting Rechters voor Rechters (The Hague, Netherlands) (represented by: C. Zatschler, SC, E. Egan McGrath, Barrister-at-Law, A. Bateman and M. Delargy, Solicitors)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—	annul the Financing Agreement between the Commission and the Republic of Poland concluded in accordance with Article 23(1) of Regulation 2021/241 and dated 24 August 2022;

—	annul the Loan Agreement between the Commission and the Republic of Poland concluded in accordance with Article 15(2) of Regulation 2021/241 and dated 24 August 2022; and

—	order the Commission to bear its own costs and pay those of the applicants.

Pleas in law and main arguments

In support of the action, the applicants rely on six pleas in law.

First plea in law, alleging that the Council implementing decision of 17 June 2022 on the approval of the assessment of the recovery and resilience plan for Poland (‘the Council implementing decision’), on the basis of which the above-mentioned Financing and Loan Agreements (‘the contested Financing and Loan Agreements’) were entered into by the Commission, is invalid because the Council disregarded the case law of the Court of Justice held in judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court of Poland) (C-585/18, C-624/18 and C-625/18, EU:C:2019:982), judgment of 15 July 2021, Commission v Poland (Disciplinary regime applicable to judges) (C-791/19, EU:C:2021:596), order of 8 April 2020, Commission v Poland (C-791/19 R, EU:C:2020:277) and order of the Vice-President of the Court of 14 July 2021, Commission v Poland (C-204/21 R, EU:C:2021:593), and infringed Articles 2 and 13(2) TEU.

The applicant further submits under this plea that the Council exceeded its competence to the extent that it purported to determine how Poland should comply with the case law of the Court of Justice concerning the Disciplinary Chamber of the Supreme Court of Poland (‘the Disciplinary Chamber’).

Second plea in law, alleging that the Council implementing decision is invalid because the Council infringed Articles 2 and 19(1) TEU and Article 47 of the Charter of Fundamental Rights and Freedoms (‘the Charter’), as authoritatively interpreted by the Court of Justice.

In support of this plea, the applicants argue that the milestones, on which the Council implementing decision is founded, infringe Articles 2 and 19(1) TEU and Article 47 of the Charter, in that they:

—	accord legal effects to the decisions of the Disciplinary Chamber rather than considering them null and void,

—	impose additional procedural burdens, uncertainty and delays on judges affected by unlawful decisions of the Disciplinary Chamber by requiring the judges in question to commence a new set of proceedings before a newly constituted chamber in the Supreme Court to clear their name; and

—	do not even foresee the judges in question being at least temporarily reinstated pending the outcome of any review proceedings.

Third plea in law, alleging that the Council implementing decision is invalid because milestones F1G, F2G and F3G provided for in the Council implementing decision are insufficient to re-establish effective judicial protection in Poland, which is a prerequisite for the functioning of an internal control system. The applicants contend that the Council implementing decision accordingly infringes Articles 20(5)(e) and 22 of Regulation (EU) 2021/241 of the European Parliament and of the Council of 12 February 2021 establishing the Recovery and Resilience Facility (OJ 2021 L 57, p. 17) and Article 325 TFEU, which require effective and efficient internal controls.

Fourth plea in law, alleging that the Council implementing decision is invalid because the Council erred in law and/or committed manifest errors of assessment in applying Article 19(3) of Regulation 2021/241 in approving the milestones to be ‘adequate arrangements’ for the prevention, detection and correction of corruption in Poland.

5.	Fifth plea in law, alleging that the Council implementing decision is invalid because the Council failed to adequately state reasons for it, thereby infringing Article 296 TFEU, Article 41 of the Charter, and the principles of EU law.

Sixth plea in law, alleging that the contested Financing and Loan Agreements entered into by the Commission exceed the powers conferred on the Commission under the Council implementing decision and the Regulation (EU) 2021/241, and thus breach EU law in that Articles 6(5) and 18(1) of the Financing Agreement and Articles 7(5) and 28(1) of the Loan Agreement allow for the possibility of funding being disbursed even without the rule of law milestones F1G, F2G and F3G, provided for in the Council implementing decision, having been met.