Case C‑791/19

European Commission

v

Republic of Poland

Judgment of the Court (Grand Chamber), 15 July 2021

(Failure of a Member State to fulfil obligations – Disciplinary regime applicable to judges – Rule of law – Independence of judges – Effective legal protection in the fields covered by Union law – Second subparagraph of Article 19(1) TEU – Article 47 of the Charter of Fundamental Rights of the European Union – Disciplinary offences resulting from the content of judicial decisions – Independent disciplinary courts or tribunals established by law – Respect for reasonable time and the rights of the defence in disciplinary proceedings – Article 267 TFEU – Restriction of the right of national courts to submit requests for a preliminary ruling to the Court of Justice and of their obligation to do so)

1. Actions for failure to fulfil obligations – Expedited procedure – Conditions – Circumstances justifying swift processing – None – Sensitive and complex nature of the legal problems raised not lending itself to the application of such a procedure

   (Statute of the Court of Justice, Art. 23a; Rules of Procedure of the Court of Justice, Art. 133(1))

   (see paragraphs 32-34)

2. Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Scope

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

   (see paragraphs 52-54)

3. Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – Scope

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

   (see paragraphs 55-61, 95-98, 228)

4. Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – New Disciplinary Chamber of the Supreme Court made up of judges appointed by the President of the Republic of Poland on a proposal from the National Council of the Judiciary – Chamber responsible for adjudicating in disciplinary cases concerning judges of the Supreme Court and judges of the ordinary courts – Chamber made up exclusively of new judges who benefit from a particularly high level of remuneration and a particularly high degree of organisational, functional and financial autonomy – Reasonable doubts arising in the minds of individuals as to the imperviousness of that chamber to external factors and its neutrality with respect to the interests before it – Infringement – Failure to fulfil obligations

   (Arts 2 and 19(1), second subpara., TEU; Art. 258 TFEU; Charter of Fundamental Rights of the European Union, Art. 47)

   (see paragraphs 80-83, 86, 102-110, 112, 113, 235, operative part 1)

5. Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – National legislation not clearly and precisely defining the forms of conduct which may trigger the disciplinary liability of judges – Legislation not making it possible to avoid exposing those judges to the risk that their disciplinary liability may be triggered solely because of the decisions taken by them – Chamber with jurisdiction to hear disciplinary cases concerning judges which does not meet the requirement of independence and impartiality – Not permissible – Failure to fulfil obligations

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

   (see paragraphs 134, 136-141, 146-148, 157, 235, operative part 1)

6. Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Compliance with the requirement of a tribunal established by law – National legislation conferring on the President of the Disciplinary Chamber the discretionary power to designate the disciplinary tribunal with territorial jurisdiction to hear a disciplinary case conducted in respect of a judge – No specification of the criteria to be fulfilled by such a designation – Not permissible – Failure to fulfil obligations

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

   (see paragraphs 164, 172, 173, 176, 235, operative part 1)

7. Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – National legislation allowing disciplinary proceedings to be initiated in respect of a judge who has already been the subject of such proceedings in the same case, which have been closed by a final ruling – National legislation failing to guarantee that disciplinary cases concerning judges will be examined within a reasonable time – Not permissible – Failure to fulfil obligations

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

   (see paragraphs 187, 193, 197, 202, 235, operative part 1)

8. Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Observance of the principle of judicial independence – Disciplinary proceedings in respect of a judge who cannot take part in the proceedings on health grounds – National legislation not providing that actions relating to the appointment of defence counsel who must defend the interests of that judge are to have a suspensory effect on the course of the proceedings – Continuation of the disciplinary proceedings despite the justified absence of the judge or his or her defence counsel – National legislation not guaranteeing the rights of defence of accused judges – Not permissible – Failure to fulfil obligations

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

   (see paragraphs 208-210, 213, 235, operative part 1)

9. Member States – Obligations – Power of the national courts to put questions to the Court of Justice – Obligation of sincere cooperation – National legislation likely to expose a judge to disciplinary proceedings as a result of that judge making a reference for a preliminary ruling to the Court of Justice – Not permissible – Failure to fulfil obligations

   (Art. 267, second and third paras, TFEU)

   (see paragraphs 223-227, 230, 231, 234, 235, operative part 2)

Résumé

The Polish legislation regarding the disciplinary regime for judges is contrary to EU law

The requirement of independence means that that regime must offer the necessary guarantees in order to avoid any risk of political control of the content of judicial decisions

In 2017, Poland adopted a new disciplinary regime concerning judges of the Sąd Najwyższy (Supreme Court, Poland) and judges of the ordinary courts. In the context of that legislative reform, a new chamber, the Izba Dyscyplinarna (‘the Disciplinary Chamber’), was established within the Supreme Court. That chamber was made responsible, inter alia, for hearing disciplinary cases relating to judges of the Supreme Court and, on appeal, those relating to judges of the ordinary courts.

Taking the view that, by adopting that new disciplinary regime, Poland had failed to fulfil its obligations under EU law, ( 1 ) the European Commission brought an action for failure to fulfil obligations before the Court of Justice. The Commission submits, in particular, that that disciplinary regime guarantees neither the independence nor the impartiality of the Disciplinary Chamber, which is made up exclusively of judges selected by the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland) (‘the KRS’), a body which has 23 of its 25 members appointed by the political authorities.

In the judgment delivered in that case, the Court, sitting as the Grand Chamber, upheld the action for failure to fulfil obligations brought by the Commission. First, the Court finds that the new disciplinary regime for judges undermines their independence. Second, that regime does not enable the judges concerned to comply, acting with complete independence, with their obligations under the preliminary ruling mechanism.

Findings of the Court

First, the Court finds that Poland has failed to fulfil its obligations, under the second subparagraph of Article 19(1) TEU, to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.

The Court recalls that, according to its settled case-law, the second subparagraph of Article 19(1) TEU and the requirement that judges be independent deriving from that provision mean that the disciplinary regime applicable to judges of the national courts which come within their judicial systems in the fields covered by EU law must provide the necessary guarantees in order to prevent any risk of such a regime being used as a system of political control of the content of judicial decisions, which presupposes, inter alia, rules which define the forms of conduct amounting to disciplinary offences, which provide for the intervention of an independent body in accordance with a procedure which fully safeguards the rights enshrined in Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, in particular the rights of the defence, and which lay down the possibility of bringing legal proceedings challenging the decisions of disciplinary bodies.

However, according to the Court, Poland has, in the first place, failed to guarantee the independence and impartiality of the Disciplinary Chamber and has thereby undermined the independence of judges by failing to ensure that disciplinary proceedings brought against them will be reviewed by a body offering such guarantees. In accordance with the principle of the separation of powers, the independence of the judiciary must be ensured in relation to the legislature and the executive. Nevertheless, under the 2017 legislative reform, the process for appointing judges to the Supreme Court and, in particular, for appointing the members of the Disciplinary Chamber of the Supreme Court is essentially determined by the KRS – a body which has been significantly reorganised by the Polish executive and legislature. The Court also notes that the Disciplinary Chamber is to be made up exclusively of new judges selected by the KRS who were not already sitting within the Supreme Court and who will benefit from, inter alia, a very high level of remuneration and a particularly high degree of organisational, functional and financial autonomy in comparison with the conditions prevailing in the other judicial chambers of that court. All of those factors are such as to give rise to reasonable doubts in the minds of individuals as to the imperviousness of that disciplinary body to the direct or indirect influence of the Polish legislature and executive, as well as its neutrality with respect to the interests before it.

The Court notes, in the second place, while taking into account, in that regard, the fact that the independence and impartiality of the Disciplinary Chamber are thus not guaranteed, that Poland has allowed the content of judicial decisions to be classified as a disciplinary offence as regards judges of the ordinary courts. Recalling the need to avoid the disciplinary regime being used in order to exert political control over judicial decisions or to exert pressure on judges, the Court notes that, in the present case, the new disciplinary regime for judges, which does not meet the requirements of clarity and precision as regards the forms of conduct likely to trigger the liability of judges, also undermines the independence of those judges.

In the third place, Poland has also failed to guarantee that disciplinary cases brought against judges of the ordinary courts will be examined within a reasonable time, thereby once again undermining the independence of those judges. According to the new disciplinary regime, a judge who has been the subject of disciplinary proceedings closed by a final ruling may once again be subject to such proceedings in the same case, such that that judge permanently remains under the potential threat of such proceedings. In addition, the new procedural rules applicable to disciplinary proceedings concerning judges are liable to restrict the rights of defence of accused judges. Under those new rules, actions relating to the appointment of a judge’s defence counsel and the taking up of the defence by that counsel do not suspend the proceedings, not to mention the fact that the proceedings may continue despite the justified absence of the judge or his or her defence counsel. Moreover, the new procedural rules referred to above may, especially where, as in the present case, they are applied in the context of a disciplinary regime displaying the shortcomings already noted above, increase the risk of the disciplinary regime being used as a system of political control of the content of judicial decisions.

In the fourth place, the Court finds that, by conferring on the President of the Disciplinary Chamber referred to above the discretionary power to designate the disciplinary tribunal with jurisdiction at first instance in disciplinary cases relating to judges of the ordinary courts, Poland has failed to guarantee that such cases will be examined by a tribunal ‘established by law’ as is also required by the second subparagraph of Article 19(1) TEU.

Second, the Court finds that, by allowing the right of courts and tribunals to submit requests for a preliminary ruling to the Court of Justice to be restricted by the possibility of triggering disciplinary proceedings, Poland has failed to fulfil its obligations under the second and third paragraphs of Article 267 TFEU. The provisions of national legislation from which it follows that national judges may be exposed to disciplinary proceedings as a result of the fact that they have made a reference for a preliminary ruling to the Court of Justice cannot be accepted, because they undermine the effective exercise by the national judges concerned of the discretion or the obligation, provided by those provisions, to make a reference for a preliminary ruling to the Court of Justice, as well as the system of cooperation between the national courts and the Court of Justice thus established by the Treaties in order to secure uniformity in the interpretation of EU law and to ensure the full effect of that law.

( 1 ) The Commission considered that Poland had failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU – which lays down the obligation, for the Member States, to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law – and under the second and third paragraphs of Article 267 TFEU – which gives certain national courts the discretion (second paragraph) to make a reference for a preliminary ruling, and places others under the obligation (third paragraph) to do so.