–

the Prokuratura Okręgowa w Warszawie, by A. Bortkiewicz,

–

the Polish Government, by B. Majczyna and S. Żyrek, acting as Agents,

–

the European Commission, by K. Herrmann and P.J.O. Van Nuffel, acting as Agents,

1

These requests for a preliminary ruling concern the interpretation of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of the principles of legal certainty, inviolability of final court judgments, proportionality and procedural autonomy.

2

The requests have been made in proceedings for the enforcement of four final court decisions imposing criminal penalties on KB, RZ, AN and CG.

3

Article 9(1) and (2) of the ustawa – Kodeks karny wykonawczy (Law of 6 June 1997 on the Criminal Enforcement Code) (Dz. U. of 2023, item 127, ‘the Criminal Enforcement Code’), provides:

‘1.   The enforcement procedure shall begin without delay after the judgment has become enforceable.

2.   A judgment or order made pursuant to Article 420 of the ustawa – Kodeks postępowania karnego (Law of 6 June 1997 on the Code of Criminal Procedure) (Dz. U. of 2022, item 1375), concerning confiscation or material evidence, becomes enforceable when it becomes final, unless otherwise provided by law.’

4

Under Article 13(1) of the Criminal Enforcement Code:

‘The authority executing the decision and any person directly concerned by the decision may apply to the court that delivered the decision to remove doubts as to the execution of the decision or objections concerning the calculation of the sentence. The court order may be appealed.’

5

Article 15(1) of that code is worded as follows:

‘The court shall interrupt enforcement procedure in the event of the sentence being time-barred, the death of the sentenced person or any other reason precluding this procedure.’

6

By judgment of 28 December 2022 of the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland), KB was sentenced to a suspended term of two months’ imprisonment and a fine for having publicly insulted the President of the Republic of Poland on 1 and 2 March 2022 using the social network Twitter (Case C‑114/23).

7

By judgment of 28 November 2022 of that court, RZ was sentenced to a suspended term of imprisonment of one year and a fine for causing another person to dispose of his or her own property adversely in order to obtain a financial advantage (Case C‑115/23).

8

By judgment of 9 February 2023 of that court, AN was sentenced to a total of 11 months’ restriction of liberty for two offences of computer fraud (Case C‑132/23).

9

Those three judgments were delivered in the formation of a single judge by Judge LM, in Cases C‑114/23 and C‑132/23, and Judge OP, in Case C‑115/23. They became final without being challenged.

10

CG was sentenced, by judgment of 30 December 2022 of the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw, Poland), to eight years’ imprisonment for physically and mentally abusing an infant (Case C‑160/23). That judgment, delivered by a panel of three judges ruling on appeal, namely JL, KS and MP, also became final.

11

The Sąd Okręgowy w Warszawie (Regional Court, Warsaw), which is the referring court, is called upon to rule on the enforcement of the four final judicial decisions referred to in paragraphs 6 to 10 above.

12

That court notes that both the single judges of the Sąd Okręgowy w Warszawie (Regional Court, Warsaw), LM and OP, and the three judges of the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw), JL, KS and MP (together ‘the judges at issue’) were appointed by decisions of the President of the Republic of Poland on a proposal from the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland) (‘the National Council of the Judiciary), in its composition resulting from the ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw (Law amending the Law on the National Council of the Judiciary and certain other laws) of 8 December 2017 (Dz. U. of 2018, item 3). It is common ground that that body is not independent.

13

It follows that a court composed of a judge appointed on a proposal from the National Council of the Judiciary, in the composition resulting from the law referred to in the preceding paragraph, is not properly composed and cannot be regarded as an independent and impartial tribunal within the meaning, inter alia, of Article 47 of the Charter.

14

In addition, the referring court states, in its request for a preliminary ruling in Case C‑160/23, that, in several judgments, the Sąd Najwyższy (Supreme Court, Poland) has already set aside judgments delivered on appeal by a panel of judges of the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw) of which Judge JL was a member, inter alia, in a case where he had sat with judges KS and MP. The Sąd Najwyższy (Supreme Court) then highlighted the circumstances surrounding the appointment of the judge JL, his links with the political powers and his activity as a disciplinary officer of ordinary court judges. The same considerations apply to Judge KS. As regards judge MP, the Sąd Najwyższy (Supreme Court) took into account the irregularity of his appointment and his activity within the National Council of the Judiciary, which allegedly undermined the independence of the courts and judges.

15

The referring court considers that Polish law, interpreted in the light of EU law and the case-law of the Court, allows courts hearing criminal cases to examine a plea alleging failure to comply with the requirements of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, which may be raised by the accused, by the other parties to the proceedings or by the judge himself or herself. In the present case, however, no plea to that effect was raised in the four criminal proceedings that gave rise to the final judicial decisions that are the subject of the enforcement proceedings in the main proceedings and the judges at issue did not examine whether those requirements had been met.

16

In that context, that court considers it necessary to determine whether, under EU law, compliance with those requirements can be verified, if necessary of its own motion, at a later stage, in particular during judicial enforcement proceedings. That referring court considers that that must be the case.

17

In the present case, that court should therefore find that the final judgments which are the subject of the enforcement proceedings before it do not exist, on account of the irregularity of the conditions governing the appointments of the judges in question. It would then have to discontinue those proceedings and the criminal liability of KB, RZ, AN and CG should be the subject of new court decisions.

18

In those circumstances, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

19

By decisions of 4 and 18 April 2023, the President of the Court of Justice joined Cases C‑114/23, C‑115/23, C‑132/23 and C‑160/23 for the purposes of the oral and written procedure and the judgment.

20

The referring court requested that the present references for a preliminary ruling be dealt with under the expedited preliminary ruling procedure provided for in Article 105 of the Rules of Procedure of the Court. In support of its claims, it submitted that the cases in the main proceedings fall within the scope of criminal law, that those cases concern fundamental rights and that it is in the public interest that offenders should be held criminally liable without delay.

21

Article 105(1) of the Rules of Procedure provides that, at the request of the referring court or tribunal or, exceptionally, of his or her own motion, the President of the Court may decide, after hearing the Judge-Rapporteur and the Advocate General, that a reference for a preliminary ruling is to be determined pursuant to an expedited procedure where the nature of the case requires that it be dealt with within a short time.

22

According to settled case-law, such an expedited procedure is a procedural instrument intended to address matters of exceptional urgency (judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court –Actions), C‑824/18, EU:C:2021:153, paragraph 48 and the case-law cited).

23

In the present case, the President of the Court decided, on 4 and 18 April 2023, after hearing the Judge-Rapporteur and the Advocate General, that it was not appropriate to grant the requests referred to in paragraph 20 above. The referring court has not put forward any specific grounds relating to the circumstances of the enforcement procedures in the main proceedings which would have required a decision on the requests for a preliminary ruling to be made within a short time. Furthermore, the fact that the cases in the main proceedings fall within the scope of criminal law was not, in itself, grounds for those cases being dealt with under an expedited procedure (see, to that effect, judgment of 16 November 2021, Prokuratura Rejonowa w Mińsku Mazowieckim and Others, C‑748/19 to C‑754/19, EU:C:2021:931, paragraph 26). Lastly, the mere interest of individuals, while legitimate, in determining as quickly as possible the scope of their rights under EU law is not such as to establish the existence of an exceptional circumstance (judgment of 28 April 2022, Phoenix Contact, C‑44/21, EU:C:2022:309, paragraph 16).

24

Following a request for information from the Court, sent on 4 April 2023 to the referring court, the latter provided, inter alia, details of its role in enforcement proceedings. That court stated that, as regards final judgments delivered in criminal cases by the formations of the Sąd Okręgowy w Warszawie (Regional Court, Warsaw), it has jurisdiction to adopt the measures provided for by the Criminal Enforcement Code. These concern measures such as (i) the order of execution of the sentence, (ii) the imprisonment of the sentenced person, by the police, in a prison to serve the sentence imposed, (iii) the execution of such a judgment in so far as it requires the convicted person to pay court costs to the State Treasury, (iv) the examination, where appropriate, of a request for deferment of the execution of a custodial sentence and (v) the issuing of an arrest warrant for the purpose of searching for the convicted person in the event of that person absconding.

25

The Polish Government argues, in essence, that the issues relating to the organisation of the judiciary in the Member States fall within the exclusive competence of those States and not within the material scope of EU law.

26

In that regard, it follows from settled case-law that, although it is true that the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law and that that may be the case, in particular, as regards national rules relating to the adoption of decisions appointing judges and, where applicable, rules relating to the judicial review that applies in the context of such appointment procedures (judgment of 9 January 2024, G. and Others (Appointment of judges to the ordinary courts in Poland), C‑181/21 and C‑269/21, EU:C:2024:1, paragraph 57 and the case-law cited).

27

Moreover, it is clear from the wording of the questions referred that they concern the interpretation not of Polish law but of the provisions and general principles of EU law to which they refer.

28

It follows that the Court has jurisdiction to rule on the present requests for a preliminary ruling.

29

The Prokuratura Okręgowa w Warszawie (Regional Public Prosecutor’s Office, Warsaw, Poland) and the Polish Government dispute the admissibility of the present requests for a preliminary ruling on the ground, in essence, that it is not necessary to reply to the questions referred for a preliminary ruling.

30

Thus, the Warsaw Regional Public Prosecutor’s Office claims, in essence, that the purpose of the enforcement proceedings in the main proceedings is to enforce a final judicial decision delivered in criminal proceedings and not to resolve a dispute in order to give a decision on the substance of the case. The referring court, as the court responsible for enforcement, is bound by the content of enforceable final judicial decisions and does not have jurisdiction to review their validity.

31

For its part, the Polish Government submits, in essence, that the questions referred for a preliminary ruling are hypothetical. The requests for a preliminary ruling do not reveal any particular concern as to the independence of the courts which delivered the final judicial decisions at issue in the main proceedings. The referring court’s doubts relate solely to the fact that the judges in question were appointed on the proposal of a body half of whose members were elected by the legislature. It is apparent from the case-law of the Court that such an appointment is not, in itself, such as to establish a breach of the right to an independent and impartial tribunal established by law.

32

It should be noted that the Court has repeatedly pointed out that the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them and that the justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered, but rather that it is necessary for the effective resolution of a dispute (judgment of 9 January 2024, G. and Others (Appointment of judges to the ordinary courts in Poland), C‑181/21 and C‑269/21, EU:C:2024:1, paragraph 62 and the case-law cited).

33

As is apparent from the actual wording of Article 267 TFEU, the question referred for a preliminary ruling must be ‘necessary’ to enable the referring court to ‘give judgment’ in the case before it (judgment of 9 January 2024, G. and Others (Appointment of judges to the ordinary courts in Poland), C‑181/21 and C‑269/21, EU:C:2024:1, paragraph 63 and the case-law cited).

34

The Court has thus held that it is clear from both the wording and the scheme of Article 267 TFEU that a national court or tribunal is not empowered to bring a matter before the Court by way of a request for a preliminary ruling unless a case is pending before it in which it is called upon to give a decision which is capable of taking account of the preliminary ruling (judgment of 9 January 2024, G. and Others (Appointment of judges to the ordinary courts in Poland), C‑181/21 and C‑269/21, EU:C:2024:1, paragraph 64 and the case-law cited).

35

In the present case, it is apparent from the explanations provided by the referring court that it is called upon to rule in proceedings for the enforcement of final criminal convictions, which are no longer subject to appeal. According to that court, the composition of the panels that delivered those decisions could have been reviewed in the course of the main criminal proceedings, which, according to the file before the Court, are separate from the enforcement proceedings.

36

By contrast, in the light of the information provided by the referring court, such a review appears to be excluded at the stage of enforcement of those decisions. Thus, that court does not refer to any provision of Polish procedural law that would give it the jurisdiction to examine the conformity, in particular with EU law, of those decisions. Furthermore, according to the explanations provided by that court in response to the request for information referred to in paragraph 24 above, its powers at the stage of the enforcement of such decisions are limited to the adoption of the measures provided for in the Criminal Enforcement Code.

37

In the light of those factors, it does not appear that the referring court has jurisdiction, under the rules of Polish law, to assess the lawfulness, in the light, in particular, of EU law, of the panels that delivered the judgments and the final criminal conviction that is the subject of the enforcement proceedings before it.

38

Thus, the questions referred in the present joined cases relate intrinsically to a stage prior to those enforcement proceedings, which has been definitively closed and which is distinct from those enforcement proceedings. They do not therefore correspond to a need inherent in the resolution of the cases in the main proceedings, but seek to obtain from the Court a general assessment, disconnected from the needs of those cases (see, by analogy, judgment of 9 January 2024, G. and Others (Appointment of ordinary judges in Poland), C‑181/21 and C‑269/21, EU:C:2024:1, paragraph 78 and the case-law cited).

39

It follows that those questions fall outside the scope of the Court’s judicial task under Article 267 TFEU (see, by analogy, judgment of 9 January 2024, G. and Others (Appointment of ordinary judges in Poland), C‑181/21 and C‑269/21, EU:C:2024:1, paragraph 79 and the case-law cited).

40

In those circumstances, the requests for a preliminary ruling must be held to be inadmissible.

41

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

The requests for a preliminary ruling from the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland), made by decisions of 18 February 2023 (C‑114/23 and C‑115/23), of 6 March 2023 (C‑132/23) and of 14 March 2023 (C‑160/23), are inadmissible.