search

… of the . 69 The guarantees of access to an and tribunal previously established by law, and in particular those which determine what constitutes a tribunal and how it is composed, represent the cornerstone of the right to a fair trial. …

… of the relating to the guarantee of an ‘ and tribunal previously established by law’ (see, to that effect, judgment of 5 June 2023, Commission v Poland (Independence and private life of judges), C-204/21, EU:C:2023:442, paragraph 285). 50 It is clear from the second subparagraph of Article 19(1) TEU that the Member States are required to ensure that there is effective judicial review enabling, where appropriate, the lawfulness of the judicial appointment procedure …

… was also based, in part, on the fact that, in essence, the national rules referred to in paragraph 46 above were, because of the prohibitions and disciplinary offences they impose on judges of the Sąd Najwyższy (Supreme Court) and all the ordinary and administrative courts, such as to prevent them from making findings and assessments which, in certain circumstances, are incumbent on them under EU law, in the light of the requirements arising from the second subparagraph of Article 19(1) TEU and …

… of the , as regards the criteria of , and the previous establishment by law of courts. …

… out, in that regard, that it is for the Court, in performing the task conferred on it by the first subparagraph of Article 19(1) TEU, to ensure that in the interpretation and application of the Treaties the law is observed. 110 As is apparent from settled case-law, since the Court has exclusive jurisdiction to give the definitive and binding interpretation of EU law, it is for the Court to specify the requirements arising from the second subparagraph of Article 19(1) TEU, read in conjunction with …

… and 48 of the , is not an , tribunal previously established by law and giving individuals effective access to justice in areas covered by EU law?’ …

… final instance of a Member State ([Sąd Najwyższy] Supreme Court), whose collegial three-member composition includes two judges who, without their consent, have been appointed by the President of that Court to sit on that Court away from their home chamber and to sit in a chamber competent for hearing the case in question, and who have not previously had the opportunity to challenge their appointment before an impartial and independent tribunal in a procedure which satisfies the requirements of …

… By its third complaint, the Commission criticises the Republic of Poland for failing to comply with the requirements of the second subparagraph of Article 19(1) TEU and of the . Those requirements concern the , and legality of the Trybunał Konstytucyjny (Constitutional Court). 97. …

… It asks whether that legislation satisfies the requirements of the second subparagraph of Article 19(1) TEU, which enshrines effective judicial protection in the fields covered by EU law, and of the second paragraph of of the , concerning the requirement for an and tribunal. 20 The relevant case-law of the European Court of Human Rights (‘the ECtHR’) concerning actions brought against the Republic of Bulgaria does not make it possible to determine definitively …

… The requirements of the second paragraph of of the 60. The guarantees of access to an and tribunal previously established by law laid down in the second paragraph of Article 47 of the Charter and, in particular, those which determine what constitutes a tribunal and how it is composed, represent the cornerstone of the right to a fair trial. (29) 61. …

… of the , which refers to access to an ‘ and ’ tribunal as one of the requirements linked to the fundamental right to an effective remedy. …

… of the Charter, that latter provision must be duly taken into consideration for the purposes of interpreting the second subparagraph of Article 19(1) TEU, in the same way as the case-law of the ECtHR on Article 6(1) ECHR. (35) To ensure that bodies which may be called upon to rule on questions concerning the application or interpretation of EU law are in a position to ensure such effective judicial protection, maintaining their independence is essential, as confirmed by the second paragraph of …

… That may, in particular, be the case where those courts are required, in accordance with their obligations, which are recalled in paragraphs 128 to 131 of the present judgment, to determine, in certain circumstances, whether they or the judges of whom they are composed or other judges or courts, called upon to rule on cases concerning EU law or which have ruled on them, satisfy the requirements arising from the second subparagraph of 19(1) TEU and of the relating to the …

… , and previous establishment by law of the courts and judges concerned. 202 In the second place, it should be noted that the terms thus used by the Polish legislature are, as stated in paragraph 140 of the present judgment concerning the national provisions called into question by the Commission in the context of the third complaint, closely linked to a series of questions raised by various Polish courts concerning the compliance with EU law and, more specifically, with …

… First, in judgments of 6 and 13 May 2021, the Naczelny Sąd Administracyjny (Supreme Administrative Court) found that the KRS did not offer sufficient guarantees of independence and that its level of dependence on the legislative and executive authorities was so high that it could not be irrelevant in assessing the question as to whether the judges it selects meet the objective requirements of and under of the . …

… If the application of the criteria laid down in paragraphs 132 to 154 of that judgment leads to the conclusion that a court is not and in accordance with of the , a national court must refrain from applying national provisions that confer jurisdiction on such a court. …

… Rather, the Court held that national law may not reserve exclusive jurisdiction to a court that does not meet the requirements of and required by of the . (68) It is also clear from the aforecited passages that the Court did not consider that any other national court that met those requirements would or should have had jurisdiction to rule on the matter. …

… In my view the text of points 2 and 3 of Article 107(1) of the amended Law on the organisation of the ordinary courts and of points 2 and 3 of Article 72(1) of the amended Law on the Supreme Court is so broad and imprecise as to be reasonably open to an interpretation that an examination by a judge of compliance with any of the requirements of the second subparagraph of 19(1) TEU and of the of an and tribunal previously established by law (138) may …