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… Tokár, acting as Agents, after hearing the Opinion of the Advocate General at the sitting on 24 November 2022, gives the following Judgment 1 This request for a preliminary ruling concerns the interpretation of 20 TFEU, of the of Fundamental Rights of the European Union (‘the ’) and 5, 11 and 13 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally …

… JUDGMENT OF THE COURT (Fourth Chamber) 27 April 2023 (*) (Reference for a preliminary ruling - Immigration policy - 20 TFEU - Genuine enjoyment of the substance of the rights which flow from the status of EU citizenship - of the of Fundamental Rights of the European Union - Directive 2008/115/EC - Common standards and procedures in Member States for returning illegally staying third-country nationals - 5, 11 and 13 - Direct effect - Right to an effective judicial …

… In other cases return decisions may be accompanied by an entry ban.’ 13 13(1) and (2) of Directive 2008/115 is worded as follows: ‘1. The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in 12(1), before a competent judicial or administrative authority or a competent body composed of members who are and who enjoy safeguards of . 2. …

… compliance with the requirements of the European Union relating to an and tribunal previously established by law, within the meaning of 19(1) TEU in conjunction with of the ; (e) to suspend the application of 26(2) and (4) to (6) and 82(2) to (5) of the amended Law on the Supreme Court, and of 10 of the amending law, establishing the exclusive jurisdiction of the Extraordinary Review and Public Affairs Chamber to examine complaints …

… U. of 2002, item 1269), as amended by the amending law (‘the amended Law relating to the administrative courts’), and 8 of the amending law, which prohibit any national court from reviewing compliance with the EU requirements relating to an and tribunal previously established by law, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of 19(1) TEU, read in conjunction with of the of Fundamental Rights of …

… under the second subparagraph of 19(1) TEU, read in conjunction with of the , and under 267 TFEU; - by conferring on the Izba Dyscyplinarna (Disciplinary Chamber) of the Sąd Najwyższy (Supreme Court) (‘the Disciplinary Chamber’), whose and are not guaranteed, jurisdiction to hear and determine cases having a direct impact on the status of judges and trainee judges and the performance of their office, such as, first, applications for authorisation …

… 14 and 15 of the SSM Regulation. 79 In that regard, it should be noted from the outset that 41(1) of the , that being entitled ‘Right to good administration’, provides that every person has the right to have his or her affairs handled , fairly and within a reasonable time by the institutions, bodies, offices and agencies of the European Union. …

… In 41(2) of the , it is stated that that right includes the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy. 80 It should be noted that 41(2) of the provides for a right of access to the file which is associated with the right of a person to have his or her affairs handled , fairly and within a reasonable time by the administration. …

… However, in its reply, it submits that 22 of the SSM Regulation and 31 and 32 of the SSM Framework Regulation would be illegal if they were to be interpreted in accordance with the ECB’s position, since they would then be inconsistent with 41 of the of Fundamental Rights of the European Union (‘the ’). 35 At the hearing, the applicant confirmed that it was raising a plea of illegality in respect of 22 of the SSM Regulation and 31 and 32 of …

… Dansk Erhverv claimed that the Commission, by failing to initiate the formal investigation procedure under 108(2) TFEU despite the existence of serious difficulties in the examination of the measures, had infringed its procedural rights as an interested party. (19) The first limb of Dansk Erhverv’s single plea in law claimed that the Commission had failed to examine the compatibility of the failure to collect the deposit with 4(3) TEU, Directive 94/62, the ‘polluter pays principle …

… Second, the severability of the contested decision does not require a finding that each one of the elements of an alleged aid measure contain State aid when they are analysed from one another. Third, it follows from paragraphs 96 and 132 of the judgment under appeal that the failure to charge VAT on the value of the deposit and the non-imposition of fines are consequences of not collecting the deposit. 2. Analysis 32. …

… Amongst them is a novel point: whether the Commission is under a duty to open a formal investigation procedure under 108(2) TFEU in circumstances where the State aid complained of consists in the non-imposition of fines on economic operators for alleged breaches of an imprecise legal obligation. II. Facts and proceedings A. Background to the appeals 2. …

… noted that that letter was sufficiently explicit and precise regarding the request made to the Council and the Commission to ‘suspend the EU’s financial contribution to the ICAC until the applicant has access to an effective remedy which respects all the guarantees of and and the ICAC respects the fundamental human rights as protected by the [European Union]’. It should be borne in mind that 218(9) TFEU provides that ‘the Council, on a proposal from the Commission …

… The application for a declaration of failure to act 33 The applicant submits that, by failing to adopt the acts set out in the letter of 20 October 2020, the Council and the Commission infringed (i) 3(5) and (6), 16, 17 and 21 TEU, 151, 205, 207, 314 and 317 TFEU, and the principle of sound financial management, and (ii) III, Sections 5(b) and 4(d), IV, Section 3(c)(1) of the Rules and Regulations of the ICAC, and II, Sections 5 and 10 of the Staff …

… of Fundamental Rights of the European Union, the Treaty on European Union, the Treaty on the Functioning of the European Union, and all other European or international law, principles and standards; - urgently take all necessary measures to preserve her rights and avoid causing her further harm; - urge the Standing Committee of the ICAC to offer or accept an effective remedy which respects all the guarantees of and ; - suspend the EU’s financial contribution to the ICAC …

… subparagraph of 19(1) TEU, read in the light of … of the ’. (25) 20. …

… light of of the , irrespective of whether that latter provision is itself applicable in the case. (57) 42. …

… It follows that, in view of its specific function, the interpretation of the concept of of a ‘court or tribunal’ within the meaning of 267 TFEU does not prejudge the interpretation of that concept in the context of the second subparagraph of 19(1) TEU or of the . …

… 216(2) TFEU, of the of Fundamental Rights of the European Union (‘the ’) and 6(1)(b) and 9(2) of the Convention on access to information, public participation in decision-marking and access to justice in environmental matters, signed at Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1; ‘the Aarhus Convention’). …

… 6(3) of the Habitats Directive, read in conjunction with the second subparagraph of 19(1) TEU, 216(2) TFEU, of the , and 6(1)(b) and 9(2) of the Aarhus Convention. 158 In the statement of reasons for the second complaint, the Commission emphasised the link between that provision of the Habitats Directive and those provisions of the Aarhus Convention and, to a lesser extent, 216(2) TFEU, while referring to the case-law of the Court which the …

… with the second subparagraph of 19(1) TEU, 216(2) TFEU, of the , and 6(1)(b) and 9(2) of the Aarhus Convention. 27 On 20 September 2018, the Republic of Poland replied to that letter of formal notice. 28 On 26 July 2019, the Commission issued a reasoned opinion, received on the same date by the Republic of Poland, in which that institution maintained the complaints set out in the letter of formal notice, while requesting the Republic of Poland to …

… In that regard, I recall that the second paragraph of of the states inter alia that ‘everyone is entitled to a fair and public hearing within a reasonable time by an and tribunal previously established by law’. (67) I must also point out that, in view of the individual situation of applicants for asylum or for international protection, the Member State in which that applicant is present must therefore ensure that there is no worsening of a situation of infringement …

… In addition to certain provisions of primary law, namely 41 and of the of Fundamental Rights of the European Union (‘the ’), 4 and 15(c) of Directive 2004/83 (5) and 8(2) and (3), 23(1) and (2) and 39(1)(a) of Directive 2005/85 (6) are relevant to the present case. III. The dispute in the main proceedings and the questions referred for a preliminary ruling 6. …

… Second, the applicant in the main proceedings submits that the time taken to rule on the application of 2 July 2015 is manifestly unreasonable and infringes the principle of effectiveness, of the and the minimum standards established by EU law. 14. …

… of the , conversely, is aimed at protecting the subjective right of any party to proceedings to have an effective remedy and a fair trial before an ‘ and tribunal previously established by law’. …

… that, within the EU legal order, there is a single principle of judicial and that the content of both 19(1) TEU and of the , in terms of judicial , is, in essence, the same. (17) 27. …

… of the , entitled ‘Right to an effective remedy and to a fair trial’, states, in its second paragraph, the following: ‘Everyone is entitled to a fair and public hearing within a reasonable time by an and tribunal previously established by law. …’ B. Romanian law 8. …

… of the . 103. …

… 41 or of the . 69. …

… In that respect, the Commission is right to argue that, according to the national laws of the Member States, in general, the State does not take part in the associations’ decision-making. (75) However, as previously noted, (76) that freedom cannot be used to deter parties from exercising their rights of defence guaranteed by 41 and of the for the purposes of standing within the meaning of the fourth paragraph of 263 TFEU. 101. …