JUDGMENT OF THE COURT (Grand Chamber)

26 March 2020 ( *1 )

(References for a preliminary ruling — Second subparagraph of Article 19(1) TEU — Rule of law — Effective judicial protection in the fields covered by Union law — Principle of judicial independence — Disciplinary regime applicable to national judges — Jurisdiction of the Court — Article 267 TFUE — Admissibility — Interpretation necessary for the referring court to be able to give judgment — Meaning)

In Joined Cases C‑558/18 and C‑563/18,

TWO REQUESTS for a preliminary ruling under Article 267 TFEU from the Sąd Okręgowy w Łodzi (Regional Court, Łódz, Poland) (C‑558/18) and from the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) (C‑563/18), made by decisions of 31 August 2018 and 4 September 2018, received at the Court on 3 September 2018 and 5 September 2018 respectively, in the proceedings

Miasto Łowicz

v

Skarb Państwa — Wojewoda Łódzki,

intervening parties:

Prokurator Generalny , represented by the Prokuratura Krajowa, formerly the Prokuratura Regionalna w Łodzi,

Rzecznik Praw Obywatelskich (C‑558/18),

and

Prokurator Generalny , represented by the Prokuratura Krajowa, formerly the Prokuratura Okręgowa w Płocku,

v

VX,

WW,

XV (C‑563/18),

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Prechal (Rapporteur), M. Vilaras, E. Regan, P.G. Xuereb and L.S. Rossi, Presidents of Chambers, M. Ilešič, J. Malenovský, L. Bay Larsen, T. von Danwitz, C. Toader, K. Jürimäe, C. Lycourgos and N. Piçarra, Judges,

Advocate General: E. Tanchev,

Registrar: M. Aleksejev, Head of Unit,

having regard to the written procedure and further to the hearing on 18 June 2019,

after considering the observations submitted on behalf of:

–

the Skarb Państwa — Wojewoda Łódzki, by J. Zasada and L. Jurek, acting as Agents,

–

the Prokurator Generalny, represented by the Prokuratura Krajowa, A. Reczka, S. Bańko, B. Górecka, J. Szubert and P. Tarczyński,

–

the Rzecznik Praw Obywatelskich, by M. Taborowski and M. Wróblewski, acting as Agents,

–

the Polish Government, by B. Majczyna and P. Zwolak, acting as Agents, and by W. Gontarski, adwokat,

–

the Latvian Government, by I. Kucina and V. Soņeca, acting as Agents,

–

the Netherlands Government, by M.K. Bulterman and C.S. Schillemans, acting as Agents,

–

the European Commission, by K. Herrmann and H. Krämer, acting as Agents,

–

the EFTA Surveillance Authority, by I.O. Vilhjálmsdóttir and C. Howdle, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 24 September 2019,

gives the following

Judgment

1These requests for a preliminary ruling concern the interpretation of Article 19(1) TEU.

2The requests have been made, first, in proceedings between Miasto Łowicz (town of Łowicz, Poland) and the Skarb Państwa — Wojewoda Łódzki (State Treasury — Governor of Łódź Province, Poland) (‘the State Treasury’) concerning a claim for payment of public subsidies (Case C‑558/18) and, secondly, in criminal proceedings against VX, WW and XV for participation in kidnappings for financial gain (Case C‑563/18).

The disputes in the main proceedings and the questions referred for a preliminary ruling

3As is apparent from the order for reference in Case C‑558/18, the town of Łowicz brought proceedings against the State Treasury before the Sąd Okręgowy w Łodzi (Regional Court of Łódź, Poland), under the ustawa o dochodach jednostek samorządu terytorialnego (Law on the income of local government units) of 13 November 2003 (Dz. U. of 2018, item 317), seeking payment of 2357148 Polish zlotys (PLN) (approximately EUR 547612) in respect of subsidies intended to cover the costs incurred by that town between 2005 and 2015 for the performance of certain tasks entrusted to it in respect of government administration.

4Following an objection by the State Treasury, the order for payment of that sum, issued at the first phase of the main proceedings, was declared to be unenforceable, and the case is now being examined under the ordinary procedure. According to the referring court, it is highly likely, in view of the evidence gathered in those proceedings, that the decision which it is called upon to make will be unfavourable to the State Treasury.

5As regards Case C‑563/18, it is apparent from the order for reference of the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) that VX, WW and XV are being prosecuted before that court in respect of two kidnappings for financial gain perpetrated in 2002 and 2003 respectively. VX, WW and XV, who admitted the charges against them and cooperated with the criminal authorities, applied to be granted the status of ‘cooperative witnesses’ (‘ mały świadek koronny ’), which means that the referring court must consider whether to allow them an exceptional reduction in their sentences under the provisions of the Criminal Code.

6The requests for a preliminary ruling express concern that disciplinary proceedings could be brought against the single judge in charge of each case in the main proceedings if that judge were to give a ruling along the lines outlined in paragraphs 4 and 5 above.

7Those concerns are prompted, in essence, by the fact that, as a result of various recent legislative reforms which took place in Poland, the objectivity and impartiality of disciplinary proceedings concerning judges are no longer guaranteed and the independence of the referring courts is thereby affected.

8In that regard, those courts consider, in the first place, that the composition of the Izba Dyscyplinarna Sądu Nawyższego (Disciplinary Chamber of the Supreme Court, Poland), newly established within that court by virtue of the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 (Dz. U. of 2018, items 5, 650, 771, 847, 848, 1045 and 1443) and called upon under that same law to hear and determine disciplinary cases concerning judges, both at first instance and on appeal, is problematic.

9The judges called upon to sit in that Disciplinary Chamber were appointed by the President of the Republic on a proposal from the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland). As a result of the recent amendments to the ustawa o Krajowej Radzie Sądownictwa (Law on the National Council of the Judiciary) of 12 May 2011 (Dz. U. of 2011, item 714), by 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), the National Council of the Judiciary, whose 15 members with judicial status are now appointed by the Sejm (lower chamber of the Polish Parliament) and not, as before, by their peers, no longer constitutes a body which is independent of political authority.

10In the second place, the newly composed National Council of the Judiciary has itself become a quasi-disciplinary body, since it has jurisdiction to hear appeals against decisions of court presidents on the transfer of judges to other judicial formations. Moreover, a large number of court presidents were appointed by the current Minister for Justice and some of them have been elected members of the National Council of the Judiciary.

11In the third place, the new provisions inserted in the ustawa — Prawo o ustroju sądów powszechnych (Law on the organisation of the ordinary courts) of 27 July 2001 (Dz. U. of 2018, items 23, 3, 5, 106, 138, 771, 848, 1000, 1045 and 1443), which deal with the disciplinary proceedings applicable to judges of the ordinary courts, have conferred on the Minister for Justice, who also fulfils the role of chief prosecutor, practically unlimited power in that regard.

12The Minister for Justice is empowered, first, to appoint the disciplinary officer responsible for cases concerning judges sitting in the ordinary courts, secondly, to initiate investigation procedures and, where the disciplinary officer refuses to launch a disciplinary procedure, to oblige that officer to do so, thirdly, to appoint a disciplinary officer on an ad hoc basis to deal with a particular case and, fourthly, to appoint the judges who act as disciplinary judges in an appeal court.

13Furthermore, the considerable influence thus conferred on the Minister for Justice does not have adequate safeguards. First, the legal definition of the infringements which give rise to the imposition of disciplinary measures on judges is unclear. Secondly, disciplinary proceedings may be conducted even in the justified absence of the judge under investigation or of his or her representative. Thirdly, evidence obtained improperly can now be used in such proceedings. Fourthly, no provision has been made for any guarantee as to the length of the disciplinary proceedings. Fifthly, the Minister for Justice may apply for disciplinary proceedings to be reopened up to five years after their closure or for a decision to be delivered should new evidence come to light.

15According to those courts, it follows from all of the foregoing that, as regards the court decision which each of them is required to make in the dispute before them in the main proceedings, it is necessary to determine, first of all, whether the abovementioned national rules on the disciplinary regime for judges undermines the independence of those judges by depriving the litigants concerned of their right to an effective judicial remedy guaranteed by the second subparagraph of Article 19(1) TEU. That provision, read in conjunction with Article 2 and Article 4(3) TEU, requires the Member States to ensure that bodies, like the referring courts, which are empowered to rule on questions relating to the application or interpretation of EU law, satisfy the requirements inherent in the right to effective judicial protection; those requirements include the independence of those bodies which is of essential importance.

16In those circumstances, the Sąd Okręgowy w Łodzi (Regional Court, Łódz) and the Sąd Okręgowy w Warszawie (Regional Court, Warsaw) each decided to stay the proceedings and to refer a question to the Court of Justice for a preliminary ruling.

17The question referred by the Sąd Okręgowy w Łodzi (Regional Court, Łódz) is worded as follows:

‘On a proper construction of the second subparagraph of Article 19(1) of the Treaty on European Union, does the resulting obligation for Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law preclude provisions which materially increase the risk of undermining the guarantee of independent disciplinary proceedings against judges in Poland through:

(1)

political influence on the conduct of disciplinary proceedings;

(2)

the emerging risk that the system of disciplinary measures will be used to control the content of judicial decisions politically; and

(3)

the possibility of evidence obtained by [means of a criminal act] being used in disciplinary proceedings against judges?’

‘On a proper construction of the second subparagraph of Article 19(1) of the Treaty on European Union, does the resulting obligation for Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law preclude provisions which remove the guarantee of independent disciplinary proceedings against judges in Poland by permitting disciplinary proceedings to be conducted under political influence, giving rise to a risk that the system of disciplinary measures will be used to politically control the content of judicial decisions?’

Procedure before the Court

19By decision of the President of the Court of Justice of 1 October 2018, Cases C‑558/18 and C‑563/18 were joined for the purposes of the written and oral procedure, and the judgment.

22By documents lodged at the Court Registry on 24 December 2019, 13 February and 2 March 2020, the Rzecznik Praw Obywatelskich (Ombudsman, Poland) requested that the oral part of the procedure be reopened.

23In support of his request of 24 December 2019, the Ombudsman argues that the Advocate General stated in his Opinion that the present requests for a preliminary ruling should be declared inadmissible on the ground, in essence, that the Court does not have sufficient factual and legal material to enable it to rule on those requests and to establish whether there has been a breach of the Member States’ obligation to guarantee judicial independence. In those circumstances, the Court should order the reopening of the oral part of the procedure in order, first, to allow the parties to express their views on such a potential ground for the inadmissibility of those requests, which, as the Advocate General stated, was neither advanced nor discussed by the parties and, secondly, to clarify further the circumstances of the cases as required.

24In the same request, the Ombudsman also refers to new facts that have arisen since the closure of the oral part of the procedure and which demonstrate that the questions put to the Court are not hypothetical and may therefore have a decisive influence on the decision which the Court is called upon to give in the present joined cases. Those new facts consist, first, of a number of specific cases in which disciplinary proceedings have recently been brought against judges as a result of the content of decisions which they adopted and, in particular, decisions in which those judges intended to follow the lessons to be drawn from the judgment of the Court of 19 November 2019, A. K. and Others(Independence of the Disciplinary Chamber of the Supreme Court) ( C‑585/18, C‑624/18 and C‑625/18 , EU:C:2019:982 ).

25Secondly, on 20 December 2019, the Sejm adopted the ustawa o zmianie ustawy — Prawo o ustroju sądów powszechnych, ustawy o Sądzie Najwyższym oraz niektórych innych ustaw (Law amending the Law on the organisation of the ordinary courts, the Law on the Sąd Najwyższy (Supreme Court) and several other laws), which is intended to bolster considerably the disciplinary regime applicable to judges, and which provides, inter alia — in order to render that judgment of the Court of Justice ineffective — that, if the validity of a judge’s appointment or the legitimacy of a constitutional body is called into question by a court, disciplinary measures will be taken against the judge or judges sitting in that court. To those ends, that law now makes any examination of complaints relating to the lack of independence of a judge or court subject to the exclusive jurisdiction of the Izba Kontroli Nadzwyczajnej i Spraw Publicznych Sądu Nawyższego (Chamber of Extraordinary Control and Public Affairs of the Supreme Court, Poland), which has recently been established and which exhibits defects — in particular in relation to the process for appointing its members — that are similar to those highlighted by the Court of Justice in relation to the Disciplinary Chamber of the Supreme Court in its judgment of 19 November 2019, A. K. and Others(Independence of the Disciplinary Chamber of the Supreme Court) ( C‑585/18, C‑624/18 and C‑625/18 , EU:C:2019:982 ).

26In his further request of 13 February 2020, the Ombudsman states, first, that the Law of 20 December 2019 has since been signed by the President of the Republic of Poland, on 4 February 2020, and published (Dz. U. of 2020, item 190), and that its entry into force was set for 14 February 2020. Secondly, he refers to the continuance and to the growing number of disciplinary proceedings and administrative measures and, thereafter, to the adoption of disciplinary measures against judges, in particular for the reasons already mentioned in paragraph 24 above. In his further request of 2 March 2020, the Ombudsman refers to the fact that the Prokuratura Krajowa (National Prosecutor, Poland), under the Law of 20 December 2019, recently brought an action before the Disciplinary Chamber of the Supreme Court to waive immunity for the judge who made the reference for a preliminary ruling in Case C‑563/18 and to authorise criminal proceedings against that judge for allowing the media to record the pronouncement of a decision handed down in a case concerning a challenge to the change of location of the sittings of the Sejm, in which the judge ordered the prosecutor to resume the investigation relating to that move. According to the Ombudsman, those new developments should be taken into consideration by the Court for the purposes of assessing the admissibility and substance of the questions referred to it in the present cases, which justifies the Court reopening the oral part of the procedure.

27In that regard, it should be noted, first, that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court make no provision for the interested parties referred to in Article 23 of the Statute to submit observations in response to the Advocate General’s Opinion (judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court) ( C‑585/18, C‑624/18 and C‑625/18 , EU:C:2019:982 , paragraph 61 and the case-law cited).

28Secondly, under the second paragraph of Article 252 TFEU, the Advocate General, acting with complete impartiality and independence, must make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning which led to that Opinion. Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions which were examined in that Opinion, cannot in itself constitute grounds justifying the reopening of the oral part of the procedure (judgment of 19 November 2019, A. K. and Others(Independence of the Disciplinary Chamber of the Supreme Court) ( C‑585/18, C‑624/18 and C‑625/18 , EU:C:2019:982 , paragraph 62 and the case-law cited).

29However, the Court may at any time, after hearing the Advocate General, order the reopening of the oral procedure in accordance with Article 83 of its Rules of Procedure, in particular if it considers that it lacks sufficient information, or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to have a decisive influence on the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the interested persons.

30In the present case, however, after hearing the Advocate General, the Court considers that it has at its disposal, following the written procedure and the hearing which took place before it, all the information necessary to give a ruling and that the new facts relied on by the Ombudsman are not of such a nature as to have a decisive influence on the decision which the Court is called upon to give. Furthermore, the Court finds that the present joined cases do not have to be decided on the basis of an argument which was not the subject of exchanges between the interested persons. In such circumstances, it is not necessary to order the reopening of the oral procedure.

The jurisdiction of the Court

37It follows from the foregoing that the Court has jurisdiction to interpret the second subparagraph of Article 19(1) TEU.

Admissibility

38The Public Treasury, the General Prosecutor and the Polish Government also submit that the requests for a preliminary ruling are inadmissible on the following grounds. First, the orders for reference do not satisfy the requirements arising from Article 94 of the Rules of Procedure, in particular because they have not specified the link between the provision of EU law for which an interpretation is sought and the national legislation applicable to the disputes in the main proceedings.

39Secondly, the questions referred bear no relation to the procedures and the subject matter of the disputes in the main proceedings and are general and hypothetical in nature, in that the referring courts are not called upon to apply, in those disputes, either the national provisions relating to the disciplinary regime for judges or the second subparagraph of Article 19(1) TEU. The hypothetical nature of the questions also stems from the fact that the opening of disciplinary proceedings following the decisions which the referring courts will deliver in the main proceedings appears, at this stage, to be a mere possibility, so that the questions do not relate to the disputes in the main proceedings, but to possible future disputes which might arise between the judges concerned and the national disciplinary authorities. An answer to those questions will not affect the obligation of the referring courts to rule on the cases in the main proceedings on the basis of the applicable substantive and procedural provisions of national law, nor will it alter the scope of that obligation. It is not therefore necessary for the resolution of those cases.

40The European Commission also maintains that the present requests for a preliminary ruling are inadmissible, in so far as the rule of EU law to which the questions put to the Court relate bears no relation to the subject matter of the disputes in the main proceedings, which concern, first, the payment of expenses incurred by a Polish town in the performance of certain tasks entrusted to it in respect of government administration and, secondly, criminal proceedings brought against certain persons as a result of their involvement in kidnappings, in which an exceptional reduction in the sentence is anticipated. Moreover, the answer which the Court might give to the questions referred for a preliminary ruling would not be of a sort capable of determining the content of any preliminary decision which the referring courts would be required to make, either in terms of procedure or as regards their own jurisdiction, before ruling, as necessary, on the substance of the disputes in the main proceedings. Such an answer would not therefore be necessary for the resolution of those disputes, but would amount to the Court giving an advisory opinion on general or hypothetical questions.

42In so doing, those courts have satisfied the requirements laid down in Article 94 of the Rules of Procedure, including, inter alia, the requirement in paragraph (c) of that article, by adequately stating the reasons which prompted them to inquire about the interpretation of the second subparagraph of Article 19(1) TEU and, in particular, the connection which they see between that Treaty provision and the national provisions which, in their view, are liable to influence the judicial process before delivery of their judgments and, accordingly, the outcome of the actions brought before them in the main proceedings.

55In that context, it is important to note, as is clear from the Court’s settled case-law, that the keystone of the judicial system established by the Treaties is the preliminary ruling procedure provided for in Article 267 TFEU, which, by setting up a dialogue between one court and another, between the Court of Justice and the courts and tribunals of the Member States, has the object of securing uniformity in the interpretation of EU law, thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties (Opinion 2/13 of 18 December 2014, EU:C:2014:2454 , paragraph 176 , and judgment of 24 October 2018, XC and Others, C‑234/17 , EU:C:2018:853 , paragraph 41 ).

56In accordance with equally settled case-law, Article 267 TFEU gives national courts the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving the interpretation of provisions of EU law, or consideration of their validity, which are necessary for the resolution of the case before them. National courts are, moreover, free to exercise that discretion at whatever stage of the proceedings they consider appropriate (judgments of 5 October 2010, Elchinov, C‑173/09 , EU:C:2010:581 , paragraph 26 , and of 24 October 2018, XC and Others, C‑234/17 , EU:C:2018:853 , paragraph 42 and the case-law cited).

60It follows from all of the foregoing that the present requests for a preliminary ruling must be declared inadmissible.

Costs

61Since 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 (Grand Chamber) hereby rules:

The requests for a preliminary ruling made by the Sąd Okręgowy w Łodzi (Regional Court, Łódź, Poland) and by the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland), by decisions of 31 August 2018 and 4 September 2018, are inadmissible.

[Signatures]

( *1 ) Language of the case: Polish