Prezes Urzedu Ochrony Konkurencji i Konsumentow (Concept of 'court or tribunal' - Judgment) [2024] EUECJ C-326/23 (07 November 2024)

Judgment This request for a preliminary ruling concerns the interpretation of the second subparagraph of Article 19(1) TEU, read in the light of the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). The request has been made in proceedings between C. W. S. A., C. O. S. A., D. sp. z o.o., G. S. A., C. sp. z o.o. (‘Company C’) and C.1 S. A., on the one hand, and the Prezes Urzędu Ochrony Konkurencji i Konsumentów (President of the Office of Competition and Consumer Protection, Poland), on the other, concerning a decision imposing fines on those undertakings for breach of the rules of competition law. Polish law Constitution of the Republic of Poland Article 179 of the Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland) provides: ‘The President of the Republic shall appoint judges, on a proposal from the Krajowa Rada Sądownictwa [(National Council of the Judiciary, Poland) (“the KRS”)], for an indefinite period.’ Article 180 of the Constitution of the Republic of Poland states: ‘1. Judges shall be irremovable. 2. A judge may not be dismissed, suspended from office, moved to another jurisdiction or another function against his or her will except in accordance with a judicial decision and only in cases provided for by law. …’ The Law on the Supreme Court Article 29 of the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 (Dz. U. of 2018, item 5), as amended by the ustawa o zmianie ustawy o Sądzie Najwyższym oraz niektórych innych ustaw (Law amending the Law on the Supreme Court and certain other laws) of 9 June 2022 (Dz. U. of 2022, item 1259) (‘Law on the Supreme Court’), provides: ‘… (2) In the context of the activities of the [Sąd Najwyższy (Supreme Court, Poland)] or its organs, it shall not be permissible to call into question the legitimacy of the [courts], the constitutional organs of the State or the organs responsible for reviewing and protecting the law. (3) The [Sąd Najwyższy (Supreme Court)] or other authority cannot establish or assess the legality of the appointment of a judge or of the authority to perform judicial tasks that derives from that appointment. (4) The circumstances of the appointment of a judge of the [Sąd Najwyższy (Supreme Court)] cannot constitute an exclusive ground for challenging a decision taken with the participation of that judge or for casting doubt on the independence and impartiality of that judge. (5) At the request of any individual referred to in paragraph 7, it shall be permissible to examine whether a judge of the [Sąd Najwyższy (Supreme Court)] or a judge seconded to [that court] fulfils the requirements of independence and impartiality, taking into account the circumstances of his or her appointment and his or her conduct after his or her appointment, whether, in the circumstances of a particular case, this may lead to a breach of the principle of independence or impartiality affecting the outcome of the case, having regard to the situation of the individual concerned and the nature of the case. (6) An application for a declaration that the requirements referred to in paragraph 5 are not met may be lodged against a judge of the [Sąd Najwyższy (Supreme Court)] or a judge seconded to that court who has been assigned to a panel examining: 1. an appeal; … (7) Any participant in the proceedings before the [Sąd Najwyższy (Supreme Court)] in the cases referred to in paragraph 6 shall have the right to lodge such an application. … (15) The [Sąd Najwyższy (Supreme Court)] shall examine the application in camera with a panel of five judges selected by lot from all the members of the [Sąd Najwyższy (Supreme Court)], having heard the judge to whom the application relates, unless a hearing is impossible or very difficult. The judge may submit observations in writing. The judge concerned shall be excluded from the drawing of lots. … (21) An appeal may be lodged with the [Sąd Najwyższy (Supreme Court)] against the order issued following examination of the application by a panel of seven judges selected by lot from all the members of the [Sąd Najwyższy (Supreme Court)]. The judge concerned and the judge who participated at the hearing of the order under appeal shall be excluded from the drawing of lots.’ The Code of Civil Procedure Article 49 of the ustawa - Kodeks postępowania cywilnego (Law on the Code of Civil Procedure) of 17 November 1964 (Dz. U. No 43, item 296), in the version applicable to the dispute in the main proceedings, provides in paragraph 1 thereof: ‘… a court or tribunal shall recuse a judge at his or her own request or at the request of a party if circumstances exist which are such as to give rise to a legitimate doubt as to the judge’s impartiality in the case concerned.’ The dispute in the main proceedings and the questions referred for a preliminary ruling By decision of 8 December 2009, the President of the Office of Competition and Consumer Protection found that the agreement concluded by the undertakings concerned constituted a practice restricting competition on the Polish market for the production and sale of grey cement. Consequently, it imposed fines on those undertakings for breach of national and EU competition rules. By judgment of 13 December 2013, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) partially varied that decision and reduced the fines imposed on the undertakings concerned. Following the appeals brought against that judgment, the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw, Poland), by judgment of 27 March 2018, reduced the amount of the fines referred to in paragraph 7 above. Appeals on a point of law were brought against that judgment. By judgment of 29 July 2020, the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Extraordinary Review and Public Affairs Chamber) of the Sąd Najwyższy (Supreme Court) (‘the Extraordinary Review and Public Affairs Chamber’) partially set aside the judgment of 27 March 2018 and referred the case back to the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw), which adopted a new decision by judgment of 21 May 2021. Company C brought an appeal against that judgment before the Sąd Najwyższy (Supreme Court), challenging, inter alia, the regularity of the composition of the panel of judges of the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw) which had delivered that judgment and that of the panel of the Sąd Najwyższy (Supreme Court) which had delivered the judgment of 29 July 2020. Once it had been informed of the composition of the formation of the Extraordinary Review and Public Affairs Chamber with jurisdiction to rule on the appeal, Company C lodged, on the basis of Article 29(5) of the Law on the Supreme Court, an application for a declaration that one of the judges making up that panel does not comply with the requirements of independence and impartiality, having regard to the circumstances of his appointment on a proposal from the KRS. It therefore requested that that judge be recused. In the request for a preliminary ruling, the referring panel, composed of a single judge, Judge T. S., who is a member of the Civil Chamber of the Sąd Najwyższy (Supreme Court) (‘the Civil Chamber’) states that the case was examined ‘at the in camera hearing before the Extraordinary Review and Public Affairs Chamber’ on 15 March 2023. However, it is apparent from the documents before the Court of Justice that the referring judge is part of the panel of five judges, selected by lot from among all the members of the Sąd Najwyższy (Supreme Court), who was appointed, in accordance with Article 29(15) of the Law on the Supreme Court, to adjudicate on the interim procedure for the review of compliance with the requirements of independence and impartiality (‘the test of independence and impartiality’) initiated at the request of Company C. That referring judge expresses doubts as to whether the test of independence and impartiality and the recusal procedure provided for under Polish law are compatible with EU law. Taking the view that there is space for ‘judicial dialogue’ in order to avoid an irreconcilable contradiction between EU law and Polish constitutional law, the referring judge is of the opinion that neither EU law nor Polish constitutional law allows the appointment of a judge to be called into question or the capacity of that judge to adjudicate to be challenged where there is no connection between the circumstances of that judge’s appointment and the circumstances of the matter before the court, and there are no grounds for challenging the independence and impartiality of the judge other than that relating to the regularity of the appointment process. In those circumstances, the Sąd Najwyższy (Supreme Court), sitting in a single-judge formation, decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must the second subparagraph of Article 19(1) [TEU], in conjunction with the first paragraph of Article 47 of the Charter …, be interpreted as meaning that the court hearing the case is required to disregard an [application] of a party seeking to challenge the appointment of a judge, which is not subject to judicial review under national and EU law, by calling into question the capacity of that judge to adjudicate - a challenge which is not admissible under EU law and the constitution of a Member State owing to the lack of a connection between the circumstances of the procedure for appointing that judge and the circumstances of the case in question and the lack of any actual grounds for calling into question his or her impartiality and independence on the basis of circumstances other than the regularity of the procedure for appointing that judge called into question by the party concerned, including the conduct of that judge after his or her appointment and his or her susceptibility to influence from the legislature or executive, which, under national law, makes such an act by the party concerned equivalent to an inadmissible actio popularis and constitutes a flagrant and manifest abuse of national procedural law? (2) Must the second subparagraph of Article 19(1) [TEU], in conjunction with the first paragraph of Article 47 of the Charter …, be interpreted as meaning that an effective and adequate mechanism for satisfying the criteria relating to a court established by law within the meaning of EU law is to confer on the parties the right under national law to request verification of the effect of all the circumstances of the appointment procedure and the conduct of the judge after his or her appointment on his or her impartiality and independence in the case in question, in the context of a “test of [independence and] impartiality” or an application for recusal of the judge?’ Admissibility of the request for a preliminary ruling Company C expresses doubts as to whether the referring body, composed of Judge T. S. alone, is an independent and impartial tribunal previously established by law within the meaning of the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, given the circumstances in which that judge was appointed to the Civil Chamber. Company C submits more specifically that that judge is one of the judges in respect of whom the European Court of Human Rights delivered the judgment of 3 February 2022, Advance Pharma sp. z o.o. v. Poland (ECLI:CE:ECHR:2022:0203JUD00146920) (‘the judgment in Advance Pharma v. Poland ’). The European Commission shares the doubts expressed by Company C. Since the request for a preliminary ruling comes from a single judge appointed to the Civil Chamber in the same circumstances as those which led to the appointment of the judges who submitted requests for a preliminary ruling to the Court in the cases which gave rise to the judgment of 21 December 2023, Krajowa Rada Sądownictwa (Continued holding of a judicial office) (C‑718/21, ‘the judgment in Krajowa Rada Sądownictwa ’, EU:C:2023:1015 ), and to the orders of 15 May 2024, Rzecznik Finansowy (C‑390/23, EU:C:2024:419); of 29 May 2024, Rzecznik Praw Obywatelskich (Polish extraordinary appeal) (C‑720/21, EU:C:2024:489); and of 29 May 2024, Prokurator Generalny (Polish extraordinary appeal II) (C‑43/22, EU:C:2024:459), it submits that that referring court cannot be regarded as a tribunal previously established by law within the meaning of the second subparagraph of Article 19(1) TEU, read in conjunction with the second paragraph of Article 47 of the Charter. In response to a measure of organisation of procedure prescribed pursuant to Article 62(1) of the Rules of Procedure of the Court of Justice, the Polish Government confirmed that the single judge making up the referring body had been appointed to the Civil Chamber on 10 October 2018 by the President of the Republic of Poland on the basis of a proposal from the newly composed KRS, set out in Resolution No 330/2018 adopted on 28 August 2018 by that institution. It also confirmed that that appointment had been made despite the fact that, by order of 27 September 2018, the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland) had suspended the enforceability of Resolution No 330/2018, which that court ultimately annulled by judgment of 6 May 2021. In that regard, it is settled case-law that, in order to determine whether a body making a reference is a ‘court or tribunal’ within the meaning of Article 267 TFEU, which is a question governed by EU law alone, and to determine whether the request for a preliminary ruling is admissible, the Court takes account of a number of factors, such as, inter alia, whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes , whether it applies rules of law and whether it is independent (see, to that effect, judgments of 30 June 1966, Vaassen-Göbbels , 61/65, EU:C:1966:39, p. 273; in Krajowa Rada Sądownictwa , paragraph 40 and the case-law cited; and of 7 May 2024, NADA and Others , C‑115/22, EU:C:2024:384 , paragraph 35). The Court has held that the Sąd Najwyższy (Supreme Court) as such meets the requirements set out above and specified that, in so far as a request for a preliminary ruling emanates from a national court or tribunal, it must be presumed that it meets those requirements, irrespective of its actual composition (judgments of 29 March 2022, Getin Noble Bank , C‑132/20, EU:C:2022:235 , paragraphs 68 and 69, and in Krajowa Rada Sądownictwa , paragraph 41). It also recalled that it is settled case-law that, in the context of a preliminary ruling procedure referred to in Article 267 TFEU, it is not for the Court, in view of the distribution of functions between itself and the national courts, to determine whether the order for reference was made in accordance with the rules of national law governing the organisation of the courts and their procedure. The Court is bound by an order for reference made by a court or tribunal of a Member State, in so far as that order has not been rescinded on the basis of a means of redress provided for by national law (the judgment in Krajowa Rada Sądownictwa , paragraph 42 and the case-law cited). Accordingly, in the present case, although it is not clear from the order for reference or from the documents before the Court that the referring body, composed of a single judge, has jurisdiction to rule, of its own motion, on the requests for a test of independence and impartiality and for recusal submitted by Company C, the request for a preliminary ruling cannot be regarded as inadmissible on the ground that that body lacks jurisdiction. However, the Court has also stated that the presumption referred to in paragraph 21 above may nevertheless be rebutted where a final decision handed down by a court or tribunal of a Member State or an international court or tribunal leads to the conclusion that the judge constituting the referring court is not an independent and impartial tribunal previously established by law for the purposes of the second subparagraph of Article 19(1) TEU, read in the light of the second paragraph of Article 47 of the Charter (judgments of 29 March 2022, Getin Noble Bank , C‑132/20, EU:C:2022:235 , paragraph 72, and in Krajowa Rada Sądownictwa , paragraph 44). Ruling on requests for a preliminary ruling from panels composed of judges of the Extraordinary Review and Public Affairs Chamber, the Court held that, in the light of its own case-law on the interpretation of the second subparagraph of Article 19(1) TEU, read in the light of the second paragraph of Article 47 of the Charter, various findings and assessments made by the European Court of Human Rights in the judgment of 8 November 2021, Dolińska-Ficek and Ozimek v. Poland ( CE:ECHR:2021:1108JUD004986819 (‘the judgment in Dolińska-Ficek and Ozimek v. Poland ’) and by the Naczelny Sąd Administracyjny (Supreme Administrative Court) in a judgment of 21 September 2021, led to the conclusion that such a panel of judges did not have the status of an independent and impartial tribunal previously established by law, within the meaning of those provisions of EU law, because of the manner in which the judges making up that panel were appointed (see, to that effect, judgment in Krajowa Rada Sądownictwa , paragraphs 46 to 58; orders of 29 May 2024, Rzecznik Praw Obywatelskich (Polish extraordinary appeal) , C‑720/21, EU:C:2024:489, paragraph 24, and of 21 June 2024, Kancelaria B. , C‑810/23, EU:C:2024:543, paragraph 23 and the case-law cited). In paragraph 77 of the judgment in Krajowa Rada Sądownictwa , the Court held that, taken together, the consequence of all the factors - both systemic and circumstantial - referred to in paragraphs 47 to 57 of that judgment, on the one hand, and in paragraphs 62 to 76 of that judgment, on the other, which had characterised the appointment, within the Extraordinary Review and Public Affairs Chamber, of the three judges constituting the referring body in the present case, was that that body did not have such a status. The combination of all those factors was such as to give rise to reasonable doubts in the minds of individuals as to the imperviousness of those judges and the panel in which they sat with regard to external factors, in particular the direct or indirect influence of the national legislature and executive powers and their neutrality with respect to the interests before them. Those factors were thus capable of leading to a lack of appearance of independence or impartiality on the part of those judges and that body likely to undermine the trust which justice in a democratic society governed by the rule of law must inspire in those individuals (judgment in Krajowa Rada Sądownictwa , paragraph 77; orders of 29 May 2024, Rzecznik Praw Obywatelskich (Polish extraordinary appeal) , C‑720/21, EU:C:2024:489, paragraph 25, and of 21 June 2024, Kancelaria B. , C‑810/23, EU:C:2024:543, paragraph 24 and the case-law cited). The Court therefore concluded, in paragraph 78 of the judgment in Krajowa Rada Sądownictwa , that the presumption referred to in paragraph 21 above had to be held to be rebutted and, accordingly, it had to be held that the panel of judges of the Extraordinary Review and Public Affairs Chamber which had submitted the request for a preliminary ruling to the Court did not constitute a ‘court or tribunal’ within the meaning of Article 267 TFEU, with the result that that request had to be declared inadmissible. It remains to be determined whether the considerations set out by the Court in paragraphs 47 to 57 and 62 to 76 of the judgment in Krajowa Rada Sądownictwa with regard to the factors that characterised the appointment, within the Extraordinary Review and Public Affairs Chamber, of the judges constituting the body which had referred a request for a preliminary ruling to the Court in the case which gave rise to that judgment, are applicable to the situation of the single judge making up the referring body in the main proceedings, despite the fact that that judge was appointed not to the Extraordinary Review and Public Affairs Chamber, but to the Civil Chamber. In that regard, it should be noted, in the first place, that the judgment in Dolińska-Ficek and Ozimek v. Poland and the judgment of the Naczelny Sąd Administracyjny (Supreme Administrative Court) of 21 September 2021, which relate to the circumstances in which the judges of the Extraordinary Review and Public Affairs Chamber were appointed on the basis of Resolution No 331/2018, are paralleled, as regards the seven judges of the Civil Chamber appointed on the basis of Resolution No 330/2018, by the judgment in Advance Pharma v. Poland and the judgment of the Naczelny Sąd Administracyjny (Supreme Administrative Court) of 6 May 2021, by which that court annulled that resolution. Since those seven judges of the Civil Chamber, which include Judge T. S., were appointed following the same procedure as that followed for the appointment of judges of the Extraordinary Review and Public Affairs Chamber, the European Court of Human Rights reached the same conclusions, in paragraphs 321 and 334 of the judgment in Advance Pharma v. Poland , as those which it had set out in paragraphs 320 and 338 of the judgment in Dolińska-Ficek and Ozimek v. Poland . It thus found that those appointments manifestly breached the fundamental national rules governing the procedure for the appointment of judges in so far as, first, they were made on the basis of proposals made by the KRS in a new composition which did not provide sufficient guarantees of independence of the legislative and executive powers and, secondly, they were made even though the Naczelny Sąd Administracyjny (Supreme Administrative Court) had suspended enforcement of the resolutions of the KRS. As regards, in the second place, the judgment of the Naczelny Sąd Administracyjny (Supreme Administrative Court) of 6 May 2021, it should be noted that, by that judgment, that court annulled Resolution No 330/2018, including the part thereof which proposed the appointment of the judges, taking into account, inter alia, findings and assessments which the judgment of 21 September 2021, referred to in paragraph 54 of the judgment in Krajowa Rada Sądownictwa , merely reproduced verbatim. That is the case, in particular, with regard to the findings set out in paragraphs 7.1 to 7.6 of those two judgments of the Naczelny Sąd Administracyjny (Supreme Administrative Court), according to which, assessed in their factual and legal context, the purpose of the amendments made to the national provisions governing the judicial remedy available against resolutions of the KRS was clearly to prevent a court from examining the extent to which the combination of various factors could have resulted in the judges recently appointed to the Sąd Najwyższy (Supreme Court) on a proposal from the KRS in its new composition not meeting the requirements of the second subparagraph of Article 19(1) TEU and to prevent the Court from ruling in that regard. It is true that, in the overall assessment of the legal and factual context in which the amendments to Polish legislation were made, the Court also referred, in paragraphs 52 and 66 of the judgment in Krajowa Rada Sądownictwa , to factors specific to the Extraordinary Review and Public Affairs Chamber. In paragraph 52, the Court thus referred to paragraphs 331 to 333 of the judgment in Dolińska-Ficek and Ozimek v. Poland , in which the European Court of Human Rights underlined the particular gravity of the infringement of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, having regard to the fundamental importance and sensitive character of the matters within the jurisdiction of that chamber. Paragraph 66 of the judgment in Krajowa Rada Sądownictwa refers to the creation ex nihilo of the Extraordinary Review and Public Affairs Chamber, the fact that that chamber is composed exclusively of judges appointed on a proposal from the KRS in its new composition and the conferral on that chamber of powers in particularly sensitive matters. Although it is stated in the request for a preliminary ruling that the case was examined at a hearing before the Extraordinary Review and Public Affairs Chamber, it is nevertheless common ground that the judge who makes up the referring body, who was selected by lot to be part of the special panel responsible for ruling on the test of independence and impartiality, was appointed to the Civil Chamber. The fact remains that the flaws in the process leading to the appointment of Judge T. S., referred to in paragraphs 30 and 31 above, are identical to those in the procedure for the appointment of judges of the Extraordinary Review and Public Affairs Chamber, and are sufficient, in themselves, to give rise to legitimate and serious doubts, in the minds of individuals, as to the independence and impartiality of that judge, notwithstanding the fact that he was appointed to a chamber which does not have the same characteristics as the Extraordinary Review and Public Affairs Chamber. In that regard, the circumstances capable of giving rise to such systemic doubts relate, in principle, to the individual situation of the judge or judges who submit a request under Article 267 TFEU and, in particular, to the irregularities committed during their appointment within the judicial system concerned, and not to the fact that those judges are assigned to a given panel of judges (see, to that effect, judgment of 29 March 2022, Getin Noble Bank , C‑132/20, EU:C:2022:235 , paragraphs 72, 73 and 75). In those circumstances, the presumption referred to in paragraph 21 above must, in the present case, be held to be rebutted and it must therefore be held that the judge of the Civil Chamber, who makes up the single-judge formation which referred the questions to the Court for a preliminary ruling, does not constitute a ‘court or tribunal’ within the meaning of Article 267 TFEU, with the result that that request must be declared inadmissible. Costs Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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 (Fifth Chamber) hereby rules: The request for a preliminary ruling made by the Sąd Najwyższy (Supreme Court, Poland), sitting in a single-judge formation, by decision of 15 March 2023, is inadmissible. [Signatures] * Language of the case: Polish. © European Union The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice . This electronic version is not authentic and is subject to amendment. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII