Provisional text

delivered on 11 March 2025 (1)

Case C-448/23

European Commission

Republic of Poland

( Failure of a Member State to fulfil obligations – Obligations of the Member States – Provision of remedies sufficient to ensure effective legal protection – Independent and impartial tribunal established by law – Procedure for appointing judges to the Polish Constitutional Court – Principles of autonomy, primacy, effectiveness and uniform application of EU law – Principle of the binding effect of judgments of the Court of Justice of the European Union – Judgments of the Polish Constitutional Court )

1.Primacy is an ‘existential requirement’ of EU law, to use Pierre Pescatore’s famous expression. (2) In the period since that observation was made, friction has sporadically emerged between EU law and the internal legal orders in relation to the application of the principle of primacy. Those tensions have mainly arisen in attempts by national constitutional courts to redefine the principle of primacy when they consider that its interpretation by the Court entails a renunciation of parts of national sovereignty. (3)

2.Pierre Pescatore’s observation appears more relevant than ever in the face of a challenge to primacy – raised in the name of the protection of national constitutional identity – of a scale as evident as that arising in the present case.

3.The infringement proceedings brought by the European Commission against the Republic of Poland in the present case, under Article 258 TFEU, for failure to fulfil its obligations under the second subparagraph of Article 19(1) TEU, are based on three complaints: first, two judgments of the Trybunał Konstytucyjny (Constitutional Court, Poland) of 14 July and 7 October 2021 result in that Member State failing to guarantee effective legal protection in the fields covered by EU law; secondly, those judgments give rise to a serious infringement of the principles of primacy, autonomy, effectiveness and uniform application of EU law and an infringement of the binding nature of the Court’s judgments and, thirdly, the Trybunał Konstytucyjny (Constitutional Court) does not satisfy the requirements of independence, impartiality and prior establishment by law, as provided for by the second subparagraph of Article 19(1) TEU.

4.The infringements attributed to the Republic of Poland therefore constitute a direct and frontal attack on the principle of the primacy of EU law by the Trybunał Konstytucyjny (Constitutional Court), in the name of the Konstytucja Rzeczypospolitej Polskiej (the Constitution of the Republic of Poland; ‘the Constitution’) or the constitutional identity of that Member State. This case brings us back to the heart of the debates on the nature of the EU treaties and the autonomy of its legal order. It calls for consideration of the complex interaction between the principle of the primacy of EU law and the national identities of the Member States, as enshrined in Article 4(2) TEU.

5.Another aspect of this case is also worth mentioning at this point: this is the first time that the Commission has brought an action for failure to fulfil obligations, under Article 258 TFEU, directed not only against a position adopted by a national constitutional court, but also against case-law challenging the Court’s authority on the ground of an alleged incompatibility with the national Constitution.

II. Legal framework

6.According to Article 4(2) TEU:

‘The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.’

7.Article 19(1) TEU provides:

‘The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.

Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.’

8.Article 279 TFEU provides:

‘The Court of Justice of the European Union may in any cases before it prescribe any necessary interim measures.’

B. Polish law

9.Article 2 of the Constitution states:

‘The Republic of Poland shall be a democratic State subject to the rule of law and implementing the principles of social justice.’

10.Article 4(1) of the Constitution provides that ‘Supreme power in the Republic of Poland shall be vested in the Nation.’

11.Article 7 of the Constitution states that ‘the organs of public authority shall function on the basis of, and within the limits of, the law.’

12.According to Article 8(1) of the Constitution, ‘the Constitution shall be the supreme law of the Republic of Poland.’

13.Article 90(1) of the Constitution provides that ‘the Republic of Poland may, by virtue of an international agreement, delegate to an international organisation or international institution the competence of organs of public authority in relation to certain matters.’

14.Article 91 of the Constitution reads as follows:

‘1. After promulgation thereof in the Journal of Laws of the Republic of Poland (Dziennik Ustaw), a ratified international agreement shall constitute part of the domestic legal order and shall be directly applicable, unless its application depends on the enactment of a statute.

15.According to Article 188 of the Constitution, ‘the Trybunał Konstytucyjny (Constitutional Court) is to adjudicate regarding the following matters:

(1) the conformity of statutes and international agreements with the Constitution;

(2) the conformity of a statute with ratified international agreements whose ratification required prior consent granted by statute;

(3) the conformity of legal provisions issued by central State organs with the Constitution, ratified international agreements and statutes;

(4) the conformity with the Constitution of the purposes or activities of political parties;

(5) complaints concerning constitutional infringements, as specified in Article 79(1).’

16.Article 190 of the Constitution provides:

‘1. Judgments of the Trybunał Konstytucyjny (Constitutional Court) shall be of universally binding application and shall be final.

3. A judgment of the Trybunał Konstytucyjny (Constitutional Court) shall take effect from the day of its publication ….

17.Article 193 of the Constitution provides that ‘any court may refer a question of law to the Trybunał Konstytucyjny (Constitutional Court) as to the conformity of a normative act to the Constitution, ratified international agreements or statute, if the answer to such question of law will determine an issue currently before such court’.

18.Article 194(1) of the Constitution states that ‘the Trybunał Konstytucyjny (Constitutional Court) shall be composed of 15 judges chosen individually by the Sejm (Lower Chamber of the Polish Parliament) for a term of office of nine years from amongst persons distinguished by their knowledge of the law. No person may be chosen for more than one term of office’. Moreover, Article 194(2) of the Constitution provides that ‘the President and Vice-President of the Trybunał Konstytucyjny (Constitutional Court) shall be appointed by the President of the Republic from among candidates proposed by the General Assembly of the Judges of the Trybunał Konstytucyjny (Constitutional Court).’

III. Background to the dispute and pre-litigation procedure

19.On 14 July and 7 October 2021, the Trybunał Konstytucyjny (Constitutional Court) delivered two judgments on the incompatibility with the Constitution of the Court’s case-law relating, in particular, to the obligation arising from the second subparagraph of Article 19(1) TEU to ensure effective legal protection (‘the contested judgments’).

20.More specifically, on 14 July 2021, the Trybunał Konstytucyjny (Constitutional Court), sitting as a panel of five judges, delivered its judgment in Case P 7/20. (4) In that judgment, that court considered the legal question, raised by the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court, Poland), of the compatibility with the Constitution of the interim measures imposed on the Republic of Poland by the order of 8 April 2020, Commission v Poland, (5) and suspending the application of the legislative provisions conferring jurisdiction on the Disciplinary Chamber in disciplinary proceedings relating to judges.

21.In particular, the Trybunał Konstytucyjny (Constitutional Court) acknowledged that the interim measures imposed by the Court on the basis of Article 279 TFEU, in accordance with the principle of sincere cooperation provided for in Article 4(3) TEU, may be applied directly by the bodies of a Member State, in particular by the courts, but only if such measures are covered by the principle of conferral of powers and respect the constitutional identity of the Member State and the principles of subsidiarity and proportionality.

22.However, that court considered that the interim measures provided for by the order in Commission v Poland relating to the organisation and functioning of the Polish courts and to the procedure before them infringed the principle of conferral, enshrined in Article 4(1) TEU, and Polish constitutional identity, guaranteed by Article 4(2) TEU, and were incompatible with the constitutional principle of a democratic State subject to the rule of law enshrined in Article 2 of the Constitution. Accordingly, the Trybunał Konstytucyjny (Constitutional Court), while affirming the primacy of the Constitution as the supreme source of law in the Republic of Poland, concluded that, in so far as the Court was imposing ultra vires obligations on that Member State, by adopting interim measures relating to the organisation and jurisdiction of the Polish courts and to the procedure before those courts, the second subparagraph of Article 4(3) TEU, read in conjunction with Article 279 TFEU, was contrary to Articles 2 and 7, Article 8(1) and Article 90(1), read in conjunction with Article 4(1), of the Constitution.

23.Moreover, with regard to the effects of its judgment of 14 July 2021, the Trybunał Konstytucyjny (Constitutional Court) states that ‘the rules laid down … by the Court’, which were adopted ultra vires and were contrary to the Constitution, should not be covered by the principles of primacy and direct effect of EU law, whereas the abovementioned judgment had ex tunc effects and was addressed to all addressees applying EU law on the territory of the Republic of Poland.

24.On 7 October 2021, the Trybunał Konstytucyjny (Constitutional Court), sitting as a full court, delivered its judgment in Case K 3/21, (6) the grounds of which were published on 16 November 2022 and the operative part of which states:

(a) the bodies of the European Union act beyond the limits of the powers conferred on them by the Republic of Poland in the Treaties;

(b) the Constitution is not the supreme law of the Republic of Poland, enjoying primacy of validity and application;

(c) the Republic of Poland cannot function as a sovereign and democratic state;

are contrary to Article 2, Article 8 and Article 90(1) of the [Constitution].

(a) disregard provisions of the Constitution in the context of their decision-making, is contrary to [Articles 2 and 7], Article 8(1), Article 90(1) and Article 178(1) of the Constitution;

(b) base their decisions on provisions which, having been repealed by the Sejm and/or ruled contrary to the Constitution by the Trybunał Konstytucyjny [Constitutional Court], are no longer in force,

is contrary to [Articles 2 and 7], Article 8(1), Article 90(1), Article 178(1) and Article 190(1) of the Constitution.

3. Article 19(1) and Article 2 [TEU], in so far as, for the purpose of guaranteeing effective legal protection in the fields covered by EU law and ensuring the independence of judges, they confer on national courts (courts of general jurisdiction, administrative courts, military courts and the Supreme Court) powers to:

(a) review the legality of the procedure for appointing judges, including the legality of the act by which the President of the Republic of Poland appoints a judge,

(b) review the legality of a resolution by which the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland; ‘the KRS’) submits to the President of the Republic a proposal for the appointment of a judge,

(c) rule that the process for appointing a judge is defective and, accordingly, refuse to recognise that a person appointed to the office of judge in accordance with Article 179 of the Constitution has the status of judge,

are contrary to Article 2, Article 8(1), Article 90(1) and Article 179, in conjunction with Article 144(3)(17) of the Constitution.’

25.On 22 December 2021, the Commission sent the Republic of Poland a letter of formal notice in accordance with Article 258 TFEU. It criticised that Member State for failing to fulfil its obligations under the second subparagraph of Article 19(1) TEU and the general principles of autonomy, primacy, effectiveness and uniform application of EU law and for disregarding the binding effect of the Court’s judgments.

26.Moreover, the Commission considered that the Trybunał Konstytucyjny (Constitutional Court) did not satisfy the requirement of an independent and impartial tribunal previously established by law, within the meaning of the second subparagraph of Article 19(1) TEU, read together with Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). More specifically, the Commission considered, in the first place, that, in December 2015, three judges had been appointed in clear and manifest breach of the national constitutional provisions governing the appointment of judges to the Trybunał Konstytucyjny (Constitutional Court), one of whom, namely Judge M.M., continued to hold office. In the second place, the Commission considered that the appointment of Judge J.P., in December 2016, as President of the Trybunał Konstytucyjny (Constitutional Court) was vitiated by several serious irregularities.

27.By letter of 18 February 2022, the Republic of Poland replied to that letter of formal notice and disputed the Commission’s arguments.

28.On 15 July 2022, the Commission sent the Republic of Poland a reasoned opinion in which it stated that Poland had failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU, the general principles of autonomy, primacy, effectiveness and uniform application of EU law and the binding effect of the judgments of the Court.

29.On 14 September 2022, the Republic of Poland replied to the reasoned opinion, maintaining that the allegation of failure to fulfil obligations was unfounded.

30.By its application of 15 February 2023, the Commission brought the present action before the Court of Justice. It claims that the Court should:

– declare that, in the light of the interpretation of the Constitution made by the Trybunał Konstytucyjny (Constitutional Court) in the judgments at issue, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU;

– declare that, in the light of the interpretation of the Constitution made by the Trybunał Konstytucyjny (Constitutional Court) in the judgments at issue, the Republic of Poland has failed to fulfil its obligations under the general principles of autonomy, primacy, effectiveness and uniform application of EU law and has disregarded the binding effect of the judgments of the Court;

– declare that, since the Trybunał Konstytucyjny (Constitutional Court) does not satisfy the requirements of an independent and impartial tribunal previously established by law, as a result of irregularities in the procedures for the appointment of three judges to that court in December 2015 and for the appointment of its President in December 2016, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU;

– order the Republic of Poland to pay the costs.

31.In its defence lodged on 6 October 2023, the Republic of Poland asked the Court to dismiss the Commission’s action in its entirety as unfounded and order it to pay the costs.

32.In its rejoinder of 31 January 2024, the Republic of Poland withdrew the observations submitted in its defence and fully accepted the complaints made by the Commission in the application.

33.By decisions of the President of the Court of 23 October and 7 November 2023, the Kingdom of Belgium and the Kingdom of the Netherlands were granted leave to intervene in the proceedings in support of the form of order sought by the Commission.

34.As noted in point 4 above, the specific feature of the present case lies in the fact that the Commission criticises the Republic of Poland for having categorically rejected the primacy of EU law, to the point of calling into question the very basis of European integration. In other words, the Trybunał Konstytucyjny (Constitutional Court) claims, in the name of the constitutional identity of its legal order, the power to verify directly the compliance of the Court’s judgments with the Constitution, thereby directly challenging both the principle of the primacy of EU law and the very authority of the Court. Such an approach does not merely constitute some minor friction between the EU legal order and the national legal order: it strikes to the heart of the principle of primacy, going so far as to call into question the hierarchy of norms in the EU legal order.

35.The present case clearly highlights the interaction between two principles which, from the point of view of the national court, may appear to be opposed: on the one hand, the primacy of EU law, a principle intended to be ‘centripetal’, which is the very foundation of supranational integration and, on the other hand, respect for the national identities of the Member States, a concept with a ‘centrifugal’ effect, laid down in Article 4(2) TEU, which relates to ‘what differentiates one State from another, what enables it to be recognised and distinguished from others’. (7)

36.Moreover, this case forms part of a wider legal development: several constitutional or supreme courts of Member States have already had recourse to the ultra vires argument or relied on the constitutional identity of their respective legal order in order to qualify, or even challenge, the primacy of EU law. (8) This might be viewed as a ‘test of strength’ (9) between national constitutional guardians and the EU legal order.

37.I shall not conceal a certain amount of concern about that phenomenon: it illustrates a legal Europe facing a tension between, on the one hand, the need to preserve the unity and effectiveness of EU law and, on the other, the desire to protect the uniqueness of various constitutional identities. That tension reflects profound and very worrying developments, which go beyond the mere technical framework for the application of EU law.

38.In that context, it seems to me essential to emphasise, when examining the failures to fulfil obligations attributed to the Republic of Poland, that the delicate relationship between the concepts of national identity, constitutional identity and the primacy of EU law does not exist in a legal vacuum, but forms part of the EU legal order. Consequently, any question as to the scope of that interpretation must take into account the textual and contextual elements which support a reading of Article 4(2) TEU in the light of the legislative environment of which that provision forms part. This point undeniably constitutes a central aspect of the present case, which will be examined in greater depth when the second complaint is analysed. (10)

B. Examination of the merits of the action

39.It should be recalled that the Republic of Poland fully accepts the failure to fulfil its obligations flowing from Treaty provisions which is alleged against it by the Commission. However, I wish to point out that, while the facts underlying the alleged failures to fulfil obligations in the present action may be regarded as having been accepted, it is for the Court to determine whether or not those failures exist, even if the State concerned does not deny them. (11)

(a) Arguments of the parties

40.The Commission, supported by the Kingdom of Belgium and the Kingdom of the Netherlands, complains that the Republic of Poland has failed to fulfil the obligation, imposed on the Member States by the second subparagraph of Article 19(1) TEU, to ensure effective legal protection in the fields covered by EU law.

41.In particular, in its judgment of 7 October 2021, the Trybunał Konstytucyjny (Constitutional Court) criticises the Court’s interpretation of Article 19(1) TEU as incompatible with the Constitution. It disputes, inter alia, the jurisdiction of the national courts to review the legality of the procedures for appointing judges, to assess the resolutions of the KRS and to declare some appointments unlawful, which, in its view, is contrary to the requirement of a ‘tribunal established by law’ within the meaning of the second subparagraph of Article 19(1) TEU, based specifically on an assessment of the legality of the procedure for appointing judges.

42.In the judgment of 14 July 2021, the Trybunał Konstytucyjny (Constitutional Court) held that the interim measures taken by the Court, under Article 279 TFEU, by its order in Commission v Poland, consisting in the suspension of the application of the national provisions conferring on the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court) jurisdiction to adjudicate in disciplinary proceedings concerning judges, were adopted ultra vires in so far as they respect neither the constitutional identity of the Member State nor the principles of subsidiarity and proportionality.

43.The Commission recalls that, in accordance with Article 190(1) of the Constitution, judgments of the Trybunał Konstytucyjny (Constitutional Court) have erga omnes effect, thereby extending their impact to all national courts.

44.As I have already stated, (12) the Republic of Poland no longer disputes the alleged failure to fulfil obligations and shares the Commission’s view.

(b) Analysis

(1) Relevant case-law of the Court

45.I would recall at the outset that, with regard to the second subparagraph of Article 19(1) TEU, the Court has accepted that, since that provision requires all Member States to provide remedies sufficient to ensure effective judicial protection in the fields covered by EU law, within the meaning in particular of Article 47 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. (13)

46.Moreover, Article 19 TEU gives concrete expression to the value of the rule of law affirmed in Article 2 TEU and entrusts the responsibility for ensuring the full application of EU law in all Member States and the judicial protection that individuals derive from EU law to national courts and tribunals and to the Court of Justice. In accordance with settled case-law, in order for that protection to be guaranteed, every Member State must, in accordance with the second subparagraph of Article 19(1) TEU, ensure that the bodies which are called upon, as ‘courts or tribunals’ within the meaning of EU law, to rule on questions relating to the application or interpretation of EU law and thus come within its judicial system in the fields covered by EU law, meet the requirements of effective judicial protection, including, in particular, that of independence. (14)

47.Finally, although 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. (15)

(2) Application to the present case

48.

In the judgments at issue, the Trybunał Konstytucyjny (Constitutional Court) interpreted the Constitution in a manner which fundamentally departs from the case-law of the Court, in particular as regards the scope of the second subparagraph of Article 19(1) TEU. That conflict arises in three respects.

49.

In the first place, in the judgment of 7 October 2021, the Trybunał Konstytucyjny (Constitutional Court) rejects the interpretation adopted by the Court in the judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions). (16) In that judgment, the Court accepted, inter alia and in essence, that in the absence of a national court having jurisdiction to review resolutions of the KRS, the second subparagraph of Article 19(1) TEU had to be interpreted as requiring the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland) to disapply national legislation depriving it, in breach of that provision, of the jurisdiction it had previously had to rule on those resolutions. (17)

50.

It is apparent from point 2(b) of the operative part of the judgment of 7 October 2021, read in conjunction with sections 6.2, 6.4, 6.5 and 8.3 of the grounds of the judgment, that jurisdiction based on the second subparagraph of Article 19(1) TEU – as interpreted by the Court – conflicts with Articles 2 and 7, Article 8(1), Article 90(1), Article 178(1) and Article 190(1) of the Constitution. Similarly, point 3(b) of the operative part of that judgment precludes the jurisdiction of national courts, although derived from the Court’s case-law, to assess the lawfulness of resolutions of the KRS proposing the appointment of candidates to judicial office. Finally, in sections 6.2, 6.4, 6.5 and 8.5, the Trybunał Konstytucyjny (Constitutional Court) reiterates its refusal to accept the effects of the interpretation of the second subparagraph of Article 19(1) TEU adopted in the judgment in A.B. and Others.

51.

In the second place, the Trybunał Konstytucyjny (Constitutional Court) rejects the review as to the lawfulness of the procedures for appointing judges, as established by the case-law of the Court on the basis of the second subparagraph of Article 19(1) TEU. In particular, in points 3(a) and (c) of the operative part of the judgment of 7 October 2021, and in sections 6.4 and 8.4 of the grounds, it held that the jurisdiction, deriving from the case-law of the Court relating to the second subparagraph of Article 19(1) TEU, which allows national courts to review the lawfulness of judicial appointments, is contrary to the Constitution.

52.

The Trybunał Konstytucyjny (Constitutional Court) thus challenges the Court’s interpretation in the judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment). (18) According to that interpretation, verification of the lawfulness of the procedure for the appointment of a judge to the Extraordinary Chamber of the Sąd Najwyższy (Supreme Court) forms an integral part of the requirement of an ‘independent and impartial tribunal established by law’, as imposed by EU law. The national courts are therefore entitled to examine, under the second subparagraph of Article 19(1) TEU, the lawfulness of the procedure for appointing the judge who delivered the contested decision and to declare it null and void, where such a consequence is essential in view of the procedural situation at issue in order to ensure the primacy of EU law. (19) However, for the Trybunał Konstytucyjny (Constitutional Court), such verification would be tantamount, de facto, to disqualifying the judges concerned, ‘whose ability to deliver judgments constitutes both their fundamental right and their duty’. (20)

53.

In the third place, in the judgment of 14 July 2021, the Trybunał Konstytucyjny (Constitutional Court) challenges the Court’s jurisdiction, in particular as regards the adoption of interim measures, under Article 279 TFEU. It considers that the Court acted ultra vires in ordering, on the basis of that provision, interim measures aimed at preserving the independence of the Polish courts.

54.

Those interim measures, such as the suspension of the jurisdiction of the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court) to adjudicate in disciplinary proceedings, were intended to give full effect to the second subparagraph of Article 19(1) TEU. By calling into question the Court’s jurisdiction deriving from Article 279 TFEU to order interim measures intended to preserve the right to effective judicial protection before an independent and impartial tribunal established by law, the Trybunał Konstytucyjny (Constitutional Court) undermines the right to effective judicial protection. That position of the Trybunał Konstytucyjny (Constitutional Court), which precludes recognition of the binding effect of interim measures ordered by the Court, thus constitutes a flagrant infringement of the obligations arising from the second subparagraph of Article 19(1) TEU, as interpreted by the Court.

55.

It follows from all the foregoing that, first, in rejecting the obligation for a national court to disapply amendments to the national legal order, whether of legislative or constitutional origin, where it is proved that the second subparagraph of Article 19(1) TEU has been infringed; secondly, in rejecting judicial review of resolutions of the KRS concerning the appointment of judges, as established by the Court on the basis of the second subparagraph of Article 19(1) TEU, and, thirdly, in challenging the jurisdiction of the Court to adopt interim measures, the Republic of Poland has failed to fulfil its obligation, under the second subparagraph of Article 19(1) TEU, to ensure effective legal protection in the fields covered by EU law.

56.

I therefore propose that the Court find that the Commission’s first complaint is well founded.

(a) Arguments of the parties

57.

The Commission submits that the Trybunał Konstytucyjny (Constitutional Court), in the judgments at issue, interpreted the Constitution in a manner which is contrary to fundamental principles of the EU legal order, namely the primacy, autonomy, effectiveness and uniform application of EU law and the binding effect of the Court’s judgments. In particular, it is apparent from the grounds of the judgment of 7 October 2021 that the Court’s interpretation of the second subparagraph of Article 19(1) TEU, which allows the competent national courts to carry out an effective judicial review of the resolutions of the KRS and to settle disputes on the basis of provisions repealed by the legislature or declared unconstitutional, as well as to assess the lawfulness of the appointment of a judge in order to guarantee parties a right to effective judicial protection, was considered by the Trybunał Konstytucyjny (Constitutional Court) to be ultra vires and unlawfully to undermine Polish constitutional identity.

58.

The judgment of 7 October 2021 also states, in breach of the principle of the binding effect of the Court’s judgments, that the interpretation of the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU, as determined by the Court, has no legal effects in the Polish legal order. Moreover, the Commission rejects the Republic of Poland’s reliance on ‘constitutional identity’, recalling that, although the European Union respects the national identity of the Member States, that identity cannot justify a breach of the fundamental values of the European Union, such as the rule of law and the independence of the judiciary.

59.

As regards the judgment of 14 July 2021, the Commission submits that the declaration by the Trybunał Konstytucyjny (Constitutional Court) that not only the interim measures ordered by the Court in its order in Commission v Poland, but also any future interim measures taken on the basis of Article 279 TFEU concerning the Polish judicial system are unconstitutional, has the consequence of depriving those measures of any binding legal effect in Poland and thus infringes the principles of primacy and effectiveness of EU law and the principle of the binding nature of the Court’s judgments.

60.

The Republic of Poland shares the Commission’s view and adds that the effectiveness of EU law cannot differ from one Member State to another and that the objectives of the Treaties cannot be achieved without the uniform application of EU law.

(b) Analysis

(1) Relevant case-law of the Court

61.

In this section, I intend to recall the principles established by the case-law on the principle of the primacy of EU law and the concept of ‘national identities’, within the meaning of Article 4(2) TEU.

62.

From the judgment in Internationale Handelsgesellschaft, (21) in which the Court affirmed the primacy of EU law (at that time Community law) over national law, including national constitutional provisions, to more recent judgments, in particular the judgment in Eurobox Promotion and Others and the judgment in RS (Effect of the decisions of a constitutional court), (22) the Court’s case-law provides clear answers to the questions raised by the present case as to whether the principle of the primacy of EU law can be called into question where, in the view of a national constitutional court, it conflicts with the constitutional identity of a Member State. The impossibility for a Member State to give precedence to its national – or even constitutional – identity over EU law having direct effect derives from a set of general principles inherent in the EU legal order, founded on the principle of primacy. Those principles, which derive, in particular, from the autonomous nature of EU law, include, inter alia, the equality of Member States, (23) the principle of cooperation in good faith and the principle of sincere cooperation.

63.

Accordingly, the Court already accepted in the judgment of 15 July 1964, Costa v ENEL (6/64, EU:C:1964:66, pp. 1159 and 1160) that it follows from the principle of the primacy of Community law that, the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as EU law and without the legal basis of the European Union itself being called into question. Moreover, the Court emphasised in that judgment that the executive force of Community law cannot vary from one Member State to another in deference to subsequent domestic laws, without jeopardising the attainment of the objectives of the EEC Treaty or giving rise to discrimination on grounds of nationality prohibited by that treaty. (24)

64.

The Court has emphasised that, since it has exclusive jurisdiction to give a definitive interpretation of EU law, it is for the Court, in the exercise of that jurisdiction, to clarify the scope of the principle of the primacy of EU law in the light of the relevant provisions of EU law, with the result that that scope cannot turn on the interpretation of provisions of national law or on the interpretation of provisions of EU law by a national court which is at odds with that of the Court. (25)

65.

Consequently, it is the Court, and it alone, which is vested with the power to settle definitively any conflict between EU law and the constitutional identity of a Member State.

66.

Moreover, the Court has expressly held that, by virtue of the principle of primacy, recourse by a Member State to rules of national law, even of a constitutional order, cannot be allowed to undermine the unity and effectiveness of EU law. In accordance with settled case-law, the effects of the principle of the primacy of EU law are binding on all the bodies of a Member State, without, inter alia, provisions of domestic law, including constitutional provisions, being able to prevent that. (26) Furthermore, the Court has repeatedly recalled that compliance with the obligation to apply in full any provision of EU law with direct effect must be regarded as essential in order to ensure the full application of EU law in all Member States, which precludes the possibility of relying on, as against the EU legal order, a unilateral measure, whatever its nature. (27) That obligation of compliance with the principle of the primacy of EU law is also an expression of the principle of sincere cooperation, established by Article 4(3) TEU, which requires the disapplication of any national provision, even if adopted subsequently, which is contrary to a provision of EU law with direct effect. (28)

67.

The Court has also held that Article 4(2) TEU has neither the object nor the effect of authorising a constitutional court of a Member State, in disregard of the obligations under, in particular, Article 4(2) and (3) and the second subparagraph of Article 19(1) TEU, which are binding upon it, to disapply a rule of EU law, on the ground that that rule undermines the national identity of the Member State concerned as defined by the national constitutional court. (29)

68.

In particular, there is no ground for maintaining that the requirements arising from respect for values and principles such as the rule of law, effective judicial protection and judicial independence, enshrined in Article 2 and the second subparagraph of Article 19(1) TEU, are capable of affecting the national identity of a Member State, within the meaning of Article 4(2) TEU. Therefore, the latter provision, which must be read taking into account the provisions, of the same rank, enshrined in Article 2 and the second subparagraph of Article 19(1) TEU, cannot exempt Member States from the obligation to comply with the requirements arising from those provisions. (30)

69.

Thus, even though, as is apparent from Article 4(2) TEU, the European Union respects the national identities of the Member States, inherent in their fundamental structures, political and constitutional, such that those States enjoy a certain degree of discretion in carrying out their obligation to implement the principles of the rule of law, it in no way follows that that obligation as to the result to be achieved may vary from one Member State to another. Whilst they have separate national identities, inherent in their fundamental structures, political and constitutional, which the European Union respects, the Member States adhere to a concept of ‘the rule of law’ which they share, as a value common to their own constitutional traditions, and which they have undertaken to respect at all times. (31)

(2) Application to the present case

70.

In the first place, it is apparent, first of all, from the judgment of 7 October 2021, that the Trybunał Konstytucyjny (Constitutional Court) held that the second subparagraph of Article 19(1) TEU and Article 2 TEU, as interpreted by the Court – in particular in the judgments in A.B. and Others and in W.Ż. – are incompatible with the Constitution.

71.

In several passages of its judgment of 7 October 2021, the Trybunał Konstytucyjny (Constitutional Court) essentially characterises as ultra vires and as undermining Polish constitutional identity the abovementioned case-law of the Court according to which the national courts having jurisdiction may, in order to ensure effective judicial protection, review the resolutions of the KRS and, if necessary, disapply national provisions which are contrary to the interpretation of the second subparagraph of Article 19(1) TEU, or examine the lawfulness of the procedure for appointing a judge. (32)

72.

The Trybunał Konstytucyjny (Constitutional Court) puts forward, in particular, two types of argument in that respect. First, it considers that the power conferred on the national courts to verify the lawfulness of the procedure for appointing judges restricts the constitutional prerogative of the President of the Republic of Poland to appoint a judge on a proposal from the KRS. Secondly, it considers that the application by the Polish courts of the requirement of an independent and impartial tribunal previously established by law, for the purposes of the second subparagraph of Article 19(1) TEU, calls into question the legality of the acts of appointment issued by the President of the Republic of Poland and thus infringes the Article 179 in conjunction with Article 144(3)(17) of the Constitution, which prohibit the dismissal or review of judges once their appointment has been made.

73.

As paragraphs 2 and 3 of the operative part of the judgment of 7 October 2021 show, that declaration that Article 2 and the second subparagraph of Article 19(1) TEU are unconstitutional constitutes a direct challenge to the principle of the primacy of EU law. Those provisions enshrine fundamental rules of the Treaties, which are inherent in the rule of law common to all Member States.

74.

Next, the interpretation of the Constitution adopted by the Trybunał Konstytucyjny (Constitutional Court) not only infringes the second subparagraph of Article 19(1) TEU – as was established in the context of the first complaint – but goes further: it seeks to deprive that provision, described by the Trybunał Konstytucyjny (Constitutional Court) as the basis of the ‘rules reshaped in the case-law of the Court’, of any legal effect on Polish territory. This is clear from section 10 of the grounds of the judgment of 7 October 2021, in which the Trybunał Konstytucyjny (Constitutional Court) orders the bodies of the Polish public authorities, in particular the courts, to refrain from applying those rules as interpreted by the Court. Relying on the universally binding and final nature of its judgments, guaranteed by Article 190(1) of the Constitution, the Trybunał Konstytucyjny (Constitutional Court) rules that it is incumbent on every public body, including the legislature, the ordinary and administrative courts and the Sąd Najwyższy (Supreme Court), to implement the judgment of 7 October 2021.

75.

Accordingly, that judgment, which constitutes an unprecedented revolt, prohibits all Polish public bodies, including the courts capable of applying EU law, from complying with the obligations arising from the primacy, autonomy and effectiveness of EU law intended to give full effect to the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU. Therefore, the judgment of 7 October 2021 also infringes the binding effect of the Court’s judgments, an essential component of the EU legal order.

76.

Finally, paragraph 1 of the operative part of the judgment of 7 October 2021 cannot, in my view, be interpreted as anything but a direct challenge to the validity of the first and second paragraphs of Article 1 TEU and Article 4(3) TEU, which are among the most fundamental provisions of the TEU. According to the Trybunał Konstytucyjny (Constitutional Court), that challenge is justified by the fact that the European Union has entered a new stage in which the bodies of the European Union are acting ultra vires, that the Constitution is no longer the supreme law in Poland and that, as a result, that Member State can no longer function as a sovereign and democratic State. As noted by the Commission, this is an extremely worrying statement by the Trybunał Konstytucyjny (Constitutional Court), which calls into question the commitment of the Republic of Poland to accept the legal consequences arising from its accession to the European Union.

77.

In the second place, in its judgment of 14 July 2021, the Trybunał Konstytucyjny (Constitutional Court) challenges the binding scope of the interim measures adopted by the Court on the basis of Article 279 TFEU. More specifically, that court considers that such measures, where they relate to the organisation, jurisdiction and functioning of the Polish courts, and to the internal procedures applicable to them, infringe the principle of conferral and the Polish constitutional identity. (33) It also maintains that those measures, including the order in Commission v Poland, exceed the limits of EU law and infringe the Polish constitutional order.

78.

The Trybunał Konstytucyjny (Constitutional Court) bases its position on the primacy of the Constitution as the supreme law of the domestic legal order, and therefore considers that the order in Commission v Poland suspending the jurisdiction of the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court) cannot take precedence. In its view, to allow interim measures of the Court, issued for the purpose of preserving the independence of judges, to be binding on the national authorities would be tantamount to distorting both the Polish constitutional principle of the democratic State subject to the rule of law, enshrined in Article 2 of the Constitution, and the division of powers deriving from the principle of conferral laid down in the EU Treaties.

79.

Moreover, the Trybunał Konstytucyjny (Constitutional Court) criticises the Court for imposing rules allegedly ‘created’ by it, which are deemed incompatible with the Constitution. It concludes that, as regards those rules regarded as having been adopted ultra vires, the principle of the primacy and the direct effect of EU law cease to apply. Asserting that its judgments are definitive, universally binding and have ex tunc effect, the Trybunał Konstytucyjny (Constitutional Court) orders all Polish public bodies to refrain from applying the interim measures and, more broadly, any EU rule which, in its view, exceeds the powers conferred by the Treaties.

80.

Furthermore, in its judgment of 14 July 2021, the Trybunał Konstytucyjny (Constitutional Court) calls into question the authority and binding nature not only of the interim measures ordered by the Court in its order in Commission v Poland, but also of any future interim measures which might be adopted under Article 279 TFEU relating to the Polish judicial system. In so doing, that court challenges the very provisions of the Treaties on which the Court based those measures, namely Article 4(3) TEU and Article 279 TFEU.

81.

In that regard, I wish to point out that the constitutional nature of the provisions of domestic law relied on by the Trybunał Konstytucyjny (Constitutional Court) can in no way justify undermining the principles of the primacy, direct effect and binding nature of the Court’s decisions. Consequently, reliance on those constitutional rules and on the argument that the organisation of justice in the Member States falls within their exclusive competence in order to circumvent the requirements deriving from Article 2, Article 4(3) and the second subparagraph of Article 19(1) TEU and Article 279 TFEU is incompatible with the unity, autonomy and effectiveness of the EU legal order.

82.

That last observation, relating to the reliance by the Trybunał Konstytucyjny (Constitutional Court) on constitutional provisions in order to prevent application of the principle of the primacy of EU law, leads me, in the third place, to analyse in greater depth the reasoning of the Trybunał Konstytucyjny (Constitutional Court) in the judgments at issue, which is based in particular on the obligation to respect the constitutional identity of the Republic of Poland as provided for by Article 4(2) TEU.

83.

I note that, in the judgments at issue, the Trybunał Konstytucyjny (Constitutional Court), while referring to Article 4(2) TEU, relies on the Republic of Poland’s ‘constitutional identity’ in order to conclude that certain provisions of EU primary law are incompatible with that principle. In other words, the Trybunał Konstytucyjny (Constitutional Court) refers to ‘constitutional identity’ while relying on a Treaty provision relating to ‘national’ identity. As regards the relationship between those two concepts, I consider that, although they undoubtedly overlap in parts, the concept of national identity is more encompassing, in that it is not confined solely to matters formalised in constitutional provisions. Conversely, the scope of the concept of constitutional identity is more restricted, in that it is confined to the principles and values enshrined in the Constitution of a Member State.

84.

I am of the view that this issue, relating to constitutional identity, merits further consideration, without however going beyond the scope of the present case and without developing a general theory, in particular since this issue must be examined on a case-by-case basis under the careful and exclusive supervision of the Court.

85.

In that regard, it should be noted, first, that it in no way follows from a systematic interpretation and application of the clause on national identities, as provided for in Article 4(2) TEU, that the Court perceives it as a factor capable of limiting the inviolable principle of primacy. One of the fields in which recourse to ‘national identity’ features prominently in the case-law concerns the examination of national measures constituting a restriction on the fundamental freedoms of the internal market. In those cases, respect for national identity has been relied on both as an autonomous basis for derogation and as a rule for interpreting existing justifications, such as, for example, public policy. (34)

86.

I consider it necessary to point out that Article 4(2) TEU cannot be regarded as being at odds with Article 2 TEU and the fundamental values enshrined therein. (39) As the Court has emphasised, ‘whilst they have separate national identities, inherent in their fundamental structures, political and constitutional, which the European Union respects, the Member States adhere to a concept of “the rule of law” which they share, as a value common to their own constitutional traditions, and which they have undertaken to respect at all times’. (40) It follows that the constitutional identity of a Member State cannot take precedence over the democratic foundations of the European Union and its Member States, or over the common values enshrined in Article 2 TEU. (41) A variable geometry approach to the rule of law cannot be acceptable where the application of EU law is concerned. As the Court has pointed out, if a constitutional court of a Member State considers that a provision of EU law, as interpreted by it, infringes the obligation to respect the national identity of that Member State, that constitutional court must stay the proceedings and make a reference to the Court for a preliminary ruling under Article 267 TFEU, in order to assess the validity of that provision in the light of Article 4(2) TEU. (42)

87.

Ultimately, and at the risk of repeating myself, the central question raised by the present case concerns the application of the principle of primacy by the Court, whether raised implicitly or directly by the constitutional court where it challenges the Court’s authority to rule at last instance in cases of conflict between EU law and the constitutional identity of a Member State. That question can be answered only by reference to a fundamental consideration: membership of the European Union is conditional on the joining of ‘a legal structure that is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, the common values contained in Article 2 TEU, on which the European Union is founded’. (43)

88.

It is true that a Member State cannot be compelled to accede to the European Union against its will. (44)

However, once it has made the sovereign choice to accede, it must respect the ‘rules of the game’, in accordance with Article 49 TEU, which requires Member States to respect the values of the European Union after their accession – values which they have accepted freely and in full knowledge of the facts. (45)

Sitting as a full Court, its most formal composition, the Court has recalled that ‘compliance by a Member State with the values contained in Article 2 TEU is a condition for the enjoyment of all the rights deriving from the application of the Treaties to that Member State …. Compliance with those values cannot be reduced to an obligation which a candidate State must meet in order to accede to the European Union and which it may disregard after its accession’. (46)

93.From that perspective, Article 4(2) TEU is not an obstacle, but invites fruitful dialogue between the EU legal order and the national legal orders. Far from imposing rigid uniformity, it makes it possible to build a European project which is not a fixed, monolithic structure, but a subtle, dynamic network in which recognition of specific national characteristics strengthens the cohesion of the whole. (47) However, in order to ensure the unifying force of EU law, it is essential that the Court ultimately retains the ‘last word’.

94.In the light of the foregoing, it must be concluded that the declaration by the Trybunał Konstytucyjny (Constitutional Court) that Article 2, the second subparagraph of Article 19(1) and Article 4(3) TEU and Article 279 TFEU are incompatible with the Constitution constitutes a manifest infringement, I would even go so far as to say one of the most direct, of the fundamental principles of the EU legal order. Those positions disregard not only the authority of the Court’s judgments, but also all the values and obligations which the Treaties impose on the Member States. Consequently, the interpretation adopted by the Trybunał Konstytucyjny (Constitutional Court) is seriously prejudicial to the primacy, autonomy, uniformity and effectiveness of EU law.

95.For the above reasons, I propose that the Court hold that the Commission’s second complaint is well founded.

3. The third complaint

(a) Arguments of the parties

96.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 Article 47 of the Charter. Those requirements concern the independence, impartiality and legality of the Trybunał Konstytucyjny (Constitutional Court).

97.In particular, it considers that the Trybunał Konstytucyjny (Constitutional Court) no longer satisfies those guarantees on account of the irregularities in the appointment of judges in December 2015 and the election of its President in December 2016. In December 2015, the Eighth Legislature of the Sejm elected three persons (M.M., H.C. and L.M.) to replace judges whose terms of office had expired, even though the Seventh Legislature had already elected three other judges (R.H., A.J. and K.Ś.) to the same positions in October 2015. The Trybunał Konstytucyjny (Constitutional Court), in its judgments of 3 and 9 December 2015, ruled that the election of the three judges by the Eighth Legislature was contrary to the Constitution. However, the three unlawfully elected judges were sworn in and allowed to sit, while the lawfully elected judges were unable to take up their office.

98.Moreover, the Commission states that the procedure for selecting candidates for the post of President of the Trybunał Konstytucyjny (Constitutional Court), which led to the appointment of J.P. in December 2016, was vitiated by serious irregularities.

99.The Republic of Poland, while sharing the Commission’s view, states that the irregular nature of the composition of the Trybunał Konstytucyjny (Constitutional Court) is the main reason for calling into question the validity of its judgments.

(b) Analysis

(1) Relevant case-law of the Court

100.According to settled case-law, any national court or tribunal capable of ruling on questions relating to EU law must offer the necessary guarantees of independence and impartiality and must be established by law. (48) Those requirements derive from the principle of effective judicial protection enshrined in the second subparagraph of Article 19(1) TEU and the second paragraph of Article 47 of the Charter, according to which everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.

101.It is settled case-law that the guarantees of independence and impartiality require rules, including rules regarding the composition of the body and the appointment of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it. (49)

102.Moreover, the reason for the requirement relating to a ‘tribunal previously established by law’ is to ensure that the organisation of the judicial system does not depend on the discretion of the executive, but that it is regulated by law emanating from the legislature in compliance with the rules governing its jurisdiction. That phrase reflects, in particular, the principle of the rule of law and covers not only the legal basis for the very existence of a tribunal, but also the composition of the bench in each case and any other provision of domestic law which, if breached, would render the participation of one or more judges in the examination of a case irregular, including, in particular, provisions concerning the independence and impartiality of the members of the court concerned. (50)

103.As regards an infringement of that requirement, the Court held, drawing, in that regard, on the case-law of the European Court of Human Rights, to the effect that an irregularity committed during the appointment of judges within the judicial system concerned entails an infringement of the requirement that a tribunal be established by law, particularly when that irregularity is of such a kind and of such gravity as to create a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the appointment process and thus give rise to a reasonable doubt in the minds of individuals as to the independence and the impartiality of the judge or judges concerned. This is the case when what is at issue are fundamental rules forming an integral part of the establishment and functioning of that judicial system. (51) The Court thus stated that it follows from the case-law of the European Court of Human Rights that only those breaches that relate to the fundamental rules on the procedure for appointing judges and for judges to take up office are such as to infringe Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’). (52)

(2) Application to the present case

(i) The appointment of judges to the Trybunał Konstytucyjny (Constitutional Court) in alleged breach of the Constitution

104.It should be noted at the outset that the Trybunał Konstytucyjny (Constitutional Court) is a ‘court or tribunal’ for the purposes of the second subparagraph of Article 19(1) TEU, in so far as it may rule on questions relating to the application and interpretation of EU law. (53) That conclusion is, inter alia, confirmed by the judgments at issue, which are the subject of the first and second complaints in the present action. (54)

105.In the present case, on 2 December 2015 the Sejm of the Republic of Poland (Eighth Legislature) appointed three persons (M.M., H.C. and L.M.) to the Trybunał Konstytucyjny (Constitutional Court) in order to fill vacancies which had arisen on 6 November 2015. However, on 8 October 2015 the previous Sejm (Seventh Legislature) had already adopted resolutions on the election of three other judges (R.H., A.J. and K.Ś.) to the same positions.

106.In its judgment of 3 December 2015, K 34/15, (55) the Trybunał Konstytucyjny (Constitutional Court) confirmed, inter alia, that the Seventh Legislature of the Sejm was entitled to appoint three judges to replace those whose terms of office had expired on 6 November 2015. Moreover, the Trybunał Konstytucyjny (Constitutional Court) noted the obligation of the President of the Republic of Poland to swear in the three persons elected by the Seventh Legislature of the Sejm (R.H., A.J. and K.Ś.) to replace the judges whose terms of office had ended on 6 November 2015. Furthermore, on 9 December 2015, by its judgment K 35/15, (56) the Trybunał Konstytucyjny (Constitutional Court) invalidated Article 137a of the ustawa o Trybunale Konstytucyjnym (Law on the Constitutional Court) of 25 June 2015, (57) as amended by the ustawa o zmianie ustawy z dnia 25 czerwca 2015 r. o Trybunale Konstytucyjnym (ustawa zmieniająca) (Law amending the Law of 25 June 2015 on the Constitutional Court) of 19 November 2015, pursuant to which, in the case of judges of the Trybunał Konstytucyjny (Constitutional Court) whose terms of office expired in 2015, the deadline for submitting an application was seven days from the date on which that provision entered into force. The unconstitutionality concerned the election of judges to the Trybunał Konstytucyjny (Constitutional Court) to replace the judges whose terms of office had expired on 6 November 2015.

107.Despite the finding of the irregularity of the appointment made in December 2015, the three judges concerned were sworn in before the President of the Republic of Poland, and, on 20 December 2016, Judge J.P., ‘the judge carrying out the functions of President’ after the retirement of President A.R., authorised them to sit on the court. The three judges elected in October 2015 were never able to take up their office, as they had not been sworn in.

108.As noted by the Commission, the appointment and taking up of office within the Trybunał Konstytucyjny (Constitutional Court) of the three abovementioned judges constitutes a manifest disregard of the constitutional principle concerning the appointment of judges to the Trybunał Konstytucyjny (Constitutional Court), which is an integral part of the organisation and functioning of the Polish State. The Commission also states, without being contradicted by the Republic of Poland, that, from the expiry of the period for replying to the Commission’s reasoned opinion of 15 July 2022 (that is to say 15 September 2022) to date, neither of the two judgments of the Trybunał Konstytucyjny (Constitutional Court) of 3 and 9 December 2015 has been implemented, and Judge M.M. continues to sit on the Trybunał Konstytucyjny (Constitutional Court).

109.I also consider it useful to note that the European Court of Human Rights, in its judgment of 7 August 2021, Xero Flor w Polsce sp. z o.o. v. Poland, (58) confirmed that that situation infringed a fundamental principle governing the appointment of judges to the Trybunał Konstytucyjny (Constitutional Court), undermining the right to a ‘tribunal established by law’ within the meaning of Article 6(1) ECHR. It follows that the independence and impartiality of the Constitutional Court are seriously jeopardised, even though Article 19 TEU and Article 47 of the Charter impose such guarantees on national courts.

(ii) The alleged irregularities vitiating the procedure for appointing the President of the Trybunał Konstytucyjny (Constitutional Court)

110.I also consider that there were serious irregularities in the procedure for appointing the President of the Trybunał Konstytucyjny (Constitutional Court).

111.In particular, with the approach of the expiry of the term of office of the previous President of the Trybunał Konstytucyjny (Constitutional Court) (on 19 December 2016), the Polish legislature radically revised the procedure for selecting candidates. A new post of ‘judge carrying out the functions of President’ – which is not in the Constitution, Article 194(2) of which refers only to the President and Vice-President – was created. On 20 December 2016, that is to say the day after the departure of the previous President of the Trybunał Konstytucyjny (Constitutional Court), the President of the Republic of Poland appointed J.P. to that newly created position. On the same day, J.P. authorised the three irregularly appointed judges to sit and convened the general assembly. Of the fourteen judges present, eight refused to take part in the vote, demanding a postponement to allow a fifteenth judge to attend. That request was rejected, and J.P. was elected as President of the Trybunał Konstytucyjny (Constitutional Court) with just five votes out of the fourteen members present, including those of the three judges whose appointment was already contested. (59) On 21 December 2016, she was appointed, by the President of the Republic of Poland, President of the Trybunał Konstytucyjny (Constitutional Court).

112.That series of events demonstrates, in my view, the direct and specific influence of the legislative and executive powers on the composition and functioning of the Trybunał Konstytucyjny (Constitutional Court), creating a high risk of political interference. The integrity of the appointment process, the confidence of individuals in the independence of that court and observance of the guarantees provided for in Article 19 TEU and Article 47 of the Charter are profoundly undermined as a result.

113.Moreover, as stated by the Commission, it would have been reasonable to expect the Trybunał Konstytucyjny (Constitutional Court) to adopt a cautious attitude in order to dispel the doubts raised by those irregularities. Instead, M.M. sat in cases directly calling into question the legality of her own appointment, thereby infringing the requirement of impartiality. (60)

114.In the final analysis, and in the light of the foregoing, there can be no doubt that the Trybunał Konstytucyjny (Constitutional Court) cannot be classified as an independent and impartial ‘tribunal established by law’, as required by the second subparagraph of Article 19(1) TEU, and reinforced by Article 47 of the Charter. That failure undermines the legitimate expectations of individuals in the ability of national courts to apply EU law in accordance with European standards, and thus undermines the integrity and effectiveness of the EU legal order.

115.Consequently, and on the basis of facts which are not contested, I consider that the procedure for the appointment of the three judges in December 2015 and of Judge J.P. to the post of President of the Trybunał Konstytucyjny (Constitutional Court) was characterised by several irregularities which may be classified as manifest and serious.

116.In the light of the foregoing, I propose that the Court declare that the Republic of Poland has failed to fulfil its obligation under the second subparagraph of Article 19(1) TEU, in failing to ensure that the Trybunał Konstytucyjny (Constitutional Court) satisfies the requirement of an independent and impartial tribunal previously established by law.

117.For the above reasons, I propose that the Court hold that the Commission’s third complaint is well founded.

VI. Costs

118.Pursuant to Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

119.According to the solution I propose, since the Commission has applied for costs against the Republic of Poland and the latter has been unsuccessful, it must be ordered to pay its own costs and those of the Commission.

VII. Conclusion

120.In the light of the foregoing, I propose that the Court should:

(1)declare that, in the light of the interpretation of the Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland) made by the Trybunał Konstytucyjny (Constitutional Court, Poland) in its judgments of 14 July 2021 and 7 October 2021, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU;

(2)declare that, in the light of the interpretation of the Constitution of the Republic of Poland made by the Trybunał Konstytucyjny (Constitutional Court) in its judgments of 14 July 2021 and 7 October 2021, the Republic of Poland has failed to fulfil its obligations under the general principles of autonomy, primacy, effectiveness and uniform application of EU law and has disregarded the binding effect of the Court’s judgments;

(3)declare that the Trybunał Konstytucyjny (Constitutional Court) does not satisfy the requirements of an independent and impartial tribunal previously established by law as a result of irregularities in the procedures for the appointment of three judges to that court in December 2015 and for the appointment of its President in December 2016, and, therefore, that the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU;

(4)order the Republic of Poland to bear its own costs and to pay those incurred by the European Commission.

—

1 Original language: French.

2 Pescatore, P., L’ordre juridique des Communautés européennes: étude des sources du droit communautaire, 2nd edition, Presses universitaires de Liège, Liège, 1973, p. 227.

3 See, inter alia, order of the Corte costituzionale (Constitutional Court, Italy), No 24/2017, of 26 January 2017 (IT:COST:2017:24).

4 Dz. U. of 2021, item 1309 (‘the judgment of 14 July 2021’).

5 C‑791/19 R, ‘the order in Commission v Poland’, EU:C:2020:277.

6 Dz. U. of 2021, item 1852 (‘the judgment of 7 October 2021’).

7 Levade, A., ‘Identités constitutionnelles et hiérarchies’, Annuaire international de justice constitutionnelle, Economica, Presses Universitaires d’Aix-Marseille, 2011, p. 455.

8 See judgment of the Ústavní soud (Constitutional Court, Czech Republic), Slovenské důchody XVII (Slovak Pensions XVII, Holubec case), Pl. ÚS 5/12, of 31 January 2012, delivered following the judgment of 22 June 2011, Landtová (C‑399/09, EU:C:2011:415). See, also, judgment of the Højesteret (Supreme Court, Denmark), Dansk Industri (DI) acting for Ajos A/S v The estate left by A, No 15/2014, UfR 2017.824 H, of 6 December 2016, delivered following the judgment of 19 April 2016, DI (C‑441/14, EU:C:2016:278). See also, as regards the Bundesverfassungsgericht (BVerfG) (Federal Constitutional Court, Germany), judgments of 5 May 2020, 2 BvR 859/15 et al. (PSPP), Europäische Grundrechte Zeitschrift, 2020, p. 246, and of 21 June 2016, 2 BvR 2728/13 et al. (OMT II), Europäische Grundrechte Zeitschrift, 2016, p. 440. As regards the Conseil constitutionnel (Constitutional Court, France), the constitutional court is authorised to verify that transposing legislation which reproduces the exact terms of a directive does not contradict express provisions of the French Constitution or ‘the rules and principles inherent in the constitutional identity of France, unless the Constitution so permits’ (decisions No 2004-96 (DC) of 10 June 2004, JORF of 22 June 2004, p. 11182, text No 3, and No 2006-540 (DC) of 27 July 2006, JORF of 3 August 2006, p. 11541, text No 2).

9 See, inter alia, Nagy, C. I., ‘The Rebellion of Constitutional Courts and the Normative Character of European Union Law’, International and Comparative Law Quarterly, Vol. 73, No 1, 2024, pp. 65-101. That author proposes a critical rereading and an assessment of the nascent rebellion of European constitutional courts against the unconditional supremacy of EU law. The article also gives an account of the emerging ultra vires challenge, identifies its origin and development, and then proposes an in-depth analysis and approaches for reform. It shows that the real issue is not so much the primacy of EU law as the interpretative primacy entrusted to the Court. The author argues that the ‘rebellion’ was triggered by the perception that the Court’s case-law is losing its normative character in favour of an increasingly political character. Without calling into question the principle of primacy as such, the author nevertheless criticises ‘extensive’ interpretation beyond what was constitutionally ‘envisaged’ by the Member States (see, in particular, pp. 97-101).

10 See, in particular, points 82 to 93 of this Opinion.

11 See judgments of 14 September 2017, Commission v Greece (C‑320/15, EU:C:2017:678, paragraph 21), and of 15 March 2018, Commission v Czech Republic (C‑575/16, EU:C:2018:186, paragraph 105).

12 See points 32 and 39 of this Opinion.

13 See judgment of 20 April 2021, Repubblika (C‑896/19, ‘the judgment in Repubblika’, EU:C:2021:311, paragraph 45 and the case-law cited).

14 See, to that effect, judgment of 21 December 2021, Euro Box Promotion and Others (C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, ‘judgment in Euro Box Promotion and Other’, EU:C:2021:1034, paragraphs 220 and 221 and the case-law cited).

15 See judgments in Repubblika (paragraph 48) and of 29 March 2022, Getin Noble Bank (C‑132/20, EU:C:2022:235, paragraph 88).

16 C‑824/18, ‘the judgment in A.B. and Others’, EU:C:2021:153.

17 Judgment in A.B. and Others (paragraphs 149 and 150).

18 C‑487/19, ‘the judgment in W.Ż.’, EU:C:2021:798.

19 The judgment in W.Ż. (paragraph 161).

20 See section 6.4 of the judgment of 7 October 2021.

21 Judgment of 17 December 1970 (11/70, EU:C:1970:114).

22 Judgment of 22 February 2022 (C‑430/21, ‘the judgment in RS’, EU:C:2022:99).

23 On the relationship between the principle of primacy of EU law and the principle of equality, see Kokott, J., and Hummel, D., ‘Der Vorrang des Unionsrechts als Ausdruck des Gleichheitsprinzips ? – Zu einem neuartigen Begründungsansatz der Einschränkung einer Ultra-vires-Kontrolle durch die Gerichte der Mitgliedstaaten’, Europäische Grundrechte-Zeitschrift, 2024, pp. 1-7.

24 The Court has also held that those essential characteristics of the EU legal order and the importance of compliance with that legal order were confirmed by the ratification, without reservation, of the Treaties amending the EEC Treaty and, in particular, the Treaty of Lisbon, as is apparent in particular from Declaration No 17 concerning primacy, annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 13 December 2007. This also applies to the Court’s case-law following the entry into force of the Treaty of Lisbon (see judgment in Euro Box Promotion and Others, paragraphs 248 and 250).

25 See judgments in RS (paragraph 52), and of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraph 79).

26 Judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442, paragraph 77).

27 Judgment in Euro Box Promotion and Others (paragraph 249).

28 Judgment in Euro Box Promotion and Others (paragraph 252).

29 See judgment in RS (paragraph 70).

30 See judgment of 5 June 2023, Commission v Poland (C‑204/21, EU:C:2023:442, paragraph 72).

31 See judgment of 5 June 2023, Commission v Poland (C‑204/21, EU:C:2023:442, paragraph 73).

32

In particular, according to the Trybunał Konstytucyjny (Constitutional Court), ‘there is no legal basis for the CJEU’s creation of a rule according to which a national court may disregard those legislative amendments and rule on the basis of the previously applicable (repealed) provisions. That approach by the CJEU is tantamount to urging national courts and allowing them to apply a law other than the one adopted by parliament in accordance with the Constitution. That rule is therefore incompatible with the stated review criteria and in particular with Article 8(1) of the Constitution’ (section 8.3 of the judgment of 7 October 2021). The Trybunał Konstytucyjny (Constitutional Court) also held that ‘the rule inferred by the CJEU from the second subparagraph of Article 19(1) and Article 2 TEU, in so far as, in order to guarantee effective legal protection in the fields covered by EU law and the independence of judges, it grants national courts the power to find defects in the process for the appointment of judges and, consequently, to refuse to recognise as a judge a person appointed to that office under Article 179 of the Constitution, is contrary to Article 2, Article 8(1), Article 90(1) and Article 179, read in conjunction with Article 144(3)(17) of the Constitution’ (section 8.4 of the judgment of 7 October 2021).

—

33

See sections 6.8 and 6.10 of the judgment of 14 July 2021.

34

See Guastaferro, B., ‘Beyond the Exceptionalism of Constitutional Conflicts: The Ordinary Functions of the Identity Clause’, Yearbook of European Law, Vol. 31, No 1, 2012, p. 290. See also Bay Larsen, L., ‘Libres réflexions sur l’équilibre entre égalité des citoyens et diversité constitutionnelle dans la jurisprudence de la Cour relative au principe de primauté’, EUnited in diversity – The Rule of Law and Constitutional Diversity, proceedings of the International Conference in The Hague, the Netherlands, 31 August to 1 September 2023, Court of Justice of the European Union, 2024, pp. 109-120, in particular p. 115 et seq.

35

See judgments of 2 July 1996, Commission v Luxembourg (C‑473/93, EU:C:1996:263, paragraph 35); of 12 May 2011, Runevič-Vardyn and Wardyn (C‑391/09, EU:C:2011:291, paragraph 86); of 16 April 2013, Las (C‑202/11, EU:C:2013:239, paragraph 26); and of 7 September 2022, Cilevičs and Others (C‑391/20, EU:C:2022:638, paragraph 68) (see, in particular on the latter judgment, Lenaerts, K., and Adam, S., ‘Le dialogue préjudiciel entre la Cour de justice et les juridictions suprêmes et constitutionnelles des États membres’, in Mortier, R. et al. (ed.), La Cour de cassation en dialogue / Het Hof van Cassatie in dialoog, Larcier-Intersentia, Brussels, 2024, p. 649).

36

See judgment of 2 June 2016, Bogendorff von Wolffersdorff (C‑438/14, EU:C:2016:401, paragraph 64); see also, even before Article 4(2) TEU was incorporated into EU primary law, judgment of 22 December 2010, Sayn-Wittgenstein (C‑208/09, EU:C:2010:806, paragraph 83), concerning rules on surnames.

37

See judgment of 14 October 2004, Omega (C‑36/02, EU:C:2004:614, paragraph 32).

38

By way of illustration, in a case concerning the organisation of working time, the Court held that the legislation concerned had to be applied in such a way as not to hamper the ability of the armed forces to carry out their missions (judgment of 15 July 2021, Ministrstvo za obrambo (C‑742/19, EU:C:2021:597, paragraphs 43 to 46). See, also, judgments of 12 June 2014, Digibet and Albers (C‑156/13, EU:C:2014:1756, paragraph 34), and of 21 December 2016, Remondis (C‑51/15, EU:C:2016:985, paragraphs 40 to 47), on use by the Court of the division of powers within Member States, as provided for by Article 4(2) TEU, in the field of public procurement and the regulation of games of chance.

39

See also Zinonos, P., ‘Le principe de respect des identités nationales comme garantie systémique des noyaux constitutionnels nationaux’, Identité(s) transnationale(s) de l’Union européenne, Bruylant, Brussels, 2023, p. 533; Faraguna, P., ‘On the Identity Clause and Its Abuses: “Back to the Treaty”’, European Public Law, Vol. 27, No 3, 2021, p. 429.

40

See judgment of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97, paragraph 234).

41

See von Bogdandy, A., and Schill, S.W., ‘Overcoming Absolute Primacy: Respect for National Identity Under the Lisbon Treaty’, Common Market Law Review, Vol. 48, No 5, 2011, p. 1430.

42

See judgment in RS (paragraph 71).

43

See judgments of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97, paragraph 125), and Poland v Parliament and Council (C‑157/21, EU:C:2022:98, paragraph 143).

44

See judgment of 10 December 2018, Wightman and Others (C‑621/18, EU:C:2018:999, paragraph 65).

45

Concerning Article 49 TEU and the non-regression obligation which it establishes with regard to respect for the values of the European Union by the Member States, see, inter alia, Fartunova-Michel, M., ‘Le renvoi préjudiciel et l’article 19 TUE’, Revue des affaires européennes, No 1, 2023, p. 47 et seq.

46

See judgments of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97, paragraph 126), and Poland v Parliament and Council (C‑157/21, EU:C:2022:98, paragraph 144).

47

As early as 1963, Pierre Pescatore described the Court’s complex role in that regard, which combines its function as ‘supreme arbiter’ in the interpretation of EU law with that of an authority attentive to the legitimate interests of the Member States. He thus highlighted that ‘the Court of Justice, in disputes of that kind, must perform and reconcile two functions at the same time: on the one hand, it is the guardian of the interests of all central institutions and of their prerogatives; in that respect, we must, as Europeans, desire a courageous and strong Court of Justice which can impose Community authority on States which have remained sovereign and are all too readily inclined, as such, to take back with the left hand what they conceded with the right hand in signing the European Treaties. However, at the same time, those Member States must find in the same Court of Justice a guarantee of their legitimate interests, a guarantee also of their residual sovereignty, against the attacks of a central authority which could become invasive; in that respect, as citizens of a Member State, we each desire a Court of Justice imbued with that federal spirit which can reconcile the need for unity with a profound respect for the legitimate prerogatives of domestic authorities.’ (Pescatore, P., ‘La Cour en tant que juridiction fédérale et constitutionnelle’, Dix ans de jurisprudence de la Cour de Justice des Communautés européennes, Rapport général au Congrès européen, Cologne, 24-26 April 1963, Carl Heymann Verlag, Cologne, 1963, pp. 520-553, reproduced in Pescatore, P., Études de droit communautaire européen 1962-2007: avec une liste bibliographique complémentaire, Collection droit de l’Union européenne – Grands écrits, Bruylant, Brussels, 2008, pp. 87-88).

48

See judgments in A.B. and Others (paragraph 112) and Commission v Poland (Disciplinary regime for judges) (C‑791/19, EU:C:2021:596, paragraph 55 et seq. and the case-law cited).

49

See judgments in W.Ż. (paragraph 128) and in Repubblika (paragraph 53 and the case-law cited).

50

See judgment of 26 March 2020, Review Simpson v Council and HG v Commission (C‑542/18 RX-II and C‑543/18 RX-II, EU:C:2020:232, paragraph 73 and the case-law cited).

51

See judgment in W.Ż. (paragraph 130 and the case-law cited, as well as paragraphs 152 and 153).

52

See, to that effect, judgment of 29 July 2024, Breian (C‑318/24 PPU, EU:C:2024:658, paragraph 83), referring to the judgment of the Grand Chamber of the ECtHR of 1 December 2020, Guðmundur Andri Ástráðsson v. Iceland (CE:ECHR:2020:1201JUD002637418, §§ 246 and 247).

53

See, in that regard, judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117, paragraphs 38 to 40).

54

The Commission also cites other decisions of that court, as well as the judgment of 7 March 2017, RPO (C‑390/15, EU:C:2017:174), which was delivered in a reference for a preliminary ruling from the Trybunał Konstytucyjny (Constitutional Court).

55

Dz. U. of 2015, item 2129.

56

Dz. U. of 2015, item 2147.

57

Dz. U. of 2015, item 1064.

58

CE:ECHR:2021:0507JUD000490718.

59

More specifically, on 20 December 2016, the general assembly of the judges of the Trybunał Konstytucyjny (Constitutional Court), by six votes, out of the fourteen judges present, selected two candidates: J.P. with five votes and M.M., namely the judge appointed to the Trybunał Konstytucyjny (Constitutional Court) on 2 December 2015 in breach of Article 194(1) of the Constitution, with one vote.

60

In particular, as noted by the Commission, the Trybunał Konstytucyjny (Constitutional Court) also gave rulings as judicial panels which included Judge M.M. in cases directly concerning the legality of the appointment of the three judges of the Trybunał Konstytucyjny (Constitutional Court) (including M.M.) on 2 December 2015, although the Seventh Legislature of the Sejm had already elected other judges (see, for example, judgment of 24 October 2017, K 1/17, Dz. U. of 2017, item 2001, paragraphs 145 to 159, in which the Trybunał Konstytucyjny (Constitutional Court) examined the constitutionality of a provision allowing cases to be assigned to judges of the Trybunał Konstytucyjny (Constitutional Court) irregularly appointed on 2 December 2015 to posts already filled. The application of the Rzecznik Praw Obywatelskich (National Ombudsman, Poland) for the recusal in this case of M.M. and H.C., members of the judicial panel examining the constitutionality of the provision which directly concerned their status, had been dismissed). See also, in that regard, judgment of the ECtHR of 7 May 2021, Xero Flor sp. z o.o. v. Poland (CE:ECHR:2021:0507JUD000490718, § 273).