EU Court Judgment on Rule of Law and Judicial Independence

Rzecznik Praw Obywatelskich (Recusation d'un juge de droit commun) (Reference for a preliminary ruling - Rule of law - Effective legal protection in the fields covered by EU law - Judgment) [2026] EUECJ C-521/21 (24 March 2026)

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  Rzecznik Praw Obywatelskich (Recusation d'un juge de droit commun) (Reference for a preliminary ruling - Rule of law - Effective legal protection in the fields covered by EU law - Judgment) [2026] EUECJ C-521/21 (24 March 2026)

URL: https://www.bailii.org/eu/cases/EUECJ/2026/C52121.html
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ECLI:EU:C:2026:242,

[2026] EUECJ C-521/21,

EU:C:2026:242 | | |
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Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

24 March 2026 (*)

( Reference for a preliminary ruling - Rule of law - Effective legal protection in the fields covered by EU law - Judicial independence - Second subparagraph of Article 19(1) TEU - Second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union - National legislation and case-law prohibiting national courts from calling into question the legitimacy of constitutional courts and bodies or from establishing or assessing the lawfulness of the appointment of judges or of their judicial powers - Obligation for a judge hearing an application for the recusal of another judge to ascertain whether the requirement of a 'tribunal previously established by law' has been met - Appointment of judges of the ordinary courts in Poland - Lack of independence of the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland) - No effective remedy for candidates for the judicial post concerned - Judge not constituting an 'independent and impartial tribunal previously established by law' - Possibility of removing a judge from a panel of judges of the court )

In Case C‑521/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Rejonowy Poznań-Stare Miasto w Poznaniu (District Court, Stare Miasto w Poznaniu, Poznān, Poland), made by decision of 23 July 2021, received at the Court on 23 August 2021, in the proceedings

MJ

v

AA,

interested parties:

Rzecznik Praw Obywatelskich,

Prokurator Prokuratury Okręgowej w Poznaniu,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, T. von Danwitz, Vice-President, F. Biltgen, I. Jarukaitis (Rapporteur), M.L. Arastey Sahún, I. Ziemele, J. Passer, O. Spineanu-Matei and M. Condinanzi, Presidents of Chambers, A. Kumin, D. Gratsias, M. Gavalec, Z. Csehi, B. Smulders, and R. Frendo, Judges,

Advocate General: D. Spielmann,

Registrar: M. Siekierzyńska, Administrator,

having regard to the written procedure and further to the hearing on 7 January 2025,

after considering the observations submitted on behalf of:

–        MJ, by himself,

–        the Rzecznik Praw Obywatelskich, by J. Roszkiewicz and M. Taborowski,

–        the Prokurator Prokuratury Okręgowej w Poznaniu, by M. Smętkowski,

–        the Polish Government, by B. Majczyna, B. Grabowska-Moroz and M. Rzotkiewicz, acting as Agents,

–        the Belgian Government, by M. Jacobs, C. Pochet, L. Van den Broeck and M. Van Regemorter, acting as Agents,

–        the Danish Government, by V. Pasternak Jørgensen and M. Søndahl Wolff, acting as Agents,

–        the Netherlands Government, by M.K. Bulterman and J. Langer, acting as Agents,

–        the Finnish Government, by H. Leppo, acting as Agent,

–        the Swedish Government, by A. Runeskjöld and H. Shev, acting as Agents,

–        the European Commission, by K. Herrmann and P.J.O. Van Nuffel, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 29 April 2025,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 2, Article 6(1) to (3) and Article 19(1) TEU, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union ('the Charter').

2 The request has been made in proceedings between MJ and AA, two traders, concerning a claim under a contract for the provision of services.

Legal context

The Constitution

3 Pursuant to Article 179 of the Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland; 'the Constitution'):

'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.'

4 Under Article 186(1) of the Constitution:

'The [KRS] shall safeguard the independence of courts and judges.'

5 Article 187 of the Constitution provides:

'1.      The [KRS] shall be composed as follows:

(1)      the First President of the [Sąd Najwyższy (Supreme Court, Poland)], the Minister for Justice, the President of the [Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland)] and a person appointed by the President of the Republic,

(2)      15 elected members from among the judges of the [Sąd Najwyższy (Supreme Court)], the ordinary courts, the administrative courts and the military courts,

(3)      4 members elected by [the Sejm (Lower Chamber of the Parliament of the Republic of Poland; 'the Lower Chamber')] from among its deputies and 2 members elected by [the Senate (Upper Chamber)] from among its Senators.

…

3.      The term of office of those elected as members of the [KRS] shall be four years.

4.      The organisational structure, the scope of activity and procedures for the work [of the KRS] as well as the procedure by which its members are elected shall be laid down by law.'

The Law on the KRS

6 In accordance with Article 9a of the ustawa o Krajowej Radzie Sądownictwa (Law on the National Council of the Judiciary) of 12 May 2011 (Dz. U. No 126, item 714), as amended by the ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw (Law amending the Law on the National Council of the Judiciary and certain other laws) of 8 December 2017 (Dz. U. of 2018, item 3) ('the Law on the KRS'):

'1.      The Lower Chamber shall elect, from among the judges of the [Sąd Najwyższy (Supreme Court)] and of the ordinary, administrative and military courts, 15 members [of the KRS] for a joint term of four years.

2.      In the election referred to in paragraph 1, the Lower Chamber shall, as far as possible, take into account the need for representation within [the KRS] of judges from various types and levels of courts.

3.      The joint term of office of the new members [of the KRS], elected from among the judges, shall begin on the day following the day of their election. The members [of the KRS] appointed for the previous term of office shall perform their duties until the day on which the joint term of office of the new members [of the KRS] begins.'

7 Article 44 of the Law on the KRS provides:

'1.      A participant in the procedure may appeal to the [Sąd Najwyższy (Supreme Court)] on the grounds that the resolution [of the KRS] is unlawful, unless separate provisions provide otherwise. …

1a.      In individual cases concerning an appointment to a judicial post at the [Sąd Najwyższy (Supreme Court)], an appeal may be lodged with the [Naczelny Sąd Administracyjny (Supreme Administrative Court)]. In those cases, it is not possible to lodge an appeal with the [Sąd Najwyższy (Supreme Court)]. An appeal before the [Naczelny Sąd Administracyjny (Supreme Administrative Court)] cannot be based on an allegation that there was an unlawful assessment of the candidates' fulfilment of the criteria taken into account when making a decision on the submission of a proposal for appointment to a judicial post at the [Sąd Najwyższy (Supreme Court)].

1b.      Unless all the participants in the procedure have challenged the resolution referred to in Article 37(1) in individual cases concerning an appointment to a judicial post at the [Sąd Najwyższy (Supreme Court)], that resolution [of the KRS] becomes final in the part comprising the decision to present the proposal for appointment to a judicial post at the [Sąd Najwyższy (Supreme Court)] and in the part comprising the decision not to present the proposal for appointment to a judicial post at that supreme court for participants in the procedure who did not lodge an appeal.

2.      Appeals shall be lodged through the Przewodniczący [(President of the KRS)], within two weeks of notice of the resolution [of the KRS] with its statement of reasons. …'

The Law on the Supreme Court

8 The ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 (Dz. U. of 2018, item 5) established, in particular, within the Sąd Najwyższy (Supreme Court), the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Chamber of Extraordinary Control and Public Affairs, Poland).

9 Article 26 of the Law on the Supreme Court, as amended by the ustawa o zmianie ustawy – Prawo o ustroju sądów powszechnych, ustawy o Sądzie Najwyższym oraz niektórych innych ustaw (Law amending the Law relating to the organisation of the ordinary courts, the Law on the Supreme Court and certain other laws) of 20 December 2019 (Dz. U. 2020, item 190) provides, in paragraphs 2 and 3 thereof:

'2.      [The Chamber of Extraordinary Control and Public Affairs] shall have jurisdiction to hear applications or declarations concerning the recusal of a judge or the designation of the court before which the proceedings must be conducted, including complaints alleging a lack of independence of the court or the judge. The court dealing with the case shall submit forthwith an application to the President of the [Chamber of Extraordinary Control and Public Affairs] so that the case may be dealt with in accordance with the rules laid down in separate provisions. The submission of an application to the President of the [Chamber of Extraordinary Control and Public Affairs] shall not stay the ongoing proceedings.

3.      The application referred to in paragraph 2 shall not be examined if it concerns the establishment and the assessment of the lawfulness of the appointment of a judge or of his or her power to perform judicial duties.'

The Code of Civil Procedure

10 Under Article 47 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 main proceedings ('the Code of Civil Procedure'):

'1.      At first instance, the court shall adjudicate sitting as a single judge, unless otherwise provided by a specific provision.

…

3.      Rulings given without a hearing shall be made by a court adjudicating as a single judge.

…'

11 In accordance with Article 48 of the Code of Civil Procedure:

'1.      A judge shall be recused by operation of law:

(1)      in cases to which he or she is a party or in which he or she has a legal relationship with one of the parties such that the outcome of the proceedings would affect his or her rights or obligations;

…

(5)      in cases in which he or she participated, in a lower instance, in the adoption of the contested act, as well as in cases concerning the validity of an act examined by him or her or drawn up with his or her participation, as well as in cases where he or she acted as prokurator [(public prosecutor, Poland)];

…'

12 Article 49 of that code provides:

'Irrespective of the grounds set out in Article 48, the court shall, upon application of the judge or of a party, recuse a judge if circumstances exist which are such as to give rise to reasonable doubt as to the impartiality of that judge in the case concerned.'

13 Article 50 of that code provides:

'1.      Parties shall apply for the recusal of a judge in writing or by means of an oral statement made to the court before which the case in question is pending, giving reasons for their application.

2.      Furthermore, parties who participated in the hearing must demonstrate that the circumstance relied on in support of recusal arose or was brought to their attention only subsequently.

3.      Until a decision has been made on the application for the recusal of a judge:

(1)      the judge concerned by that application may continue the proceedings;

(2)      no decision or measure putting an end to the proceedings may be adopted.'

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

14 The dispute in the main proceedings is between two traders concerning a claim under a contract for the provision of services.

15 That contract is a commercial transaction, within the meaning of Article 2(1) of Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions (OJ 2011 L 48, p. 1). In his action, the applicant in the main proceedings has requested, inter alia, that the defendant in the main proceedings be ordered to pay him compensation for the recovery costs incurred, as provided for in Article 6(1) of that directive and Article 10(1) of the ustawa o przeciwdziałaniu nadmiernym opóźnieniom w transakcjach handlowych (Law on counteracting excessive delays in commercial transactions) of 8 March 2013 (Dz. U. of 2013, item 403), which transposes that directive.

16 By letter of 21 May 2021, the defendant in the main proceedings applied for the recusal of Judge S.C., who is hearing the case in the main proceedings. According to that defendant, that judge was not validly appointed to the judicial post. The defendant has submitted that the resolution concerning the judge's appointment was adopted by the KRS in its new composition, whose conformity with the Constitution has been called into question by the Naczelny Sąd Administracyjny (Supreme Administrative Court).

17 Judge S.C. has argued that there is no circumstance capable of giving rise to doubts as to her impartiality and that there is therefore no reason to exclude her from the examination of that case.

18 The application for the recusal of that judge was submitted for examination to the Sąd Rejonowy Poznań-Stare Miasto w Poznaniu (District Court, Stare Miasto w Poznaniu, Poznān, Poland), which is the referring court, sitting as a single judge hearing that application.

19 In that context, the referring court is uncertain as regards certain factors attending the appointment of that judge. More specifically, that court states that that judge was appointed by the President of the Republic of Poland to a judicial post at the Sąd Rejonowy Poznań-Stare Miasto w Poznaniu (District Court, Stare Miasto w Poznaniu, Poznān), on a proposal of the KRS in its new composition.

20 In that regard, the referring court states that three candidatures for the judicial post in question were submitted, including that of S.C., who had been principal assistant to a judge at the Sąd Okręgowy w Poznaniu (Regional Court, Poznań, Poland) since 2016. The referring court states that the college of the Sąd Okręgowy w Poznaniu (Regional Court, Poznań) and the assembly of representatives of judges of the district courts at the Sąd Okręgowy w Poznaniu (Regional Court, Poznań), on 21 and 24 September 2018, respectively, issued a favourable opinion on the candidature of S.C.

21 By Resolution No 611/2018 of 4 December 2018, the KRS selected, from the three candidatures submitted, that of S.C. and made a proposal to the President of the Republic of Poland that she be appointed to that judicial post. The two other candidates did not lodge an appeal against that resolution on the basis of Article 44(1) of the Law on the KRS. On 14 March 2019, the President of the Republic of Poland decided to appoint S.C. to that judicial post.

22 In that context, the referring court has doubts, first, whether the procedure for the appointment of Judge S.C. is consistent with EU law, in particular in view of the composition of the KRS and its role in that procedure and the lack of an effective remedy against that appointment for the participants in that procedure. Second, the referring court's doubts in that regard stem from the case-law of the Trybunał Konstytucyjny (Constitutional Court, Poland), according to which an application for the recusal of a judge alleging irregularities committed at the time of that judge's appointment is inadmissible, and from the provisions of national law under which the examination of the lawfulness of the appointment of a judge comes within the exclusive jurisdiction of the Chamber of Extraordinary Control and Public Affairs. The referring court also points, in that context, to the case-law of the Trybunał Konstytucyjny (Constitutional Court) arising from the judgment of that court of 14 July 2021, in Case P 7/20, in which that constitutional court held that the second sentence of Article 4(3) TEU, read in conjunction with Article 279 TFEU, is incompatible with the Polish legal order, in so far as those provisions allow the Court of Justice to impose 'ultra vires obligations' on the Republic of Poland by way of interim measures relating to the organisation and jurisdiction of the Polish courts and the procedure applicable before them.

23 In that regard, the referring court states, first, that the KRS is, pursuant to the Constitution, a body that is essential to the autonomy of the judiciary, responsible for safeguarding the independence of judges and courts. Accordingly, the composition and functioning of that body must meet the requirements laid down by the Constitution, in order to ensure that the proposals for appointments to judicial posts submitted by it to the President of the Republic are made by a body that is independent and is representative of the judiciary. Nevertheless, the referring court states that, in its new composition, resulting from the Law on the KRS, the KRS was established in breach of the fundamental constitutional principles of Polish law and the values of the rule of law enshrined in EU law. In particular, the election of the 15 members of the KRS acting as judges by the Lower Chamber, and not by the judges themselves, has led to a loss of autonomy on the part of the judiciary and to that body's clear dependence on the legislature and the executive. The referring court emphasises that those findings have been expressly confirmed by the Naczelny Sąd Administracyjny (Supreme Administrative Court), by the European Court of Human Rights, and by the Court of Justice itself, which have all stated that the KRS does not, in its new composition, provide the guarantees of independence and impartiality required, inter alia, by EU law.

24 Second, the referring court notes that the examination of appeals brought against resolutions of the KRS relating to proposals for appointments to judicial posts is entrusted to the Chamber of Extraordinary Control and Public Affairs, composed exclusively of persons designated following an appointment procedure conducted by the KRS in its new composition. In those circumstances, according to the referring court, that chamber cannot be regarded as providing the guarantees of independence required of a 'tribunal previously established by law'. The referring court states that, in the absence of any other real possibility of challenging the regularity of that procedure, the lack of an effective remedy is such as systemically to give rise to reasonable doubt as regards the independence and impartiality of judges appointed following that procedure.

25 In those circumstances the Sąd Rejonowy Poznań-Stare Miasto w Poznaniu (District Court, Stare Miasto w Poznaniu, Poznān) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

'(1)      Must [Article 2 and Article 19(1) TEU] and Article 6(1) to (3) TEU, read in conjunction with Article 47 of [the Charter], be interpreted as meaning that a court is not a tribunal established by law in the case where it includes in its composition a person appointed to a judicial post in that court as a result of a procedure in which:

(a)      the person to be appointed to the post by [the President of the Republic of Poland] was selected by the current [KRS], which was elected contrary to Polish constitutional and statutory provisions, is not an independent body and no representatives of the judiciary were elected to it independently of the executive and the legislature and, therefore, no motion for appointment to a judicial post as provided for under national law was effectively lodged;

(b)      the participants in the competition for appointment to the post had no right of appeal to a court [or tribunal] within the meaning of [Article 2 and Article 19(1)] TEU and Article 6(1) to (3) TEU, read in conjunction with Article 47 of the Charter?

(2)      Must Article 2 and Article 19(1) TEU, read in conjunction with Article 47 of the Charter, be interpreted as meaning that, where a court includes in its composition a person appointed in the circumstances described in [the first question] above:

(a)      those provisions preclude the application of provisions of national law which place the review of the lawfulness of the appointment of such a person to a judicial post within the exclusive jurisdiction of [the Chamber of Extraordinary Control and Public Affairs] composed exclusively of persons appointed to judicial posts in the circumstances described in [the first question] above and which provisions of national law also require that any objections concerning the appointment to a judicial post be disregarded, taking into account the institutional and systemic context;

(b)      those provisions require, in order to ensure the effectiveness of EU law, provisions of national law to be interpreted in a manner that allows a court to exclude, of its own motion, such a person from hearing the case on the basis of the rules, applicable by analogy, which govern the exclusion of a judge who is incapable of deciding cases (iudex inhabilis);

(c)      those provisions require the national court, in order to apply EU law and achieve the effet utile, to disregard a judgment of the national constitutional court in so far as that judgment declares it incompatible with national law to hear a motion for the exclusion of a judge on the ground that the appointment of that judge was defective and did not comply with EU requirements of an independent and impartial tribunal previously established by law within the meaning of Article 19(1) TEU, read in conjunction with Article 47 of the Charter;

(d)      those provisions require the national court, in order to apply EU law and achieve the effet utile, to disregard a judgment of the national constitutional court if it prevents the implementation of an order of the Court of Justice … granting interim measures, which orders the suspension of the application of national legislation that prevents national courts from examining whether there is compliance with EU requirements concerning an independent and impartial tribunal previously established by law within the meaning of Article 19(1) TEU, read in conjunction with Article 47 of the Charter?'

Procedure before the Court

26 By decisions of the President of the Court of 23 March 2022 and 11 January 2024, the proceedings were, respectively, stayed pending the final decision in Joined Cases C‑181/21 and C‑269/21 and resumed.

The jurisdiction of the Court

27 The Prokuratura Okręgowa w Poznaniu (Regional Public Prosecutor's Office, Poznań, Poland) claims that the Court has no jurisdiction to hear and determine the request for a preliminary ruling on the ground, in essence, that the questions referred concern the organisation of justice, an area which does not fall within the competence of the European Union.

28 In that regard, it is clear from settled case-law that, although it is true that 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 and that that may be the case, in particular, as regards national rules relating to the adoption of decisions appointing judges and, where applicable, rules relating to the judicial review that applies in the context of such appointment procedures (judgments of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 75 and the case-law cited; of 22 March 2022, Prokurator Generalny (Disciplinary Chamber of the Supreme Court – Appointment), C‑508/19, EU:C:2022:201, paragraph 56; and of 6 March 2025, D.K. (Withdrawal of cases from a judge), C‑647/21 and C‑648/21, EU:C:2025:143, paragraph 42).

29 Furthermore, the objection thus raised by the Regional Public Prosecutor's Office, Poznań, relates, in essence, to the actual scope of the provisions of EU law set out in the questions referred and, therefore, to the interpretation of those provisions. Such an interpretation clearly falls within the jurisdiction of the Court under Article 267 TFEU (see, to that effect, judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 76 and the case-law cited).

30 The Court therefore has jurisdiction to rule on the request for a preliminary ruling.

Admissibility

31 The Regional Public Prosecutor's Office, Poznań, submits, in the first place, that the questions referred are hypothetical, given that the referring court has not put forward any specific circumstance such as to indicate that Judge S.C. failed to guarantee her independence or that she was irregularly appointed.

32 In that regard, it must be noted that those questions seek, first, to enable the referring court to assess the compatibility of the national legislation governing the appointment of judges, in particular the appointment of that judge, with, inter alia, the second subparagraph of Article 19(1) TEU, read in conjunction with the second paragraph of Article 47 of the Charter. Second, those questions seek to determine whether those provisions preclude legislation of a Member State and case-law of that Member State's constitutional court that confer exclusive jurisdiction to review the lawfulness of a judicial appointment in a procedure for recusal on the basis of the circumstances in which that judge was appointed on a body which, like the Chamber of Extraordinary Control and Public Affairs, does not meet the requirements under the second subparagraph of Article 19(1) TEU.

33 It must be stated that the arguments thus relied on by the Regional Public Prosecutor's Office, Poznań, concerning the guarantees of independence provided by Judge S.C. relate, in essence, to the scope and, therefore, to the interpretation of the provisions of EU law to which the questions referred relate, and to the effects which may flow from those provisions. Such arguments, which relate to the substance of the questions referred, cannot therefore, by their very nature, lead to the inadmissibility of the questions (judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 90 and the case-law cited).

34 Those questions cannot therefore be regarded as hypothetical.

35 In the second place, the Regional Public Prosecutor's Office, Poznań, submits that the referring court failed to comply with the obligation laid down in Article 94(c) of the Rules of Procedure of the Court of Justice as regards the description of the reasons why it is uncertain about the interpretation of the provisions of EU law concerned and of the relationship between those provisions and the national legislation at issue in the main proceedings.

36 In that regard, it must be stated that the request for a preliminary ruling contains all the information required by Article 94(c) of those rules of procedure, in particular the content of the national provisions at issue in the main proceedings, the reasons which prompted the referring court to ask the Court about the interpretation of the provisions of EU law set out in the questions referred and the relationship established by that court between those provisions of EU law and those national provisions, with the result that the Court has all the information necessary to rule on those questions.

37 The request for a preliminary ruling is therefore admissible.

Consideration of the questions referred

Preliminary observations

38 It is apparent from the grounds of the order for reference, first, that the questions referred concern, in essence, the interpretation of the principle of independence and impartiality of courts and tribunals, as laid down in the second subparagraph of Article 19(1) TEU and in Article 47 of the Charter and, second, that, as has been stated in paragraph 15 above, the case which gave rise to the application for recusal at issue in the main proceedings concerns, inter alia, the Polish legislation transposing Directive 2011/7. Therefore, the dispute in the main proceedings comes within the scope of the second subparagraph of Article 19(1) TEU as well as within that of Article 47 of the Charter.

39 In those circumstances, it is necessary to examine the questions referred only in the light of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, without it being necessary to interpret also Article 6(1) to (3) TEU, since the referring court has not stated the reasons why it is asking the Court about the interpretation of that latter provision.

The second question

40 By its second question, which it is appropriate to examine in the first place, the referring court asks, in essence, whether the second subparagraph of Article 19(1) TEU and Article 47 of the Charter must be interpreted as precluding legislation of a Member State and case-law of that Member State's constitutional court under which, in a procedure for recusal on the basis of the circumstances in which the judge who is the subject of that procedure was appointed, the examination of the application for recusal comes within the exclusive jurisdiction of a body such as the Chamber of Extraordinary Control and Public Affairs, and any review by that body of the lawfulness of that judge's appointment is excluded, and, if so, whether, in order to preserve the effectiveness of those provisions, the national court hearing that application for recusal is required to apply, by analogy, the national provisions relating to recusal by operation of law of a judge who is incapable of adjudicating.

41 As a preliminary point, it should be noted that, as is recalled, in essence, in paragraph 28 above, although the organisation of justice in the Member States, in particular the establishment, composition, jurisdiction and functioning of the national courts, including as regards the procedure for reviewing the legality of the appointment of judges, falls within the competence of those States, those Member States are nevertheless required, in the exercise of that competence, to comply with their obligations deriving from EU law and, in particular, from the second subparagraph of Article 19(1) TEU.

42 In that regard, the principle of effective judicial protection, referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the Convention for the Protection of Human Rights, signed in Rome on 4 November 1950 ('the ECHR'), and is now reaffirmed in Article 47 of the Charter (judgments 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, EU:C:2021:1034, paragraph 219 and the case-law cited; of 11 May 2023, Inspecţia Judiciară, C‑817/21, EU:C:2023:391, paragraph 40; and of 8 May 2024, Asociaţia 'Forumul Judecătorilor din România' (Associations of judges), C‑53/23, EU:C:2024:388, paragraph 35).

43 Moreover, in so far as the Charter sets out rights corresponding to rights guaranteed under the ECHR, Article 52(3) of the Charter is intended to ensure the necessary consistency between the rights enshrined in the Charter and the corresponding rights guaranteed under the ECHR, without thereby adversely affecting the autonomy of EU law. The Court must, accordingly, ensure that its interpretation in a specific case safeguards a level of protection which does not fall below the level of protection guaranteed by Article 6(1) ECHR, as interpreted by the European Court of Human Rights (see, to that effect, judgments of 11 July 2024, Hann-Invest and Others, C‑554/21, C‑622/21 and C‑727/21, EU:C:2024:594, paragraph 46 and the case-law cited; of 1 August 2025, Dimnev, C‑404/24, EU:C:2025:595, paragraph 44; and of 4 September 2025, AW 'T', C‑225/22, EU:C:2025:649, paragraph 46).

44 That said, it should be recalled that 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 which thus come within its judicial system in the fields covered by EU law, meet the requirements of effective judicial protection, including that of independence (judgments of 11 July 2024, Hann-Invest and Others, C‑554/21, C‑622/21 and C‑727/21, EU:C:2024:594, paragraph 47 and the case-law cited; of 4 September 2025, AW 'T', C‑225/22, EU:C:2025:649, paragraph 47; and of 18 December 2025, Commission v Poland (Ultra vires review of the Court's case-law – Primacy of EU law), C‑448/23, EU:C:2025:975, paragraph 107).

45 In the present case, the referring court is called upon to examine the application for the recusal of a judge on the ground that that judge was not validly appointed. Nevertheless, under the provisions of Polish law, as interpreted by the Trybunał Konstytucyjny (Constitutional Court), the review of the lawfulness of the appointment of the person concerned to the judicial post comes within the exclusive jurisdiction of the Chamber of Extraordinary Control and Public Affairs, with the result that, pursuant to that law and the case-law of that Polish constitutional court, it is not for the referring court itself to carry out that examination and that court must leave that assessment for that chamber. Furthermore, that exclusive jurisdiction remains limited, since, in accordance with Article 26(3) of the Law on the Supreme Court, that chamber is not to examine an application submitted pursuant to Article 26(2) thereof if it concerns the establishment and assessment of the lawfulness of a judicial appointment.

46 In that regard, after the request for a preliminary ruling was made, the Court held, in essence, in paragraphs 201 and 386 of the judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) (C‑204/21, EU:C:2023:442), that the Republic of Poland, by adopting and maintaining in force national rules which prohibit national courts, on pain of disciplinary penalties, from ascertaining whether they or the judges of whom they are composed or other judges or courts satisfy the requirements of EU law relating to independence, impartiality and previous establishment by law of the courts and judges concerned, has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter and under the principle of the primacy of EU law.

47 In the case which gave rise to that judgment, the Court upheld the first and second complaints raised by the European Commission, which concerned, inter alia, the compatibility with the second subparagraph of Article 19(1) TEU in conjunction with Article 47 of the Charter of Article 42a(1) and (2) of the ustawa – Prawo o ustroju sądów powszechnych (Law relating to the organisation of the ordinary courts) of 27 July 2001 (Dz. U. No 98, item 1070), prohibiting any national court from examining compliance with the requirements stemming from EU law relating to the guarantee of an 'independent and impartial tribunal previously established by law', and of points 2 and 3 of Article 107(1) of that law, which allow the examination of compliance with those requirements to be classified as a disciplinary offence (see, to that effect, judgment of 4 September 2025, AW 'T', C‑225/22, EU:C:2025:649, paragraph 60).

48 In that regard, it must be borne in mind that the Court reached that conclusion after noting, inter alia, that Article 26(3) of the Law on the Supreme Court precludes the Chamber of Extraordinary Control and Public Affairs from being able, following the transmission to that chamber by another court of an application for the recusal of a judge, to examine that application where it concerns the establishment or the assessment of the lawfulness of the appointment of a judge and of his or her power to carry out judicial tasks (judgment of 5 June 2023, Commission v Poland (Independence and private life of judges), C‑204/21, EU:C:2023:442, paragraph 198).

49 That conclusion was also based, in part, on the fact that, in essence, the national rules referred to in paragraph 46 above were, because of the prohibitions and disciplinary offences they impose on judges of the Sąd Najwyższy (Supreme Court) and all the ordinary and administrative courts, such as to prevent them from making findings and assessments which, in certain circumstances, are incumbent on them under EU law, in the light of the requirements arising from the second subparagraph of Article 19(1) TEU and Article 47 of the Charter relating to the guarantee of an 'independent and impartial tribunal previously established by law' (see, to that effect, judgment of 5 June 2023, Commission v Poland (Independence and private life of judges), C‑204/21, EU:C:2023:442, paragraph 285).

50 It is clear from the second subparagraph of Article 19(1) TEU that the Member States are required to ensure that there is effective judicial review enabling, where appropriate, the lawfulness of the judicial appointment procedure to be reviewed. That obligation stems from the very requirement of a 'tribunal previously established by law', which presupposes that the procedure for the appointment of judges is subject to guarantees designed to prevent any interference with the independence and impartiality of judges. Thus, the second subparagraph of Article 19(1) TEU requires that a national court be able, in certain circumstances, to ascertain whether an irregularity vitiating the procedure for the appointment of a judge could have led to an infringement of the fundamental right to an effective remedy before an independent and impartial tribunal previously established by law, for the purposes of that provision and Article 47 of the Charter (judgments of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraphs 130 and 131, 152 to 154 and 159, and of 5 June 2023, Commission v Poland (Independence and private life of judges), C‑204/21, EU:C:2023:442, paragraph 131).

51 Furthermore, the second subparagraph of Article 19(1) TEU imposes on the Member States a clear and precise obligation as to the result to be achieved, which is not subject to any condition as regards the independence which must characterise the courts called upon to interpret and apply EU law. It follows that national courts which are called upon, in the exercise of their jurisdiction, to apply EU law are required to ensure the full effect of the requirements of EU law and therefore of the second subparagraph of Article 19(1), if necessary by disapplying any provision of national law which is contrary to EU law (see, to that effect, judgments of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraph 146, and 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, EU:C:2021:1034, paragraph 253 and the case-law cited).

52 It is settled case-law that any national court, hearing a case within its jurisdiction, has, as an organ of a Member State, the obligation to disapply any provision of national law which is contrary to a provision of EU law with direct effect in the case pending before it (judgments of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 61, and of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 158 and the case-law cited).

53 Thus, where it is proved that the second subparagraph of Article 19(1) TEU has been infringed, the principle of the primacy of EU law requires national courts that are called upon to apply EU law, in the exercise of their jurisdiction, to disapply, of their own motion, the provisions of national law that fail to meet the requirements arising from the second subparagraph of Article 19(1) TEU, whether they are of a legislative or constitutional origin, and it is not necessary for those courts to request or await the prior setting aside of such provisions by legislative or other constitutional means (see, to that effect, judgments of 18 May 2021, Asociaţia 'Forumul Judecătorilor din România' and Others, C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraphs 247 and 251, and of 22 February 2022, RS (Effect of the decisions of a constitutional court), C‑430/21, EU:C:2022:99, paragraph 53 and the case-law cited).

54 Furthermore, it is clear from settled case-law that a national court, having exercised the discretion conferred on it by the second paragraph of Article 267 TFEU, must, if necessary, disregard the rulings of a higher national court, including a constitutional court, if it considers, having regard to the interpretation provided by the Court, that they are not consistent with EU law, if necessary refusing to apply the national rule requiring it to comply with the decisions of that higher court. That solution also applies where an ordinary court is bound, under a national procedural rule, by a decision of a national constitutional court which it considers to be contrary to EU law (see, to that effect, judgment of 22 February 2022, RS (Effect of the decisions of a constitutional court), C‑430/21, EU:C:2022:99, paragraphs 75 and 76).

55 In that regard, the Court held, in the judgment of 18 December 2025, Commission v Poland (Ultra vires review of the Court's case-law – Primacy of EU law) (C‑448/23, EU:C:2025:975, paragraph 196), that the Republic of Poland had, in the light of the interpretation of the Constitution given by the Trybunał Konstytucyjny (Constitutional Court) in its judgment of 14 July 2021, cited in paragraph 22 above, failed to fulfil its obligations under the principles of autonomy, primacy, effectiveness and uniform application of EU law.

56 It follows that a Polish court is required to disregard the rulings in the judgment of the Trybunał Konstytucyjny (Constitutional Court) of 14 July 2021, in so far as that judgment upholds the prohibition, for any national court, on ascertaining whether another body meets the requirements of EU law as regards the guarantee of an independent and impartial tribunal previously established by law.

57 In the present case, in the light of the considerations set out in paragraphs 41 to 56 above, in a situation such as that at issue in the main proceedings, in which the referring court is called upon to examine an application seeking the recusal of a judge on the basis of the circumstances in which that judge was appointed, that court must disapply the Polish legislation, as interpreted in particular by the Trybunał Konstytucyjny (Constitutional Court), that prohibits it from examining the lawfulness of that appointment and that requires it to leave that examination for the Chamber of Extraordinary Control and Public Affairs, in order for that referring court to carry out that examination itself and draw the appropriate inferences, by ruling, as the case may be, that the judge in question should be recused.

58 It must be noted, however, that it is apparent from the file before the Court, and in particular from the observations made at the hearing, that irregular appointments to judicial posts are systemic in Poland. According to that file, more than 3 000 judges, that is to say, approximately 30% of the judges of that Member State, were appointed on a proposal of the KRS in its new composition, without the candidates excluded from the appointment procedures having an effective remedy against the proposals of the KRS. In addition, many aspects of that reform have already been found, by a number of judgments of the European Court of Human Rights and the Court of Justice itself, not to meet the requirements arising, respectively, from Article 6(1) ECHR and from the second subparagraph of Article 19(1) TEU, read in conjunction with Article 47 of the Charter.

59 In that regard, as has been stated, in essence, in paragraph 44 above, the second subparagraph of Article 19(1) TEU requires each Member State to establish and maintain a judicial system capable of ensuring that the bodies that come within that system and that have jurisdiction to rule on actions in the fields covered by EU law meet the requirements of effective judicial protection, which includes the requirement of independence.

60 In view of the systemic nature of irregular appointments, a case-by-case assessment of compliance with the requirement of a 'tribunal previously established by law', in procedures for recusal on the basis of the circumstances in which the judges in question were appointed, cannot, in principle, suffice to ensure full compliance with the requirement, arising from the second subparagraph of Article 19(1) TEU, that cases coming within the scope of EU law be examined by independent courts or tribunals.

61 That is all the more so since the existence of systemic or generalised interferences with the independence of the national judiciary resulting from such irregular appointments is also liable to undermine the proper functioning of the preliminary ruling procedure, which constitutes an essential component of the system established by the Treaties in order to enable national courts or tribunals to ensure effective judicial protection of the rights which individuals derive from EU law (judgment of 1 August 2025, Royal Football Club Seraing, C‑600/23, EU:C:2025:617, paragraph 77 and the case-law cited), and such inferences thus seriously undermine the uniformity, consistency and full effect of EU law.

62 Furthermore, it must also be noted that the European Court of Human Rights, ruling in accordance with the pilot-judgment procedure in its judgment of 23 November 2023, Wałęsa v. Poland (CE:ECHR:2023:1123JUD005084921), held, in essence, that the interrelated systemic problems identified require appropriate legislative and other measures on the part of the Polish State intended to address the problems of judicial independence linked to the reforms in that State.

63 Accordingly, in order, first, to restore public trust in the judicial system and to ensure observance of the principle of the separation of powers, and second, to guarantee the continuity and effectiveness of the functioning of justice, including the effectiveness of the preliminary ruling mechanism provided for in Article 267 TFEU, it is a matter for the national legal order, pursuant to the second subparagraph of Article 19(1) TEU, to create a legislative framework that enables, in view of the nature and gravity of the irregularities committed during the judicial appointment procedure, an assessment of the possibilities for persons irregularly appointed to judicial posts to continue to perform their duties.

64 The second subparagraph of Article 19(1) TEU does not, however, impose on the Member States a single model for ensuring effective judicial protection or for restoring the trust that the public has lost in the judicial system as a result of systemic irregularities in the appointments to judicial posts.

65 Thus, the Member States have a broad discretion as regards the specific content of the legislative framework established for that purpose, provided, however, that that framework ensures, by means of objective criteria, that only those irregularly appointed persons who have provided sufficient guarantees of independence and impartiality may continue to perform their duties.

66 In the light of all the foregoing considerations, the answer to the second question is that the second subparagraph of Article 19(1) TEU, Article 47 of the Charter and the principle of the primacy of EU law must be interpreted as precluding legislation of a Member State and case-law of that Member State's constitutional court interpreting that legislation that confer exclusive jurisdiction on a body to adjudicate on an application seeking the recusal of a judge on the basis of the circumstances in which that judge was appointed, while depriving that body of the power to examine that application if it challenges the lawfulness of the procedure for the appointment of that judge. It is for the national court hearing such an application for recusal to disapply that legislation, as interpreted in that case-law, and itself to examine the lawfulness of that judge's appointment, in particular by ascertaining whether that judge meets the requirement of a 'tribunal previously established by law' and, as the case may be, by ruling that that judge should be recused where any potential irregularities vitiating that appointment entail a failure to meet that requirement.

The first question

67 By its first question, the referring court asks, in essence, whether the second subparagraph of Article 19(1) TEU and Article 47 of the Charter must be interpreted as precluding classification as an 'independent and impartial tribunal' of a judicial panel consisting of a single judge who was appointed to that post following an appointment procedure characterised by the fact that, in the first place, that judge's candidature was recommended by a body that is not independent and, in the second place, the other participants in that appointment procedure did not have a right to an effective judicial remedy with a view to challenging the lawfulness of that judge's appointment.

68 In that regard, as recalled in paragraph 42 above, the principle of effective judicial protection referred to in the second subparagraph of Article 19(1) TEU is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined, inter alia, in Article 6(1) of the ECHR, and is now reaffirmed in the second paragraph of Article 47 of the Charter.

69 The guarantees of access to an independent and impartial tribunal previously established by law, and in particular those which determine what constitutes a tribunal and how it is composed, represent the cornerstone of the right to a fair trial. Checking whether, as composed, a court constitutes such a tribunal where there is a serious doubt on that point is necessary for the confidence which the courts in a democratic society must inspire in those subject to their jurisdiction (see, to that effect, judgments of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraph 58 and the case-law cited; of 29 March 2022, Getin Noble Bank, C‑132/20, EU:C:2022:235, paragraph 113; and of 8 May 2024, Asociaţia 'Forumul Judecătorilor din România' (Associations of judges), C‑53/23, EU:C:2024:388, paragraph 55).

70 According to settled case-law, the guarantees of independence and impartiality thus required under EU law presuppose rules, particularly as regards the composition of the body concerned and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, that are such as 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 (judgments of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 109; of 5 June 2023, Commission v Poland (Independence and private life of judges), C‑204/21, EU:C:2023:442, paragraph 93 and the case-law cited; and of 18 December 2025, Commission v Poland (Ultra vires review of the Court's case-law – Primacy of EU law), C‑448/23, EU:C:2025:975, paragraph 263).

71 In that regard, it is necessary that judges are protected from external intervention or pressure liable to jeopardise their independence. The rules applicable to the status of judges and the performance of their duties must, in particular, be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned, and thus preclude a lack of appearance of independence or impartiality on their part likely to prejudice the trust which justice in a democratic society governed by the rule of law must inspire in individuals (judgments of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 110; of 5 June 2023, Commission v Poland (Independence and private life of judges), C‑204/21, EU:C:2023:442, paragraph 94 and the case-law cited; and of 18 December 2025, Commission v Poland (Ultra vires review of the Court's case-law – Primacy of EU law), C‑448/23, EU:C:2025:975, paragraph 264).

72 In that context, the Court, referring to the case-law of the European Court of Human Rights, has held that, while the right to a 'tribunal previously established by law' constitutes an independent right, it is nevertheless very closely related to the guarantees of 'independence' and 'impartiality'. In particular, in accordance with the principle of the separation of powers which characterises the operation of the rule of law, the independence of the judiciary must in particular be ensured in relation to the legislature and the executive (see, to that effect, judgments of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraphs 124 and 127 and the case-law cited; of 29 March 2022, Getin Noble Bank, C‑132/20, EU:C:2022:235, paragraphs 117 and 118 and the case-law cited; and of 21 December 2023, Krajowa Rada Sądownictwa (Continued holding of a judicial office), C‑718/21, EU:C:2023:1015, paragraph 47).

73 In that regard, the reason for the requirement relating to a 'tribunal previously established by law', within the meaning of EU 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 (judgments 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; of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 129; and of 18 December 2025, Commission v Poland (Ultra vires review of the Court's case-law – Primacy of EU law), C‑448/23, EU:C:2025:975, paragraph 265).

74 It is therefore necessary that the substantive conditions and procedural rules governing the adoption of those decisions to appoint judges are such that they cannot give rise to reasonable doubt, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them, once they have been appointed. It is important, inter alia, in that perspective, that those conditions and procedural rules should be drafted in a way which meets the requirements set out in the preceding paragraph of the present judgment (see, to that effect, judgment of 29 March 2022, Getin Noble Bank, C‑132/20, EU:C:2022:235, paragraph 97 and the case-law cited).

75 As regards, more specifically, the judicial appointment procedure, the Court of Justice, referring to the case-law of the European Court of Human Rights, has also held that, having regard to its fundamental implications for the proper functioning and the legitimacy of the judiciary in a democratic State governed by the rule of law, the procedure for the appointment of judges necessarily constitutes an inherent element of the concept of a 'tribunal previously established by law', within the meaning of the second paragraph of Article 47 of the Charter. Thus, the independence of a tribunal within the meaning of that provision may be measured, inter alia, by the way in which its members are appointed (see, to that effect, judgments of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraph 57 and the case-law cited; of 29 March 2022, Getin Noble Bank, C‑132/20, EU:C:2022:235, paragraph 120 and the case-law cited; and of 21 December 2023, Krajowa Rada Sądownictwa (Continued holding of a judicial office), C‑718/21, EU:C:2023:1015, paragraph 60).

76 That said, not every error that may take place during the procedure for the appointment of a judge is of such a nature as to give rise to doubts on the independence and impartiality of that judge and, accordingly, on whether a formation which includes that judge can be considered to be an 'independent and impartial tribunal previously established by law' within the meaning of EU law (judgments of 29 March 2022, Getin Noble Bank, C‑132/20, EU:C:2022:235, paragraph 123, and of 18 December 2025, Commission v Poland (Ultra vires review of the Court's case-law – Primacy of EU law), C‑448/23, EU:C:2025:975, paragraph 267).

77 It is settled case-law that an irregularity committed during the appointment of one or more judges within the judicial system concerned entails an infringement of the requirement of a 'tribunal previously 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 procedure and thus give rise to reasonable doubt in the minds of individuals as to the independence and the impartiality of the judge or judges concerned. That is the case where what is at issue are fundamental rules forming an integral part of the establishment and functioning of that judicial system (see, to that effect, judgments of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 130, and of 29 July 2024, Valančius, C‑119/23, EU:C:2024:653, paragraph 52 and the case-law cited).

78 A finding that there has been a breach of the requirement of a 'tribunal previously established by law' and the consequences of such a breach is subject to an overall assessment of a number of factors which, taken together, serve to create in the minds of individuals reasonable doubt as to the independence and impartiality of the judges (judgments of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraph 74 and the case-law cited, and of 18 December 2025, Commission v Poland (Ultra vires review of the Court's case-law – Primacy of EU law), C‑448/23, EU:C:2025:975, paragraph 269).

79 In the present case, having regard to the finding made in paragraph 57 above, it will therefore ultimately be for the referring court to rule, in the light of all the principles recalled in paragraphs 68 to 75 above, and after making the assessments necessary for that purpose, on the question whether all the circumstances in which Judge S.C. was appointed and, in particular, any irregularities that might have been committed in the judicial appointment procedure, are such as to lead to the conclusion that that judge cannot be regarded as an 'independent and impartial tribunal previously established by law' within the meaning of EU law.

80 Article 267 TFEU does not empower the Court to apply rules of EU law to a particular case, but only to rule on the interpretation of the Treaties and of acts adopted by the EU institutions. That said, according to settled case-law, the Court may, in the framework of the judicial cooperation provided for by Article 267 TFEU and on the basis of the material in the case file before it, provide the national court with an interpretation of EU law which may be useful to it in assessing the effects of one or other of its provisions (see, to that effect, judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraphs 132 and 133 and the case-law cited).

81 As regards the matters at issue in the main proceedings, and more specifically, in the first place, the fact that the candidature of Judge S.C. was recommended by the KRS in its new composition, it must be noted, as is clear from paragraph 23 above, that the KRS is, according to the Constitution, a body that is essential to the autonomy of the judiciary, responsible for ensuring the independence of judges and courts.

82 As regards the KRS in its new composition, the Court held that the fact that the ongoing term of office of some of the members who had, until that point, made up the KRS, of a duration of four years as laid down in Article 187(3) of the Constitution, had been reduced and the fact that, following the amendments made to the Law on the National Council of the Judiciary which led to the Law on the KRS, the 15 members of the KRS acting as judges, who had been previously elected by their peers, were designated by a branch of the Polish legislature, with the result that 23 of the 25 members comprising the KRS in that new composition were designated by the Polish executive and legislature or are members of those branches of government, could give rise to reasonable doubt as regards the independence of the KRS and its role in the appointment procedure leading to appointments to judicial posts at the Sąd Najwyższy (Supreme Court) (see, to that effect, judgments of 15 July 2021, Commission v Poland (Disciplinary regime for judges), C‑791/19, EU:C:2021:596, paragraphs 104, 105 and 108, and of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraphs 146 and 150).

83 However, it is also clear from the case-law of the Court that the fact that the KRS in its new composition does not provide sufficient guarantees of independence to dispel all reasonable doubt as to the regularity of the procedures for the appointment of judges in which it is involved does not suffice, in itself, to support the conclusion that the requirements inherent in the second subparagraph of Article 19(1) TEU and Article 47 of the Charter have not been met (see, to that effect, judgment of 22 February 2022, Openbaar Ministerie (Tribunal established by law in the issuing Member State), C‑562/21 PPU and C‑563/21 PPU, EU:C:2022:100, paragraph 75 and the case-law cited).

84 In the second place, as regards the lack of a right to an effective judicial remedy for the participants in the appointment procedure concerned, since they may bring an appeal only before the Chamber of Extraordinary Control and Public Affairs, which is itself composed of judges appointed on a proposal of the KRS in its new composition, it must be recalled that, in paragraph 77 of the judgment of 21 December 2023, Krajowa Rada Sądownictwa (Continued holding of a judicial office) (C‑718/21, EU:C:2023:1015), the Court held, in the context of an assessment of the status of the Chamber of Extraordinary Control and Public Affairs as a 'court or tribunal' within the meaning of Article 267 TFEU, that, taken together, the consequence of the factors, both systemic and circumstantial, which characterised the appointment, within that body, of the judges initially appointed to that chamber is that the Chamber does not have the status of an 'independent and impartial tribunal previously established by law' for the purposes of the second subparagraph of Article 19(1) TEU, read in conjunction with the second paragraph of Article 47 of the Charter (see, to that effect, judgment of 4 September 2025, AW 'T', C‑225/22, EU:C:2025:649, paragraphs 49 and 50).

85 Furthermore, following on from that judgment, the Court held, in several orders, on the basis of the same grounds, that requests for a preliminary ruling submitted by the Chamber of Extraordinary Control and Public Affairs composed, in whole or in part, of members appointed in the same circumstances as those at issue in the case which gave rise to that judgment were inadmissible (orders of 9 April 2024, T. (Audiovisual programmes for children), C‑22/22, EU:C:2024:313; of 15 May 2024, Rzecznik Finansowy, C‑390/23, EU:C:2024:419; of 29 May 2024, Prokurator Generalny (Polish extraordinary appeal II), C‑43/22, EU:C:2024:459; of 29 May 2024, Rzecznik Praw Obywatelskich (Polish extraordinary appeal), C‑720/21, EU:C:2024:489; and of 21 June 2024, Kancelaria B., C‑810/23, EU:C:2024:543).

86 In the present case, as is apparent from the file before the Court, at the time of the appointment of Judge S.C., when an appeal could be brought before the Chamber of Extraordinary Control and Public Affairs, all the judges sitting in that chamber had been appointed in the circumstances that were examined by the Court in the judgment of 21 December 2023, Krajowa Rada Sądownictwa (Continued holding of a judicial office) (C‑718/21, EU:C:2023:1015), and that led to the finding, recalled in paragraph 84 above, that that chamber does not have the status of an 'independent and impartial tribunal previously established by law'.

87 Thus, subject to the assessments which it will be for the referring court to make, the appeal that may be brought before the Chamber of Extraordinary Control and Public Affairs cannot be regarded as an effective remedy, since it would be brought before a court whose members do not meet the requirement of a 'tribunal previously established by law' for the purposes of the second subparagraph of Article 19(1) TEU, read in conjunction with the second paragraph of Article 47 of the Charter.

88 As regards the question whether the lack, for the participants in the appointment procedure concerned, of a right to an effective judicial remedy is sufficient, in itself, for it to be held that the judge in question is not 'previously established by law', for the purposes of the second subparagraph of Article 19(1) TEU, read in conjunction with the second paragraph of Article 47 of the Charter, it is true that the Court has held that the fact that it may not be possible to exercise a legal remedy in the context of a procedure for judicial appointments to a national supreme court may, in certain cases, not prove to be problematic in the light of the requirements arising from EU law, in particular the second subparagraph of Article 19(1) TEU. However, the situation is different in circumstances in which all the relevant factors characterising such a procedure in a specific national legal and factual context, and in particular the circumstances in which possibilities for obtaining judicial remedies which previously existed are suddenly eliminated, are such as to give rise to systemic doubt in the minds of individuals as to the independence and impartiality of the judges appointed at the end of that procedure (see, to that effect, judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraph 129).

89 In the present case, it cannot, therefore, be found that, taken in isolation, the absence of such an appeal against the appointment of S.C. to the judicial post is sufficient to rule that she should be recused.

90 In those circumstances, it is necessary to determine whether the two circumstances which are the subject of the first question, taken together, support the conclusion that that judge does not meet the requirement of a 'tribunal previously established by law' for the purposes of the second subparagraph of Article 19(1) TEU, read in conjunction with the second paragraph of Article 47 of the Charter.

91 In that regard, as the Advocate General observed in point 63 of his Opinion, and as follows from the case-law of the Court, in order to determine whether judges meet the requirements of independence and impartiality and constitute a 'tribunal previously established by law', for the purposes of those provisions, it is necessary not only to examine the factors relating to the procedure for their appointment, but also to take into account other relevant contextual factors, carrying out an overall assessment of all the factors attending their appointment (see, to that effect, judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraph 132).

92 As is apparent from the file before the Court, in the first place, Judge S.C. performed the duties of principal assistant to a judge at the Sąd Okręgowy w Poznaniu (Regional Court, Poznań). In the second place, the college of that regional court and the assembly of representatives of judges of the district courts at that regional court issued a favourable opinion on her candidature. In the third place, the other candidates in the appointment procedure did not challenge the appointment of that judge. In the fourth place, the referring court has not pointed to any other relevant evidence regarding the circumstances attending that appointment that might, for the purposes of the examination referred to in paragraph 91 above, contribute to reasonable doubt arising in the minds of individuals as to the imperviousness of that judge to external factors.

93 Thus, subject to the verifications which it will be for the referring court to carry out, it does not appear that any other factual and legal circumstance such as to call into question the independence or impartiality of that judge can be established in the present case.

94 In the light of all the foregoing considerations, the answer to the first question is that the second subparagraph of Article 19(1) TEU and Article 47 of the Charter must be interpreted as not precluding classification as an 'independent and impartial tribunal' of a judicial panel consisting of a single judge who was appointed to that post following an appointment procedure characterised by the fact that, in the first place, that judge's candidature was recommended by a body that does not provide sufficient guarantees of independence to dispel all reasonable doubt in the minds of individuals as to the regularity of procedures for the appointment of judges in which that body is involved, and, in the second place, the participants in that appointment procedure did not have a right to an effective judicial remedy, where no other relevant contextual factors attending that procedure exist that are of such a kind and of such gravity, when taken together, as to call into question the independence or impartiality of that judge.

Costs

95 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 (Grand Chamber) hereby rules:

1. The second subparagraph of Article 19(1) TEU, Article 47 of the Charter of Fundamental Rights of the European Union and the principle of the primacy of EU law

must be interpreted as precluding legislation of a Member State and case-law of that Member State's constitutional court interpreting that legislation that confer exclusive jurisdiction on a body to adjudicate on an application seeking the recusal of a judge on the basis of the circumstances in which that judge was appointed, while depriving that body of the power to examine that application if it challenges the lawfulness of the procedure for the appointment of that judge. It is for the national court hearing such an application for recusal to disapply that legislation, as interpreted in that case-law, and itself to examine the lawfulness of that judge's appointment, in particular by ascertaining whether that judge meets the requirement of a 'tribunal previously established by law' and, as the case may be, by ruling that that judge should be recused where any potential irregularities vitiating that appointment entail a failure to meet that requirement.

1. The second subparagraph of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights

must be interpreted as not precluding classification as an 'independent and impartial tribunal' of a judicial panel consisting of a single judge who was appointed to that post following an appointment procedure characterised by the fact that, in the first place, that judge's candidature was recommended by a body that does not provide sufficient guarantees of independence to dispel all reasonable doubt in the minds of individuals as to the regularity of procedures for the appointment of judges in which that body is involved, and, in the second place, the participants in that appointment procedure did not have a right to an effective judicial remedy, where no other relevant contextual factors attending that procedure exist that are of such a kind and of such gravity, when taken together, as to call into question the independence or impartiality of that judge.

[Signatures]

* Language of the case: Polish.

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