CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 3 février 2022

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margin-bottom:0pt } .s8773B649 { width:25.2pt; display:inline-block } .sCEDB100B { width:137.09pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s7C768949 { font-family:Arial; text-decoration:underline; color:#0000ff } .s4AA8B09A { margin-top:6pt; margin-bottom:6pt; text-align:justify; font-size:10pt } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }     FIRST SECTION CASE OF ADVANCE PHARMA SP. Z O.O v. POLAND (Application no. 1469/20)     JUDGMENT Art 6 (civil) ● Tribunal established by law • Manifest breaches, following legislative reform, in appointment to Supreme Court’s Civil Chamber of judges who examined the applicant company’s civil appeal ● Application of three-step test formulated in Guðmundur Andri Ástráðsson v. Iceland [GC] ● Lack of independence of National Council of the Judiciary from legislature and executive ● President of Poland’s appointment of judges to the Chamber despite stay of the implementation of the applicable resolution pending judicial review and legislature’s intervention in appointment process by extinguishing effects of that review ● No remedies to challenge alleged defects   STRASBOURG 3 February 2022 FINAL   03/05/2022     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Advance Pharma sp. z o.o v. Poland, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Ksenija Turković, President,   Krzysztof Wojtyczek,   Gilberto Felici,   Erik Wennerström,   Raffaele Sabato,     Lorraine Schembri Orland,   Ioannis Ktistakis, judges, and Renata Degener, Section Registrar, Having regard to: the application (no.   1469/20) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Advance Pharma   sp. z o.o (“the applicant company”), on 2   December 2019; the decision to give notice to the Polish Government (“the Government”) of the complaint that the applicant company’s case was not dealt with by an “independent and impartial tribunal established by law” in breach of Article   6 §   1 of the Convention and to declare inadmissible the remainder of the application; the observations submitted by the respondent Government and the observations in reply submitted by the applicant company; the comments submitted by the Association “Lawyers for Poland”, the Polish   Commissioner for Human Rights, the Helsinki Foundation for Human Rights and the Polish Judges Association “Iustitia”, who were granted leave to intervene by the President of the Section; Having deliberated in private on 14   December 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicant company had its cassation appeal ( skarga kasacyjna ) examined by the Civil Chamber of the Supreme Court in a panel composed of three judges newly appointed through the procedure involving the National Council of the Judiciary (the “NCJ”) as established in 2018. It complained that the Civil Chamber that had dealt with its case had not been an “independent and impartial tribunal established by law” and alleged a breach of Article 6 § 1 of the Convention. THE FACTS 2.     The applicant company’s registered office is in Warsaw. It was represented by Mr D. Gliński , the Chairman of the Board. The applicant company had been granted legal aid in the proceedings before the Court and was represented by Ms M. Gąsiorowska and Ms J. Metelska , lawyers practising in Warsaw. 3.     The Polish Government (“the Government”) were represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs. THE BACKGROUND TO THE CASE National Council of the Judiciary 4.     The National Council of the Judiciary ( Krajowa Rada Sądownictwa , hereinafter “the NCJ”) is a body which was introduced in the Polish judicial system in 1989, by the Amending Act of the Constitution of the Polish People’s Republic ( ustawa z dnia 7 kwietnia 1989 r. o zmianie Konstytucji Polskiej Rzeczypospolitej Ludowej ) . 5.     Its organisation was governed by the 20 December 1989 Act on the NCJ as amended and superseded on several occasions ( ustawa z dnia 20   grudnia 1989 r. o Krajowej Radzie Sądownictwa ). The second Act on the NCJ was enacted on 27 July 2001. Those two Acts provided that the judicial members of the Council were to be elected by the relevant assemblies of judges at different levels, and from different types of court, within the judiciary. 6.     The 1997 Constitution of the Republic of Poland provides that the purpose of the NCJ is to safeguard the independence of courts and judges (see paragraph   95 below). Article 187 § 1 governs the composition of its twenty-five members: seventeen judges (two sitting ex officio : the First President of the Supreme Court, the President of the Supreme Administrative Court and fifteen judges elected from among the judges of the Supreme Court, ordinary courts, administrative courts and military courts); four Members of Parliament chosen by the Sejm ; two members of the Senate; the Minister of Justice, and one person indicated by the President of the Republic of Poland (“the President” or “the President of Poland”). 7.     The subsequent Act of 12 May 2011 on the National Council of the Judiciary ( Ustawa o Krajowej Radzie Sądownictwa – “the 2011 Act on the NCJ”) , in its wording prior to the amendment which entered into force on 17   January 2018, provided that judicial members of this body were to be elected by the relevant assemblies of judges at different levels within the judiciary (see paragraph   98 below). Legislative process 8 .     As part of the general reorganisation of the Polish judicial system prepared by the government, the Sejm enacted three new laws: the 12   July 2017 Law on amendments to the Act on the Organisation of Ordinary Courts and certain other statutes ( Ustawa o zmianie ustawy - Prawo o ustroju sądów powszechnych oraz niektórych innych ustaw, “Act on the Ordinary Courts”), the 12   July 2017 Amending Act on the NCJ and certain other statutes ( Ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw ) and the 20 July 2017 Act on the Supreme Court ( Ustawa o Sądzie Najwyższym ). 9 .     The 12   July 2017 Law on amendments to the Act on the Ordinary Courts was signed by the President of Poland on 24 July 2017 and entered into force on 12   August 2017. 10 .     On 31   July 2017 the President vetoed two acts adopted by the Sejm : one on the Supreme Court and the Amending Act on the NCJ. On 26   September 2017 the President submitted his proposal for amendments to both acts. The bills were passed by the Sejm on 8 December and by the Senate on 15   December 2017. They were signed into law by the President on 20   December 2017. New National Council of the Judiciary Election of the new members of the NCJ 11.     The Amending Act on the NCJ and certain other statutes of 8   December 2017 ( ustawa z dnia 8   grudnia 2017 o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw , “the 2017 Amending Act”) entered into force on 17   January 2018 (see paragraphs   7 above and 99 below). 12.     The 2017 Amending Act granted to the Sejm the competence to elect judicial members of the NCJ for a joint four-year term of office (section   9a(1) of the 2011 Act on the NCJ, as amended by the 2017 Amending Act). The positions of the judicial members of the NCJ who had been elected on the basis of the previous Act were discontinued with the beginning of the term of office of the new members of the NCJ (section   6). The election of new judicial members of the NCJ required the majority of 3/5 of votes cast by at least half of the members of the Sejm (section   11d(5)). The candidates for the NCJ were to present a list of support from either 2,000   citizens or twenty-five judges (section   11a). 13.     On 5   March 2018 a list of fifteen judges, candidates for the NCJ, was positively assessed by the Commission of Justice and Human Rights of the Sejm . 14 .     On 6   March 2018 the Sejm , in a single vote, elected fifteen judges as new members of the NCJ. 15.     On 17   September 2018 the Extraordinary General Assembly of the European Network of Councils for the Judiciary (ENCJ) decided to suspend the membership of the new NCJ. The General Assembly found that the NCJ no longer met the requirements of being independent from the executive and the legislature in a manner which ensured the independence of the Polish judiciary (see also paragraph 223 below). On 28 October 2021 the NCJ was expelled from the ENCJ (see paragraph 225 below). Non-disclosure of endorsement lists 16.     On 25 January 2018 a Member of Parliament (“MP”), K.G. ‑ P., asked the Speaker of the Sejm ( Marszalek Sejmu ) to disclose the lists, containing names of persons supporting the candidates to the NCJ, which had been lodged with the Sejm . The MP relied on the Act on Access to Public Information ( ustawa o dostępie do informacji publicznej ). Her request was dismissed on 27   February 2018 by the Head of the Chancellery of the Sejm ( Szef Kancelarii Sejmu ). The MP appealed. 17.     On 29   August 2018 the Warsaw Regional Administrative Court ( Wojewódzki Sąd Administracyjny ) gave judgment in the case (no.   II   SA/Wa   484/18). The court quashed the impugned decision. It considered that domestic law had not allowed any limitation of the right of access to public information in respect of attachments to the applications lodged by candidates for the NCJ containing lists of judges who had supported their candidatures. The lists of judges supporting candidates for the NCJ had to be considered as information related to the exercise of a public office by judges. The publication of endorsement lists signed by judges had to be preceded by the removal of their personal registration numbers (PESEL) as the number had not related to the exercise of public office by judges. 18.     The Head of the Chancellery of the Sejm lodged a cassation appeal against the judgment. 19 .     On 28   June 2019 the Supreme Administrative Court ( Naczelny Sąd Administracyjny ) dismissed the cassation appeal (I OSK 4282/18). The court agreed with the conclusions of the Regional Administrative Court. It found that the attachments to the applications of candidates to the NCJ in the form of lists of citizens and lists of judges supporting the applications had fallen within the concept of public information. The limitation of this right to public information in relation to the lists of judges supporting the applications of candidates for the NCJ could not be justified by the reason that this information was related to the performance of public duties by judges. The court held that access to the list of judges supporting the applications of candidates for the NCJ should be made available after prior anonymisation of the judges’ personal registration numbers (PESEL). 20 .     On 29   July 2019 the Head of the Personal Data Protection Office ( Prezes Urzędu Ochrony Danych Osobowych – “ UODO ” ) decided that the endorsement lists should remain confidential and should not be published (two decisions were issued on that day, one initiated ex officio and one upon the application of Judge M.N., a member of the NCJ). 21.     Appeals against the decisions of the Head of UODO were lodged by the Commissioner of Human Rights, the MP K.G.-P. and a foundation, F.C.A. On 24 January 2020 the Warsaw Regional Administrative Court quashed the decisions of 29 July 2019 (II SA/Wa 1927/19 and II   SA/Wa   2154/19). The court referred to findings contained in the final judgment of the Supreme Administrative Court of 28 June 2018 which had not been enforced to date (see paragraph 19 above). 22 .     On 14   February 2020 the lists of persons supporting candidates to the NCJ were published on the Sejm ’s website. The Supreme Court New Chambers 23.     The Act on the Supreme Court of 8 December 2017 (“the 2017 Act on the Supreme Court”) modified the organisation of that court by, in particular, creating two new Chambers: the Disciplinary Chamber ( Izba Dyscyplinarna ) and the Chamber of Extraordinary Review and Public Affairs ( Izba Kontroli Nadzwyczajnej i Spraw Publicznych ; see paragraph   102 below). 24.     The Disciplinary Chamber of the Supreme Court became competent to rule on cases concerning the employment, social security and retirement of judges of the Supreme Court (the 2017 Act on the Supreme Court, section   27(1)). The Disciplinary Chamber of the Supreme Court was composed of newly elected judges; those already sitting in the Supreme Court were excluded from it (section   131). 25 .     The Chamber of Extraordinary Review and Public Affairs became competent to examine extraordinary appeals ( skarga nadzwyczajna ), electoral protests and protests against the validity of the national referendum, constitutional referendum and confirmation of the validity of elections and referendums, other public law matters, including cases concerning competition, regulation of energy, telecommunications and railway transport and cases in which an appeal had been lodged against a decision of the Chairman of the National Broadcasting Council ( Przewodniczący Krajowej Rady Radiofonii i Telewizji ), as well as complaints concerning the excessive length of proceedings before ordinary and military courts and the Supreme Court (section   26). Appointments of judges (a)    Act announcing vacancies at the Supreme Court 26 .     On 24   May 2018 the President announced sixteen vacant positions of judges of the Supreme Court in the Disciplinary Chamber ( obwieszczenie Prezydenta , Monitor Polski – Official Gazette of the Republic of Poland of 2018, item 633). By the same act the President announced other vacant positions at the Supreme Court: twenty in the Chamber of Extraordinary Review and Public Affairs, seven in the Civil Chamber and one position in the Criminal Chamber. 27.     At its sessions held on 23, 24, 27 and 28 August 2018, the NCJ closed competitions for vacant positions of judges at the Supreme Court. (b)    Disciplinary Chamber 28.     On 23 August 2018 the NCJ issued a resolution (no.   317/2018) recommending twelve candidates for judges of the Disciplinary Chamber and submitted the requests for their appointment to the President. 29.     On 19 September 2018 the President decided to appoint ten judges, from among those recommended by the NCJ, to the Disciplinary Chamber of the Supreme Court. On 20 September 2018 the President handed the letters of appointment to the appointed judges and administered the oath of office to them. (c)    Chamber of Extraordinary Review and Public Affairs 30 .     On 28 August 2018 the NCJ issued a resolution (no.   331/2018) recommending twenty candidates to be appointed as judges of the Chamber of Extraordinary Review and Public Affairs and submitted the requests for their appointment to the President. Secondly, the NCJ decided not to recommend other candidates who had applied for the post at the Chamber of Extraordinary Review and Public Affairs. Some non-recommended candidates appealed against that resolution to the Supreme Administrative Court which, on 27 September 2018, stayed its implementation (see paragraphs 37 ‑ 38 below). 31.     On 10 October 2018, while the appeals were pending, and in spite of the Supreme Administrative Court’s decision to stay the implementation of resolution no. 331/2018, the President of Poland handed the letters of appointment to nineteen appointed judges and administered the oath of office to them. The twentieth candidate to be appointed, Judge A.S., was appointed by the President on 30 January 2019 after he had relinquished a foreign nationality. On 20 February 2019 the President handed him the letter of appointment and administered the oath of office. (d)    Criminal Chamber 32.     On 24 August 2018 the NCJ issued a resolution (no.   318/2018) recommending one candidate for the position of judge of the Criminal Chamber of the Supreme Court. 33.     On 10 October 2018 the President decided to appoint one judge to the Criminal Chamber as recommended by the NCJ on 24 August 2018. On the same day the President handed the letter of appointment to the appointed judge and administered the oath of office to him. (e)    Civil Chamber 34 .     On 28 August 2018 the NCJ issued a resolution (no.   330/2018) recommending seven candidates to sit as judges of the Civil Chamber of the Supreme Court. The judges recommended by the NCJ included T.S., J.M-K, and K.Z., who dealt with the applicant company’s case (see paragraph   93 below). The NCJ decided not to recommend other candidates. Some non-recommended candidates appealed against that resolution to the Supreme Administrative Court which, on 27 September 2018, stayed its implementation (see paragraphs 44-45 below). 35.     On 10 October 2018 while the appeals were pending, and in spite of the Supreme Administrative Court’s decision to stay the implementation of resolution no. 330/2018, the President of Poland decided to appoint the candidates recommended by the NCJ. On the same day the President handed them the letters of appointment and administered the oath of office to them. Appeals against the NCJ resolutions recommending judges for appointment to the Supreme Court (a)    Disciplinary Chamber 36 .     On 25, 27 September and 16 October 2018 the Supreme Administrative Court dismissed requests lodged by various appellants to stay the implementation ( o udzielenie zabezpieczenia ) of the NCJ’s resolution no.   317/2018 recommending candidates for appointment to the Disciplinary Chamber (see paragraph 28 above). The court noted that the NCJ resolution of 23 August 2018 had been delivered to the candidate G.H. on 14   September 2018, and he had lodged his appeal with the Supreme Administrative Court on 17   September 2018. However, on 19   September 2019 the President had appointed the judges recommended by the NCJ. NCJ resolution no.   317/2018 had therefore been enforced, which precluded any stay of implementation. (b)    Chamber of Extraordinary Review and Public Affairs 37 .     On various dates, some candidates who had not been recommended by the NCJ for appointment to the Chamber of Extraordinary Review and Public Affairs lodged appeals with the Supreme Administrative Court against NCJ resolution no. 331/2018 of 28 August 2018 (see also paragraph   30 above). 38 .     On 27 September 2018 the Supreme Administrative Court (case no.   II   GW   28/18) gave an interim order staying the implementation of that resolution in its entirety, that is to say both in the part recommending twenty candidates to the Chamber of Extraordinary Review and Public Affairs and in part not recommending other candidates, including the appellant K.L. 39.     On 22 November 2018 the Supreme Administrative Court stayed the examination of the appeals lodged against NCJ resolution no.   331/2018 pending the examination of its request for a preliminary ruling ( pytanie prejudycjalne ) to the Court of Justice of the European Union (“CJEU”) in the context of another NCJ resolution (resolution no. 330/2018; request for a preliminary ruling made by Supreme Administrative Court of 21   November 2018; the CJEU Case C-824/18, A.B. and Others ; see paragraphs   48 and   206 below). 40 .     On 21 September 2021 the Supreme Administrative Court gave judgments in six cases where appeals had been lodged by unsuccessful candidates against NCJ resolution no. 331/2018. The court firstly decided to annul NCJ resolution no. 331/2018 in the part concerning the recommendation of twenty candidates for appointment to the Chamber of Extraordinary Review and Public Affairs of the Supreme Court ( uchylił w całości , case no. II GOK 10/18). As regards the part of resolution no.   331/2018 concerning the NCJ’s refusal to recommend certain other candidates, the Supreme Administrative Court annulled it in so far as it concerned the appellants (see also case nos.   II GOK 8/18, 11/18, 12/18, 13/18, 14/18). (c)    Criminal Chamber 41.     On various dates, some candidates who had not been recommended by the NCJ for appointment to the Criminal Chamber lodged appeals with the Supreme Administrative Court against NCJ resolution no.   318/2018. 42.     On 25 September 2018 the Supreme Administrative Court (case no.   II   GW   22/18) stayed the implementation of the NCJ resolution of 24   August 2018 (no.   318/2018; see paragraph 32 above) recommending one candidate to the Criminal Chamber of the Supreme Court and not recommending other candidates, including the appellant C.D. 43 .     On 6 May 2021 the Supreme Administrative Court gave two judgments (cases nos.   II GOK 6/18 and 7/18). The court firstly decided to annul NCJ resolution no. 318/2018 in the part concerning the recommendation of one candidate for appointment to the Criminal Chamber of the Supreme Court ( uchylił w całości ). As regards the part of resolution no.   318/2018 concerning the NCJ’s refusal to recommend certain other candidates, the Supreme Administrative Court annulled it in so far as it concerned the appellants (see also paragraphs   165 ‑ 168 below). (d)    Civil Chamber (i)       Appeals and stay of implementation of the NCJ’s resolutions 44 .     On various dates, some candidates who had not been recommended by the NCJ for appointment to the Civil Chamber lodged appeals with the Supreme Administrative Court against NCJ resolution no.   330/2018 (see paragraph   34 above). 45 .     On 27 September 2018 the Supreme Administrative Court (case no.   II   GW 27/18) gave an interim order staying the implementation of that resolution in its entirety, that is to say both in the part recommending seven candidates for appointment to the Civil Chamber of the Supreme Court and in the part not recommending other candidates, including the appellant I.J. The court also noted that the NCJ had never transferred to the Supreme Administrative Court the appeal lodged by the appellant on 20   September 2018 although it had been obliged to do so under the law. (ii)     Case of A.B. (II GOK 2/18) 46.     On 1 October 2018 Mr A.B. lodged an appeal against the NCJ’s resolution of 28 August 2018 (no. 330/2018; see paragraph 34 above) which recommended seven candidates for judges to the Civil Chamber of the Supreme Court and decided not to recommend other candidates, including the appellant. On the same date the appellant asked for an interim measure to stay the implementation of the resolution. 47 .     On 8 October 2018 the Supreme Administrative Court (case no.   II   GW 31/18) stayed the implementation of the impugned resolution. The court also noted that A.B.’s appeal of 1 October 2018 against the resolution had never been transmitted by the NCJ to the Supreme Administrative Court. 48 .     In a request of 21 November 2018, supplemented on 26 June 2019 the Supreme Administrative Court applied to the CJEU for a preliminary ruling to and the latter gave judgment on 2 March 2021 ( A.B. and Others , Case   C ‑ 824/18; see also paragraphs   46-52 and 209 below). 49 .     On 6 May 2021 the Supreme Administrative Court gave judgment (case no.   II GOK 2/18). On the same day it also ruled on three other cases (see paragraph   165 below). The court annulled ( uchylił w całości ) NCJ resolution no. 330/2018 in the part concerning the recommendation of seven candidates for appointment to the Civil Chamber of the Supreme Court. In consequence, the part of NCJ resolution no. 330/2018 recommending three judges who had sat in the applicant company’s case, and on the basis of which they had been appointed by the President on 10 October 2018, was annulled. As regards the part of resolution no. 330/2018 concerning the NCJ’s refusal to recommend certain other candidates, the Supreme Administrative Court annulled it in so far as it concerned the appellant A.B. (see also paragraphs   165 ‑ 168 below). 50 .     In the judgment, the Supreme Administrative Court held, pursuant to the CJEU judgments of 19 November 2019 and 2 March 2021 (see paragraphs   206 and 209 below), that the NCJ did not offer guarantees of independence from the legislative and executive branches of power in the process of appointment of the judges (see paragraph   166 below). 51.     The court also noted that it did not appear that the NCJ – a body constitutionally responsible for safeguarding the independence of judges and courts – had been fulfilling these duties and respecting the positions presented by national and international institutions. In particular, it had not opposed actions which did not comply with the legal implications resulting from the interim order of the CJEU of 8 April 2020 (C-791/19; see paragraph   211 below). The actions of the NCJ in the case under consideration also showed that it had intentionally and directly sought to make it impossible for the Supreme Administrative Court to carry out a judicial review of the resolution to recommend (and not to recommend) candidates to the Civil Chamber of the Supreme Court. The NCJ transferred the appeal lodged by A.B. on 1   October only on 9 November 2019, while in the meantime it had transmitted the resolution to the President for him to appoint the recommended candidates. 52 .     Lastly, the Supreme Administrative Court agreed with the interpretation of the Supreme Court presented in the judgment of 5   December 2019 and the resolution of 23 January 2020 (see paragraphs   110 ‑ 124 and   127 ‑ 142 below), that the President’s announcement of vacancies at the Supreme Court (see paragraph 26 above) necessitated, for it to be valid, a countersignature of the Prime Minister. The CJEU judgment of 19 November 2019 (Joined Cases C ‑ 585/18, C-624/18, C-625/18) 53 .     In August and September 2018 the Labour and Social Security Chamber of the Supreme Court made three requests to the CJEU for a preliminary ruling. The opinion of Advocate General Tanchev in those cases, delivered on 27 June 2019, analysed the qualifications required by the NCJ with reference to the Court’s case-law and concluded that the Disciplinary Chamber of the Polish Supreme Court did not satisfy the requirements of judicial independence (see paragraph   204 below). 54.     The CJEU delivered a judgment on 19 November 2019 in which it considered that it was for the national court, i.e. the Supreme Court, to examine whether the Disciplinary Chamber of the Supreme Court was an impartial tribunal. The CJEU clarified the scope of the requirements of independence and impartiality in the context of the establishment of the Disciplinary Chamber so that the domestic court could itself issue a ruling (see paragraph   206 below). The Supreme Court’s rulings Judgment of 5 December 2019 55 .     On 5 December 2019 the Chamber of Labour and Social Security of the Supreme Court issued the first judgment in cases that had been referred for a preliminary ruling to the CJEU (case no.   III   PO   7/18; see paragraph   110 below). The Supreme Court concluded that the NCJ was not an authority that was impartial or independent from legislative and executive branches of power. Moreover, it concluded that the Disciplinary Chamber of the Supreme Court could not be considered a court within the meaning of domestic law and the Convention . Resolution of 8 January 2020 56 .     On 8 January 2020, in response to the above judgment of the Chamber of Labour and Social Security, the Chamber of Extraordinary Review and Public Affairs of the Supreme Court issued a resolution in which it interpreted the consequences of the CJEU judgment narrowly (I   NOZP   3/19, see paragraph   125 below). The Chamber found that a resolution of the NCJ recommending to the President candidates for the post of judge could be quashed upon an appeal by a candidate only in situations where the appellant proved that the lack of independence of the NCJ had adversely affected the content of the impugned resolution, or provided that the appellant demonstrated that the court had not been independent or impartial according to the criteria indicated in the CJEU judgment. In respect of the latter, the Chamber stressed that the Constitution had not allowed for a review of the effectiveness of the President’s decision concerning the appointment of judges. When dealing with such appeals the Supreme Court was bound by the scope of the appeal and had to examine whether the NCJ had been an independent body according to the criteria determined in the CJEU judgment 19   November 2019 (in paragraphs   134 ‑ 144 thereof). Resolution of 23 January 2020 57 .     On 23 January 2020 three joined Chambers of the Supreme Court issued a joint resolution (see paragraph 127 below). The court agreed with the assessment in the judgment of 5   December 2019 that the NCJ had not been an independent and impartial body and that this had led to defects in the procedures for the appointment of judges carried out on the basis of the NCJ’s recommendations. With respect to the Chamber of Extraordinary Review and Public Affairs, the Supreme Court noted in particular that it was composed solely of judges who were newly appointed through the procedure involving the NCJ as established under the 2017 Amending Act. Moreover, this Chamber was the only body competent to examine appeals against the resolutions of the NCJ concerning the recommending of judges to all courts in Poland (see paragraph 141 below). In consequence, according to the resolution, court formations including Supreme Court judges appointed in the procedure involving the NCJ were unduly composed within the meaning of the relevant provisions of the domestic law. Constitutional Court Case concerning CJEU interim order of 8 April 2020 (case no.   P 7/20) 58 .     On 9 April 2020 the Disciplinary Chamber of the Supreme Court made a request to the Constitutional Court seeking a ruling on the constitutionality of the interim measures order issued by the CJEU on 8   April 2020 (suspending the operation of the   Disciplinary Chamber   in respect of disciplinary cases against judges; see also paragraph   211 below). 59.     On 11 May 2021 the Polish Commissioner for Human Rights, who had meanwhile joined the proceedings, asked the Constitutional Court to exclude Judge J.P. from sitting in the case. The Commissioner relied on the Court’s judgment in the case of Xero Flor w Polsce sp. z o.o. v.   Poland (no.   4907/18, 7 May 2021), and argued that Judge J.P. had been elected in breach of an identical fundamental rule applicable to the election of the Constitutional Court, as had been the case of Judge M.M. (see paragraph   155 below). Accordingly, the Constitutional Court, sitting in a composition including Judge J.P., could not be considered a “tribunal established by law” within the meaning of Article 6 of the Convention. 60.     On 15 June 2021 the Constitutional Court dismissed the Commissioner’s request for the exclusion of Judge J.P. With respect to the Court’s judgment in Xero Flor w Polsce sp. z o.o., cited above, the Constitutional Court held: “2.2. In the opinion of the Constitutional Court, the judgment of the ECtHR of 7   May 2021, to the extent to which it refers to the Constitutional Court, is based on theses testifying to a lack of knowledge of the Polish legal order, including fundamental systemic assumptions determining the position, system and role of the Polish Constitutional Court. In this respect, it was issued without legal basis, exceeding the ECtHR’s jurisdiction, and constitutes an unlawful interference in the domestic legal order, in particular in issues which are outside the ECtHR’s jurisdiction; for these reasons it must be regarded as an inexistent judgment ( sententia non existens ).” 61.     On 14 July 2021 the Constitutional Court gave judgment, sitting in a composition of five judges including Judge J.P. In its operative part the court held: “Article   4(3), second sentence, of the [TEU] in conjunction with Article   279 of the [TFEU] – in so far as the Court of Justice of the European Union ultra vires imposes obligations on the Republic of Poland as an EU Member State, by prescribing interim measures pertaining to the organisational structure and functioning of Polish courts and to the mode of proceedings before those courts – is inconsistent with Article 2, Article   7, Article   8(1) and Article 90(1) in conjunction with Article 4(1) of the Constitution of the Republic of Poland, and within this scope it is not covered by the principles of precedence and direct application set in Article 91(1)-(3) of the Constitution.” Case concerning constitutionality of European Union law (case no.   K   3/21) 62.     On 29 March 2021 the Prime Minister referred the following request to the Constitutional Court: “Application to examine the compatibility of: (1) the first and second paragraphs of Article 1, in conjunction with Article   4(3) of the Treaty on European Union of 7 February 1992, hereinafter ‘TEU’, understood as empowering or obliging a law-applying body to derogate from the application of the Constitution of the Republic of Poland or ordering it to apply legal provisions in a manner inconsistent with the Constitution of the Republic of Poland, with Article   2; Article   7; Article 8 § 1 in conjunction with Article   8 §   2, Article 90 § 1 and Article   91 §   2; and Article 178 § 1 of the Constitution of the Republic of Poland; (2) Article   19(1), second subparagraph, in conjunction with Article   4(3) TEU, interpreted as meaning that, for the purposes of ensuring effective legal protection, the body applying the law is authorised or obliged to apply legal provisions in a manner inconsistent with the Constitution, including the application of a provision which, by virtue of a decision of the Constitutional Court, has ceased to be binding as being inconsistent with the Constitution , with Article 2; Article 7; Article   8 §   1 in conjunction with Article   8 §   2 and Article 91 § 2; Article 90 § 1; Article 178 § 1; and Article   190   §   1 of the Constitution of the Republic of Poland; (3) Article   19(1), second subparagraph, in conjunction with Article   2 TEU, interpreted as empowering a court to review the independence of judges appointed by the President of the Republic of Poland and to review a resolution of the National Council of the Judiciary concerning an application to the President of the Republic of Poland for appointment of a judge, with Article 8 § 1 in conjunction with Article   8 §   2, Article   90 §   1 and Article 91 § 2; Article   144 § 3 (17); and Article   186 §   1 of the Constitution of the Republic of Poland.” 63.     On 17 May 2021 the Commissioner for Human Rights joined the proceedings. He considered that the first two issues should not be examined by the Constitutional Court at all, and as regards the third, that it should request the CJEU for a preliminary ruling. The Commissioner further referred to the context of the Prime Minister’s request to the Constitutional Court, namely the CJEU’s judgment of 2   March 2021 and the Supreme Administrative Court’s judgment of 6   May 2021 (see paragraphs   165 ‑ 168 and   207-209 below). 64.     On 13 July 2021 the Constitutional Court held the first hearing. On 14   July 2021 the court decided to hear the case in its full composition. 65.     On 25 August 2021 the Commissioner asked the Constitutional Court to exclude Judge M.M. from examining the case as well as Judges J.P. and J.W. against whom the same challenges as to the legality of their election to the Constitutional Court had been made. The Commissioner pointed to the fact that the judgment in the case of Xero   Flor   w   Polsce   sp.   z   o.o., cited above, had become final and that its execution was an obligation incumbent on all State authorities, including the Constitutional Court. 66.     On 7 October 2021 the Constitutional Court delivered its judgment. It held that various provisions of EU law were incompatible with the Polish Constitution. The operative part of the judgment stated as follows [1] : “1. Article   1, first and second paragraphs, in conjunction with Article   4(3) of the Treaty on European Union ... – in so far as the European Union, established by equal and sovereign States, creates ‘an ever closer Union among the peoples of Europe’, the integration of whom – brought about on the basis of EU law and through the interpretation of EU law by the Court of Justice of the European Union – enters ‘a new stage’ in which: (a) the European Union authorities act outside the scope of the competences conferred upon them by the   Republic of Poland in the Treaties; (b) the Constitution is not the supreme law of the Republic of Poland, which takes precedence as regards its binding force and application; (c) the Republic of Poland may not function as a sovereign and democratic State, – is inconsistent with Article 2, Article 8 and Article 90 § 1 of the Constitution of the Republic of Poland. 2. Article   19(1), second sub-paragraph, of the Treaty on European Union – in so far as, for the purpose of ensuring effective legal protection in the areas covered by EU law, it grants domestic courts (ordinary courts, administrative courts, military courts, and the Supreme Court) the competence to: (a) bypass the provisions of the Constitution in the course of adjudication, – is inconsistent with Article 2, Article 7, Article 8 § 1, Article 90 §   1 and Article   178 §   1 of the Constitution; (b) adjudicate on the basis of provisions which are not binding, having been repealed by the Sejm and/or found by the Constitutional Court to be inconsistent with   the   Constitution, – is inconsistent with Article 2, Article 7, Article 8 § 1, Article   90 §   1 and Article   178 §   1, and Article 190 § 1 of the Constitution. 3. Article   19(1), second subparagraph, and Article 2 of the Treaty on European Union – in so far as, for the purpose of ensuring effective legal protection in the areas covered by EU law and of ensuring the independence of judges – they grant domestic courts (ordinary courts, administrative courts, military courts, and the Supreme Court) the competence to: (a) review the legality of the procedure for appointing a judge, including the review of the legality of the act in which the President of the Republic appoints a judge,   – are inconsistent with Article 2, Article 8 § 1, Article 90 § 1 and Article &#