Małgorzata Korycińska

Cezary Pryca

After considering the appeals from A. B. and C. D. against the resolution of the National Council of the Judiciary of 24 August 2018, No. 318/2018, as well as the appeals from E. F., G. H. and I. J. against the resolution of the National Council of the Judiciary of 28 August 2018 No. 330/2018 on the presentation (lack of presentation) of motions for appointment to the office of Supreme Court Judge, at a session held in the Commercial Chamber of appeal on 21 November 2018, the Supreme Administrative Court, consisting of Wojciech Kręcisz, Presiding Supreme Administrative Court Judge (rapporteur), Małgorzata Korycińska, Supreme Administrative Court Judge and Cezary Pryca, Supreme Administrative Court Judge,

I.    pursuant to Article 267 TFEU, resolves to ask the following legal questions of the Court of Justice of the European Union:

1)  Should Article 2 in connection with the third sentence of Article 4 (3), Article 6 (1), Article 19 (1) TEU in connection with Article 47 of the EU Charter of Fundamental Rights and Article 9 (1) of Council Directive 2000/78/EC and the third paragraph of Article 267 TFEU be construed as a breach of the principle of the rule of law and the right to an effective legal remedy and effective judicial protection if the national legislature awarding the right of appeal to a court in individual cases regarding holding the office of judge of a court of the last instance of a Member State (Supreme Court) relates the validity and effectiveness of the decision made in the qualification procedure before the submission of the motion for appointment to the office of judge of the said court to the situation of a lack of appeal against the joint consideration and appraisal of all candidates to the Supreme Court filed by all participants of the qualification procedure, including a candidate who is not interested in contesting the said decision, namely a candidate to whom the motion for appointment to the office applies, which, as a result, undermines the effectiveness of the remedy and the ability of the court with jurisdiction to actually consider the course of the said qualification procedure? – and in the situation in which this procedure also encompasses those offices of judges of the Supreme Court, which have been held to date by judges with respect to whom a new lower retirement age has been applied, without leaving the decision to take advantage of the lower retirement age exclusively to the interested judge, with regard to the principle of the irremovability of judges – if it is acknowledged that it has been breached in this way – likewise affects the scope and outcome of the judicial review of the said qualification procedure?

2)  Should Article 2 in connection with the third sentence of Article 4 (3) and Article 6 (1) TEU in connection with Article 15 (1) and Article 20 in connection with Article 21 (1) and Article 52 (1) of the EU Charter of Fundamental Rights in connection with Article 2 (1) (2) (a) and Article 3 (1) (a) of Council Directive 2000/78/EC and the third paragraph of Article 267 TFEU be construed in such a way that the principle of the rule of law, the principle of equal treatment, as well as equal access to the public service on the same principles, namely holding the office of Supreme Court judge, is breached in the situation where, while establishing the right to appeal to the competent court in individual cases on holding office as a judge of the said court as a consequence of the formula of legitimacy described in the first question, an appointment may be made to a vacant office of Supreme Court Judge without a competent court reviewing the course of the said qualification procedure – if initiated – while the lack of this solution, while breaching the right to an effective legal remedy, breaches the right of equal access to the public service, which does not reflect the objectives of general interest, whereas the situation in which the membership of the body of a Member State which is supposed to protect the independence of judges and impartiality of judges (National Council of the Judiciary), before which proceedings are pending on holding the office of Supreme Court judge, is formed in such a way that representatives of the judiciary in that body are elected by the legislative authority, disturbs the principle of institutional equilibrium?

II.   Pursuant to Article 105 § 1 of the Rules of the Court of Justice, requests the application of the accelerated procedure.

III. Adjourns the session.