Advocate General Tanchev delivered today his opinion in case C‑508/19 (M.F. v J.M., joined parties: Prokurator Generalny, Rzecznik Praw Obywatelskich), which is about the Rule of Law:

“The right to a tribunal established by law, affirmed by the second subparagraph of Article 19(1) TEU in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted in the sense that, in circumstances such as those of the main proceedings, a person appointed to the position of judge of the Sąd Najwyższy (Supreme Court), Disciplinary Chamber, does not comply with that requirement if his act of appointment was delivered in flagrant breach of national rules governing the procedure for the appointment of judges of the Supreme Court, which is a matter for the referring court to establish. In the context of that assessment, the referring court must appraise the manifest and intentional character as well as the gravity of the breaches in question.

The second subparagraph of Article 19(1) TEU in the light of Article 47 of the Charter must be interpreted as meaning that a court chamber does not constitute an independent and impartial tribunal, within the meaning of those provisions, when the objective conditions in which it was created, its characteristics as well as the manner of appointment of its members are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that chamber to external factors, and, in particular, to the direct or indirect influence of the legislature and the executive, and as to its neutrality with respect to the interests before it and, thus, whether they may lead to that chamber not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law. It is for the referring court to determine, in the light of all the relevant factors established before it, whether that applies to a court such as the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court).

In such a situation, the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply national law provisions which reserve jurisdiction to rule on actions, such as the one in the main proceedings, to such a chamber, so that those actions may be examined by a court which fulfils the requirements of independence and impartiality referred to above and which would have jurisdiction were it not for those provisions”.