Case C-516/26, Szwiecka – after a void referral back, who decides the appeal?
In AW ‘T’ (C‑225/22) the Court of Justice held that a decision referring a case back to a lower court, taken by a body that is not an independent tribunal, may have to be treated as null and void. A court in Wrocław asks what happens next.
Facts
H.K. and S. are parties to civil proceedings in which an appeal on a point of law, an extraordinary remedy in Polish civil procedure, was heard by a judicial body adjudicating at last instance. That body referred the case back to the Sąd Okręgowy we Wrocławiu (Regional Court, Wrocław), as the court of second instance, for re-examination. Under the first sentence of Article 398²⁰ of the Polish Code of Civil Procedure, the court to which a case is referred back is bound by the interpretation of the law given in that case by the court that referred it. The questions proceed on the basis that, in the light of a judgment of the Court of Justice, the body that decided the appeal does not satisfy the requirements of independence, impartiality and previous establishment by law under the second subparagraph of Article 19(1) TEU. (Szwiecka is a fictitious name given by the Court.)
Questions Referred
1. Must the second subparagraph of Article 19(1) of the Treaty on European Union, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and in the light of the principle of the primacy of EU law, be interpreted as meaning that, where it has been established, on the basis of a judgment of the Court of Justice, that a judicial body adjudicating at last instance does not satisfy the requirements of independence, impartiality and previous establishment by law, for the purposes of the second subparagraph of Article 19(1) of the Treaty on European Union, the court of second instance to which the case has been referred back for re-examination by a decision of such a body following the examination of an extraordinary remedy, namely an appeal on a point of law, is entitled – in fulfilment of its obligation to guarantee that full effect is given to EU law – to hear the case afresh, disapplying the first sentence of Article 398²⁰ of the Code of Civil Procedure, that is to say, disregarding the interpretation of the law given in that case by the judicial body adjudicating at last instance?
and, if the answer to the above question is in the negative:
2. Must the second subparagraph of Article 19(1) of the Treaty on European Union, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and in the light of the principle of the primacy of EU law, be interpreted as meaning that, where it has been established, on the basis of a judgment of the Court of Justice, that a judicial body adjudicating at last instance does not satisfy the requirements of independence, impartiality and previous establishment by law, for the purposes of the second subparagraph of Article 19(1) of the Treaty on European Union, and where, consequently, the decision by which the case concerned is referred back to the court of second instance for re-examination must be regarded as null and void, the court to which the case has thus been referred is entitled to regard itself as having jurisdiction to examine an extraordinary remedy, namely an appeal on a point of law, on the basis of the principles deriving from the judgment of the Court of Justice of the European Union of 19 November 2019 in Joined Cases C-585/18, C-624/18 and C-625/18 (ECLI:EU:C:2019:982)?
Sources
OJ notice C/2026/4571 (EUR‑Lex) · Case file on CURIA · AW ‘T’, C‑225/22 (ECLI:EU:C:2025:649) · A.K. and Others, C‑585/18 (ECLI:EU:C:2019:982) · Elchinov, C‑173/09 (ECLI:EU:C:2010:581)
Comment
The case picks up where AW ‘T’ (judgment of 4 September 2025) left off. There the Court held that, where it is found on the basis of a decision of the Court of Justice that a judicial body of last instance does not satisfy the requirements of the second subparagraph of Article 19(1) TEU, “a decision taken by such a body, by which the case concerned is referred back to a lower court for re-examination, must be regarded as null and void, where such a consequence is essential in view of the procedural situation at issue in order to ensure the primacy of EU law”. The Wrocław court’s questions repeat that formula almost word for word. The judgment said what the referral back is not; it did not say what the lower court should do instead.
The first option is the simpler one. If the referral is void, so is the binding interpretation that came with it, and the court to which the case was sent hears it afresh. That fits Elchinov (C‑173/09), where the Court held that EU law precludes a court to which a case has been referred back from being bound by the legal rulings of the higher court “if it considers, having regard to the interpretation which it has sought from the Court, that those rulings are inconsistent with European Union law”. The difficulty is procedural. If the decision referring the case back is a nullity, it is not obvious that the case is before the second-instance court at all.
That is why the second question exists. It asks whether the Regional Court may treat itself as having jurisdiction to examine the appeal on a point of law itself, relying on A.K. (C‑585/18). There the Court held that primacy required the referring court to disapply the provision reserving jurisdiction to a body that was not independent, “so that those cases may be examined by a court which meets the abovementioned requirements of independence and impartiality and which, were it not for that provision, would have jurisdiction in the relevant field”. The last words are the obstacle. In Polish civil procedure an appeal on a point of law goes to the Supreme Court, and a regional court would not have jurisdiction over it in any event. A ruling that it may decide the appeal would go further than A.K. itself, which redirected cases only to courts that would otherwise have had jurisdiction.