Language of document : ECLI:EU:C:2019:531

Case C‑619/18

European Commission

v

Republic of Poland

 Judgment of the Court (Grand Chamber), 24 June 2019

(Failure of a Member State to fulfil obligations — Second subparagraph of Article 19(1) TEU — Rule of law — Effective judicial protection in the fields covered by Union law — Principles of the irremovability of judges and judicial independence — Lowering of the retirement age of Supreme Court judges — Application to judges in post — Possibility of continuing to carry out the duties of judge beyond that age subject to obtaining authorisation granted by discretionary decision of the President of the Republic)

1.        Actions for failure to fulfil obligations — Subject matter of the dispute — Determination by the reasoned opinion — Period given to the Member State — Entry into force of a law of that Member State which eliminates with retroactive effect all the effects of the national provisions challenged by the Commission — Event post-dating the expiry of that period — Action not devoid of purpose

(Art. 258 TFEU)

(see paragraphs 30, 31)

2.        Member States — Obligations — Establishment of remedies sufficient to ensure effective legal protection — Scope

(Arts 2 and 19 TEU; Charter of Fundamental Rights of the European Union, Art. 47)

(see paragraphs 46-50, 54, 55)

3.        Member States — Obligations — Establishment of remedies sufficient to ensure effective legal protection — Compliance with the principles of the irremovability of judges and judicial independence — Rules of national law lowering the retirement age of Supreme Court judges — Application to judges in post — Infringement — Justification — Standardising age limits for the mandatory cessation of activities — Proportionality — No proportionality

(Arts 2 and 19 TEU; Charter of Fundamental Rights of the European Union, Art. 47)

(see paragraphs 57, 58, 71-73, 78-96, 124, operative part)

4.        EU law — Principles — Right to effective judicial protection — Principle of judicial independence — Scope

(Art. 19 TEU; Charter of Fundamental Rights of the European Union, Art. 47, second paragraph)

(see paragraphs 74-77, 108)

5.        Member States — Obligations — Establishment of remedies sufficient to ensure effective legal protection — Compliance with the principle of judicial independence — Rules of national law lowering the retirement age of Supreme Court judges and granting the President of the Member State discretion to extend the period of judicial activity of those judges — Infringement where reasonable doubts are raised, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to conflicting interests

(Arts 2 and 19 TEU; Charter of Fundamental Rights of the European Union, Art. 47)

(see paragraphs 110-112, 114-118, 123, 124, operative part)


Résumé

The provisions of Polish legislation on the lowering of the retirement age of Supreme Court judges are contrary to EU law

In the judgment Commission v Poland (C‑619/18), delivered on 24 June 2019, the Court, sitting as the Grand Chamber, upheld the action for failure to fulfil obligations brought by the Commission against the Republic of Poland and seeking a declaration that, first, by providing that the measure consisting in lowering the retirement age of Supreme Court judges is to apply to judges in post who had been appointed to that court before 3 April 2018 and, second, by granting the President of the Republic discretion to extend the period of judicial activity of judges of that court beyond the newly fixed retirement age, that Member State had failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU.

The Commission argued that, by those measures, the Republic of Poland had failed, in breach of the principle of judicial independence and, in particular, of the principle of the irremovability of judges, to comply with the obligations resulting for the Member States from the aforementioned provision.

In its judgment, the Court, in the first place, ruled on the applicability and scope of the second subparagraph of Article 19(1) TEU. In this respect, it observed that that provision requires all Member States to provide remedies that are sufficient to ensure effective legal protection, within the meaning in particular of Article 47 of the Charter of Fundamental Rights of the European Union, in the fields covered by EU law. More specifically, every Member State must, under the second subparagraph of Article 19(1) TEU, ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by EU law and which, therefore, may be called upon to rule on questions concerning the application or interpretation of that law, meet the requirements of effective judicial protection, which in the present case applies to the Polish Supreme Court. In addition, the Court stated that, in order to ensure that that court is in a position to offer such protection, maintenance of its independence is essential, as confirmed by the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union. The requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded.

In the second place, the Court clarified the scope of that requirement. In that regard, it stated that the guarantees of independence and impartiality which arise from it require rules, particularly as regards the composition of the bodies concerned, the appointment, length of service and grounds for abstention, rejection and dismissal of the members of which they consist, which are such as to dispel any reasonable doubt in the minds of individuals as to the imperviousness of those bodies to external factors and their neutrality with respect to the interests before them. In particular, that freedom of the judges from all external intervention or pressure, which is essential, requires certain guarantees appropriate for protecting the individuals who have the task of adjudicating in a dispute, such as guarantees against removal from office. That principle of irremovability requires, in particular, that judges can remain in post provided that they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term. While it is not wholly absolute, there can be no exceptions to that principle unless they are warranted by legitimate and compelling grounds, subject to the principle of proportionality. In the present case, the Court found that the reform being challenged results in judges in post within the Supreme Court prematurely ceasing to carry out their judicial functions and that it can therefore be acceptable only if it is justified by a legitimate objective, if it is proportionate in the light of that objective and inasmuch as it is not such as to give rise, in the minds of individuals, to reasonable doubts such as those mentioned above. However, the Court held that the application of the measure lowering the retirement age of Supreme Court judges to the judges in post within that court did not meet those conditions because, in particular, it is not justified by a legitimate objective. Accordingly, the Court ruled that that application undermined the principle of the irremovability of judges, which is essential to their independence.

Finally, the Court ruled on the discretion, granted by the New Law on the Supreme Court to the President of the Republic, to extend the period of judicial activity of judges of that court beyond the new retirement age fixed in that law. The Court stated that, although it is for the Member States alone to decide whether or not they will authorise such an extension, the fact remains that, where those Member States choose such a mechanism, they are required to ensure that the conditions and procedure to which such an extension is subject are not such as to undermine the principle of judicial independence. In that connection, the fact that an organ of State such as the President of the Republic is entrusted with the power to decide whether or not to grant any such extension is, admittedly, not sufficient in itself to conclude that that principle has been undermined. However, it is important to be satisfied that the substantive conditions and detailed procedural rules governing the adoption of such decisions are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the independence of the judges concerned. To that end, it is necessary, in particular, that those conditions and procedural rules should be designed in such a way that those judges are protected from potential temptations to give in to external intervention or pressure that is liable to jeopardise their independence. Such procedural rules must thus, in particular, make it possible to preclude not only any direct influence, in the form of instructions, but also types of more indirect influence which are liable to have an effect on the decisions of the judges concerned. As regards the New Law on the Supreme Court, the Court states that that law provides that the extension of the period of judicial activity of the judges of that court is now subject to a decision of the President of the Republic, which is discretionary, for which reasons need not be stated and which cannot be challenged in judicial proceedings. As regards the intervention, provided for by that law, of the National Council of the Judiciary before the President of the Republic takes a decision, the Court notes that the intervention of such a body, in the context of a procedure for extending the period during which a judge carries out his or her duties beyond the normal retirement age, may, admittedly, be such, in principle, as to contribute to making that procedure more objective. However, that will be the case only in so far as certain conditions are satisfied, in particular in so far as that body is itself independent of the legislative and executive authorities and independent of the authority to which it is required to deliver its opinion, and in so far as such an opinion is delivered on the basis of objective and relevant criteria and is properly reasoned, such as to be appropriate for the purposes of providing objective information upon which that authority can take its decision. In the present case, the Court considers it sufficient to state that, in the light of, inter alia, their failure to state reasons, the opinions delivered by the National Council of the Judiciary are not such as to be apt to provide objective clarification in regard to the exercise of the power conferred on the President of the Republic by the New Law on the Supreme Court, with the result that that power is capable of giving rise to reasonable doubts, particularly in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to any interests before them.