OPINION OF ADVOCATE GENERAL
RANTOS
delivered on 2 March 2023 (1)
Case C‑718/21
L.G.
v
Krajowa Rada Sądownictwa
(Request for a preliminary ruling from the Sąd Najwyższy (Supreme Court, Poland))
(Reference for a preliminary ruling – Article 267 TFEU – Concept of ‘court or tribunal’ – Jurisdiction of the Court – Second subparagraph of Article 19(1) TEU – Effective legal protection in the fields covered by EU law – Principles of the irremovability of judges and judicial independence – Possibility of continuing to hold a judicial office after reaching retirement age – Effects of the declaration of intention to continue to hold a judicial office after reaching retirement age subject to the authorisation of another body – Effects of exceeding the time limit for filing such a declaration)
I. Introduction
1. This request for a preliminary ruling was made by the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Chamber of Extraordinary Control and Public Affairs; ‘the Chamber of Extraordinary Control’) of the Sąd Najwyższy (Supreme Court, Poland) in an appeal brought by L.G. (‘the appellant’), a judge at the Sąd Okręgowy w K. (Regional Court of K., Poland), against the resolution of the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland; ‘the KRS’) to discontinue consideration of his request for authorisation to continue to hold a judicial office after reaching retirement age, due to the fact that the deadline for submission of the declaration of intention to that effect had passed.
2. This request for a preliminary ruling raises, at the outset, the delicate issue of whether the Chamber of Extraordinary Control can be classified as a ‘court or tribunal’ within the meaning of Article 267 TFEU. As to the substance of the case, the request for a preliminary ruling essentially concerns the interpretation of the principles of the irremovability of judges and judicial independence, as a corollary of the principle of ‘effective legal protection’ enshrined in the second subparagraph of Article 19(1) TEU, in relation to national legislation which, on the one hand, makes the effect of a judge’s declaration of intention to continue to exercise his or her functions after reaching retirement age subject to authorisation by the KRS and, on the other hand, lays down an absolute preclusive time limit for that declaration.
3. The present case must be viewed against the background of the recent reforms of the Polish judicial system (2) and the abundant case-law of the Court of Justice relating to those reforms, in particular in connection with actions for failure to fulfil obligations brought by the European Commission (3) and references for a preliminary ruling brought by the Polish courts. (4)
II. Legal context: Polish law
A. The Law on the Supreme Court
4. The ustawa o Sądzie Najwyższym (Law on the Supreme Court), of 8 December 2017, (5) which, among other things, created the Chamber of Extraordinary Control, states as follows in Article 26(1):
‘The areas of jurisdiction of the [Chamber of Extraordinary Control] include extraordinary complaints, electoral disputes and challenges concerning the validity of national or constitutional referendums, and determination of the validity of elections and referendums, as well as other cases in the field of public law, including disputes relating to the protection of competition, energy regulation, telecommunications and rail transport, and appeals against decisions of the Przewodniczy Krajowej Rady Radiofonii i Telewizji [(President of the National Television and Radio Broadcasting Council, Poland)] as well as complaints concerning the excessive duration of proceedings before ordinary and military courts and the [Sąd Najwyższy (Supreme Court)].’
B. The Law on the system of ordinary courts
5. Article 69(1) and (1b) of the ustawa – Prawo o ustroju sądów powszechnych (Law on the system of ordinary courts), of 27 July 2001, as amended, (6) states as follows:
‘1. A judge shall retire upon reaching 65 years of age unless, no later than 6 months and no earlier than 12 months before reaching that age, he or she submits a declaration to the [KRS] indicating his or her wish to continue in his or her post and presents a certificate, issued in accordance with the rules specified for candidates applying for a judicial post, confirming that his or her health is no impediment to performing the duties of a judge.
…
1b. The [KRS] may authorise a judge to continue in his or her post, if there is a legitimate interest for the administration of justice or an important social interest in that judge continuing in that role, having regard to the rational use of the staff of the ordinary courts and the needs resulting from the workload of individual courts. The resolution of the [KRS] shall be final. In a situation where the procedure connected with the judge continuing in his or her post has still not come to an end after he or she has reached the age referred to in paragraph 1, the judge shall remain in post until such time as that procedure has come to an end.
…’
C. The Law on the KRS
6. Under Article 42 of the ustawa o Krajowej Radzie Sądownictwa (the Law on the KRS), of 12 May 2011, as amended: (7)
‘1. Resolutions issued by the Council in individual cases shall be reasoned.
2. The statement of reasons for a resolution shall be drawn up within one month of its adoption.
3. Resolutions issued in individual cases shall be served on the participants in the procedure, along with the associated statement of reasons and instructions on how those resolutions may be challenged before the Supreme Court.’
7. Article 44(1) of the Law on the KRS states as follows:
‘A participant in the procedure may appeal to the [Sąd Najwyższy (Supreme Court)] on the ground that the [KRS] resolution is unlawful, unless separate provisions provide differently. …’
III. The dispute in the main proceedings, the questions referred and the procedure before the Court
8. By letter of 30 December 2020, the appellant submitted a declaration to the KRS indicating his intention to continue to work as a judge after reaching the retirement age of 65 years, which he would reach on 12 June 2021, in accordance with Article 69 of the Law on the system of ordinary courts. (8) By letter of 31 December 2020, the appellant also submitted a request to the KRS for leave to proceed with his declaration beyond the stated time limit, given that he had not submitted that declaration at least six months before he reached retirement age, as required by that legal provision. (9)
9. By a resolution of 18 February 2022, the KRS declared that declaration inadmissible on the ground that it had been submitted beyond the time limit of six months before retirement age laid down in the relevant legal provision and adopted a resolution discontinuing consideration of the case, thus closing the procedure concerning the granting of authorisation for the appellant to continue to hold office as a judge. (10)
10. The appellant brought an appeal against that resolution before the Sąd Najwyższy (Supreme Court), sitting as the Chamber of Extraordinary Control, which is the referring court. (11) The referring court wishes to determine whether Article 69 of the Law on the system of ordinary courts infringes the principles of the irremovability of judges and judicial independence, enshrined in the second subparagraph of Article 19(1) TEU, inasmuch as, first, that national provision makes the performance of the duties of a judge after retirement age subject to authorisation from another body, which could influence the content of the judgments delivered by the judge in question and, second, that same provision establishes that a request to exercise the duties of a judge after retirement age has been reached cannot be considered if the time limit for submission of that request has expired, irrespective of the effects of the retirement in the specific circumstances, in particular with regard to the interests of the administration of justice or the possible existence of an important social interest.
11. In those circumstances the Chamber of Extraordinary Control of the Sąd Najwyższy (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Does the second subparagraph of Article 19(1) [TEU] preclude a provision of national law such as the first sentence of Article 69(1b) of the [Law on the system of ordinary courts], which makes the effectiveness of a declaration by a judge of his or her intention to continue to hold a judicial office after reaching retirement age subject to the authorisation of another body?
(2) Does the second subparagraph of Article 19(1) [TEU] preclude the adoption of an interpretation of a national provision under which a judge’s belated declaration of his or her intention to continue to hold a judicial office after reaching retirement age is ineffective, irrespective of the reason for the failure to observe the time limit and the significance of that failure for the proceedings concerning authorisation for his or her continuing to hold a judicial office?’
12. Written observations were filed by the KRS, by the Polish, Danish and Netherlands Governments and by the European Commission. The KRS, the Polish, Belgian and Netherlands Governments and the Commission submitted oral observations at the hearing on 8 November 2022. The appellant, the KRS, the Belgian and Netherlands Governments and the Commission also submitted written observations on the order from the referring court of 3 November 2022, by which that court submitted additional observations to the Court of Justice to support its request for a preliminary ruling, particularly concerning its status as a ‘court or tribunal’ within the meaning of Article 267 TFEU.
IV. Analysis
A. The jurisdiction of the Court
1. The doubts raised as to the status of the referring court as a ‘court or tribunal’ within the meaning of Article 267 TFEU
13. The Commission and the Belgian and Netherlands Governments raise doubts as to whether the referring court is a ‘court or tribunal’ within the meaning of Article 267 TFEU.
14. Indeed, the members of the Chamber of Extraordinary Control, established by the Law on the Supreme Court, were appointed to the position of judge of the Sąd Najwyższy (Supreme Court), on the proposal of the KRS, by Resolution No 331/2018 of 28 August 2018 (‘Resolution No 331/2018’), under the following circumstances:
– that resolution was adopted by the KRS in a composition whose independence has been questioned in several judgments of the Court of Justice; (12)
– that resolution was appealed to the Naczelny Sąd Administracyjny (Supreme Administrative Court, Poland) and on 27 September 2018 that court issued a protective order suspending its enforcement;
– the European Court of Human Rights (‘the ECtHR’) has held, in essence, that two panels of the Chamber of Extraordinary Control composed of three judges appointed on the basis of the same resolution did not constitute ‘tribunal[s] established by law’ within the meaning of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’); (13)
– after the appointment of judges on the basis of Resolution No 331/2018, that resolution was finally annulled by the Naczelny Sąd Administracyjny (Supreme Administrative Court) on 21 September 2021. (14)
15. In view of these circumstances, it seems to me appropriate, before addressing the questions referred for a preliminary ruling, to ascertain whether the Chamber of Extraordinary Control, sitting as a panel of three judges, constitutes a ‘court or tribunal’ within the meaning of Article 267 TFEU and, consequently, whether the Court of Justice has jurisdiction to answer the questions referred for a preliminary ruling by that chamber.
2. The principles relating to the concept of ‘independence’ of the referring court within the meaning of Article 267 TFEU
16. According to the settled case-law of the Court of Justice, in order to determine whether a body making a reference is a ‘court or tribunal’ within the meaning of Article 267 TFEU, which is a question governed by EU law alone, the Court takes account of a number of factors, such as, inter alia, whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. (15) In the present case, it is only this last factor, namely the independence of the Chamber of Extraordinary Control, that is in question, it being considered prima facie obvious – and in any case not contested – that this body fulfils the other criteria mentioned above.
17. According to further settled case-law of the Court, the requirement for independence of the courts, which the Member States must guarantee under the second subparagraph of Article 19(1) TEU, (16) as regards national courts called upon to rule on questions relating to the interpretation and application of EU law, has two aspects: the first is external and concerns the autonomy of the court, (17) and the second is internal and concerns its impartiality. (18) Those guarantees of autonomy and impartiality, which constitute the two components of the concept of ‘independence’, presuppose the existence of rules, particularly as regards the composition of the body and the appointment, length of service and the grounds for abstention, rejection and dismissal of its members, in order to remove any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it. (19)
18. With regard, more particularly, to the requirement for independence inherent in the concept of ‘court or tribunal’ within the meaning of Article 267 TFEU, in its judgment in Getin Noble Bank, the Court held, in essence, that there was a presumption whereby a national court such as, in particular, the Sąd Najwyższy (Supreme Court) satisfies the requirements that must be met for a body to be classified as a ‘court or tribunal’ within the meaning of Article 267 TFEU, irrespective of its actual composition. (20) The Court stated that, in the context of a preliminary ruling procedure referred to in Article 267 TFEU, it is not for the Court to determine whether the order for reference was made in accordance with the rules of national law governing the organisation of the courts and their procedure. (21) At the same time, the Court has held that this presumption may nevertheless be rebutted, first, where a final judicial decision handed down by a national or international court or tribunal leads to the conclusion that the judge constituting the referring court is not an independent and impartial tribunal previously established by law for the purposes of the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, (22) or, second, where other factors, beyond the personal situation of the judges formally submitting a request pursuant to Article 267 TFEU, could have repercussions on the functioning of the referring court to which those judges belong and thus contribute to undermining the independence and impartiality of that court. (23)
19. Having said that, I consider it important to stress that, in my view, the interpretation of the principle of independence in the context of Article 267 TFEU calls for a different examination from that required, respectively, in the context of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, having regard to the different functions and objectives of these texts. This approach, which has been developed, for the most part, by certain Advocates General, (24) has not, to my knowledge, been fully confirmed by the Court, which, in its judgments concerning the requirement for independence inherent in the concept of ‘court or tribunal’ within the meaning of Article 267 TFEU, continues to refer to the need for the court or tribunal in question to have the characteristics of an independent, impartial court or tribunal established by law, ‘for the purposes of the second subparagraph of Article 19(1) TEU, read in the light of … Article 47 of the Charter’. (25)
20. In essence, the present approach makes the following distinction among the conditions for application of the three provisions in question:
– the second subparagraph of Article 19(1) TEU seeks to ensure that the system of legal remedies established by each Member State guarantees effective judicial protection in the fields covered by EU law. (26) It therefore requires a ‘systemic’ examination of the characteristics of a judicial system;
– Article 47 of the Charter helps to ensure respect for the right to effective judicial protection of any individual relying, in a given case, on a right which he or she derives from EU law. (27) It therefore requires a ‘practical’ examination (on a case-by-case basis) to assess whether an effective remedy exists in the case in question; (28)
– Article 267 TFEU is directed at a concept of ‘court or tribunal’ that has a ‘functional’ nature, in that it serves to identify the national bodies which can become the interlocutors of the Court in the context of a preliminary ruling procedure. (29) According to this concept of ‘functional independence’, which refers primarily to the absence of hierarchical control by the administration, it is the function (and thus the body) that must be independent, regardless of the fact that judges (as individuals) may be linked to executive power, in particular by ties of recognition (when they have been appointed in a ‘privileged’ way) or allegiance (when they hope to have advantages in the course of their career, such as promotions, extensions, and so forth). (30) This concept therefore requires a ‘formal’ examination, in relation to the body submitting the question, and not in relation to the individuals who sit in the body. (31)
21. Furthermore, it is not irrelevant to point out that the assessment of the very specific concept of ‘independence’ in the context of Article 267 TFEU is the last of a whole series of factors that are not strictly speaking cumulative but form part of an overall examination and which, taken together, lead to the consideration that a ‘court or tribunal’ can be classified as such within the meaning of that provision. (32) The independence of the court is thus examined in the light of the other factors, with the result that, in my view, this assessment is all the stricter when the presence of certain other factors is doubtful, and vice versa. (33) On the other hand, it seems to me that the Court tends to carry out an ‘independence test’ of this kind most often in respect of bodies that operate outside the traditional national judicial system, or that are not regarded as a ‘court or tribunal’ under national law, (34) whereas it has not always been inclined to question the independent nature of a body that is formally integrated into the judicial system of the Member State in question, (35) as further confirmed by the presumption established in the judgment in Getin Noble Bank. (36)
22. This ‘minimalist’ interpretation of the concept of ‘independence’ in the context of Article 267 TFEU has, in my view, the advantage that, first, it does not excessively impinge on the principle of cooperation between the national courts and the Court of Justice in the preliminary ruling procedure, given the importance of that mechanism for ensuring the uniform and consistent interpretation of EU law (37) and, second, it maintains the crucial role of references for preliminary rulings with regard to protecting the rights of individuals. Indeed, it is only the Court’s continuing jurisdiction to deliver preliminary rulings under Article 267 TFEU that enables individuals, in certain situations, to avail themselves of the effective judicial protection guaranteed by EU law. (38) This is all the more true in the circumstances of the present case, in view of the numerous initiatives taken by the Polish legislature, aimed, inter alia, at preventing references to the Court of Justice for preliminary rulings on the question of the independence of the courts in Poland. (39)
23. It follows that, in view of its specific function, the interpretation of the concept of independence of a ‘court or tribunal’ within the meaning of Article 267 TFEU does not prejudge the interpretation of that concept in the context of the second subparagraph of Article 19(1) TEU or Article 47 of the Charter. In other words, we cannot rule out a situation where a body might in principle constitute a ‘court or tribunal’ within the meaning of Article 267 TFEU, irrespective of the fact that elements of the case – whether of a systemic or ad hoc nature – might lead to the conclusion that the same court or tribunal does not constitute an independent, impartial court or tribunal previously established by law for the purposes of the second subparagraph of Article 19(1) TEU or of Article 47 of the Charter. (40)
24. While I am well aware that, in principle, the fundamental system of administration of justice does not allow for ‘gradations’, the approach referred to above – which is based on the presumption established by the judgment in Getin Noble Bank, clarifying its application – seeks, by means of a more flexible interpretation of the concept of ‘independence’ in the context of Article 267 TFEU, to enable a national court to perform its essential functions, even where there are doubts as to its independence, by guaranteeing it, on the one hand, the possibility of examining its own independence with the Court’s assistance and, on the other, the possibility of ensuring that EU citizens have the fundamental right to effective judicial protection where the rights guaranteed by EU law are infringed.
25. However, would it not be more appropriate to adopt a different approach, which, in the present case, would impose limits on the infringements by the legislative and executive branches in respect of the judiciary in Poland – which have been tolerated until now – and which would thereby support the Polish judges appointed under the old system in their attempt, in the name of the principle of judicial independence, to keep out of the judicial arena of the European Union the ‘new judges’ appointed as a result of the recent reforms, in disregard of that principle? There is no easy answer. In any case, this stricter approach is not without consequences: as the hearing showed, about one in four judges assigned to the ordinary and administrative courts in Poland is now appointed under the new system. This approach would considerably restrict access to the preliminary ruling mechanism for most Polish courts, leaving it open only to those composed exclusively of judges appointed under the old system. This would mean that the Polish judiciary would be de facto removed from the European Union’s judicial system, a result which, in my view, could even potentially encroach upon the procedure provided for in Article 7 TEU. (41)
26. In conclusion, while, as a general rule, according to the famous adage, ‘clothes do not make the man’, I am of the view that, with a certain degree of approximation, in the formal and circumscribed context of the assessment of the concept of ‘court or tribunal’ within the meaning of Article 267 TFEU, ‘the robe makes the judge’. (42)
3. The impact of the rules on the appointment of judges on status as an ‘independent court’
27. Having discussed and clarified the case-law on the interpretation of the concept of an ‘independent court’ in the context of Article 267 TFEU, it should be noted that the doubts in the present case as to the independent nature of the referring court relate to the rules on the appointment of its judges. The principles set out in the previous section should therefore be applied in the specific context of the rules on the appointment of judges and, more particularly, the rules on the involvement of bodies outside the judiciary as part of that appointment process, namely the KRS.
28. In that regard, the Court has stated that the fact that the Member States, in the exercise of their powers relating to the organisation of justice, involve a body other than the judiciary – such as an administrative body – in decisions relating, inter alia, to the appointment or retention in office of judges is not in itself sufficient to conclude that there has been an infringement of the principle of the independence of judges so appointed. (43) In the Court’s view, the mere fact that the legislative or executive authorities intervene in the process of appointing a judge does not necessarily create a dependent relationship with those authorities or give rise to doubts as to the judge’s impartiality, if, once appointed, the person concerned is not subjected to any pressure and does not receive instructions in the performance of his or her duties. (44)
29. It follows, in my view, that any irregularities in the appointment of the members of a judicial formation can deprive a body of the status of ‘independent court or tribunal’ for the purposes of Article 267 TFEU only if they affect the very ability of that body to judge independently. (45) Therefore, if the members of a judicial formation, once appointed, are qualified for the office and are expected (according to the applicable rules) to take their decisions independently, this should be sufficient to qualify as an ‘independent court or tribunal’ for the purposes of Article 267 TFEU.
4. The status of the referring court as an ‘independent court’ for the purposes of Article 267 TFEU in the circumstances of the case
30. The Chamber of Extraordinary Control is a special formation of the Sąd Najwyższy (Supreme Court) for hearing cases. While the Court of Justice has held that the latter satisfies, in principle, the requirements of Article 267 TFEU, (46) its establishment as a Chamber of Extraordinary Control occurred against the background of the recent reforms of the Polish judicial system, and the judges belonging to it were appointed to the post of judges of the Sąd Najwyższy (Supreme Court) under the highly controversial conditions described in point 14 of this Opinion.
31. In essence, the doubts as to the independence of the referring court are linked to the indirect involvement of the executive branch in the appointment of its judges, which took place through the intervention of the KRS. Following the recent reforms of the Polish judicial system, this body has, it is said, become a ‘captive institution’, controlled by the executive branch.
32. However, although I have no wish to endorse such a legislative development, which reflects a regrettable backward step in the Polish judicial system, I would point out that, according to the Court’s settled case-law cited in point 28 of this Opinion, the involvement of a body outside the judiciary in the appointment of judges is not sufficient, in itself, to conclude that the principle of the independence of judges has been infringed. Furthermore, there is nothing in the file to suggest that the judges appointed to the referring court following the reform are not fit to perform their duties, or that the applicable legal framework or their status prevents them from performing their duties independently. (47)
33. It should also be noted that, according to the assessment criteria introduced by the Court of Justice in the judgment in Getin Noble Bank, the Sąd Najwyższy (Supreme Court) enjoys a ‘presumption of independence’, which can be rebutted either by a final judicial decision finding that the judge constituting the referring court does not have the status of an independent, impartial tribunal previously established by law, or by other elements that undermine the independence and impartiality of that court. (48)
34. However, without needing to revisit my proposal to qualify that principle, (49) it seems to me that, in this case, those situations do not pertain.
35. Admittedly, in its judgment of 8 November 2021, Dolińska-Ficek and Ozimek v. Poland, (50) referred to several times in the course of the proceedings, the ECtHR held that a panel of judges from the same Chamber of Extraordinary Control (51) did not satisfy the requirement for a tribunal previously established by law within the meaning of Article 6(1) ECHR. However, I doubt that this is able to constitute a final judicial decision attesting that the referring court is not, in essence, an independent court or tribunal for the purposes of Article 267 TFEU, in the light of the judgment in Getin Noble Bank. (52) It seems to me that that decision is more concerned with examining respect for the right to effective judicial protection, which falls within the scope of Article 6(1) ECHR and could, therefore, play a role in the application of Article 47 of the Charter, but not necessarily in the application of Article 267 TFEU. (53)
36. I therefore consider that, on the basis of the information available in the file, the referring court can be described as a ‘court or tribunal’ within the meaning of Article 267 TFEU in so far as, irrespective of the controversies relating to the appointment of its members, it is, in principle, called upon to decide the case in the main proceedings in complete autonomy from the executive branch, which is (indirectly) involved in that appointment process, (54) and with complete impartiality with regard to the interests of the parties.
37. In the light of the foregoing considerations, I am of the view that, for the purposes of the present proceedings, the Sąd Najwyższy (Supreme Court), sitting as a panel of three judges making up the Chamber of Extraordinary Control, can be regarded as a ‘court or tribunal’ within the meaning of Article 267 TFEU and that, consequently, the Court of Justice has jurisdiction to answer the questions referred by that court for a preliminary ruling.
B. The first question referred
38. By its first question, the referring court asks, in essence, whether the second subparagraph of Article 19(1) TEU precludes national legislation, such as Article 69 of the Law on the system of ordinary courts, which makes the option for a practising judge to continue to perform his or her duties after reaching retirement age subject to the authorisation of another body, in this case the KRS.
39. I would point out, first of all, that the Court of Justice has ruled on several occasions on the applicability and scope of the second subparagraph of Article 19(1) TEU in relation to national (in particular Polish) rules governing the judicial system, including rules concerning the continued performance of the duties of judges beyond the retirement age. (55)
40. In the following paragraphs, I will examine, in so far as is relevant to the present case, (1) the scope of the second subparagraph of Article 19(1) TEU and (2) the case-law precedents concerning the continued holding of a judicial office by judges beyond the retirement age, before (3) proposing an answer to the first question referred for a preliminary ruling.
1. The scope of the second subparagraph of Article 19(1) TEU
(a) The principle of ‘effective legal protection’ in the fields covered by EU law
41. The second subparagraph of Article 19(1) TEU establishes that Member States are to provide remedies sufficient to ensure effective judicial protection in the fields covered by EU law and, therefore, it is for the Member States to establish a system of legal remedies and procedures ensuring effective judicial review in those fields. (56) Moreover, to the extent that the second subparagraph of Article 19(1) TEU refers to the requirement for effective judicial protection, it must be interpreted in the light of Article 47 of the Charter, irrespective of whether that latter provision is itself applicable in the case. (57)
42. Given that Article 19 TEU entrusts the responsibility for ensuring the full application of EU law in all Member States and judicial protection of the rights of individuals under that law to national courts and tribunals and to the Court of Justice, (58) it follows that it encompasses ‘the fields covered by Union law’, irrespective of whether the Member States are implementing that law within the meaning of Article 51(1) of the Charter. (59)
43. In the present case, it cannot be denied that the ordinary Polish courts can be called upon to rule on questions relating to the application or interpretation of EU law and that they therefore come within the Polish judicial system in the ‘fields covered by Union law’, within the meaning of the second subparagraph of Article 19(1) TEU, with the result that those courts must meet the requirements of effective judicial protection. (60)
(b) The principle of independence of national courts as a corollary of the principle of effective judicial protection
44. According to the settled case-law of the Court, in order to ensure effective judicial protection in accordance with the second subparagraph of Article 19(1) TEU, maintaining a national court or tribunal’s independence is essential, as confirmed by the second paragraph of Article 47 of the Charter, which refers to access to an ‘independent’ tribunal as one of the requirements linked to the fundamental right to an effective remedy. (61)
45. As was pointed out in points 17 and 18 of this Opinion, the Court has ruled that the requirement for independence of national courts has a first external aspect, concerning the autonomy of the body, and a second internal aspect, concerning its impartiality, and that such guarantees of autonomy and impartiality presuppose the existence of rules, particularly as regards the composition of the body and the appointment, length of service and the grounds for abstention, rejection and dismissal of its members, which make it possible to remove any reasonable doubt in the minds of individuals as to the imperviousness and neutrality of that body. (62)
(c) The requirement for irremovability of judges as inherent in the principle of independence of the courts
46. With regard more specifically to the ‘external’ independence (autonomy) of the courts, the Court of Justice has held that the freedom of judges from all external intervention or pressure requires certain guarantees appropriate for protecting the individuals who have the task of adjudicating in a dispute, such as guarantees against removal from office. (63)
47. The principle of irremovability requires, in particular, that judges may 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. Thus it is widely accepted that judges may be dismissed if they are deemed unfit for the purposes of carrying out their duties on account of incapacity or a serious breach of their obligations, provided the appropriate procedures are followed. (64)
48. The same applies, in my view, to the rules concerning the possibility of judges remaining in office beyond the retirement age, which are, therefore, subject to the requirements imposed by the principle of the irremovability of judges.
2. Case-law precedents concerning the continued holding of a judicial office beyond the retirement age
49. As a preliminary point, I should note that two recent judgments have been delivered by the Court of Justice on Polish legislation concerning the continued holding of a judicial office by judges beyond the retirement age:
– the judgment in Independence of the Supreme Court, concerning a provision (65) that granted the President of the Republic of Poland the power to authorise the continued holding of a judicial office by judges of the Sąd Najwyższy (Supreme Court) beyond the retirement age; (66)
– the judgment in Independence of ordinary courts, concerning a previous version of Article 69(1) of the Law on the system of ordinary courts, (67) which established that the Minister for Justice could decide to authorise the continued holding of a judicial office by ordinary judges beyond the retirement age (68) and which appears particularly relevant in the present case.
50. In those judgments, the Court held that it is for the Member States alone to decide whether or not they will authorise such an extension to the period of judicial activity beyond normal retirement age, and the fact that the organs of the State such as the President of the Republic (in the case of the extension of the term of office of the judges of the Sąd Najwyższy (Supreme Court)) and the Minister for Justice (in the case of the extension of the term of office of ordinary judges) are entrusted with the power to decide whether or not to grant any such extension is not sufficient in itself to conclude that the principle of judicial independence has been undermined. (69) However, the Court has held that, where the Member States opt for such mechanisms, they are required to ensure that the substantive conditions and procedural rules to which such extensions are subject are not such as to undermine the principle of judicial independence. (70)
51. With regard, more specifically, to those substantive conditions and procedural rules, the Court has found that the discretion held by the President of the Republic and the Minister for Justice, respectively, for the purposes of deciding whether or not to authorise a judge to continue to carry out his or her duties was such as to give rise to reasonable doubts, inter alia 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 that may be the subject of argument before them. (71)
52. The Court based that conclusion, in essence, on the fact that decisions on whether or not to authorise the possible continuation of the exercise of the office of a judge were based on criteria that were too vague and could not be verified, and that those decisions did not moreover provide a statement of reasons and could not be challenged in court proceedings; (72) as regards the discretion granted to the Minister for Justice, no period was laid down within which he or she must adopt his or her decision on the application for an extension of the term of office. (73) The Court has also held that the power conferred on the Minister for Justice for the purposes of deciding whether or not to authorise judges of the ordinary Polish courts to continue to hold a judicial office failed, in particular, to comply with the principle of irremovability, having been conferred in the more general context of a reform that resulted in the lowering of the normal retirement age of the judges concerned. (74)
53. An assessment almost identical to that in the judgment in Independence of ordinary courts is required in the present case, while taking into account the fact that, following that judgment, the Republic of Poland amended its legislation concerning the continued holding of a judicial office by ordinary judges beyond the retirement age, in particular by reinstating the retirement age previously in force for judges and conferring on the KRS – and no longer on the Ministry of Justice – the power to authorise the continued holding of a judicial office by a judge beyond that age, under certain conditions.
3. Assessment of the circumstances of the present case
54. In this case, I note that Article 69(1b) of the Law on the system of ordinary courts establishes, in so far as is relevant to the present case, that the KRS may authorise a judge, who so wishes, to continue to hold a judicial office beyond the retirement age, if there is a legitimate interest for the administration of justice or an important social interest in that judge continuing in that role, having regard to the rational use of the staff of the ordinary courts and the needs resulting from the workload of individual courts. (75)
55. In the following points, taking into account the case-law cited in point 50 of this Opinion, I will provide guidance as to the interpretation of the second subparagraph of Article 19(1) TEU in the circumstances of the present case, having regard, on the one hand, (a) to the nature of the KRS and, on the other hand, (b) to the substantive conditions and procedural rules governing the adoption of its decisions on the continued holding of a judicial office by judges.
(a) The nature of the KRS
56. As regards the nature of the KRS, I would point out from the outset that the Court’s recent case-law has repeatedly established that, following the recent reforms of the Polish judicial system, this body is not independent of the legislative and executive branches. (76)
57. This conclusion has also been confirmed by the case-law of the ECtHR on Article 6(1) ECHR. Indeed, in its judgment of 8 November 2021, Dolińska-Ficek and Ozimek v. Poland, (77) the ECtHR concluded that the Chamber of Extraordinary Control did not constitute a ‘tribunal established by law’ and that the Republic of Poland had therefore acted in breach of Article 6(1) ECHR, on the ground that the members of that chamber had been appointed upon a proposal of the KRS, which was not independent of the legislative and executive branches of power. (78)
58. That conclusion has also been reached by the highest Polish courts on several occasions. First, in judgments of 6 and 13 May 2021, the Naczelny Sąd Administracyjny (Supreme Administrative Court) found that the KRS did not offer sufficient guarantees of independence and that its level of dependence on the legislative and executive authorities was so high that it could not be irrelevant in assessing the question as to whether the judges it selects meet the objective requirements of independence and impartiality under Article 47 of the Charter. Second, in its resolution of 23 January 2020, the Sąd Najwyższy (Supreme Court) also noted that the KRS is not an independent body, being directly subject to the political authorities. (79)
59. That being said, and however regrettable this situation may be, it seems to me that, in accordance with the Court’s case-law, the fact that a body such as the KRS is vested with the power to decide whether or not to grant a possible extension of the exercise of judicial functions beyond the normal retirement age is not in itself sufficient to conclude that the principle of judicial independence has been infringed. (80) The Court, recognising the competence – in principle – of the Member States as regards the organisation of the judiciary, accepts that those Member States may, in the exercise of that competence, invest a body outside the judiciary (either independent or under the authority of the legislature or the executive) with the power to take decisions relating, in particular, to the appointment of judges or their continued holding of a judicial office. (81)
60. However, in accordance with the Court’s case-law, it is important to ensure that the substantive conditions and 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 imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them, (82) which I will examine below.
(b) The substantive conditions and procedural rules governing the adoption of decisions on the continued holding of a judicial office by judges
61. In terms of the substantive conditions and procedural rules governing the adoption of decisions on the continued holding of a judicial office by judges beyond the retirement age, I would note that, according to the version of Article 69(1b) of the Law on the system of ordinary courts, which has been the subject of the judgment in Independence of ordinary courts, (83) the Minister for Justice could authorise a judge to continue to exercise his or her duties, ‘having regard to the rational use of the staff of the ordinary courts and the needs resulting from the workload of individual courts’. The Court has held, on the one hand, that these criteria are too vague and unverifiable, also criticising the absence of a requirement to state reasons and the absence of any mechanism for decisions to be challenged in court proceedings, and, on the other hand, criticised the lack of a deadline for the Minister for Justice to make a decision. (84)
62. First, as regards the substantive conditions, I note that the version of Article 69(1b) of the Law on the system of ordinary courts, which is the subject of the main proceedings in the present case, establishes that the KRS may authorise a judge to continue in his or her post beyond the retirement age, ‘if there is a legitimate interest for the administration of justice or an important social interest in that judge continuing in that role, having regard to the rational use of the staff of the ordinary courts and the needs resulting from the workload of individual courts’. Compared to its previous version, the provision in question therefore adds the condition that the continued holding of a judicial office by a judge must serve ‘a legitimate interest for the administration of justice or an important social interest’.
63. However, I doubt that this new clarification adds any further clarity to the criteria on which KRS resolutions are based that would limit the discretion criticised by the Court. (85)
64. Second, as regards the procedural rules, first of all, it seems to me that, like the previous legislation, which was censured by the Court, the new legislation does not lay down a time limit within which the KRS is required to adopt its resolution. The Polish Government has merely stated in its written observations and at the hearing that, within the meaning of the last sentence of Article 69(1b) of the Law on the system of ordinary courts, where a judge reaches retirement age before the procedure for extending his or her term of office has ended, the person concerned will remain in post until that procedure has come to an end.
65. Next, it seems to me that, in so far as Article 42(1) and (2) of the Law on the KRS applies to such resolutions, which it is for the referring court to ascertain, those resolutions are to be reasoned within one month of their adoption, a requirement that should, in principle, make it possible to address the criticisms expressed in that regard by the Court under the previous rules.
66. Lastly, as the case in the main proceedings demonstrates, the resolution of the KRS, unlike under the previous legislation, can be appealed to the Chamber of Extraordinary Control, (86) whose independence has nevertheless been the subject of much criticism. (87)
67. In conclusion, without prejudice to the verifications that are to be carried out by the referring court on the basis of the above, I doubt whether the mechanism involving the authorisation of the KRS for the purpose of keeping judges in office beyond the retirement age offers sufficient guarantees of independence from the legislative and executive branches, taking into account all the relevant factors, both factual and legal, relating both to the conditions under which the members of that body were appointed and to the way in which it fulfils its role in practice.
68. In conclusion, I therefore propose that the answer to the first question referred should be that the second subparagraph of Article 19(1) TEU should be interpreted as precluding national legislation that makes the effectiveness of a judge’s declaration of intention to continue to hold a judicial office after reaching retirement age subject to authorisation from a body that has been shown to be lacking in independence from the legislative or executive branches and that adopts its decisions on the basis of criteria that are vague and difficult to verify.
C. The second question referred
69. By its second question, the referring court asks, in essence, whether the second subparagraph of Article 19(1) TEU precludes national legislation, such as Article 69 of the Law on the system of ordinary courts, interpreted as establishing that a declaration of intention to continue holding a judicial office after retirement age has been reached cannot be considered if the time limit for submission of that declaration has passed, irrespective of the circumstances and effects of the failure to comply with the time limit in question.
70. I would point out that the national legislation in question, in so far as it affects the term of office of judges of the ordinary courts, falls within the scope of the principle of irremovability of judges, which is inherent in the principle of judicial independence for the purposes of the second subparagraph of Article 19(1) TEU. (88)
71. Furthermore, in the absence of detailed EU rules, the compatibility of the aforementioned provision with the principle of independence should be examined in the light of the principles of procedural autonomy and effectiveness. (89)
72. In the present case, it should be noted first of all that a provision similar to the one in question was not criticised by the Commission in the cases which gave rise to the judgments in Independence of the Supreme Court (90) and in Independence of ordinary courts. (91)
73. However, as the Commission points out in its written observations, clear and foreseeable deadlines for declarations from judges concerned, of their intention to continue to hold their posts beyond the retirement age, constitute objective procedural requirements that are likely to contribute to the legal certainty and objectivity of the entire procedure for authorising the continued holding of judicial offices. In the present case, I note that the time limit in question, which begins to run from the point when the judge reaches the age of 64 and expires six months before he or she reaches the age of 65, first, is fixed in relation to an event that is well known to the judge concerned, namely the date of his or her 65th birthday, and, second, is sufficiently generous to give that judge the opportunity to take a reasoned decision as to whether or not to declare an intention to continue in office.
74. Therefore, on the one hand, I consider that the preclusive effect of that time limit is a clear procedural requirement that is likely to contribute to the objectivity of the procedure and to legal certainty, thus being of benefit for the sound organisation of the judicial system.
75. On the other hand, given that there is no possibility of an exemption from the time limit being granted, this means that any declaration made after the expiry of the time limit is inadmissible, and I note that, in principle, this does not subject judges to any external pressure or influence and, moreover, deprives the KRS of the possibility of exercising any discretionary power.
76. The only doubt that, in my opinion, could possibly be raised with regard to Article 69 of the Law on the system of ordinary courts concerns the proportionality of an absolute time limit that does not take into account, inter alia, the principles of necessity or force majeure, provided that this is confirmed by the referring court.
77. However, it seems to me, first, that in the circumstances of the present case that situation remains hypothetical, as the order for reference does not refer to any case of force majeure or any extraordinary factor that could prevent the judge concerned from lodging his or her declaration in good time, (92) and, second, that the possible occurrence of a situation beyond the judge’s control that would prevent him or her from complying with the time limit for lodging a declaration should, in any event, be weighed up against the requirements of the organisation of justice. (93)
78. Therefore, subject to the verifications referred to above, which are the responsibility of the referring court, it does not appear to me that, in the circumstances of the present case, the provision in question infringes the principle of judicial independence.
79. In conclusion, I propose that the answer to the second question referred should be that the second subparagraph of Article 19(1) TEU should be interpreted as not precluding, in principle, the adoption of an interpretation of national legislation under which a judge’s belated declaration of his or her intention to continue to hold a judicial office beyond the retirement age is ineffective, irrespective of the circumstances of the failure to observe the time limit and the significance of that failure for the proceedings concerning authorisation for his or her continuing to hold a judicial office, provided that that legislation complies with the principle of proportionality.
V. Conclusion
80. In view of the considerations set out above, I propose that the Court should answer the questions referred for a preliminary ruling by the Sąd Najwyższy (Supreme Court, Poland) as follows:
(1) The second subparagraph of Article 19(1) TEU must be interpreted as precluding national legislation that makes the effectiveness of a judge’s declaration of intention to continue to hold a judicial office after reaching retirement age subject to authorisation from a body that has been shown to be lacking in independence from the legislative or executive branches and that adopts its decisions on the basis of criteria that are vague and difficult to verify.
(2) The second subparagraph of Article 19(1) TEU must be interpreted as not precluding, in principle, the adoption of an interpretation of national legislation under which a judge’s belated declaration of his or her intention to continue to hold a judicial office beyond the retirement age is ineffective, irrespective of the circumstances of the failure to observe the time limit and the significance of that failure for the proceedings concerning authorisation for his or her continuing to hold a judicial office, provided that that legislation complies with the principle of proportionality.