C-619/18 Commission v Poland, ECLI:EU:C:2019:531, Grand Chamber, 24 June 2019 (2024)

Key Points

• Article 19(1) TEU can be read in light of Article 47 of the Charter of Fundamental Rights of the European Union so as to ensure that Member States uphold judicial independence within their own jurisdictions.
• Poland violated equal pay measures under Article 157 TFEU.

Facts

• The Commission launched proceedings against Poland alleging failure of obligations under Art 19 TEU read in light of Art 47 CFREU.
  • Article 19 TEU – Judicial Independence
  • Article 47 CRFEU – Right to an effective remedy and to a fair trial.
• The Commission also alleged breach of Art 157 TFEU
  • Art 157 TFEU – Equal Pay for Men and Women
• New legislation on the Supreme Court lowered the compulsory retirement age of judges from 70 to 65 (for men) and 60 (for women) and gave the President of Poland the unilateral (discretionary) power to extend a judge’s term beyond the new retirement age – judicial reviews of the exercise of this power would be barred.

Held (CJEU)

The Polish measures violated EU law.

Judgment

The First Complaint – Article 157 TFEU

• [The Commission argued that the Polish law constituted] discrimination based on sex prohibited by Article157 TFEU and by Articles5(a) and9(1)(f) of Directive 2006/54. [47]
• In the Commission’s submission, the pension schemes applicable to those three categories of judge or public prosecutor are covered by the concept of ‘pay’ within the meaning of Article157 TFEU and fall within the scope of Directive 2006/54, since they satisfy the three criteria established by the Court’s case-law, namely that the retirement pension provided for by those schemes concerns only a particular category of workers, it is directly related to the period of service completed and its amount is calculated by reference to the final salary. [48]
• Both Article157 TFEU and Articles5(a) and9(1)(f) of Directive 2006/54 preclude age conditions that differ according to sex from being set for the grant of such pensions. [50]

Findings of the Court (Art 157 TFEU)

• In accordance with settled case-law, a pension which concerns only a particular category of workers, which is directly related to the period of service completed and whose amount is calculated by reference to the final salary comes within the scope of Article157 TFEU [60]
• In the present case, the judges of the ordinary Polish courts, judges of the Sąd Najwyższy (Supreme Court) and public prosecutors in Poland to whom the three pension schemes at issue apply must be considered to be three particular categories of workers for the purposes of the case-law recalled in the previous paragraph. [61]
• [After further explanation of the application of Art 157] It follows from all the foregoing that pensions paid under schemes such as those established by the Law on the ordinary courts, the Law on the Public Prosecutor’s Office and the 2002 Law on the Supreme Court are ‘pay’ within the meaning of Article157 TFEU. [69]
• In the present case, it is not in dispute that, inasmuch as Article13(1) to(3) of the Amending Law of 12July 2017 sets the retirement age of judges of the ordinary courts and of public prosecutors, respectively, at 60 years for women and65 years for men, and permits any early retirement of judges of the Sąd Najwyższy (Supreme Court) from the age of 65 years for men and60 years for women, it fixes different retirement ages on the basis of sex. [77]
• In so doing, those provisions introduce directly discriminatory conditions based on sex into the pension schemes in question, in particular as regards the time when the persons concerned may have actual access to the advantages provided for by those schemes, and they therefore fail to comply both with Article157 TFEU and with Article5(1) of Directive 2006/54, in particular Article5(1)(a), read in conjunction with Article9(1)(f) of the directive. [78]

The Second Complaint – Article 19(1) TEU read in light of Article 47 CFREU

• [Relying on the Portuguese Judges case] the Commission contends that, in order for the Republic of Poland to comply with the obligation imposed on it by the second subparagraph of Article19(1) TEU to establish a system of legal remedies ensuring effective judicial review in the fields covered by EU law, it is required, inter alia, to ensure that the national bodies which, like the ordinary Polish courts, may rule on questions relating to the application or interpretation of EU law meet the requirement of judicial independence, that requirement forming part of the essence of the fundamental right to a fair trial as resulting in particular from the second paragraph of Article47 of the Charter. [87]

Findings of the Court (Applicability and Scope of Article 19(1) TEU)

• First of all, it should be pointed out that Article19 TEU, which gives concrete expression to the value of the rule of law affirmed in Article2 TEU, entrusts the responsibility for ensuring the full application of EU law in all Member States and the judicial protection that individuals derive from EU law to national courts and tribunals and to the Court of Justice [98]
• In that regard, as provided for by the second subparagraph of Article19(1) TEU, Member States are to provide remedies sufficient to ensure for individuals compliance with their right to effective judicial protection in the fields covered by EU law. [99]
• […] every Member State must, under the second subparagraph of Article19(1) TEU, in particular 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, are liable to rule, in that capacity, on the application or interpretation of EU law, meet the requirements of effective judicial protection [103]
• That 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 Article2 TEU, in particular the value of the rule of law, will be safeguarded [106]

The Findings of the Court (Breach of Article 19 TEU)

• In the present case, as explained both at the hearing and in its written pleadings, by its second complaint the Commission does not seek to criticise the measure lowering the retirement age of judges of the ordinary Polish courts in itself. This complaint is essentially directed at the mechanism with which that measure was coupled, under which the Minister for Justice has the right to authorise judges of those courts to continue actively to carry out judicial duties beyond the retirement age, as lowered. In the Commission’s submission, in the light of its characteristics that mechanism undermines the independence of the judges concerned in that it does not enable it to be guaranteed that they will carry out their duties wholly autonomously and be protected against external intervention or pressure. Furthermore, the combination of the measure and the mechanism undermines their irremovability. [116]
• To that end, it is necessary, in particular, that those conditions and procedural rules are 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, be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned [120]
• In the present case, the conditions and the detailed procedural rules which the contested national provisions impose in relation to the possibility that judges of the ordinary Polish courts continue to carry out their duties beyond the new retirement age do not satisfy those requirements. [121]
• In the light of the considerations set out in paragraphs126 to129 of the present judgment, it must be found that, as the requirements noted in paragraphs113 to115 of the present judgment are not complied with, the combination of the measure lowering the normal retirement age to60 years for women and65 years for men and of the discretion vested in the present instance in the Minister for Justice for the purpose of granting or refusing authorisation for judges of the ordinary Polish courts to continue to carry out their duties, from the age of 60 to70 years in the case of women and65 to70 years in the case of men, fails to comply with the principle of irremovability. [130]
• In the light of all the foregoing, the Commission’s second complaint, alleging infringement of the second subparagraph of Article19(1) TEU, must be upheld. [135]

Commentary

O’Meara – Essential Cases: EU Law (7^th Edition)

• “This case was the first time the Court of Justice found a Member State in violation of the obligation to provide ‘remedies sufficient to ensure effective judicial protection in the fields covered by Union law’ under Art. 19(1) TEU. This landmark ruling illustrated the Court of Justice’s role in protecting fundamental principles underpinning the rule of law in a situation where explicit rule-of-law backsliding was affecting a national judiciary.”
• “While the Court of Justice can make an impact in constraining rule-of-law backsliding in specific instances, the systemic nature of the problem raises questions about the role of the EU and its institutions, more generally, in tackling rule-of-law backsliding. With Art. 7(1) TEU proceedings initiated in respect of Poland and Hungary, criticism has been levelled at the Council and the Commission for being slow to react in the face of systemic threats to the rule of law. Disagreement between the institutions on how best to handle such proceedings is evident, with the European Parliament criticizing (among other things) the scope of Art. 7(1) TEU proceedings, and the approach of targeting rule-of-law regression without reference to its consequences for fundamental rights (see, for example, Motion for a Resolution on ongoing hearings under Art. 7(1) of the TEU regarding Poland and Hungary (2020/2513(RSP), European Parliament, 9 January 2020).”

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