In this section, we focus on the two recent infringement proceedings pertaining to the rule of law in Poland, i.e. cases C-619/18 and C-192/18. Both cases concern the independence of the judiciary. One has to remember, however, that the crisis in Poland, while affecting its judiciary in particular, is broader, and several actions by constitutional authorities are highly doubtful already under the national constitutional yardstick. This concerns the Polish Parliament, the President and the government, and in substance namely the freedom of the media, the civil service, and the respect for fundamental rights.Footnote 16
2.1 The ‘Independence of the Supreme Court Case’: C-619/18
Case C-619/18 was filed by the Commission on 2 October 2018Footnote 17 after a letter of formal notice of 2 July 2018 with a 1-month deadline for reply by the Polish authorities and a reasoned opinion of 14 August 2018, with the same deadline. Both deadlines were short, demonstrating the determination of the Commission to see the matter through.Footnote 18 The subsequent judicial proceedings, which were provided by the Court with the above title, offer—even to the reader familiar with the background—an impressive procedural complexity. In total, three decisions, by the Court’s Vice President of October 2018,Footnote 19 then the Court’s President of November 2018Footnote 20 and then the Grand Chamber of December 2018,Footnote 21 preceded opinionFootnote 22 and final judgment.Footnote 23 They were followed by a rectification orderFootnote 24 concerning the Polish version.
The case was brought by the Commission in light of amendments to the law on the Supreme Court, enacted in 2017 and with effect of 3 April 2018, and one further amendment of 10 May 2018, all concerning the mandatory retirement age of its judges. It had stood, since 2002, at 70 for all judges, with the possibility of extension by the First President of the Supreme Court upon request and provision of a medical certificate by the judge in question. It was lowered on 20 December 2017, the day the Commission commenced in relation to it and other matters the Article 7 TEU procedure against Poland, to 65, applying to all sitting judges. The possibility of asking for an extension for 3 years remained, but authorisation was transferred to the full discretion of the President of the Republic, who had to consult the National Council of the Judiciary (NCJ). Neither the President’s decision nor the NCJ’s opinion had to be motivated.Footnote 25 A second extension was possible. The amended law also provided for two cut-off dates limiting the possibility of requests which ranged, depending on the age of the judge, from 3 months to 12 months. A second amendment of May 2018 clarified certain procedural provisions.Footnote 26
The Commission had voiced concerns primarily because of the effect of the lowering of the retirement age, which, it held, amounted to ‘a profound and immediate change in that court’s composition’.Footnote 27 On 3 July 2018, the day after the Commission had sent its formal notice in the case to Poland,Footnote 28 a day that was used by the Court as a reference point,Footnote 29 the law affected 27 judges out of 72 who were to be retired under the new rules, including then the Supreme Court’s First President, Małgorzata Gersdorf. She and 14 others, i.e. 15 in total, were forced to retire on different formal grounds, having not or not properly submitted a request to stay on. Of the 12 others, another 7 received negative opinions by the NCJ, which the President did not overturn. Thus, 22 judges in total were forced to retire.
The Commission was further concerned because the extension procedure foreseen to possibly remedy the impact of the lowering of the retirement age was not subject to sufficient safeguards, in its opinion. It noted that the Polish President had full discretion to decline a request by a judge and that the NCJ, which provided the basis for an assessment, had in itself undergone a fundamental change by a separate law outside the scope of the proceedings, due to which its judges’ members were no longer elected by their peers but instead by the lower house of the Polish parliament, the Sejm. With respect to the integrity of the members of the NCJ after that amendment, the Commission noted drily ‘that doubt may be cast on their independence’,Footnote 30 meaning it now considered the NCJ by-and-large defunct and politicised, so as to rubber-stamp the will of the legislature.
The complaint of the Commission in the main proceedings is rather concise and two-pronged, of which one line of argument can be subdivided into two further parts. It rests solely on primary law. The Commission had submitted that, (a) by lowering the retirement age of judges of the Polish Supreme Court from 70 to 65 for all sitting judges and applying it to judges appointed to the Supreme Court before 3 April 2018 and (b) by granting the Polish President discretion to extend the active mandate of Supreme Court judges upon request and to review the application for renewal, Poland had violated its obligations under Article 19(1) TEU in conjunction with Article 47 of the Charter.
Poland, supported by Hungary, disputed these findings in their entirety. Poland claimed in particular that ‘the organisation of the national justice system constitutes a competence reserved exclusively to the Member States, so that the EU cannot arrogate competences in that domain’ and that the provisions invoked by the Commission were not applicable since the case was not governed by EU law.Footnote 31
2.1.1 Combined Interim Relief and Expedited Procedure
22.214.171.124 Procedural Novelties
Rather than to provide a chronological summary of either of the three orders prior to the opinion, it makes sense to point out, first, that two of them, the order by the Court’s Vice President of October, Silva de Lapuerta,Footnote 32 and the order by the Grand Chamber of December 2018Footnote 33 concern the Commission’s application for interim measures, whereas the order published ‘in-between’, i.e. in November 2018 by the Court’s President, Koen Lenaerts,Footnote 34 concerns the separate Commission application for an expedited procedure.
The Polish Supreme Court case is therefore a novelty in EU law in several aspects, not only as regards its fundamental legal and political questions, but also its procedural structure. First, because of the combination of interim measures and expedited procedure, for which the Court’s President, in his order, cites no precedent,Footnote 35 although allowing both to be combined.Footnote 36 Secondly, the procedure is noteworthy because there are two orders, not only one, as regards the interim measures, of which one serves as interim injunction until a decision on the interim measures themselves is taken, an ‘injunction for an injunction’ so to say. Thirdly, because both applications were successful for the Commission, which, given their rare use and a diminished success rate,Footnote 37 is remarkable as such.
With the applications for interim relief and the expedited procedure, the case differs from the second one discussed below. The reason for the Commission’s decision to file for both measures is found in the facts surrounding the legal amendments on the Supreme Court. As the Court’s Vice President reiterated, the Polish President had increased the total number of positions at the Supreme Court from 93 to 120 in March 2018, and 44 new vacancies had been advertised over the summer of 2018.Footnote 38 The Commission obviously saw this as a particular danger of being confronted with a fait accompli; and the Court agreed.
126.96.36.199 The Application for Interim Relief and the Court’s Two Subsequent Orders
The Commission set in motion both interim measures and the expedited procedure with separate applications, all filed on the same day as the application in the main proceedings.
We will devote some space to the application for interim relief, because of its novel use, and because we had called, in our article of 2018, for increased recourse to the procedure.Footnote 39 The Supreme Court case now offers a very good opportunity to assess how Commission and Court are developing this procedural tool.
The Commission’s application for interim measures, made pursuant to Article 279 TFEU in conjunction with Article 160(3) of the Rules of Procedure, contained four requests: (a) to order Poland to suspend the national legal amendments in question and to refrain from taking any action to implement them, (b) to assure that all sitting judges of the Supreme Court could continue to exercise their office under the conditions as they stood on 3 April 2018, the day the amendments came into effect, (c) to refrain from any appointment of judges under the new rules on posts becoming vacant because of them, in particular as regards measures to replace the President of the Supreme Court, and finally (d) to keep the Commission appraised of all measures taken in compliance in regular intervals.Footnote 40 Sanctions under Article 279 TFEU, such as those that had recently created considerable interest in academia, were not subject of the proceedings.Footnote 41
The Vice President of the Court, based on Article 160 (7) of the Court’s Rules of Procedure, decided that the matter was so urgent that it could not even wait until the Grand Chamber had decided on the interim measures but that, more still, interim orders had to be issued until that decision prior to a judgment, i.e. that the above-mentioned ‘injunction for an injunction’ was necessary.
In relation to the later order of the Grand Chamber, it is evident that the first order remains briefer and necessarily more superficial, which is why we focus on the reasoning of the second order. Nonetheless, there is one point of importance, on the use of the fumus boni iuris.
As is the case in many national legal systems, the Court decides on the request for interim relief by means of an ancillary procedure, based on a summary examination, i.e. briefer and less in-depth than in the final judgment. However, the CJEU has varied national blueprints with its own test, which is somewhat distinct and based on three considerations: first, whether ‘such an order is justified prima facie in fact and in law’ (fumus boni juris), secondly, whether the order is required ‘to avoid serious and irreparable damage to the applicants’ interests’ (urgency) and thirdly, whether the applicants’ interests outweigh the interests of the defendant (balance of interest).Footnote 42 The assessment of the fumus boni iuris appears equivalent to the ‘summary assessment’ in certain Member States.
With her (the first) order of 19 October, Vice President Silva de Lapuerta adopted this test, but in a considerably condensed form.Footnote 43 Her reasoning on the fumus boni iuris is particularly noteworthy. She concludes that:
without it being possible to rule, at the current state of the proceedings, on the question of the merits of these arguments, let alone on the existence of a fumus boni juris as such, the [relevant] question must be analysed in detail.Footnote 44
This means that the Vice President granted the request without seriously examining the fumus boni iuris, rather refusing to do so in light of the complexity of the case. This approach ought to be contextualised, since it continues a development long observed in academia,Footnote 45 by which the Court has almost inversed its initial, very restrictive, approach, having originally required a ‘manifest soundness’ of an application in interim proceedings to accede to it.Footnote 46 Since the Vice President of the Court turns that original test on its head, the application of the Commission is also, with no surprise, granted.
In its second order of December 2018, on the requested interim measures, that follows the result of the first, the Grand Chamber confirmed its willingness to inverse assumptions on the fumus boni iuris.Footnote 47
The Grand Chamber extends the initial reasoning of the Vice President in a motivation comprising no less than 118 paragraphs of its order, otherwise sufficient for a full-blown judgment.
In order to assess the fumus boni iuris, on which it consecrates a full 29 paragraphs, the Court carefully avoids to deal with the main plea of the Commission, the infringement of Article 19 TEU read together with Article 47 of the Charter. It emphasises instead that this raises ‘difficult legal issues’,Footnote 48 to be reserved for the judgment. This is in line with the general rule in national jurisdictions that the interim measure does not serve to decide already on the merits.
In order to assess the complex situation in Poland prima facie nonetheless, the Court uses a three-step test that can be deemed a smart solution.
The Court, after an extensive recapitulation of the parties’ arguments, first recalls the importance, relevant jurisprudence, and content of Article 19 TEU and Article 47 of the Charter for Member States, except that the case it knowingly cites in particular, the LM case, hardly deals with ‘every Member State’, as the Court formulates, but no other than the defendant in the present one.Footnote 49 It therefore manages to remain abstract and at the same time leave no doubt as to the concrete addressee.
Concentrating on the importance also of ‘maintaining the independence of those bodies’, i.e. courts and tribunals, the Court, in a second step, recalls that it is ‘common ground’ that the functioning of the Supreme Court is particularly essential for the Polish judiciary, and that, already for this reason, it is part of the judiciary in the sense of Article 19 (1) TEU.Footnote 50 This finding very much predetermines a later confirmation in the judgment, while avoiding to explicitly look at its merits. This assessment does not amount to a reasoning based on general principles or an extensive substantive assessment, but a reduced reiteration of key case law waiting to be further extended and deepened.
The Court then, in a third step, assesses different arguments brought forward by Poland that might rebut the Commission’s claim, including that the Commission was barred from invoking objections already made. The Court concludes that none of them convince it prima facie, nor that Poland can successfully claim the novelty of the Commission’s arguments.Footnote 51
The Court is to be credited for having dwelled on the consequences of this case law ahead of its later judgment, while a strict summary assessment may not have required it.
The Court of Justice then turns to the urgency of the application, which it condenses into the formula whether there is serious damage to be expected from the situation at hand and whether that damage is likely to be irreparable.Footnote 52 The Court affirms that this is the case since any endangering of the Supreme Court, as an apex court, is ‘likely to have an irreversible effect on the EU legal order’.Footnote 53
As a last step, it agrees that the weighing of interest is in favour of the Commission. In this context it is particularly noteworthy that the Court highlighted, as phrased by Maciej Taborowski, a ‘deep interference in national law and with the autonomy of the national law-maker’.Footnote 54 The Court rebuts the argument submitted by Poland that the effect of the interim measure suspending the application of the provisions of national legislation would be the creation of a legal lacuna as regards the definition of the retirement age for judges of the Supreme Court. The Court rather underlines that ‘granting such interim measures entails an obligation for that Member State immediately to suspend the application of the provisions of national legislation at issue, including those whose effect is to repeal or replace the previous provisions governing the retirement age for judges of the Sąd Najwyższy (Supreme Court), so that those previous provisions become applicable again pending delivery of the final judgment.’Footnote 55 In other words, provisions that were already repealed have to be brought back into force in such a case.
188.8.131.52 The Application to Expedite the Procedure
Distinct from the Commission’s application for interim measures, but equally present in the case at hand, is the possibility for the Commission to request that the main procedure be expedited. The Court decided on this second application of the Commission with its second order of November 2018, based on Article 133 of the Court’s Rules of Procedure.
The expedited procedure does not use the same test as the application for interim measures, even though the criteria used by the Court to grant it also rest on an ‘intrinsic urgency’ test, which bears some resemblance. Decisive here is not the risk for permanent damage, should no interim measure be taken, but the possibility to reduce the risk emanating from the main procedure by speeding it up. Thus, there has to be a particular and intrinsic urgency to the case in the main proceedings.Footnote 56
In contrast to the two orders for interim measures, Court President Lenaerts, who decided on this annex application in the main case, considered also the substantive yardstick found in the Commission’s application, but he looked in particular at Article 47 of the Charter and did not relate his findings to Article 19(1)(2) TEU.Footnote 57 His decision to grant the request based on urgency rests on two main considerations. He first considered the importance of a functioning apex court, such as the Supreme Court, to guarantee individuals access to an independent court, a right under Article 47 of the Charter, which, he continues, ‘forms part of the essence’ of the fair trial right under the same norm, and which equally serves to safeguard as a ‘guarantee’ of ‘cardinal importance’ to safeguard the Union’s values under Article 2 TEU, including the rule of law.Footnote 58 That line of argument, we note, is thoughtful and daring at the same time. The Commission had framed its argument much broader and relied on a more objective notion. It had argued that the ‘systemic concerns on which those complaints are based’ ‘hinder the proper functioning of the EU legal order’.Footnote 59 While we fully agree with this observation and welcome the use of the concept of systemic deficiency, it was seemingly too early at this stage of the procedure for the Court’s President to entertain such a broad concept. Next, Lenaerts considers the amendments in Poland as a possible infringement of a Member State’s obligations to guarantee a proper functioning of the preliminary reference procedure, which he elevates to ‘the keystone of the EU judicial system’,Footnote 60 a term later recalled in the judgment.Footnote 61 The term is borrowed from the opinion in Achmea,Footnote 62 but it is the first time that the Court itself used it.
The opinion of Advocate General Evgeni Tanchev followed on 11 April 2019.
The main procedural point for Tanchev, before coming to the substance, is the relation of Article 258 TFEU to Article 7 TEU,Footnote 63 which the literature had long disagreed on. Tanchev now clarifies that the wording of the treaties, notably in its Lisbon version, does not argue for an exclusion of the infringement action in the area of Article 7 TEU, since today’s Article 258 TFEU aims at an infringement of a norm in both treaties, compared to the former Article 226 TEC. Further, he observes a teleological difference, whereas ‘Article 7 TEU is essentially a ‘political’ procedure’ while ‘Article 258 TFEU constitutes a direct ‘legal’ route before the Court for ensuring the enforcement of EU law by the Member States’.Footnote 64 Article 7 TEU does therefore not act as lex specialis to the infringement action.Footnote 65 Rather, and without Article 269 TFEU being an objection, he fittingly concludes that ‘the autonomous, indeed complementary, nature of these procedures’ mean ‘that they may apply in parallel’.Footnote 66 This clarification is a major advancement for the interaction of the two procedures in primary law, it was much needed and it is to be expressly welcomed.
The clarification of this very important doctrinal and procedural connection between two core norms of the EU’s constitutional supervision system results in the possibility for Tanchev to deal with two substantive points. He first turns to the substantive yardstick of the infringement, for which the Commission, setting the frame under the principle ne ultra petita, had aimed at primary law, and had proposed a combined reading of Article 19(1)(2) TEU with Article 47 of the Charter. The opinion now gave a chance to turn to this yardstick more extensively. The importance of both norms, and notably of Article 19(1)(2) TEU as an ‘operationalisation’ of the rule of law as an EU value enshrined in Article 2 TEU, had arisen against the backdrop of a more complex development, notably through repeated use by the Commission and important case law of the Court of Justice.Footnote 67
Tanchev dealt a severe blow to the Commission’s legal point of view of a combined reading, siding explicitly with the defendant and finding that the Commission could invoke neither Article 19(1) TEU in combination with Article 47 of the Charter, nor the latter by itself, for lack of an implementation of EU law, as required by Article 51 of the Charter.Footnote 68 In particular, he held that any
contrary finding would be apt to undermine the current system of review of the compatibility of national measures with the Charter and open the door for Treaty provisions such as Article 19(1) TEU to be used as a ‘subterfuge’ to circumvent the limits of the scope of application of the Charter as set out in Article 51(1) thereof.Footnote 69
Moreover, he notes, the Commission could not rely on the Court’s assessment of Art. 47 in the Achmea case, because, he stated, ‘the Court mentioned Article 47 of the Charter and related case-law only to confirm findings made on the basis of Article 19(1) TEU.’Footnote 70
In a similar manner, the Advocate General also ruled out that the Commission could invoke the ASJP caseFootnote 71 as a precedent for its combined reading of both norms. He found that the passages cited by the Commission from that case proved only that the Court relied on Article 47 of the Charter to support the substantive scope of Article 19(1) TEU.Footnote 72 In the passages cited by the Advocate General,Footnote 73 the Court declares that a previous reading of Art. 19(1) TEU is ‘now reaffirmed by Article 47 of the Charter’ or that it is ‘confirmed by the second subparagraph of Article 47 of the Charter’.
In our view, the precedent in ASJP should be read as the Court’s opening—through Article 19(1)(2) TEU—of the possibility to apply Article 47 of the Charter in a combined standard required by these two provisions. Where Article 19(1)(2) TEU applies, the substantive yardstick of Article 47 of the Charter can apply as well, without contravening Article 51 of the Charter. In his second opinion in the case discussed below, Tanchev would later underscore that he regards a meaningful separation of the jurisdictions of the Court of Justice, the ECtHR as well as national constitutional courts, as demonstrated by a limited applicability of certain EU norms, i.e. here a ‘delimited scope’ of Article 19 TEU, to be as important under the rule of law ‘as the protection of fundamental rights’.Footnote 74 We fully agree with the Advocate General that a meaningful distinction of jurisdictions is important. To commit to a combined standard of both norms, Article 19 (1) TEU and Article 47 of the Charter, does not mean a hidden attempt to level the obstacle of Article 51 of the Charter. The goal then is not a clandestine extended application of the Charter but a comprehensive objective standard. Further, neither the Court nor the Advocate General eventually disregarded Article 47 entirely, as we will show below. It may have made for a smoother assessment to not bar Article 47 and then requiring to take it into account after all.
We also note that, in at least two cases, the Court appears to support a joint reading. In the Berlioz case, the Court had stated that ‘[t]he obligation imposed on the Member States in the second subparagraph of Article 19(1) TEU, to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law, corresponds to that right [scil.: Article 47 of the Charter].’Footnote 75 Advocate General Wathelet, in his opinion in that case, had even required a mandatory reading in conjunction, stating that ‘Article 47 of the Charter cannot be treated independently of the second paragraph of Article 19 TEU’.Footnote 76
Returning to the opinion in the Supreme Court case, Advocate General Tanchev, having thus narrowed the substantive yardstick for assessment to the ‘second subparagraph of Article 19 (1) TEU’, assesses two points on the merits: the requirement of judicial irremovability from office and the principle of judicial independence, both in light of the new retirement age at the Polish Supreme Court.
For the concept of judicial independence, the Advocate General reiterates the ASJP formula,Footnote 77 despite his previous narrow reading of that case.
To ascertain the meaning of irremovability, Advocate General Tanchev cites the opinion of Advocate General Ruiz-Zarabo Colomer in the De Coster case. This is a very useful addition, since the opinion appears to have been previously overlooked in the debate at hand. Accordingly, irremovability ‘is the basis and the reflection of judicial independence and means that judges cannot be dismissed, suspended, moved or retired except on grounds, and subject to the safeguards, provided by law’.Footnote 78 Hence, the distinction for Tanchev is that irremovability from office protects the judicial position as such once acceded to it, while judicial independence, in the specific setting of EU primary law, protects the proper and unhindered exercise of said position. That juxtaposition, we observe, finds support in the same passage of the above De Coster opinion.
Tanchev further elaborates the principle of irremovability based on ECtHR case law and various non-binding guidelines by the Council of Europe, including the Venice Commission. He equally cites the CCJE and UN documents,Footnote 79 a noteworthy reception of soft law and international law sources, that he would continue in similar fashion in the subsequent case. From them, Tanchev deduces that
judges should have a guaranteed tenure until a mandatory retirement age or the expiry of their term of office, and can be subject to suspension or removal from office in individual cases only for reasons of incapacity or behaviour rendering them unfit for office. Early retirement should be possible only at the request of the judge concerned or on medical grounds, and any changes to the obligatory retirement age must not have retroactive effect.Footnote 80
The Advocate General finds that, as the Commission has shown, these requirements are not met.Footnote 81 Tanchev further finds the principle of irremovability of judges infringed because the termination of office was premature. Relying on precedent case law, he concludes that Poland cannot invoke economic motives to justify the decision.Footnote 82
As regards the second principle in question, judicial independence, Tanchev’s position is equally clear:
The Polish legal provisions in question
expose the Supreme Court and its judges to external intervention and pressure from the President of the Republic in the initial extension and renewal of their mandate which impairs the objective independence of that court and influences the judges’ independent judgment and decisions. This is so, especially given that the requirement to apply to the President of the Republic for the extension of retirement age is accompanied by a reduction in the retirement age.Footnote 83
As regards the possibility for extension requests to the Polish President, Tanchev finds that this offers no judicial review and does not rely on binding criteria.Footnote 84
Relying on these findings, the Advocate General therefore suggests to the Court to find that there has been a violation of Article 19(1) TEU.
In its judgment of June 2019, the Court’s Grand Chamber sides, in the operative part, fully with the Advocate General, even though its reasoning differs in parts.
The Court finds that Poland violated its obligations under Article 19(1)(2) TEU by enacting a law that retroactively lowers the retirement age for judges at the Supreme Court and, secondly, by granting the Polish President discretion to extend the mandate of its judges beyond the newly fixed retirement age. The applicability of the infringement procedure to the case is not discussed.
Very close to Tanchev’s reasoning, the Court rejects Poland’s argument that the subsequent amendments of November 2018 to the original law can impact the Court’s own competence or indeed the requirement to assess the law in question, recalling clearly that the relevant point in time is the date of the reasoned opinion, even if later retroactive amendments came into effect.Footnote 85
It then deals, as the Advocate General did, with the yardstick for the substantive assessment, Article 19(1) (2) and Article 47 of the Charter. From the outset however, it departs very notably from the Advocate General’s point of view; at the same time, it avoids a clear positioning.
The Court uses its power to reformulate the application in a manner that takes away the main point of difference between the Commission’s application and the Advocate General’s opinion. It finds: ‘At the hearing, the Commission stated that, by its action, it is seeking, in essence, a declaration that the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, has been infringed.’Footnote 86 This is clearly not what the Commission had submitted in writing, it had demanded an assessment ‘under the combined provisions of Article 19(1)(2) TEU and Article 47 of the Charter’.Footnote 87
The Court however does not find that Article 47 of the Charter must not be considered. Rather, and now implicitly returning to the reformulated application, it holds: ‘that the second subparagraph of Article 19(1) TEU requires Member States to provide remedies that are sufficient to ensure effective legal protection, within the meaning in particular of Article 47 of the Charter, in the fields covered by EU law’ and that it is assessing the scope of Art. 19(1) TEU ‘as confirmed by the second paragraph of Article 47 of the Charter’.Footnote 88
The Court therefore mediates between two positions. Like the Advocate General, it narrows the yardstick, but remains more extensive than Tanchev. From this basis, the Court proceeds to assess the merits.
Before going into the assessment of the application, the Court, in contrast to the Advocate General, adds a section on ‘applicability and the scope of the second subparagraph of Article 19(1) TEU’.Footnote 89 Given that the scope of assessment had already been established, the Court could have omitted that section without immediate loss to its reasoning. That it decides otherwise is very telling because the Court uses the following paragraphs for general findings on the normative framework of the case.
Only after these initial normative findings does the Court go into an assessment of Article 19(1) TEU, combining both key findings of its previous judgments in ASJP and LM into one, central statement:
Article 19 TEU, […] gives concrete expression to the value of the rule of law affirmed in Article 2 TEU [and] 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.Footnote 90
It coincides with that finding that the Court had included Article 2 TEU as applicable law at the beginning of the judgment.Footnote 91 The Court emphasizes that Article 19(1) TEU demands full compliance irrespective of various counterarguments, such as the possible presence of an excessive deficit procedure and ‘irrespective of whether the Member States are implementing Union law within the meaning of Article 51(1) of the Charter’.Footnote 92 The compliance requirement also does not amount to a transfer of competences from Member States to the Union.Footnote 93 The Court then also answers how it intends to read Article 19(1)(2) TEU ‘in the light of’ Article 47 of the Charter. Accordingly, this combined interpretation requires Member States to provide ‘effective judicial protection’, and that in turn entails ensuring judicial independence,Footnote 94 a finding with which the Court can commence its concrete assessment in the case at hand.
The Court distinguishes two pleas of the Commission and examines them separately.
In its first plea in law, the Commission in essence alleged that the application of the lowering of the retirement age to all sitting judges of the Polish Supreme Court, with two cut-off dates depending on their age, and in addition an increase in the number of judges, leading both to a large number of vacancies, amounted to an impression that the measures were used to ‘covertly’ change the composition of ‘judicial bodies’,Footnote 95 a term by which the Commission meant the Polish Supreme Court.
Poland, in turn, defended itself by stating that early retirement of judges, with all salaries and immunities kept, did not amount to dismissal, this being the solely prohibited measure in question here under Art. 19(1) TEU and further, that it had only re-established a previously existing, earlier, retirement age, under which several of the sitting judges had served, who were therefore not affected by the current measures. Further, Poland also claimed that the measures aimed at ‘improving the age balance among senior members’.Footnote 96 This is an argument with which the Court was familiar, since it was raised, in similar fashion, by Hungary regarding its judiciary in 2012.Footnote 97 Hungary, in its support, claimed that the Commission had not proven an impact of the measures in question on the Supreme Court’s capacity.Footnote 98
Dealing further with the arguments for the first plea, it is noteworthy that the Court addresses them solely under the principle of independence, to which it attaches the notion of impartiality,Footnote 99 whereas the Advocate General had previously addressed either concept separately. The Court also separates the notion of independence (tacitly the operative core of Article 19(1)(2) TEU) into ‘two aspects’, one, ‘which is external in nature’ and the other being ‘internal in nature’.Footnote 100 The latter, internal one, concerns the behaviour and set-up of a bench in relation to concrete proceedings, i.e. ‘that an equal distance is maintained from the parties to the proceedings and their respective interests’.Footnote 101 It subsequently only assesses the external aspect, the ‘freedom of the judges from all external intervention or pressure’Footnote 102 for which it adds, for the concrete case:
the requirement of independence means that the rules governing the disciplinary regime and, accordingly, any dismissal of those who have the task of adjudicating in a dispute must provide the necessary guarantees in order to prevent any risk of that disciplinary regime being used as a system of political control of the content of judicial decisions.Footnote 103
In light of this high bar, the Court sets as a test four elements to find whether the Polish law is compatible with the external aspect of judicial independence, and, consequently, EU law: first, ‘a legitimate objective’ that is, secondly, ‘proportionate in the light of that objective’ and, thirdly, ‘must not raise reasonable doubt in the minds of individuals as to the imperviousness of the court concerned to external factors’ nor, the fourth point, its ‘neutrality with respect to the interests before it’.Footnote 104
It is somewhat surprising that the Court never openly finds that this test has not been met. Instead, it speaks of ‘doubts’, first as regards the retirement as such, secondly, related to the newly introduced possibility to have a mandate extended, thirdly, as regards the combined effect of the measures and lastly, the extent of that combined effect on the Supreme Court.Footnote 105 In other places, the Court is more explicit. In particular when it comes to additional material provided by Poland, such as an explanatory memorandum for the Venice Commission, it noted that this could raise serious doubts as to whether the reform of the retirement age of serving judges of the Supreme Court was made in pursuance of legitimate objectives, and not ‘with the aim of side-lining a certain group of judges of that court’.Footnote 106 Weighed against the arguments of the defendant the Court first does not accept that some of the judges had originally served under terms meaning a retirement at 65. The Court equally rejected further Polish arguments, such as that the retirement of judges had to be regarded as a right rather than an obligation,Footnote 107 as well as the assumption that, in light of the economic situation, the amendments were to mainstream and standardise the retirement age of its judges. The Court is finally almost amused, it seems, by the fourth argument, that the amendments were intended to improve the age balance at the court and to allow positive discrimination.Footnote 108 Consequently, the Court approves of the first plea in full.Footnote 109
The second plea of the Commission addressed the discretion granted to the Polish President to extend the term of retired judges for 3 years, and to repeat that extension once upon request.
The Court, rather concise in its reasoning, finds that the President’s manner of appointment clearly did not satisfy the requirements it had set and that the NCJ did not meet standards to aptly justify its decisions, which therefore could not rule out the ‘imperviousness of the judges concerned to external factors and as to their neutrality with respect to any interests before them.’Footnote 110 Interestingly, the Court requires that a body such as the NCJ be itself independent of the legislative and executive authorities and of the authority to which it is required to deliver its opinion.Footnote 111 Hence, for the first time in history, the Court specifies the terms for the functioning of a body that is not itself a court but established for the purpose of safeguarding judicial independence. It would return to that problem later.Footnote 112
To conclude its reasoning, the Court reiterates, as the Advocate General had done before, that Member States could not, if not in their own right, point to another Member State to justify their own infringement of EU law, an important argument given Poland’s frequent references to legal systems in other Member States, including, but not limited to, Germany and France.Footnote 113 As a last point, it notes drily that its own members were appointed for a fixed year term on accord of all Member States and of the panel provided for under Article 255 TFEU, to counter the argument by Poland as to its own composition.Footnote 114
2.2 The ‘Case on the Independence of the Ordinary Courts’: C-192/18
The second important infringement action, Case C-192/18, is the ‘Case on the Independence of the Ordinary Courts’, for which Advocate General Tanchev issued his opinion on 20 June 2019 and the Court handed down its judgment on 5 November 2019. The case offers several interesting findings and complements the case on the independence of the Supreme Court.
The title of the case, again assigned by the Court, is somewhat too narrow as it does not concern only the ordinary courts, but a retirement differentiation according to the sex of the person that concerned, other than ordinary court judges, mutatis mutandis equally public prosecutors and Supreme Court judges. This differentiation, according to which men retire in general at the age of 65, whereas women were set to retire at the age of 60, with a possible extension of employment at the discretion of the minister of Justice, had been introduced on 12 July 2017. The Commission was faced with not only having to address the amendment concerning the lowering of the retirement age, but also that new differentiation. It brought a letter of formal notice only 2 weeks later, on 28 July 2017, a record-worthy speediness given its internal procedures and stakeholders involved. The date of that initial decision of the Commission coincided with the last (fourth) ‘Rule of Law Recommendation’ addressed to Poland and the threat to trigger Article 7 TEU.Footnote 115 A reasoned opinion followed on 12 September 2017. Since the case was not subject to an expedited procedure, the Court took considerably longer to decide on it, and concluded the case only in 2019, long after the Commission had taken non-judicial steps also regarding that matter with the launch of Article 7 (1) TEU on 20 December 2017.Footnote 116
The Commission addressed the age differentiation in the Polish law by two pleas, first under the combined primary and secondary law equal treatment provisions (Article 157 TFEU and Articles 5(a) and 9(1)(f) of Directive 2006/54/EC). With the second plea, the Commission again invoked the view that Poland, by the same token, had violated the ‘combined provisions’ of Article 19(1) TEU and Article 47 of the Charter. For the yardstick, the Commission had limited its action during the hearing to Article 19(1)(2) TEU, read in the light of Article 47 of the Charter. The Court understood this to mean a focus only on Article 19 (1) TEU, and did not consider Article 47 further,Footnote 117 in contrast to the previous case, where exactly that reasoning had been upheld.Footnote 118 The Court is yet to explain this difference.
Advocate General Tanchev, also assigned to this case, proposed that the Court should declare that Poland has breached its obligations under Article 157 TFEU, along with Article 5(a) and Article 9(1)(f) of Directive 2006/54/EC, as well as under Article 19(1)(2) TEU. He only briefly considered and rejected the motion by Poland to declare the case hypothetical due to subsequent amendments to the laws in question, for this case of April 2018, in particular because of the fundamental need for clarification by the Court.Footnote 119
As before, and already as discussed above in part, Tanchev remained of the opinion that Art. 47 of the Charter again was not to be considered. He referred for that purpose to his considerations in the above-mentioned caseFootnote 120 including a polite reservation possibly against previous mediation attempts by the Court: ‘I therefore take the view that prudence should be exercised in making direct recourse to Article 47 of the Charter in illuminating the protection with respect to the rule of law provided by Article 2 TEU.’Footnote 121
But he evidently felt the need to return to this point in more detail. As a rule, the Advocate General regards an extensive application of Article 47 of the Charter, even from an objective viewpoint, as non-compliant with the principle of conferral. ‘Contrary to the European Court of Human Rights, the Court does not have a specific mandate to penalise all fundamental rights violations committed by the Member States.’Footnote 122 But that limitation, he continues, does not mean that the Court cannot consider ‘common legal sources’,Footnote 123 in the assessment of Article 19 (1) TEU. Fundamental rights, notwithstanding their non-applicability to the individual under the Charter in the case at hand in light of its Article 51, are part of these sources, as indicated in particular by Article 6 (3) TEU.Footnote 124 They are inherent in the ‘content of the guarantee of the rule of law’.Footnote 125 Following this logic, as the Advocate General continues, there is necessarily ‘a tension inherent in Article 6(1) TEU, in the sense that the Charter is, in effect, recognised as a source of fundamental rights guaranteed by the EU legal order, while the same provision also states, […] that the ‘provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.”Footnote 126
Tanchev’s solution for that tension is a novel concept in the Court’s terminology: a ‘constitutional passerelle’ (‘passerelle constitutionnelle’ in the French version, somewhat weak ‘verfassungsrechtliche Verbindung’ in the German version, ‘konstytucyjny pomost’ in the Polish version). Reminiscent of the ‘passerelle clause’ but of an evidently different meaning, the Advocate General uses this concept to point out a necessary connection between both norms, requiring an interpretation ‘in harmony’.Footnote 127
As regards the two complaints by the Commission, the Advocate General first assesses and confirms that there has been an unequal treatment between men and women, and in particular also that remunerations in question were to be regarded as pay in the sense of Directive 2006/54/EC on equal opportunities and treatment.Footnote 128
It is the second complaint, and the above considerations, that are of considerably more interest here. The Advocate General examines the fulfilment of both principles, irremovability and independence, according to several subprinciples that he takes from varying sources, including by international organisations.Footnote 129 The point of view essential for ascertaining, for each point, whether there has been an interference, is in particular that of general public that is subject to the judiciary, or ‘whether the public might legitimately perceive the arrangements in issue to taint the impartiality of proceedings.’Footnote 130 The Court would later adopt this viewpoint.
The assessment also condenses into a statement on the material scope of Art. 19 (1) TEU:
The material scope of Article 19(1), second subparagraph, TEU is confined, in the context of irremovability and independence of judges, to correcting problems with respect to structural infirmity in a given Member State; which is here the case given that the laws challenged by the Commission impact across entire tiers of the judiciary. These might best be termed systemic or generalised deficiencies, which ‘compromise the essence’ of the irremovability and independence of judges.Footnote 131
This formula adds further substance (‘impact across entire tiers of the judiciary’) to the concept of ‘systemic or generalised deficiencies’, which the Court had previously already dwelled on in LM, but left in its details to Member State courts.Footnote 132 Accordingly, there can be particularly severe, ‘structural infirmities’ in a Member State, which can take the form of ‘systemic or generalised deficiencies’ and there is a concept of ‘essence’ of a principle in EU constitutional law, which can be infringed by these phenomena.Footnote 133 The Advocate General may still have to further illustrate what difference, if any, he sees between the adjectives ‘systemic or generalised’ and how the new notion of ‘structural infirmity’ comes into play.
The Court sided with the Advocate General and declared that Poland had breached its obligations under Article 157 TFEU, along with Article 5(a) and Article 9(1)(f) of Directive 2006/54/EC, as well as under Article 19(1)(2) TEU.
As regards the substance of the first plea, the main point of dispute between the Commission and Poland was the scope of application of the Directive or a different legal basis, which would have supposedly granted more leeway to the defendant.Footnote 134 The Court dismissed Poland’s arguments as fundamentally flawed.Footnote 135
As regards the second plea, the Court spent some time on the ‘applicability and the scope of the second subparagraph of Article 19(1) TEU’.Footnote 136
Having repeated its findings on the different aspects of the guarantee of judicial independence, the Court engages in a concrete assessment and clarifies, first, that the main point for objection is not per se the lowering of the retirement age nor in fact the involvement of the Minister of Justice. For both, the Court indicates some leeway for the Member States. Rather, it is the concrete amount of discretion granted to the Minister of Justice and, in return to the Advocate General’s reasoning, the impact on concerned individuals in ‘that they cannot give rise to reasonable doubts, […] as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them’ that lead the Court to find its yardstick infringed.Footnote 137 Among other things, the Court noted that the new system might actually have been intended to enable the Minister for Justice, acting at his discretion, to remove, once the newly set normal retirement age was reached, certain groups of judges serving in the ordinary Polish courts while retaining others of those judges at their post.Footnote 138 This reference to the context of the ‘reform’ of the judiciary spikes Poland’s guns by contradicting the claim that nothing special is happening in Poland, at least nothing that would differ Poland from other EU Member States.