Commission v Poland (Independance des juridictions de droit commun) (Introduction of a different retirement age for men and women judges of the ordinary courts - Opinion) [2019] EUECJ C-192/18

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Commission v Poland (Independance des juridictions de droit commun) (Introduction of a different retirement age for men and women judges of the ordinary courts - Opinion) [2019] EUECJ C-192/18_O (20 June 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/C19218_O.html Cite as: [2019] EUECJ C-192/18_O, EU:C:2019:529, ECLI:EU:C:2019:529

(Failure of a Member State to fulfil obligations — effective legal protection under Articles 19(1), second subparagraph, TEU — independence and impartiality of courts — Inadmissibility of Commission’s complaint under Article 47 of the Charter of Fundamental Rights of the European Union — Article 157 TFEU —Articles 5(a) and 9(1)(f) of Directive 2006/54/EC — Introduction of a different retirement age for men and women judges of the ordinary courts, judges of the Sąd Najwyższy (Supreme Court), and State prosecutors — Lowering of the retirement age of judges of the ordinary courts, combined with vesting the Minister for Justice with a discretion to prolong an individual judge’s active mandate)

1. In the present case, the Commission has brought infringement proceedings against the Republic of Poland under Article 258 TFEU on two grounds. First, the Commission contends that by introducing, in Article 13(1) to (3) of the Ustawa o zmianie ustawy — Prawo o ustroju sądów powszechnych oraz niektórych innych ustaw z dnia 12 lipca 2017 r (2) (Law amending the Law on the system of ordinary courts and certain other laws) of 12 July 2017 (‘the Amending Law of July 2017’), a retirement age of 60 for women and 65 for men, when it was previously 67 for both sexes, for judges of the ordinary courts, public prosecutors, and judges of the Sąd Najwyższy (‘Supreme Court’), Poland has breached its obligations under Article 157 TFEU, and Articles 5(a) and 9(1)(f) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 relative to the implementation of the principle of equal opportunities and equal treatment between men and women in matters of employment and work. (3)

2. Second, the Commission contends that Poland has failed to fulfil its obligations under the combined provisions of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union, by lowering, in Article 13(1) of the Amending Law of July 2017, the retirement age of judges of the ordinary courts, while at the same time vesting the Minister for Justice with a discretion to prolong the period of active service of individual ordinary court judges under Article 1(26)(b) and (c) of the same law.

3. The first of the Commission’s complaints is new, in the sense that discrimination on the basis of sex is yet to feature in the cases that have been heard by the Court concerning reforms to the retirement rules of Polish judges that were put in place in 2017, (4) and which have attracted a raft of international criticism. (5) Indeed, as discussed in my Opinion in Commission v Poland (Independence of the Supreme Court) (C‑619/18) (6)the 2017 reforms form the subject of a reasoned proposal of the Commission in accordance with Article 7(1) TEU regarding the rule of law in Poland. (7)

4. With regard to the second complaint, to the extent to which it concerns the authority of the Commission to rely on Article 47 of the Charter in infringement proceedings, and the content of the rule on effective legal protection in the second subparagraph of Article 19(1) TEU, this issue has been addressed in detail in my Opinion of 11 April 2019, Commission v Poland (Independence of the Supreme Court) (C‑619/18). (8)There I took the position that if a Member State is not implementing EU law under Article 51(1) of the Charter, the Commission is not able to base its complaint on Article 47 of the Charter in a direct action under Article 258 TFEU.

5. Thus, with respect to the second ground, the main focus of my analysis will therefore lie in determining whether the rule in issue breaches the second paragraph of Article 19(1) TEU, this provision being a concrete manifestation of respect for the rule of law under Article 2 TEU. (9) I will also elaborate upon the sources of law that may be relied on in making that assessment; sources that the second paragraph of Article 19(1) TEU shares with those determining the content of the right to an ‘independent and impartial tribunal previously established by law’ in Article 47 of the Charter. As will be illustrated in Part VI C below, common sources make for a constitutional passerelle between these two provisions, so that the case-law elaborated beneath the two provisions inevitably intersects. (10)

6. That said, I will further discuss, in the same section, the differences between Article 19(1) TEU and Article 47 of the Charter, and particularly the threshold of breach of the second subparagraph of Article 19(1) TEU that needs to arise before it can be invoked as a free standing violation of EU law with respect to the irremovability and independence of judges, independently of the Charter.

‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.’

‘1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.

2. For the purpose of this Article, “pay” means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.

(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;

4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.’

9. Article 7(1)(a) of Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (11) states:

‘1. This Directive shall be without prejudice to the right of Member States to exclude from its scope:

(a) the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits.’

10. Article 3 of Directive 2006/54 is entitled ‘Positive action’ and states:

‘Member States may maintain or adopt measures within the meaning of Article 141(4) of the Treaty with a view to ensuring full equality in practice between men and women in working life.’

11. Article 5 of Directive 2006/54 is entitled ‘Prohibition of discrimination’ and states:

‘Without prejudice to Article 4, there shall be no direct or indirect discrimination on grounds of sex in occupational social security schemes, in particular as regards:

‘1. Provisions contrary to the principle of equal treatment shall include those based on sex, either directly or indirectly, for:

13. The Commission’s complaint relates to the Amending Law of July 2017. The provisions of that amending law which are relevant to the present case are Article 1(26)(b) and (c) and Article 13(1) to (3), which concern the three laws listed below.

14. Under Article 69(1) of the Law of 27 July 2001 on the system of ordinary courts (‘the Law on the ordinary courts’), the normal retirement age (12) for judges was 67 years for both men and women. This was extendable on written request of the judge concerned to the Minister for Justice, and on presentation to the same Minister of a certificate of good health. On 16 November 2016, the relevant provision was amended (13) and the retirement age was lowered to 65 years for both men and women, extendable for a short period on written request of the judge concerned to the same Minister and provision of the same medical certificate. That amendment was to enter into force on 1 October 2017.

15. However, Article 13 of the Amending Law of July 2017 once again amended the provisions concerning the retirement age and fixed that age at a level of 60 years for women and 65 years for men. Pursuant to the Amending Law of July 2017, that article entered into force on 1 October 2017.

16. Article 69(1) of the Law on the ordinary courts, as amended by the Amending Law of July 2017, (14) entered into force on 1 October 2017 and states:

‘A judge shall retire upon reaching 60 years of age, in the case of women, or upon reaching 65 years of age, in the case of men, unless, no later than 6 months and no earlier than 12 months before reaching that age, he or she submits a statement to the Minister for Justice 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.’

17. Article 1(26)(b) and (c) of the Amending Law of July 2017 also added paragraph 1b to Article 69 of the Law on the ordinary courts and amended the wording of the third paragraph of Article 69. Article 69(1b) states:

‘The Minister for Justice may consent to a judge continuing in his post, having regard to the rational use of the staff of the ordinary courts and the needs resulting from the workload of individual courts. In a situation where the procedure connected with the judge continuing in his post has still not come to an end after he has reached the age referred to in § 1, the judge shall remain in his post until such time as that procedure has come to an end …’

‘In the event that the Minister for Justice gives the consent referred to in Article 69(1b), a judge may continue in his post only until he reaches 70 years of age. That judge may retire on three months’ notice, by submitting a statement to the Minister for Justice to that effect. The notice period shall be extended by the annual leave accrued and not taken until the end of that notice period. At the judge’s request, the Minister for Justice may consent to that judge’s retirement before the end of the notice period.’

19. With regard to the remuneration of judges, Article 91 of the Law on the ordinary courts states:

‘(1) The level of remuneration for judges occupying equivalent judicial posts shall be differentiated according to the length of service or the functions performed …

(2) The basic salary for a judge shall be expressed in grades, the level of which shall be determined through the application of multipliers to the basis for determining the basic salary referred to in § 1c. The basic salary grades for individual judicial posts and the multipliers used to determine the level of the basic salary for judges in individual grades are set out in the annex to this Law …

(7) In addition, remuneration for judges shall be differentiated by a seniority allowance amounting, as from the sixth year of service, to 5% of the basic salary and increasing each year by 1% until it reaches 20% of the basic salary.

‘(2) If before assuming a judicial position a judge occupied another judicial or public prosecutor’s post equivalent to that position, he shall be entitled, in his new post, to a basic salary at a grade no lower than the grade to which he was entitled in the post he previously occupied.

‘(3) The basic salary for a judge shall be established at the next highest grade after the completion of five years’ service in a given judicial post.’

22. Article 100(1), (2), (4a) and (4b) of the Law on the ordinary courts as amended by Article 13 of the Amending Law of July 2017 states:

‘(1) A judge who has been retired in the event of changes to the system of the courts or changes to the boundaries of judicial districts shall be entitled, until reaching the age of 60 years, in the case of women, and 65 years, in the case of men, to emoluments in the amount of remuneration received in the post most recently occupied.

(2) A judge who has retired or who has been retired on the grounds of age, illness or loss of strength shall be entitled to emoluments in the amount of 75% of the basic salary and length-of-service allowance received in the post most recently occupied.

(4a) In the situation referred to in (1), a retired judge shall receive a one-off payment upon reaching the age of 60 years, in the case of women, and 65 years, in the case of men.

(4b) A judge who has returned to the post he previously occupied or a previously-held equivalent post in accordance with Article 71c(4) or Article 74(1a), in the event of retirement or being retired, shall be entitled to a one-off payment in an amount consisting in the difference between the amount of the payment calculated on the day of retirement or being retired and the amount of the payment already paid. In the situation referred to in (1) the judge shall be entitled to the payment upon reaching the age of 60 years, in the case of women, and 65 years, in the case of men.’

23. The Ustawa o Sądzie Najwyższym (15) (Law on the Supreme Court, ‘the 2002 Law on the Supreme Court’), of 23 November 2002, as amended by the Amending Law of July 2017, is the subject of the present case.

24. Until 3 April 2018, the retirement age of Supreme Court judges was set, by the 2002 Law on the Supreme Court, at 70. However, on that date it was lowered to 65. (16)

25. Notwithstanding these provisions, Article 30(2) of the 2002 Law on the Supreme Court includes a facility for judges to make requests for retirement prior to the age of 70. The age from which a Supreme Court judge may submit a request for retirement was ultimately amended by the Amending Law of July 2017, that is to say, that age was reduced to 60 years, in the case of women, and 65 years, in the case of men. In the version previously in force, Article 30(2) of the 2002 Law on the Supreme Court provided 67 years as the age for submission of a request for retirement. The Law of 16 November 2016 set this date at 65 years for both men and women.

26. Articles 42(4) and (5) of the 2002 Law on the Supreme Court, concerning the remuneration of Supreme Court judges, states:

‘(4) The remuneration of a Supreme Court judge shall be expressed as the standard grade or the promotion grade. The promotion grade shall be 115% of the standard grade.

(5) A Supreme Court judge, on entering the service, shall receive a standard grade basic salary. After seven years’ service, the basic salary for that judge shall increase to the promotion grade …’

‘A Supreme Court judge shall be entitled to a seniority allowance increasing the basic salary every year by 1%, but not exceeding 20% of that salary. The period of service on which the amount of the allowance depends shall also include the period of service or the employment relationship preceding his appointment to a judicial post at the Supreme Court, as well as periods of professional practice as a lawyer, legal adviser or notary.’

‘A retired Supreme Court judge shall be entitled to emoluments in the amount of 75% of the basic salary and length-of-service allowance received in the post most recently occupied. The terms and amounts of those emoluments shall be adjusted as appropriate to changes in the basic salary of serving Supreme Court judges.’

3. Ustawa z dnia 28 stycznia 2016 r. Prawo o prokuraturze (Law of 28 January 2016 on the Public Prosecutor’s Office)

29. Article 127 § 1 of the Law of 28 January 2016 on the Public Prosecutor’s Office (17) (‘the Law on the Public Prosecutor’s Office’) states, inter alia:

‘Unless otherwise provided for in this Law, the provisions of Articles 69 to 71, Article 73, Article 74, Article 76, Article 85 § 4, Articles 99 to 102 and Article 104 of the [Law on the ordinary courts] shall apply, mutatis mutandis, to public prosecutors.’

30. As a result, Article 69 of the Law on the ordinary courts applies to the retirement age for public prosecutors. Accordingly, the normal retirement age for public prosecutors prior to the amendments made by the Amending Law of July 2017 was 67 years for both men and women. The retirement age was lowered for prosecutors to 65 years for both men and women by the Law of 16 November 2016. That amendment was to enter into force in October 2017. Article 13(2) of the Amending Law of July 2017 once again amended the provisions concerning the retirement age and fixed that age at 60 years, in the case of women, and 65 years, in the case of men.

31. As regards benefits for retired public prosecutors, according to Article 127(1) of the Law on the Public Prosecutor’s Office, the provisions concerning ordinary court judges, in particular the provisions of Article 100 of the Law on the ordinary courts also apply.

32. However, the remuneration itself is to be determined in accordance with the rules of Article 124 of the Law on the Public Prosecutor’s Office. It states, inter alia:

‘(1) The amount of remuneration for public prosecutors occupying equivalent public prosecutors’ posts shall be differentiated according to the length of service or the functions performed. The basic salary for district and regional public prosecutors shall be equal to the basic salary for judges of those same organisational units of the ordinary courts. The basic salary for provincial public prosecutors shall be equal to the basic salary for appeal court judges.

The basic salary for public prosecutors of the National Public Prosecutor’s Office shall be equal to the basic salary for Supreme Court judges. The duty allowances of the National Public Prosecutor and the other deputies of the Public Prosecutor General shall be equal to the duty allowances of the First President of the Supreme Court and the President of the Supreme Court, respectively.

(2) The basic salary for public prosecutors shall be expressed in grades, the level of which shall be determined through the application of multipliers to the basis for determining the basic salary for public prosecutors.

(4) If before assuming a public prosecutor’s position a public prosecutor occupied another public prosecutor’s or judicial post equivalent to that position, he shall be entitled, in his new post, to a basic salary at a grade no lower than the grade to which he was entitled in the post he previously occupied.

(5) The basic salary for a public prosecutor shall be established at the next highest grade after the completion of five years’ service in a given public prosecutor’s post.

33. On 28 July 2017, the Commission sent Poland a letter of formal notice, in which it contested the conformity with EU law, and particularly Article 157 TFEU, Directive 2006/54, and the combined provisions of Article 19(1) TEU and Article 47 of the Charter, of the Amending Law of July 2017.

34. By letter of 31 August 2017, Poland responded to the letter of formal notice. It contested the Commission’s arguments.

35. On 12 September 2017 the Commission addressed to the Republic of Poland a reasoned Opinion in which, on the basis of Article 258 TFEU, it alleged, first, that, by instituting in Article 13(1) to (3) of the Amending Law of July 2017, a different retirement age for men and women for judges of the ordinary courts, the Supreme Court, and public prosecutors, Poland had failed to fulfil its obligations under Article 157 TFEU, along with Article 5(a) and Article 9(1)(f) of Directive 2006/54.

36. Second, the Commission alleged that by lowering the retirement age, under Article 13(1) of the Amending Law of July 2017 on the organisation of ordinary courts, of magistrates of the ordinary courts, and in vesting in the Minister for Justice the discretion to extend the active period of such judges, under Article 1(26)(b) and (c), of the same law, the Republic of Poland has breached its obligations under the second subparagraph of Article 19(1) TEU, and Article 47 of the Charter.

37. On 12 October 2017 Poland responded to the reasoned opinion, reiterating its position that the alleged failure to fulfil obligations was unfounded and requesting closure of the procedure.

39. By application lodged with the Court on 15 March 2018, the Commission brought the present action before the Court under Article 258 TFEU. It claims that the Court should:

– declare that by instituting under Article 13(1) to (3) of the Amending Law of July 2017, a different retirement age for men and women for judges of the ordinary courts, the Supreme Court, and public prosecutors, Poland has failed to fulfil its obligations under Article 157 TFEU, Article 5(a) and Article 9(1)(f) of Directive 2006/54;

– declare that by lowering, under Article 13(1) of the aforementioned law, the age of retirement of judges of the ordinary courts, and in vesting the Minister for Justice with the discretion to extend the active period of such judges, under Article 1(26)(b) and (c) of the same law, Poland has breached its obligations under Article 19(1), second subparagraph, TFEU, and Article 47 of the Charter;

40. In its defence lodged on 31 May 2018, the Republic of Poland contends that the Court should:

41. Poland argues in its rejoinder that the entire action has become devoid of purpose, and calls on the Commission to withdraw its complaint forthwith.

42. Poland contends that Article 13(1) to (3), of the Amending Law of July 2017 which the Commission contests, and in which Poland instituted for judges of ordinary courts, Supreme Court judges, and prosecutors, a retirement age of 60 years for women and 65 years for men, has been amended by the Ustawa z. dnia 12 kwietnia 2018 r. o zmianie ustawy — Prawo o ustroju sądów powszechnych, ustawy o Krajowej Radzie Sądownictwa oraz ustawy o Sądzie Najwyższym (Law amending the Law on the organisation of ordinary courts, the Law on the National Council of the Judiciary and the Law on the Supreme Court) of 12 April 2018 (‘Law of 12 April 2018’). (18) According to Article 1(4) of this law, amending Article 69(1) of the Law on the organisation of ordinary courts, judges, whatever their sex, enter into retirement on their 65^thbirthday. The retirement age of prosecutors is fixed in the same way, account taken of the fact that, in conformity Article 127 of the Ustawa prawo o prokuraturze (Law on the public ministry) of 28 January 2016, (19) the provisions applicable to judges of the ordinary courts apply mutatis mutandis to prosecutors. With respect to judges of the Supreme Court, the retirement age for those who make the application for it was fixed under Article 37 of the Ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017, (20) and corresponds to 65 years for men and women.

43. With regard to the combined provisions of Article 13(1) and Article 1(26)(b) and (c) of the Amending Law of July 2017, that reduced the age of retirement of judges of the ordinary courts, and which empowered the Minister for Justice to decide on the period of prolongation of the active service of a judge of the ordinary courts, they have equally been subject to amendment. Article 1(4), of the Law of 12 April 2018 amended Article 69(1b) of the Law on the ordinary courts, so that it falls to the National Council of the Judiciary to authorise the period of active service of a judge of the ordinary courts beyond the age of 65 years. The criteria to be applied by the National Council of the Judiciary have also been amended. The National Council of the Judiciary is a constitutional institution having the responsibility of guaranteeing the independence of judges and courts. In consequence, the fact of leaving to the National Council of the Judiciary prolongation decision concerning the active period of service of a judge cannot amount to an act damaging the independence of judges.

44. At the hearing the agent for the Commission said that the Commission maintains its application. The changes to the law have not managed to solve all of the issues raised in its application, and there is an express and important interest in adjudicating on the case, independently of whether and to what extent Poland amended its provisions since the Commission’s reasoned Opinion.

45. The Commission contends that by lowering the retirement age of 67 to 60 for women and 65 for men, which occurred in the Amending Law of July 2017, Poland has failed to act in conformity with Article 157 TFEU and Article 5(a) of Directive 2006/54, along with Article 9(1)(f) of the same directive, given that the Amending Law of July 2017 imposes different retirement ages on judges on the basis of sex. (21)

46. The Commission points out that, according to the Court’s case‑law, in order to determine whether an arrangement is a professional social security regime, and therefore governed by Directive 2006/54 and not Directive 79/7, the decisive issue is whether it is essential to the employment relationship; that is if the pension is attached to the remuneration of the person concerned, therefore falling with Article 157 TFEU. (22) There is no doubt that the payments made upon retirement under the arrangements here in issue are made because of the working relationship, not for political, social, ethical, or budgetary considerations, as is the case with respect to pension schemes falling within Directive 79/7. Thus, Poland is precluded from relying on any Member State discretion, provided for in Article 7(1)(a) of Directive 79/7, to set different retirement ages for men and women in public social security schemes.

47. Three requirements are set in the case-law for this preclusion to apply; the relevant measures must concern a particular category of workers, the sums paid after retirement must be directly related to the amount of time of completed service (which the Commission contends need not be automatic or mathematical), and the amount of the payments must be calculated on the basis of the remuneration received for the final post occupied. For the Commission, all these are satisfied with respect to the measure challenged, and indeed Poland’s objections are confined to the argument that the benefits under the pension arrangements in issue are not directly related to the amount of time of completed service.

48. More specifically, the Commission contends, inter alia, that the fact that the determination of benefits paid is tied to service in public posts other than judicial posts suggests, contrary to the arguments of Poland, that pension benefits are indeed related to length of service. The existence of caps in the system (23) does not detract from the fact that final salary, on which the benefits are based, is determined by grade (which is tied to length of service) and seniority allowance (also tied to length of service). Length of service is a fundamental factor in determining both grade and a specified length of service allowance.

49. The Commission thus concludes that direct discrimination has occurred in breach of Article 157 TFEU, and Directive 2006/54, and refers in particular to Articles 5(a) and 7(2) thereof.

50. The Commission rejects arguments of Poland to the effect that having a lower retirement age for women than men is a measure of positive discrimination allowed by Article 157(4) TFEU and Article 3 of Directive 2006/54, because the measures concerned do not assist women in the advancement of their careers and equal opportunities for promotion. (24) Nor is there any link with the raising of children, since the law applies to women who did not have them, or who did not interrupt their careers after having them. Men can also have child rearing roles, but they are excluded from a retirement age of 60.

51. Poland contends that the pension arrangements in issue are governed by Directive 79/7 and not Directive 2006/54, with Article 7(1)(a) of Directive 79/7 allowing Member States to exclude the fixing of the age of retirement and old-age pensions from the scope of that Directive. Poland contends in the alternative that, even if the pension arrangements in issue fall within Directive 2006/54, they are a measure of positive discrimination that is permitted by Article 3 of Directive 2006/54 and Article 157(4) TFEU.

52. Poland argues that the second of the three abovementioned criteria have not been satisfied, and the Commission has fundamentally misapprehended the Polish scheme in issue for determining pension benefits. Length of service plays only a secondary role in determining benefits.

53. Poland contends that the requisite link with length of service is absent because, inter alia, the cap on the length of service premium at 20% of the basic wage envisaged in the legislation for prosecutors and ordinary judges, applies whether a judge has undertaken 20 or 40 years of service. The primary element for determining remuneration is basic salary. Poland adds that the method for calculating the pension paid does not mention one sex over another, and the fact that periods of service undertaken which are taken into account in determining benefits include public service posts that are not judicial illustrates that pension benefits are not directly related to length of service. A retirement pension can only be raised as a function of the change in remuneration of judges in active service, thereby showing that length of service is deprived of pertinence. With regard to basic salary, what counts is not length of service but rating scales, by reference to the post occupied, and multipliers. Promotion also plays a role.

54. With regard to positive action, Poland argues that senior positions in the judiciary are less accessible for women due to their child rearing responsibilities. Early retirement is a form of compensation for this disadvantage. The large majority of women in Poland have children, and they raise children more often than men to the detriment of their career.

55. Finally, Poland refers to transitional measures in force from 1 October 2017 to 30 April 2018, in parallel with the Amending Law of July 2017, which permitted judges to commence their retirement at the same age, irrespective of sex, that is the age of 67. These were in force from the moment the provisions contested by the Commission were in force, and provided for a transitional arrangement, pursuant to which judges who were aged 60 (for women) or 65 (for men) as at 1 October 2017, or by 1 April 2018 (that is, six months after 1 October 2017) simply had to lodge a declaration of a wish to retire at 67 and a medical certificate showing competence, for this previous retirement age to apply. This was not subject to authorisation by any authority. The only other requirement was a time limit to the effect that these documents had to be provided by 1 April 2018. (25)

C. Alleged breach of Article 19 TEU in combination with Article 47 of the Charter

56. The Commission argues that breach of Member State obligations under Article 19(1) TEU arises when Member State law prevents courts applying EU law from complying with the right to effective legal protection in a systematic fashion. (26) This is particularly important to ensure the proper functioning of the Article 267 TFEU mechanism. (27) The obligations inherent in Article 19(1) TEU include that of independence, particularly when read in the light of Article 47 of the Charter. (28) This applies whatever model for the organisation of justice is selected by a Member State, in the exercise of its national procedural autonomy in this field.

57. The Commission objects to a lowering of the retirement age of judges that is accompanied by a discretion in the hands of the Minister for Justice to extend it. The Commission does not object more broadly to all rules establishing a relationship between the judiciary and the executive.

58. The possibility of appealing the judgments of the ordinary courts does not guarantee effective judicial protection, when the independence of judges at all levels of the judicial system are not guaranteed.

59. The criteria that the Minister employees in making this decision are vague, and no deadline is set under Member State law for the Minister to take this decision, vesting the Minister with excessive discretion and a real power to influence individual judges. This violates the principle of the irremovabilty of judges, a fundamental element of their independence, which must be both personal and functional, and include protection against removal and interference from the executive. (29) This cannot be excused by aligning the retirement age of judges with normal retirement age.

60. Poland contends that the Commission’s application is generalised, hypothetical, abstract, and a violation of Poland’s competence to organise its own system for the administration of justice. The Commission’s interpretation of Article 19(1) TEU is too broad. Further, Article 47 of the Charter can only apply when Member States are implementing EU law under Article 51(1) of the Charter. It cannot apply here, due to the prohibition on recourse to the Charter to extend EU competence in Article 6(1) TEU and Article 51 of the Charter. Article 47 of the Charter is not a measure of abstract review.

61. Judges in Poland enjoy the constitutional protection of retirement age fixed in statute. No breach of the irremovability of judges arises because the Minister presides only over the question of extension. The Minister’s discretion is hemmed in by Article 69(1b) of the Law on ordinary courts. It obliges the Minister to take the decision in the light of rational utilisation of the personnel of ordinary courts, and needs resulting from the workload of different courts. Judges are also protected under Polish law by, inter alia, retention of the status of judge after retirement, and the secrecy of deliberations.

62. The concerns raised by the Commission with respect to the temptation of judges to find in favour of the Minister for Justice, or more generally the executive, could be raised with respect to the law in force for many years which vests the President of the Republic with responsibility for promotions. The suggestion of the susceptibility of Polish judges to influence is offensive, and there are many situations in which the judiciary is linked to the executive. Poland notes that the mandates of the judges of this Court are renewed every six years. If this does not compromise the independence of the judiciary, nor can the measures challenged by the Commission. Different standards for the Court and Member State courts cannot be allowed to co-exist.

63. The Commission has failed to undertake a global analysis of the judicial system in Poland and all its protections, which is necessary before ‘systematic’ violation of judicial independence can be alleged. The Commission has analysed only a single element of it.

64. Firstly, I take the view that the Commission’s action is not devoid of purpose. I refer to settled case-law to the effect that the question of whether a Member State has failed to fulfil its obligations under Article 258 TFEU is determined by the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion, (30) which is here 12 October 2017. On this date, Poland replied to the effect that measures would not be taken (see point 37 above). The changes to the law on which Poland relies to contend that any alleged breach of its obligations under EU law have, in any event, been remedied, relate to the Law of 12 April 2018 (see points 42 and 43 above).

65. As for the transitional provisions (see point 55 above), and which were in force on the key date of 12 October 2017, with respect to the first complaint they provide an exemption for only a small number of judges for a short period of time. Further, the existence of transitional measures goes to the substance of determining whether the principles of irremovability and independence of judges has been breached, and will be discussed in Part VI C below.

66. In any event, as was the case in Commission v Poland (Independence of the Supreme Court) (C‑619/18), there is compelling interest for the Member States, individuals, and the Union for the Court to issue a ruling in the complaint before the Court. This judgment, like the judgment pending in C‑619/18, will build on respect for the rule of law in the EU legal system, and provide guidance on what is required in order for it to be protected. It will also clarify the boundary between public social security schemes that are governed by Directive 79/7, and professional occupational pension schemes that are governed by Directive 2006/54.

67. The Commission’s second complaint is therefore admissible, save for its reliance on Article 47 of the Charter.

68. Here, and secondly, I refer to points 52 to 60 and 65 to 67 of my Opinion of 11 April 2019 in Commission v Poland (Independence of the Supreme Court) (C‑619/18). (31) The Commission has not placed before the Court the information needed to establish breach of Article 47, due to the absence of material on how Poland was implementing EU law under Article 51(1) of the Charter when it introduced the Amending Law of July 2017.

69. I supplement these observations only by underscoring that, while the Commission is tasked under Article 17(1) TEU to ‘oversee the application of Union law’, on no account does this entail a licence to ‘extend in any way the competences of the Union as defined in the Treaties’, as precluded by Article 6(1) TEU, second subparagraph. As was the case in C‑619/18, the Commission has not attempted to tie its arguments with respect to Article 47 of the Charter to a provision of Polish law, the purpose of which was to implement a provision of EU law, (32)or claim that the situation arising in its complaint is otherwise ‘governed’ by EU law. (33)

70. That being so, I conclude that accepting arguments of the Commission to the effect that the meaning of the right to effective legal protection under Article 19 TEU can be directly influenced by Article 47 of the Charter, in and of itself, would amount to an unwarranted interference in the competence of Poland in the organisation and administration of Justice. As observed by Advocate General Saugmandsgaard Øe in Commission v Hungary (Rights of usufruct over agricultural land), (34) as supreme interpreter of the law of the European Union, it falls to the Court to ensure respect for fundamental rights in the sphere of competence of the European Union. 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. (35)

71. That said, as I will explain in Part VI C below, this in no way prejudices recourse to common legal sources in determining whether the principle of the irremovability of judges, and of their independence and impartiality, has been breached in a given case, irrespective of whether the claim in issue is based on the second subparagraph of Article 19(1) TEU, a specific manifestation on the foundational values reflected in Article 2 TEU, or the situation is one in which a Member State is implementing EU law, thereby triggering the protection afforded by Article 47 of the Charter and the right to ‘an independent and impartial tribunal previously established by law’.

72. The limits inherent in the Charter, to the effect that it only applies to Member States when they are implementing EU Law (Article 51(2) of the Charter) cannot be taken so far as to attenuate the duty of the Commission to protect the fundamental values of the Union expressed in Article 2 TEU, (36) forming as they do part of the common European constitutional heritage. Direct actions of the kind instituted by the Commission’s complaints in these proceedings do not entail an expansion of EU competence inconsistently with Article 6(1) TEU second subparagraph, and Article 51(2) of the Charter.

73. Thirdly, the fact that the Amending Law of July 2017 forms part of the Commission’s Reasoned Proposal in accordance with Article 7(1) of the Treaty on European Union regarding the rule of law in Poland, (37) in no way precludes the Commission from making recourse to a direct action under Article 258 TFEU. I refer to my Opinion in Commission v Poland (Independence of the Supreme Court) (C‑619/18) (38) wherein I explain why, as a matter of EU law, the two procedures are not mutually exclusive. (39)

74. I consider that the Commission has made out its first complaint, principally because of Poland’s overly prescriptive interpretation of the requirements, set in the Court’s case-law, for a pension scheme to be categorised as one meeting considerations of social policy, and therefore governed by Directive 79/7 as a measure appertaining to social security, rather than as one concerning ‘pay’ under Article 157 TFEU, and governed by the prohibitions in this article and directives governing equal pay, here Directive 2006/54.

75. More particularly, Poland has been overly prescriptive with respect to the requirement that, in order for a pension scheme to fall outside of the scope of Directive 79/7, the benefits paid under a pension scheme are to be ‘directly related’ to length of service.

76. What is missing, in Poland’s arguments, is any analysis of the boundary between Directives 2006/54 and 79/7, as it has evolved in the Court’s case-law by reference to the meaning of ‘pay’ under Article 157 TFEU. Nor have the broader principles governing this boundary been discussed, as distinct from the three factors relevant only to professional social security schemes namely: (i) whether they concern a particular category of workers; (ii) whether the sums paid after retirement are directly related to the amount of time of completed service; and (iii) whether benefits are calculated on the basis of the remuneration received for the final post occupied.

77. For example, Dimossia Epicheirissi Ilektrismou v Evrenopoulos concerned a claim for a widower’s pension against the Greek State electricity authority pursuant to a private scheme, in which the applicant argued it was denied to him on the basis of his (male) sex. In considering whether the scheme was governed by the predecessor to Article 157 TFEU (namely Article 119 of the EEC Treaty), or Directive 79/7, the Court reiterated the important over-arching principle that ‘the only possible decisive criterion is whether the pension is paid to the worker by reason of the employment relationship between him and his former employer’. (40)

78. Earlier in the Beune case, which concerned the question of discrimination on the basis of sex with respect to the amount of benefits payable under public occupational pension schemes, Advocate General Jacobs described the employment relationship as the ‘truly decisive factor’, pointing out that ‘the Court’s rulings … on the relationship between social security and Article 119 [EEC]…, attempt to make a clear distinction between general social security schemes and those which operate in the framework of the employment relationship’. (41)

79. The paramount role of the employment relationship was also emphasised by Advocate General Kokott in Hlozek.(42) In a dispute concerning discrimination on the basis of sex and whether a bridging allowance amounted to ‘pay’ under Article 157 TFEU, the Advocate General concluded that the status of the allowance depended ‘solely on the criterion of employment’ which can be inferred from that very same provision. (43) For the Advocate General, the only question was whether the allowance was one paid ‘in respect of employment’, (44) further pointing out that, generally, length of service is immaterial to the meaning of ‘pay’; a concept that is to be interpreted extensively. (45) This serves to underscore that the ‘length of service’ requirement is peculiar to disputes concerning benefits paid under occupational pension schemes, (46) which in turn militates against an overly prescriptive interpretation of the phrase ‘directly related’.

80. It is, therefore, beneath the umbrella of the above legal principle that the Court decides whether considerations of social policy, of State organisation, of ethics, or even budgetary concerns which influenced, or may have influenced, the establishment by the national legislature of a particular scheme prevail, so that a given pension scheme falls within Directive 79/7. The three principles elaborated above (point 76) are a guide to determining when Directive 79/7 does not apply to a given pension scheme, but at the same time the guidelines cannot be considered in a vacuum removed from the broader corpus of relevant legal principles. These include, I would add, the importance in the EU legal order of the primary rule prohibiting unequal treatment with respect to pay. (47)

81. Thus, I am unable to conclude that any of the three factors excluding an occupational pension scheme from the scope of Directive 79/7 is set in stone, in the sense that they merit an interpretation to the effect that even a modest departure from one of them necessitates the conclusion that the scheme in issue falls within the material scope of Directive 79/7, and more particularly the discretion left to Member States by Article 7(1)(a) thereof to set different retirement ages for men and women. (48)

82. Poland has not sought to explain how the scheme in issue differs from the rulings in which the requirement that pension benefits paid be ‘directly related’ to length of service were held to be made out. Here I have in mind the rulings in cases such as Beune, (49)Podesta, (50) Griesmar, (51)Niemi, (52)Schönheit (53) and Commission v Greece. (54) In all of these judgments, the Court held that the benefits paid under the occupational pension schemes in issue amounted to ‘pay’ under the provisions of EU law pertinent to each case, after applying the directly related to length of service guideline, along with whether the scheme concerns a particular category of workers, and whether benefits are calculated by reference to the final salary; the latter two factors not being in issue in this case. (55)

83. All this leads me to conclude that it is only necessary for occupational pension benefits to be based to some significant degree on length of service, before it is precluded from the scope of Directive 79/7. Indeed, in Commission v Greece, the Court held that the fact that the pension benefits in issue in that case sometimes varied by reference to the difficulty of the work undertaken, or the difficulty of the circumstances in which they were undertaken, was not enough to weaken the applicability of the rule according to which the benefits paid is a direct function of the period of service completed. (56)

84. Thus, in the phrase ‘directly related’ the emphasis lies on ‘related’, rather than ‘directly’. The latter word does not impose a requirement that the benefit is to be based either automatically or exclusively on length of service, to the exclusion of other factors those raised by Poland (and summarised at point 53 above). These include recourse to caps (such as the cap on length of service premium) the factual elements that need to be in place before a salary can be raised post-retirement, promotion, multipliers and rating scales in determining basic salary. Here basic salary is also substantially determined by length of service (see below points 86 to 89). Therefore, none of these factors can break a clear link between length of service and the benefits paid.

85. Further, I accept the Commission’s argument to the effect that allowing non-judicial public posts to be included in the calculation of length of service supports, rather than refutes, the conclusion that the benefits under the pension scheme in issue are directly related to length of service (see point 48 above). The fact that the scheme for calculating pension benefits does not mention one sex over the other does not remove the discrimination against men because their retirement age is later than that of women.

86. I also accept that the Commission has made the link between benefits paid and length of service (see points 46 and 48 above). I refer, for example, to Article 91(1) of the Law on the ordinary courts, which states that the level of remuneration of judges is determine by length of service, and Article 91(7) which states that remuneration is also to be differentiated by a seniority allowance (point 19 above). Pursuant to Article 91a(3) of the Law on the ordinary courts, basic salary is also influenced by length of service (point 21 above). Statutory provisions of this kind cannot be explained away by recourse additional factors such as caps and multipliers (see factors mentioned at point 84 above), or detract from the statutory reality that retirement benefits paid are in based on final salary, the latter being governed to a substantial degree by length of service.

87. More specifically, Article 91a(3) of the Law on the ordinary courts (point 20 above) states that the basic salary of a judge is to be determined by the next highest grade after five years of service in a given judicial post. This established the important link with length of service, because, pursuant to Article 100(1) (point 22 above), the post last occupied determines the pension benefits paid. However, the post last occupied will be of a given grade, which is tied to length of service. Further, the additional retirement benefit payments listed in Article 100 (see point 22 above) do not break the link between length of service, the awarding of a grade, and the last post occupied.

88. The link between grade and length of service in the Supreme Court is established under Articles 42(4) to (5) of the Law of 2002 on the Supreme Court (point 26 above), with Article 42(5) stating that basic salary is determined by year of entry into service and augmented after 7 years, while Article 50 states that pension benefits are determined by basic salaries and length of service allowance (point 28 above). Article 43 of the Law of the Supreme Court of 2002 provides for a seniority allowance that is determined in part by length of service (point 27 above).

89. With regard to State prosecutors, the direct link with length of service is established by Article 127(1) of the Law on the Public Prosecutor’s Office (point 31 above), along with some more specific provisions linking pension benefits to length of service. Here I refer, for example, to Article 124(1) of the Law on Public Prosecutors (point 32 above), which states that length of service is a factor in determining remuneration. Reference might also be made to Article 124(4) and (5) (points 31 and 32 above), according to which previous posts are to be taken into account in determining salary, and in which length of service is linked to grade.

90. As concerns Poland’s arguments with respect to positive discrimination, it suffices to point out that it is embedded in the Court’s case-law that the purpose of positive discrimination measures is to ‘give a specific advantage to women with a view to improving their ability to compete on the labour market and pursue a career on an equal footing with men’. (57) Given that retired women judges are no longer competing on the labour market or pursuing a career, on no account can the measures challenged by the Commission amount to measures of positive discrimination pursuant to Article 3 of Directive 2006/54 and Article 157(4) TFEU. Further, caution is to be exercised in viewing rules that perpetuate the traditional division of roles into the future as measures to promote equality. (58) The ‘remuneration’ referred to in Article 157(4) TFEU cannot be put to perpetuating such divisions, even if inadvertently.

91. As argued by the Commission (point 50 above), the challenged measure lacks nuance. It is not available to men who have missed career opportunities due to child rearing, or taken into account women who have never been involved in it.

92. For the foregoing reasons, the first complaint raised by the Commission should be considered to be well founded.

93. The Court held in its ruling in Associação Sindical dos Juízes Portugueses (59)that the second subparagraph of Article 19(1) TEU protects the members of courts against removal from office. It provides guarantees essential to judicial independence. (60) Irremovability and independence are closely linked, because the essential freedom from external influences requires certain guarantees sufficient to protect the person of those who have the task of adjudicating, such as guarantees against removal from office. (61)

94. The Court has held, in Associação Sindical dos Juízes Portugueses and other rulings, that the guarantee of independence is inherent in the task of adjudication. (62) The concept of independence, as protected under Article 19(1), second subparagraph, presupposes, in particular, that the body concerned exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, and that it is thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions. (63)

95. The Commission’s complaint, with respect to judges of the ordinary courts, falls within the material scope of the second subparagraph of Article 19(1) TEU, which gives concrete expression to the rule of law; in turn a foundational value of the Union under Article 2 TEU. The ordinary courts may rule on questions on the interpretation and application of EU law, and make references under Article 267 TFEU. Article 19(1) TEU therefore applies to them. (64) As the Court recently reiterated, ‘every Member State must ensure that the bodies which, as “courts or tribunals” within the meaning of EU law, form part of the system providing judicial remedies in the fields covered by EU law, meet the requirements of effective judicial protection’. (65)

96. To this I would add that general principles remain a source of fundamental rights, (66) notwithstanding the advent of the Charter. Indeed, Article 6(3) TEU states that fundamental rights ‘constitute general principles of the Union’s law.’ As one commentary has observed, ‘co-existence of the various fundamental rights’ sources’ secures the aim ‘of providing a high level of protection of individuals’ rights’. (67) Therefore, the content of the guarantee of the rule of law under Articles 2 and 19(1) TEU, second subparagraph, and respect for the irremovability and independence of judges inherent therein, is determined, pursuant to Article 6(3) TEU, by the ECHR, (68) and constitutional traditions common to the Member States. (69)

97. A constitutional passerelle exists, therefore, between Article 47 of the Charter and Article 19(1) TEU, given that these same sources are relevant to determining the content of the right to ‘an independent and impartial tribunal previously established by Law’ under Article 47 of the Charter. The second subparagraph of Article 19 (1) TEU and Article 47 of the Charter are further linked by their relationship with general principles of law. They must be interpreted in harmony with them, so that the case-law elaborated beneath the two provisions inevitably intersects. (70)

98. That said, I am mindful of the 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, in its second subparagraph, that the ‘provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.’ (71)

99. 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, and the irremovability of judges and the right to an independent and impartial tribunal inherent in Article 19(1) TEU second subparagraph, at least in situations in which a Member State is not implementing EU law under Article 51(1) of the Charter, notwithstanding the intersection between these two provisions that inevitably arises due to common sources.

100. Indeed, the Charter itself is often referred to as a source of fundamental rights, (72) which is unsurprising, given the status afforded to it under Article 6(1) TEU. However even though the Charter is primary EU law, recourse to it as a (direct) source of fundamental rights reaches its limits when Article 51(2) of the Charter and 6(1) TEU, second subparagraph come into play, as is the case in these proceedings, because Poland is not implementing EU law under Article 51 (1) of the Charter. Expansion of the Commission’s competence would result, in breach of the second paragraph of Article 6(1) TEU, and Article 51(2) of the Charter, if it were to place direct reliance on Article 47 of the Charter.

101. Otherwise, however, the sources of fundamental rights provided for in Article 6 TEU are determinative, whether an alleged breach of independence and impartiality arises in in the context of a structural failing to be dealt with by Article 19(1) TEU, or in a context in which a Member State is implementing EU law under Article 51(1) of the Charter, (73) so that Article 47 becomes directly relevant.

102. The Commission contends that lowering the retirement age of judges of the ordinary courts to 60 years for women, and 65 years for men, while at the same time vesting the Minister for Justice with the discretion to extend the retirement age of judges affected by the Amending Law of July 2017, is inconsistent with the effective legal protection guaranteed by Article 19(1) second subparagraph TEU, even though this discretion is hemmed in by Article 69(1b) of the Law on the ordinary courts. This provision obliges the Minister to take the decision in the light of rational utilisation of the personnel of ordinary courts, and needs resulting from the workload of different courts (points 17 and 61 above). Judges are also protected under Polish law by, inter alia, retention of the status of judge after retirement, and the secrecy of deliberations (point 61 above). The Commission also makes this complaint notwithstanding the transitional arrangements outlined above (point 55).

103. I have reached the conclusion that the Amending Law of July 2017 fails to comply with the guarantee of the irremovability of judges and their independence, as protected Article 19(1) TEU, second subparagraph, for the following reasons. I do so in the light of the importance of the need to challenge measures undermining institutional or operational independence of judges. (74)

104. First, security of tenure is a fundamental tenet of international human rights instruments like the International Covenant on Civil and Political Rights (‘ICCPR’), on which the Member States have collaborated. (75) Such instruments have long since been established as sources for the content of general principles of the EU legal order. (76)

105. It is not without significance, therefore, that the United Nations Human Rights Committee has recently expressed the view that, under Article 14(1) of the ICCPR, ‘guarantees relating to [judges’] security of tenure are requirements for judicial independence’ and that ‘any situation in which the executive is able to control or direct the judiciary is incompatible with the Covenant’. (77) The Committee underscored the importance of ‘guarantees protecting them from discretionary removal’. (78)

106. Thus, lowering the retirement age of judges must be accompanied by safeguards (79) to ensure against de facto removal of a judge. (80) Indeed, the Court has held recently that dismissal of judges ‘should be determined by express legislative provisions’. (81)

107. At the hearing Poland acknowledged that at least 26 judges were refused an extension to the age of 70 (82) under the Amending Law of July 2017. On the basis of answers to questions provided by the agent for Poland at the hearing, that figure may be as high as 112 judges, depending on the impact of transitional measures (see point 55 above).

108. This would seem to have the consequence that the women judges concerned retired 7 years earlier than the age set by statute before the Amending Law of July 2017 entered into force, namely 67 years, and the men judges concerned 2 years earlier than that statutory age for retirement. This situation was accompanied by no obligation on the part of the Minister to give a reason for the refusal, and no judicial review. It also occured in a context in which, as acknowledged by the agent for Poland at the hearing, until the beginning of this century, extension beyond the statutory age for retirement. was decided by the National Council of the Judiciary. From 2002, the Minister for Justice received such applications, but these were to be granted on provision of a medical certificate on fitness for work. Then, in 2017, the Minister for Justice came to be vested with the discretion here in issue.

109. In the light of all this, a statutory obligation on the Minister to make rational utilisation of the resources of the ordinary courts, along with the needs resulting from workload, and factors such as the secrecy of the deliberation of judges and Polish Constitutional guarantees of retirement age as from time to time in statute, are insufficient to safeguard against de facto removal of judges affected by the Amending Law of July 2017, (83) particularly when it occurs in the context of comprehensive governmental reform of the judiciary of the kind initiated in Poland. (84)

110. Further, no pressing or convincing policy reason was provided for transfer of authority over extensions from the National Council of the Judiciary to the Minister, and nor was an adequate explanation provided as to why removal of a judge with a low work load, as opposed to transferring him or her to another ordinary court, was the only viable solution.

111. With regard to the requirement of independence, the arrangements here in issue, like the arrangements I considered in Commission v Poland (Indepenence of the Supreme Court) (C‑619/18), (85)entail the simultaneous transfer to a member of the executive, and here no less the Minister for Justice, (86) to extend the period of a judge’s active service, and a legislative lowering of the retirement age of judges. This package is inconsistent with the objective element of impartiality as protected under the case-law of the European Court of Human Rights. (87) Further, the Court has held that independence and impartiality ‘require 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 dismiss 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’. (88)

112. What is in issue here is not an assumption to the effect that Polish judges lack professionalism, or that their rulings will necessarily be tainted by bias, pending a decision of the Minister for Justice on prolongation of active duties, but whether the public might legitimately perceive the arrangements in issue to taint the impartiality of proceedings in which the executive is a party during this sensitive period; a period that can go on for some considerable time, given that the Minister for Justice is under no time constraint to make up his or her mind. (89) And here too such a legitimate apprehension of bias with respect to public perceptions is exacerbated by lack of safeguards, such as transparency and judicial review. (90)

113. As for the transitional arrangements (see point 55 above), it suffices to note that they do not encompass all judges affected by the Amending Law of July 2017, but rather only a few, namely those whose who were 60 (women) or 65 (men) at the time of entry into force of the Amending Law of July 2017, or who attained that age between 1 October 2017 and 1 April 2018. As concluded by the UN Special Rapporteur on the independence of judges and lawyers on his mission to Poland, (91) what is required is the amendment of ‘the new retirement regime applicable to common court judges so as to apply it only to judges who have taken up their functions following the entry into force of the law’, (92) combined with removing the prolongation discretion of the Minister for Justice. (93)

114. I would like to close, however, by underscoring that, in delimiting the scope of Article 19(1) TEU, second subparagraph, what is at stake, at constitutional level, is the extent to which the Court has competence to substitute national constitutional courts and the European Court of Human Rights (94) in adjudicating over fundamental rights violations. Respect for the boundary between the competences of the EU, and those of the Member States, is as important in an EU legal order based on the rule of law as the protection of fundamental rights. (95)

115. Thus, 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, (96) which ‘compromise the essence’ (97) of the irremovability and independence of judges.

116. However, individual or particularised incidences of breach of the irremovability and independence of judges are to be dealt with under Article 47 of the Charter, and only in contexts in which Member States are implementing EU law under Article 51(1) of the Charter. In principle, a structural infirmity that additionally entails implementation of EU law by a Member State will fall to be determined by both provisions.

117. In any event, for the above reasons, the Commission’s second complaint should be considered to be well founded.

118. Pursuant to Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

119. According to my proposed solution, although the Commission’s complaints should be rejected as inadmissible as far as they are based on Article 47 of the Charter, the Commission is successful on both complaints as far as they are based on the second subparagraph of Article 19(1) TEU and Article 157 TFEU, along with Articles 5(a) and 9(1)(f) of Directive 2006/54. Since the Commission has applied for costs and the Republic of Poland has been unsuccessful, the Republic of Poland should be ordered to bear its own costs and to pay those of the Commission.

120. In the light of the foregoing consideration, I propose that the Court should:

(1) declare that by instituting under Article 13(1) to (3) of the Ustawa o zmianie ustawy — Prawo o ustroju sądów powszechnych oraz niektórych innych ustaw (Law amending the Law on the system of ordinary courts and certain other laws) of 12 July 2017, a different retirement age for men and women judges of the ordinary courts, the Supreme court, and public prosecutors, the Republic of Poland has failed to fulfil its obligations under Article 157 TFEU, along with Article 5(a) and Article 9(1)(f) of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 relative to the implementation of the principle of equal opportunities and equal treatment between men and women in matters of employment and work;

(2) declare that by lowering, under Article 13(1) of the aforementioned law, the age of retirement of judges of the ordinary courts, and in vesting the Minister for Justice with the discretion to extend the active period of such judges, under Article 1(26)(b) and (c) of the same law, the Republic of Poland has breached its obligations under Article 19(1), second subparagraph, TEU;

(4) order the Republic of Poland to bear its own costs and to pay the costs of the European Commission.

4 There are several other cases pending before the Court relating to the reform of the Polish judiciary, including requests for preliminary rulings submitted by the Polish Supreme Court (C‑522/18, C‑537/18, C‑585/18, C‑624/18, C‑625/18 and C‑668/18), the Naczelny Sąd Administracyjny (Supreme Administrative Court) (C‑824/18) and Polish lower courts (C‑558/18, C‑563/18 and C‑623/18). See also the order of the President of the Court of 15 November 2018, Commission v Poland, C‑619/18, EU:C:2018:910, and my Opinion in that case, EU:C:2019:325 (judgment pending). Discrimination on the basis of age and compulsory retirement of judges was considered by the Court in the judgment of 6 March 2012, Commission v Hungary, C‑286/12, EU:C:2012:687.

5 See, Venice Commission Opinion No 904/2017 of 11 December 2017 on the Draft Act amending the Act on the National Council of the Judiciary, on the Draft Act amending the Act on the Supreme Court, proposed by the President of Poland, and on the Act on the Organisation of Ordinary Courts, CDL-AD(2017)031; United Nations Human Rights Council, Report of the Special Rapporteur on the independence of judges and lawyers on his mission to Poland, 5 April 2018; A/HRC/38/38/Add.1; Organisation for Security and Co-Operation in Europe (OSCE) Office for Democratic Institutions and Human Rights, Opinion on Certain Provisions of the Draft Act on the Supreme Court of Poland (as of 26 September 2017), 13 November 2017, JUD-POL/315/2017.

7 COM (2017) 835 final, 20 December 2017. See discussion ibid at points 48 to 51. In that reasoned proposal, the Commission objects to the following laws. The Law of 11 May 2017 amending the Law on the National School of Judiciary and Public Prosecution, the Law on the Organisation of the Common Courts and certain other laws (Dz. U. of 2017, heading 1139, as amended); the Law of 12 July 2017 amending the Law on the Organisation of the Common Courts and certain other laws (Dz. U. of 2017, heading 1452, as amended); the Law of 8 December 2017 on the Supreme Court (Dz. U. of 2018, heading 5, as amended); and the Law of 8 December 2017 amending the Law on the National Council of the Judiciary and certain other laws (Dz. U. of 2018, heading 3, as amended).

8 EU:C:2019:325. I will use the term ‘effective legal protection’ throughout this Opinion, in conformity with the text of Article 19 (1) TEU, second subparagraph, while acknowledging that the Court has held that this provision, combined with the principle of sincere cooperation and Article 4(3) TEU, guarantees ‘effective judicial protection’, (my emphasis). See judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 34. ‘Member States are to provide remedies sufficient to ensure effective judicial protection for individual parties in the fields covered by EU law.’

9 For recent commentaries on the assent of Article 2 TEU as a provision encapsulating judicially enforceable norms see e.g. Jacqué, J.P., ‘Etat de droit et confiance mutuelle’ RTDE April/June 2018, 239 and Adam, S. and Van Elsuwege, P., ‘L’exigence d’indépendance du juge, paradigme de l’Union européenne comme union de droit’, 2018, Journal de droit européen, 334. Both of these contributions address, in addition to independence and impartiality of the judiciary under Article 19(1) second subparagraph TEU, the consequence of this jurisprudential development for the principle of mutual trust between Member States. See in particular the judgment of the Court of 25 July 2018, Minister for Justice and Equality, C-216/18 PPU, EU:C:2018:56 and my Opinion in that case, EU:C:2018:517.

10 See judgment of the Court of 25 July 2018, Minister for Justice and Equality, C‑216/18 PPU, EU:C:2018:56.

12 In the Polish legal system, judges and public prosecutors do not retire but (literally) ‘pass into a resting phase’ — they cease the performance of their duties but retain certain rights and privileges.

13 The Ustawa o zmianie ustawy o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych (Law amending the Law on Retirement Pensions and Other Pensions Payable from the Social Security Fund) of 16 November 2016 (Dz. U. of 2017, heading 38).

16 On 20 December 2017, the President of the Republic signed Ustawa z dnia 8 grudnia 2017 r. o Sądzie Najwyższym (Law of 8 December 2017 on the Supreme Court, Dz. U. of 2018, heading 5, as amended) which entered into force on 3 April 2018, bringing in this amendment. See points 5 to 7 of my Opinion in C‑619/18, EU:C:2019:325.

22 Judgments of 28 September 1994, Beune, C‑7/93, EU:C:1994:350, paragraph 46; of 29 November 2001, Griesmar, C‑366/99, EU:C:2001:648, paragraph 28; andof 13 November 2008, Commission v Italy,C‑46/07, EU:C:2008:618, paragraphs 40 and 41.

23 The Commission refers to the judgment of 29 November 2001, Griesmar, C‑366/99, EU:C:2001:648, paragraph 78, and of 23 October 2003, Schönheit and Becker, C‑4/02 and C‑5/02, EU:C:2003:583, paragraph 20.

24 The Commission refers to the judgments of 17 October 1995, Kalanke, C‑450/93, EU:C:1995:322; of 11 November 1997, Marschall, C‑409/95, EU:C:1997:533; of 28 March 2000, Badeck and Others, C‑158/97, EU:C:2000:163; of 19 March 2002, Lommers, C‑476/99, EU:C:2002:183; of 12 September 2002, Niemi, C‑351/00, EU:C:2002:480; of 30 September 2004, Briheche, C‑319/03, EU:C:2004:574; and of 30 September 2010, Roca Álvarez, C‑104/09, EU:C:2010:561.

25 Article 26(1) and (2) of the Ustawa o zmianie ustawy o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych oraz niektórych innych ustaw (Law amending the law on pension regimes and social security funds and other laws) of 16 November 2016 (Dz. U. of 2017, heading 38).

26 The Commission refers to judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 40.

29 The Commission refers, inter alia, to judgment of 31 May 2005, Syfait and Others, C‑53/03, EU:C:2005:333, paragraph 31.

30 Judgments of 4 May 2006, Commission v United Kingdom, C‑508/03, EU:C:2006:287, paragraph 73 and the case-law cited, and of 22 February 2018, Commission v Poland, C‑336/16, EU:C:2018:94, paragraph 47 and the case-law cited.

32 Judgment of 13 June 2017, Florescu and Others, C‑258/14, EU:C:2017:448, paragraphs 47 and 48 and the case-law cited.

33 Judgment of 7 March 2017, X and X, C‑638/16 PPU, EU:C:2017:173, paragraph 45 and the case-law cited. For a summary of the legal rules on when Member States are ‘implementing’ EU law under Article 51(1) of the Charter, see e.g. the Opinion of Advocate General Wahl in Gullotta and Farmacia di Gullotta Davide & C., C‑497/12, EU:C:2015:168, point 55. See most recently the Opinion of Advocate General Bot in Joined Cases TSN and AKT, C‑609/17 and C‑610/17, EU:C:2019:459, points 72 to 118.

36 For an innovative suggestion on the fuller role that EU citizens might play to the end of securing more rigorous enforcement of the values refleted in Article 2 TEU, see von Bogdandy, A., Kottmann, M., Antpöhler, C., Dickschein, J., Hentrei, S., and Smrkolj, M., ‘Reverse Solange- protecting the essence of fundamental rights against EU Member States’ Common Market Law Review 42, 2012, 489. On calls for clearer constitutional reasoning on the Charter as an instrument for securing good governance, see Frantziou, E., ‘Constitutional reasoning in the European Union and the Charter of Fundamental Rights: in search of public justification’, European Public Law 25, 2019, 183.

40 Judgment of 17 April 1997, Evrenopoulos, C‑147/95, EU:C:1997:201, paragraph 19. This has been applied consistently ever since. See e.g., in the context of discrimination on the basis of sex with respect to calculation of pension benefits of judges, judgment of 29 November 2001, Griesmar, C‑366/99, EU:C:2001:648, paragraph 28 and the case-law cited. See more recently, judgment of 26 March 2009, Commission v Greece,C‑559/07, EU:C:2009:198, paragraph 47.

41 Opinion of Advocate General Jacobs in Beune, C‑7/93, EU:C:1994:173, points 38 and 42.

43 Ibid., point 45. The Advocate General referred the wording of Article 141(2) EC (now Article 157 TFEU) and also judgments of 9 February 1982, Garland, 12/81, EU:C:1982:44, paragraph 5; of 17 May 1990, Barber, C‑262/88, EU:C:1990:209, paragraph 12; and of 9 February 1999, Seymour-Smith and Perez, C‑167/97, EU:C:1999:60, paragraph 23.

46 Judgment of 6 December 2012, Dittrich and Others, C‑124/11, C‑125/11 and C‑143/11, EU:C:2012:771, paragraph 38.

47 See my Opinion in Safeway, C‑171/18, EU:C:2019:272, point 62, where I refer to judgment of 28 September 1994, Coloroll Pension Trustees, C‑200/91, EU:C:1994:348, paragraph 26.

48 As pointed out in the Opinion of Advocate General Alber in Griesmar, C‑366/99, EU:C:2001:117, point 50, Advocate General Jacobs in his Opinion in Beune, C‑7/93, EU:C:1994:173, point 22, suggested a five factor analysis for determining whether the discretion applied. These were whether the scheme was based on a statute, whether it was in the nature of an agreement, how it is financed, whether it is applicable to general categories of employees and whether it is supplementary in nature.

53 Judgment of 23 October 2003, Schönheit and Becker, C‑4/02 and C‑5/02, EU:C:2003:583.

54 Judgment of 26 March 2009 Commission v Greece, C‑559/07, EU:C:2009:198.

55 Nor has there been any discussion of how the scheme in issue is like the schemes in issue in seminal rulings in which the Court concluded that a general State pension scheme fell within the discretion left to Member States under Article 7(1)(a) of Directive 79/7. See e.g. judgment of 7 July 1992, Equal Opportunities Commission, C‑9/91, EU:C:1992:297.

56 Judgment of 26 March 2009, Commission v Greece, C‑559/07, EU:C:2009:198, paragraph 57. For the sake of completeness, I note that the Court referred most recently to the three factors relevant to determining whether the link has been made out between length of service and retirement benefits in its judgment of 15 January 2019, E.B., C‑258/17, EU:C:2019:17, paragraph 46, but left this question at paragraph 47 to be decided by the referring court.

57 Judgment of 30 September 2010, Roca Álvarez, C‑104/09, EU:C:2010:561, paragraph 33 and the case-law cited.

58 Opinion of Advocate General Kokott in Roca Álvarez,C‑104/09, EU:C:2010:254, point 47. The Advocate General refers to the judgment of 19 March 2002, Lommers, C‑476/99, EU:C:2002:183, paragraph 41.

61 Judgment of 19 September 2006, Wilson, C-506/04, EU:C:2006:587, paragraph 51 and the case-law cited.

62 Associação Sindical dos Juízes Portugueses , C‑64/16, EU:C:2018:117, paragraph 42 and the case-law cited. The intersection between protection of independence and impartiality in the context of Article 47 with Article 19(1) second subparagraph TEU is evident in Opinion 1/17 of the (Full) Court of 20 April 2019 points 202 to 204 and the case-law cited. See also e.g. judgment of 25 July 2018, Minister for Justice and Aquality, C-216/18 PPU, EU:C:2018:586, paragraphs 63 to 65.

63 Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 44 and the case-law cited. Judgment of 7 February 2019, Escribano Vindel, C-49/18, EU:C:2019:106, paragraph 66.

64 Ibid., paragraph 40. See similarly point 63 of my Opinion in Commission v Poland (Independence of the Supreme Court) (C‑619/18), EU:C:2019:325.

65 Judgment of 7 February 2019, Escribano Vindel, C-49/18, EU:C:2019:106, paragraph 63 and the case-law cited, and the judgment of the Court of 25 July 2018, Minister for Justice and Equality, C-216/18 PPU, EU:C:2018:56, paragraph 52.

66 For a recent discussion see Mătuşescu, C., ‘The scope of application of fundamental rights guaranteed by European Union law on Member States’ action; Some jurisprudential landmarks’ Law Review; International Journal of Law and Jurisprudence Open Source Online Publication (2017), p. 22, at p. 24. (http://www.internationallawreview.eu/revista/?rev_id=27).

67 Hofmann, H., and Mihaescu, B., ‘The relation between the Charter’s Fundamental Rights and the unwritten general principles of EU law: Good administration as the test case’ 9, 2013, European Constitutional Law Review, 73 at p. 83. See also Lenaerts, K. and Gutiérrez-Fons, J.A., ‘The place of the Charter in the EU Constitutional Edifice’ in Peers, S., Hervey, T., Kenner, J., and Ward, A., The EU Charter of Fundamental Rights: A commentary, Hart Publishing, Oxford, 2014, 1573. At p. 1575 ff. the authors draw some ‘parallels between the Charter and general principles of EU law’.

68 See in this regard, e.g. ECtHR, 6 November 2018, Nunes De Carvalho v. Portugal, CE:ECHR:2018:1106JUD005539113, paragraphs 144 to 150; ECtHR of 25 September 2018, Denisov v. Ukraine CE:ECHR:2018:0925JUD007663911, points 60 to 64. The subject and objective elements of independence and impartiality are also reflected in the Court’s case-law. See, e.g., judgment of 25 July 2018, Minister for Justice and Equality, C-216/18 PPU, EU:C:2018:56, paragraphs 63 to 65, apprehended by the Court as external and internal aspects.

69 For a recent analysis of constitutional traditions common to the Member States see Rossi, L.S. ‘Droit fondamentaux, primauté et autonomie : la mise en balance entre les principes « constitutionnels » de l’Union européenne’, RTDE, 2019.

70 Judgment of 25 July 2018, Minister for Justice and Equality, C-216/18 PPU, EU:C:2018:56.

71 See also Article 51(2) of the Charter. See recently judgement of 25 October 2018, Anodiki Services EPE, C‑260/17, EU:C:2018:864, paragraph 38. See also judgement of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraphs 32 to 37 and the case-law cited.

72 See recently e.g. Frantziou, E., ‘Constitutional reasoning in the European Union and the Charter of Fundamental Rights: in search of public justification’, European Public Law 25, 2019, 183, p. 188; Lenaerts, K. and Gutiérrez-Fons, J.A., ‘The place of the Charter in the EU Constitutional Edifice’ in Peers, S., Hervey, T., Kenner, J., and Ward, A., The EU Charter of Fundamental Rights: A commentary, Hart Publishing, Oxford, 2014, 1573, p. 1576.

74 See Commentary to point 1.5 of The Bangalore Principles on Judicial Conduct, United Nations, Vienna, 2018, p. 39.

75 See e.g. General Comment No 32 on Article 14 of the International Covenant on Civil and Political Rights, CCPR/C/GC/32, published on 23 August 2007, United Nations Human Rights Committee, paragraph 19, and Opinion No 1 (2001) of the Consultative Council of European Judges of 23 November 2001, CCJE (2001) OP No 1, states as follows at p. 13 under the heading ‘Tenure – irremovability and discipline’: ‘It is a fundamental tenet of judicial independence that tenure is guaranteed until a mandatory retirement age or the expiry of a fixed term of office’, referring to UN basic principles on this issue. See further on the security of tenure sources referred to footnote 5 above.

76 See the Opinion of Advocate General Mengozzi, C‑380/17, K and B, EU:C:2018:504, point 44 and e.g. the judgment of 14 February 2008, Dynamic Medien, C‑244/06, EU:C:2008:85, paragraph 39.

77 Communication Number 2203/2012 of 7 November 2017, Zamora v Venezueala, point 9.3.

79 On the importance of safeguards, see e.g., ECtHR, 16 December 2013, Cooper v. the United Kingdom, CE:ECHR:2003:1216JUD004884399, paragraphs 123 to 126.

80 The European Court of Human Rights has held that judges cannot be made to retire early without their consent, e.g. judgment of 9 June 1998, Incal v. Turkey, CE:ECHR:1998:0609JUD002267893, paragraph 67.

81 Judgment of 25 July 2018, Minister for Justice and Equality, C-216/18 PPU, EU:C:2018:56, paragraph 66.

82 At the hearing, the agent for Poland said that this was the age to which extensions were considered.

83 At p. 27 of the report of the European Commission for democracy through Law (Venice Commission, Opinion No 904/2017 of 11 December 2017), footnote 5 above, it is concluded that the ‘Minister of Justice should not have the discretionary power to extend the mandate of a judge beyond the retirement age’.

86 The European Court of Human Rights has recently noted, in the context of the independence of the judiciary, the growing importance of the separation of powers between the executive and the judiciary in its case law. E.g. ECtHR, 12 March 2019, Ástráđsson v. Iceland CE:ECHR:2019:0312JUD002637418, paragraph 103.

88 Judgment of 19 September 2006, Wilson, C-506/04, EU:C:2006:587, paragraph 53 and the case-law cited. See also Minister for Justice and Equality, C-216/18 PPU, EU:C:2018:56, paragraphs 66 and 77.

89 The United Nations Special Rapporteur on the independence of judges and lawyers on his mission to Poland, footnote 5 above, reported at point 52 that ‘the lack of a time frame for the adoption of a decision allows the Minister of Justice to retain influence over the judges concerned for the remaining time of their judicial mandate’.

90 The Venice Commission, footnote 5 above, concluded at p. 26 that reforms to the Polish judiciary, including the Law on the ordinary courts, ‘enable the legislative and executive powers to interfere in a severe and extensive manner in the administration of justice, and thereby pose a great threat to the judicial independence as a key element of the rule of law’. See recently ECtHR, 12 March 2019, Ástráđsson v. Iceland CE:ECHR:2019:0312JUD002637418, paragraph 103, whether the European Court of Human Rights assessed whether a breach of the applicable national rules on the appointment of judges ‘created a real risk that the other organs of Government, in particular the executive, exercised undue discretion undermining the integrity of the appointment process’.

94 Advocate General Saugmandsgaard Øe in Commission v Hungary (Rights of usufruct over agricultural land), C‑235/17, EU:C:2018:971, point 68. See also Spaventa, E., ‘Should we “harmonize” fundamental rights in the EU? Some reflections about minimum standards and fundamental rights protection in the EU composite constitutional system’, Common Market Law Review, 997. At p. 1022, the author questions ‘the wisdom of fundamental rights centralization in the European Union’.

95 Advocate General Saugmandsgaard Øe in Commission v Hungary (Rights of usufruct over agricultural land), C‑235/17, EU:C:2018:971, point 101.

96 Judgment of 25 July 2018, Minister for Justice and Equality, C-216/18 PPU, EU:C:2018:56, paragraph 60.

Court of Justice of the European Communities (including Court of First Instance Decisions)