# C_2019044EN.01001201.xml

| 4.2.2019 | EN | Official Journal of the European Union | C 44/12 |
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4.2.2019

EN

Official Journal of the European Union

C 44/12

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Request for a preliminary ruling from the Sąd Najwyższy (Poland) lodged on 26 October 2018 — BP v UNIPARTS sàrl, having its registered office in Nyon

(Case C-668/18)

(2019/C 44/17)

Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings

Claimant: BP

Defendant: UNIPARTS sàrl, having its registered office in Nyon

Questions referred

| 1. | Should the second sentence of Article 19(1) TEU, in conjunction with the third sentence of Article 4(3) TEU and Article 2 TEU, the third paragraph of Article 267 TFEU and Article 47 of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that the principle of the irremovability of judges, forming part of the principle of effective judicial protection and of the principle of the rule of law, is infringed in every case where a national legislature lowers the retirement age for judges of the court of last instance in a Member State (for example, from 70 to 65 years) and applies the new lower retirement age to judges in active service, without leaving the decision on whether to take advantage of the lower retirement age to the sole discretion of the judge concerned? |
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1.

Should the second sentence of Article 19(1) TEU, in conjunction with the third sentence of Article 4(3) TEU and Article 2 TEU, the third paragraph of Article 267 TFEU and Article 47 of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that the principle of the irremovability of judges, forming part of the principle of effective judicial protection and of the principle of the rule of law, is infringed in every case where a national legislature lowers the retirement age for judges of the court of last instance in a Member State (for example, from 70 to 65 years) and applies the new lower retirement age to judges in active service, without leaving the decision on whether to take advantage of the lower retirement age to the sole discretion of the judge concerned?

| 2. | Should the second sentence of Article 19(1) TEU, in conjunction with the third sentence of Article 4(3) TEU and Article 2 TEU, the third paragraph of Article 267 TFEU and Article 47 of the Charter of Fundamental Rights, be interpreted as meaning that the principle of the rule of law and the standard of independence required to ensure effective judicial protection in cases involving EU law are infringed when a national legislature, in breach of the principle of the irremovability of judges, lowers the normal age at which a judge of the court of last instance in a Member State may hold a judicial post from 70 to 65 years, such that continuing in that post is dependent on the discretionary consent of an executive body? |
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2.

Should the second sentence of Article 19(1) TEU, in conjunction with the third sentence of Article 4(3) TEU and Article 2 TEU, the third paragraph of Article 267 TFEU and Article 47 of the Charter of Fundamental Rights, be interpreted as meaning that the principle of the rule of law and the standard of independence required to ensure effective judicial protection in cases involving EU law are infringed when a national legislature, in breach of the principle of the irremovability of judges, lowers the normal age at which a judge of the court of last instance in a Member State may hold a judicial post from 70 to 65 years, such that continuing in that post is dependent on the discretionary consent of an executive body?

| 3. | Should Article 2, in conjunction with Article 6(1), of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (1) be interpreted as meaning that lowering the retirement age of judges of the court of last instance in a Member State, and making the possibility for an existing judge of that court who has reached the new lower retirement age to continue in his post dependent on the consent of an executive body, constitute discrimination on grounds of age? |
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3.

Should Article 2, in conjunction with Article 6(1), of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (1) be interpreted as meaning that lowering the retirement age of judges of the court of last instance in a Member State, and making the possibility for an existing judge of that court who has reached the new lower retirement age to continue in his post dependent on the consent of an executive body, constitute discrimination on grounds of age?

| 4. | Should Articles 2, 9 and 11 of Directive 2000/78, in conjunction with Articles 21 and 47 of the Charter of Fundamental Rights, be interpreted as meaning that in the case of discrimination on grounds of age of the judges of the court of final instance in a Member State, consisting in the lowering of the retirement age from the current 70 years to 65 years, that court — adjudicating in any case with the participation of a judge affected by the effects of such discriminatory national provisions who has not expressed a willingness to take advantage of the new retirement age — is required, when deciding the preliminary issue of the composition of the court, to refuse to apply national provisions that are contrary to Directive 2000/78 and Article 21 of the Charter of Fundamental Rights and to continue to adjudicate with the participation of that judge where that is the only effective means of ensuring effective judicial protection of the rights of judges under EU law? |
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4.

Should Articles 2, 9 and 11 of Directive 2000/78, in conjunction with Articles 21 and 47 of the Charter of Fundamental Rights, be interpreted as meaning that in the case of discrimination on grounds of age of the judges of the court of final instance in a Member State, consisting in the lowering of the retirement age from the current 70 years to 65 years, that court — adjudicating in any case with the participation of a judge affected by the effects of such discriminatory national provisions who has not expressed a willingness to take advantage of the new retirement age — is required, when deciding the preliminary issue of the composition of the court, to refuse to apply national provisions that are contrary to Directive 2000/78 and Article 21 of the Charter of Fundamental Rights and to continue to adjudicate with the participation of that judge where that is the only effective means of ensuring effective judicial protection of the rights of judges under EU law?

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(1)  OJ 2000 L 303, p. 16.

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