# 62018CO0522(02)

ORDER OF THE COURT (Third Chamber)

29 January 2020 (
  *1
  )

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(Reference for a preliminary ruling — No need to adjudicate)

In Case C‐522/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Najwyższy (Supreme Court, Poland), made by decision of 2 August 2018, received at the Court on 9 August 2018, in the proceedings

DŚ

DŚ

v

Zakład Ubezpieczeń Społecznych Oddział w Jaśle,

Zakład Ubezpieczeń Społecznych Oddział w Jaśle,

intervener:

Prokuratura Krajowa,

Prokuratura Krajowa,

THE COURT (Third Chamber),

composed of A. Prechal (Rapporteur), President of the Chamber, L.S. Rossi, J. Malenovský, F. Biltgen and N. Wahl, Judges,

Advocate General: E. Tanchev,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

| – | the Polish Government, by B. Majczyna, acting as Agent, |
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–

the Polish Government, by B. Majczyna, acting as Agent,

| – | the Belgian Government, by M. Jacobs, L. Van den Broeck and C. Pochet, acting as Agents, |
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–

the Belgian Government, by M. Jacobs, L. Van den Broeck and C. Pochet, acting as Agents,

| – | the Danish Government, by J. Nymann-Lindegren and M. Wolff, acting as Agents, |
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–

the Danish Government, by J. Nymann-Lindegren and M. Wolff, acting as Agents,

| – | the Latvian Government, by I. Kucina and V. Soņeca, acting as Agents, |
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–

the Latvian Government, by I. Kucina and V. Soņeca, acting as Agents,

| – | The Netherlands Government, by M.K. Bulterman and C.S. Schillemans, acting as Agents, |
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–

The Netherlands Government, by M.K. Bulterman and C.S. Schillemans, acting as Agents,

| – | the European Commission, by A. Stobiecka-Kuik, D. Martin and H. Krämer, acting as Agents, |
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–

the European Commission, by A. Stobiecka-Kuik, D. Martin and H. Krämer, acting as Agents,

| – | the EFTA Surveillance Authority, by C. Zatschler, J.S. Watson, I.O. Vilhjálmsdóttir and C. Howdle, acting as Agents, |
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–

the EFTA Surveillance Authority, by C. Zatschler, J.S. Watson, I.O. Vilhjálmsdóttir and C. Howdle, acting as Agents,

after hearing the Advocate General,

gives the following

Order

Order

| 1 | This request for a preliminary ruling concerns the interpretation of Article 2 TEU, the third subparagraph of Article 4(3) TEU, the second subparagraph of Article 19(1) TEU, Article 267 TFEU, Articles 21 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), as well as Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16). |
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1

This request for a preliminary ruling concerns the interpretation of Article 2 TEU, the third subparagraph of Article 4(3) TEU, the second subparagraph of Article 19(1) TEU, Article 267 TFEU, Articles 21 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), as well as Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

| 2 | The request has been made in proceedings between DŚ, the applicant in the main proceedings, and Zakład Ubezpieczeń Społecznych Oddział w Jaśle (‘the Social Insurance Institution’, Jasło Branch) regarding DŚ’s eligibility for social insurance in Poland. |
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2

The request has been made in proceedings between DŚ, the applicant in the main proceedings, and Zakład Ubezpieczeń Społecznych Oddział w Jaśle (‘the Social Insurance Institution’, Jasło Branch) regarding DŚ’s eligibility for social insurance in Poland.

Legal context

Legal context

| 3 | Article 30 of the ustawa o Sądzie Najwyższym (Law of 23 November 2002 on the Supreme Court; ‘the Law on the Supreme Court of 2002’) set the retirement age for judges of the Sąd Najwyższy (Supreme Court, Poland) at 70 years. |
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3

Article 30 of the ustawa o Sądzie Najwyższym (Law of 23 November 2002 on the Supreme Court; ‘the Law on the Supreme Court of 2002’) set the retirement age for judges of the Sąd Najwyższy (Supreme Court, Poland) at 70 years.

| 4 | On 20 December 2017, the President of the Republic of Poland (‘the President of the Republic’) signed the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 (Dz. U of 2018, item 5; ‘the New Law on the Supreme Court’), which entered into force on 3 April 2018. That law was subsequently amended on several occasions. |
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4

On 20 December 2017, the President of the Republic of Poland (‘the President of the Republic’) signed the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8 December 2017 (Dz. U of 2018, item 5; ‘the New Law on the Supreme Court’), which entered into force on 3 April 2018. That law was subsequently amended on several occasions.

| 5 | Under Article 37 of the New Law on the Supreme Court:
  ‘1.   Judges of the [Sąd Najwyższy (Supreme Court) shall retire on the day of their 65th birthday, unless, not later than 6 months from that day and not earlier than 12 months before that day, they submit a declaration that they are willing to continue serving in the position of judge and present a certificate confirming that their health is no impediment to performing the duties of a judge, issued in accordance with the rules specified for candidates applying for the position of judge, and the [President of the Republic] consents to their continuing to serve in the position of judge at the [Sąd Najwyższy (Supreme Court)].
  1a.   Prior to granting consent for a judge to continue to serve as a judge of the Supreme Court, the [President of the Republic] shall consult the National Council of the Judiciary. The National Council of the Judiciary shall provide the [President of the Republic] with an opinion within 30 days of the date on which the President requests submission of such an opinion. Where the opinion is not submitted within the period referred to in the second sentence, the National Council of the Judiciary shall be deemed to have submitted a positive opinion.
  ...
  3.   The [President of the Republic] may grant consent for a judge of the Supreme Court to continue in his or her position within 3 months of the date of receipt of the opinion of the National Council for the Judiciary referred to in (1a), or within 3 months of the expiry of the period for the submission of that opinion. Failure to grant consent within the period referred to in the first sentence shall be tantamount to the judge retiring on the day of his or her 65th birthday. [...]
  4.   The authorisation referred to in paragraph 1 shall be granted for a period of 3 years, no more than twice. [...]’ |
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5

Under Article 37 of the New Law on the Supreme Court:

‘1.   Judges of the [Sąd Najwyższy (Supreme Court) shall retire on the day of their 65th birthday, unless, not later than 6 months from that day and not earlier than 12 months before that day, they submit a declaration that they are willing to continue serving in the position of judge and present a certificate confirming that their health is no impediment to performing the duties of a judge, issued in accordance with the rules specified for candidates applying for the position of judge, and the [President of the Republic] consents to their continuing to serve in the position of judge at the [Sąd Najwyższy (Supreme Court)].

1a.   Prior to granting consent for a judge to continue to serve as a judge of the Supreme Court, the [President of the Republic] shall consult the National Council of the Judiciary. The National Council of the Judiciary shall provide the [President of the Republic] with an opinion within 30 days of the date on which the President requests submission of such an opinion. Where the opinion is not submitted within the period referred to in the second sentence, the National Council of the Judiciary shall be deemed to have submitted a positive opinion.

...

3.   The [President of the Republic] may grant consent for a judge of the Supreme Court to continue in his or her position within 3 months of the date of receipt of the opinion of the National Council for the Judiciary referred to in (1a), or within 3 months of the expiry of the period for the submission of that opinion. Failure to grant consent within the period referred to in the first sentence shall be tantamount to the judge retiring on the day of his or her 65th birthday. [...]

4.   The authorisation referred to in paragraph 1 shall be granted for a period of 3 years, no more than twice. [...]’

| 6 | Article 111 of the New Law on the Supreme Court provides:
  ‘1.   Judges of the [Sąd Najwyższy (Supreme Court)] who by the date of entry into force of this law have reached the age of 65 or who will have reached the age of 65 within 3 months of the date of entry into force of this law shall retire on the day following the expiry of that three-month period, unless they submit the declaration and certificate referred to in Article 37(1) within 1 month of the date of entry into force of this law and the [President of the Republic] grants authorisation for those judges of the [Sąd Najwyższy (Supreme Court)] to continue to perform their duties. The provisions of Article 37(2) to (4) shall apply mutatis mutandis.
  1a.   Judges of the [Sąd Najwyższy (Supreme Court)] who reach the age of 65 within three to 12 months of the date of entry into force of this law shall retire within 12 months from the date of entry into force of this law, unless they submit the declaration and certificate referred to in Article 37(1) within that period and the [President of the Republic] grants consent for the judge of the [Sąd Najwyższy (Supreme Court)] to continue to perform his or her duties. The provisions of Article 37(1a)-(4) shall apply mutatis mutandis.’ |
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6

Article 111 of the New Law on the Supreme Court provides:

‘1.   Judges of the [Sąd Najwyższy (Supreme Court)] who by the date of entry into force of this law have reached the age of 65 or who will have reached the age of 65 within 3 months of the date of entry into force of this law shall retire on the day following the expiry of that three-month period, unless they submit the declaration and certificate referred to in Article 37(1) within 1 month of the date of entry into force of this law and the [President of the Republic] grants authorisation for those judges of the [Sąd Najwyższy (Supreme Court)] to continue to perform their duties. The provisions of Article 37(2) to (4) shall apply mutatis mutandis.

mutatis mutandis

1a.   Judges of the [Sąd Najwyższy (Supreme Court)] who reach the age of 65 within three to 12 months of the date of entry into force of this law shall retire within 12 months from the date of entry into force of this law, unless they submit the declaration and certificate referred to in Article 37(1) within that period and the [President of the Republic] grants consent for the judge of the [Sąd Najwyższy (Supreme Court)] to continue to perform his or her duties. The provisions of Article 37(1a)-(4) shall apply mutatis mutandis.’

mutatis mutandis

| 7 | Paragraph (1a) was inserted in Article 111 of the New Law on the Supreme Court to take account of the individual circumstances of one judge of the Sąd Najwyższy (Supreme Court) who, due to the transitional provisions initially provided for, would have been prevented within the statutory period from submitting a declaration that he wished to continue serving as a judge beyond the new retirement age. |
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7

Paragraph (1a) was inserted in Article 111 of the New Law on the Supreme Court to take account of the individual circumstances of one judge of the Sąd Najwyższy (Supreme Court) who, due to the transitional provisions initially provided for, would have been prevented within the statutory period from submitting a declaration that he wished to continue serving as a judge beyond the new retirement age.

The dispute in the main proceedings and the questions referred for a preliminary ruling

The dispute in the main proceedings and the questions referred for a preliminary ruling

| 8 | On 14 October 2015, the Social Insurance Institution adopted a decision regarding DŚ’s eligibility for social insurance in Poland. On 23 March 2018, the decision was annulled by a judgment of the Sąd Apelacyjny, Wydział Pracy i Ubezpieczeń Społecznych w Rzeszowie (Court of Appeal, Labour and Social Insurance Division, Rzeszów, Poland). That court ruled that the Social Insurance Institution had failed to take account of the fact that the decision of the pension authority of a Member State other than the Republic of Poland finding that the person concerned was ineligible for social insurance in that other Member State had subsequently been annulled by a court in that other Member State. That decision had inter alia formed the basis of an agreement between authorities for the purposes of Article 16 of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ 2009 L 284, p. 1). |
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8

On 14 October 2015, the Social Insurance Institution adopted a decision regarding DŚ’s eligibility for social insurance in Poland. On 23 March 2018, the decision was annulled by a judgment of the Sąd Apelacyjny, Wydział Pracy i Ubezpieczeń Społecznych w Rzeszowie (Court of Appeal, Labour and Social Insurance Division, Rzeszów, Poland). That court ruled that the Social Insurance Institution had failed to take account of the fact that the decision of the pension authority of a Member State other than the Republic of Poland finding that the person concerned was ineligible for social insurance in that other Member State had subsequently been annulled by a court in that other Member State. That decision had inter alia formed the basis of an agreement between authorities for the purposes of Article 16 of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ 2009 L 284, p. 1).

| 9 | When hearing the Social Insurance Institution’s appeal against that judgment, the Sąd Najwyższy (Supreme Court), sitting in ordinary composition, referred a question of law to the Supreme Court, sitting in extended composition. The question was whether that failure to take into consideration the annulment decision delivered by a court of another Member State amounted to a ‘failure to adjudicate on the merits of the case’ within the meaning of Article 386(4), in conjunction with Article 477, of the Kodeks postępowania cywilnego (Code of Civil Procedure). |
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9

When hearing the Social Insurance Institution’s appeal against that judgment, the Sąd Najwyższy (Supreme Court), sitting in ordinary composition, referred a question of law to the Supreme Court, sitting in extended composition. The question was whether that failure to take into consideration the annulment decision delivered by a court of another Member State amounted to a ‘failure to adjudicate on the merits of the case’ within the meaning of Article 386(4), in conjunction with Article 477, of the Kodeks postępowania cywilnego (Code of Civil Procedure).

| 10 | As a preliminary matter, the Sąd Najwyższy (Supreme Court), sitting in extended composition, observed that two members of the panel were personally affected by the provisions of the New Law on the Supreme Court on the duration of service. |
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10

As a preliminary matter, the Sąd Najwyższy (Supreme Court), sitting in extended composition, observed that two members of the panel were personally affected by the provisions of the New Law on the Supreme Court on the duration of service.

| 11 | In this respect, the referring court stated that one of the two judges had reached the age of 65 before the entry into force of the New Law on the Supreme Court. In May 2018, that judge submitted a declaration that he wished to continue serving as a judge until the age of 70, that is, the retirement age provided for under the Law on the Supreme Court of 2002. Although this was not a declaration falling under Article 37 and Article 111(1) of the New Law on the Supreme Court, the President of the Republic initiated the procedure as to whether to grant consent for that judge to continue serving in this position, as provided for by those provisions. The procedure was still ongoing when the referring court made the order for reference. |
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11

In this respect, the referring court stated that one of the two judges had reached the age of 65 before the entry into force of the New Law on the Supreme Court. In May 2018, that judge submitted a declaration that he wished to continue serving as a judge until the age of 70, that is, the retirement age provided for under the Law on the Supreme Court of 2002. Although this was not a declaration falling under Article 37 and Article 111(1) of the New Law on the Supreme Court, the President of the Republic initiated the procedure as to whether to grant consent for that judge to continue serving in this position, as provided for by those provisions. The procedure was still ongoing when the referring court made the order for reference.

| 12 | As regards the second judge, the referring court noted that he had reached the age of 65 after the entry into force of the New Law on the Supreme Court and that Article 111(1a) of that law was specifically adopted to cover such circumstances. As a result of that provision, the referring court noted that the second judge would retire on 3 April 2019 unless he submitted a declaration prior to that date that he wished to continue serving as a judge, and subject to the President of the Republic of Poland’s consent to that effect, also prior to that date. |
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12

As regards the second judge, the referring court noted that he had reached the age of 65 after the entry into force of the New Law on the Supreme Court and that Article 111(1a) of that law was specifically adopted to cover such circumstances. As a result of that provision, the referring court noted that the second judge would retire on 3 April 2019 unless he submitted a declaration prior to that date that he wished to continue serving as a judge, and subject to the President of the Republic of Poland’s consent to that effect, also prior to that date.

| 13 | In this context, the referring court raises doubts as to whether Article 37 and Article 111(1) and (1a) of the New Law on the Supreme Court (‘the provisions of national legislation at issue’) comply with the various provisions of EU law referred to in paragraph 1 of the present order. More specifically, the Supreme Court is of the view that the lowering by the national legislature of the retirement age for serving judges of the Sąd Najwyższy (Supreme Court) infringes both the principle of the irremovability of judges and the prohibition of discrimination on grounds of age in employment matters. Moreover, the opportunity for judges of the Sąd Najwyższy (Supreme Court) to continue to perform their duties beyond the retirement age set by the new law is left to the arbitrary discretion of the President of the Republic. This requirement may well be incompatible with the principle of the independence of the courts, thus making judges vulnerable to external pressure. |
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13

In this context, the referring court raises doubts as to whether Article 37 and Article 111(1) and (1a) of the New Law on the Supreme Court (‘the provisions of national legislation at issue’) comply with the various provisions of EU law referred to in paragraph 1 of the present order. More specifically, the Supreme Court is of the view that the lowering by the national legislature of the retirement age for serving judges of the Sąd Najwyższy (Supreme Court) infringes both the principle of the irremovability of judges and the prohibition of discrimination on grounds of age in employment matters. Moreover, the opportunity for judges of the Sąd Najwyższy (Supreme Court) to continue to perform their duties beyond the retirement age set by the new law is left to the arbitrary discretion of the President of the Republic. This requirement may well be incompatible with the principle of the independence of the courts, thus making judges vulnerable to external pressure.

| 14 | Furthermore, the referring court requests a determination from the Court of Justice as to whether it should refuse to apply the provisions of national legislation at issue, should the abovementioned provisions infringe EU law. |
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14

Furthermore, the referring court requests a determination from the Court of Justice as to whether it should refuse to apply the provisions of national legislation at issue, should the abovementioned provisions infringe EU law.

| 15 | The referring court also requests clarifications from the Court of Justice regarding preliminary matters which have been put before it as regards whether the judges of which the referring court is composed are permitted to continue performing their duties and to adjudicate on the case in the main proceedings or any other cases in which they may sit, in compliance with the requirements stemming from the provisions of EU law referred to in paragraph 1 of the present order. |
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15

The referring court also requests clarifications from the Court of Justice regarding preliminary matters which have been put before it as regards whether the judges of which the referring court is composed are permitted to continue performing their duties and to adjudicate on the case in the main proceedings or any other cases in which they may sit, in compliance with the requirements stemming from the provisions of EU law referred to in paragraph 1 of the present order.

| 16 | In those circumstances, the Sąd Najwyższy (Supreme Court) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:





  ‘(1) | Should the second subparagraph of Article 19(1) TEU, in conjunction with the third subparagraph of Article 4(3) TEU and Article 2 TEU, the third subparagraph of Article 267 TFEU and Article 47 of the [Charter], 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 the case where a national legislature lowers the retirement age of 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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16

In those circumstances, the Sąd Najwyższy (Supreme Court) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)

Should the second subparagraph of Article 19(1) TEU, in conjunction with the third subparagraph of Article 4(3) TEU and Article 2 TEU, the third subparagraph of Article 267 TFEU and Article 47 of the [Charter], 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 the case where a national legislature lowers the retirement age of 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 subparagraph of Article 19(1) TEU, in conjunction with the third subparagraph of Article 4(3) TEU and Article 2 TEU, the third subparagraph of Article 267 TFEU and Article 47 of the [Charter], 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 in the case where 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 position from 70 to 65 years, such that continuance in that position is dependent on the discretionary consent of an executive body? |
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(2)

Should the second subparagraph of Article 19(1) TEU, in conjunction with the third subparagraph of Article 4(3) TEU and Article 2 TEU, the third subparagraph of Article 267 TFEU and Article 47 of the [Charter], 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 in the case where 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 position from 70 to 65 years, such that continuance in that position is dependent on the discretionary consent of an executive body?

| (3) | Should Article 2, in conjunction with Article 6(1), of ... Directive [2000/78] 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 ... Directive [2000/78] 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 Article 2, Article 9 and Article 11 of Directive 2000/78, in conjunction with Article 21 and Article 47 of the [Charter], be interpreted as meaning that in the case of discrimination on grounds of age of the judges of the court of last 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] 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 Article 2, Article 9 and Article 11 of Directive 2000/78, in conjunction with Article 21 and Article 47 of the [Charter], be interpreted as meaning that in the case of discrimination on grounds of age of the judges of the court of last 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] 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?

| (5) | Should the second subparagraph of Article 19(1) TEU, in conjunction with the third subparagraph of Article 4(3) TEU and Article 2 TEU, Article 267 TFEU and Article 47 [of the Charter], be interpreted as meaning that the rule of law is to be regarded as such a fundamental value of the European Union that, where doubts arise as to the compatibility with that value and with the principle of effective judicial protection arising from it — as regards the independence of the courts and the judiciary — of national provisions which lower the retirement age of judges as described in Questions 1 and 2, a national court must have the power to suspend of its own motion the application of national provisions which infringe the principle of the irremovability of judges in relation to all judges coming within the scope of those provisions?’ |
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(5)

Should the second subparagraph of Article 19(1) TEU, in conjunction with the third subparagraph of Article 4(3) TEU and Article 2 TEU, Article 267 TFEU and Article 47 [of the Charter], be interpreted as meaning that the rule of law is to be regarded as such a fundamental value of the European Union that, where doubts arise as to the compatibility with that value and with the principle of effective judicial protection arising from it — as regards the independence of the courts and the judiciary — of national provisions which lower the retirement age of judges as described in Questions 1 and 2, a national court must have the power to suspend of its own motion the application of national provisions which infringe the principle of the irremovability of judges in relation to all judges coming within the scope of those provisions?’

| 17 | On 17 October 2018, the referring court provided the Court of Justice with its order dated 16 October 2018, stating that the Social Insurance Institution’s application to withdraw from the appeal in the main proceedings, which had been filed in the interim, was inadmissible. It is clear from this order that that decision was adopted on the basis of national procedural law. As such, bodies such as the Social Insurance Institution may not withdraw from an appeal in proceedings involving employment law or social insurance law where such withdrawal may, as in the present case, first, prejudice the legitimate interests of workers or beneficiaries of social insurance, and, second, infringe accepted principles of morality and public interest, and amount to an abuse of power. In addition, according to the order, the application to withdraw from the appeal was filed after the request for a preliminary ruling was made to the Court of Justice, and thus infringed the duty of sincere cooperation under Article 4(3) TEU. Therefore, in light of this order, the referring court informed the Court of Justice that its request for a preliminary ruling was maintained in the present case. |
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17

On 17 October 2018, the referring court provided the Court of Justice with its order dated 16 October 2018, stating that the Social Insurance Institution’s application to withdraw from the appeal in the main proceedings, which had been filed in the interim, was inadmissible. It is clear from this order that that decision was adopted on the basis of national procedural law. As such, bodies such as the Social Insurance Institution may not withdraw from an appeal in proceedings involving employment law or social insurance law where such withdrawal may, as in the present case, first, prejudice the legitimate interests of workers or beneficiaries of social insurance, and, second, infringe accepted principles of morality and public interest, and amount to an abuse of power. In addition, according to the order, the application to withdraw from the appeal was filed after the request for a preliminary ruling was made to the Court of Justice, and thus infringed the duty of sincere cooperation under Article 4(3) TEU. Therefore, in light of this order, the referring court informed the Court of Justice that its request for a preliminary ruling was maintained in the present case.

The adoption of the Law of 21 November 2018

The adoption of the Law of 21 November 2018

| 18 | On 1 January 2019, the ustawa o zmianie ustawy o Sądzie Nawyższym (Law amending the Law on the Supreme Court) of 21 November 2018 (Dz. U. of 2018, item 2507; ‘the Law of 21 November 2018’) entered into force. |
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18

On 1 January 2019, the ustawa o zmianie ustawy o Sądzie Nawyższym (Law amending the Law on the Supreme Court) of 21 November 2018 (Dz. U. of 2018, item 2507; ‘the Law of 21 November 2018’) entered into force.

| 19 | It is clear from Article 1 of the Law of 21 November 2018 that Article 37(1a) to (4) and Article 111(1) and (1a) of the New Law on the Supreme Court have been repealed and that Article 37(1) thereof has been amended to the effect that ‘the judges of the [Sąd Najwyższy (Supreme Court)] shall retire at the age of 65’. It is however specified, in that law, that Article 37(1) applies only to judges of the Sąd Najwyższy (Supreme Court) who have entered into service after 1 January 2019. Judges of the Sąd Najwyższy (Supreme Court) who entered into service before that date again fall within the legal framework applicable before the entry into force of the New Law on the Supreme Court, that is Article 30 of the Law on the Supreme Court of 2002, which set the retirement age of the judges of the Sąd Najwyższy (Supreme Court) at 70. |
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19

It is clear from Article 1 of the Law of 21 November 2018 that Article 37(1a) to (4) and Article 111(1) and (1a) of the New Law on the Supreme Court have been repealed and that Article 37(1) thereof has been amended to the effect that ‘the judges of the [Sąd Najwyższy (Supreme Court)] shall retire at the age of 65’. It is however specified, in that law, that Article 37(1) applies only to judges of the Sąd Najwyższy (Supreme Court) who have entered into service after 1 January 2019. Judges of the Sąd Najwyższy (Supreme Court) who entered into service before that date again fall within the legal framework applicable before the entry into force of the New Law on the Supreme Court, that is Article 30 of the Law on the Supreme Court of 2002, which set the retirement age of the judges of the Sąd Najwyższy (Supreme Court) at 70.

| 20 | Furthermore, Article 2(1) of the Law of 21 November 2018 provides that ‘from the date when the present law enters into force, judges of the [Sąd Najwyższy (Supreme Court)] ... who have been retired under Article 37(1) to (4) or Article 111(1) or Article 111(1a) of [the New Law on the Supreme Court] shall be reinstated in the same functions that they exercised on the date on which [that law] entered into force. The service of the judges of the [Sąd Najwyższy (Supreme Court)] ... is deemed to have been uninterrupted. |
| --- | --- |

20

Furthermore, Article 2(1) of the Law of 21 November 2018 provides that ‘from the date when the present law enters into force, judges of the [Sąd Najwyższy (Supreme Court)] ... who have been retired under Article 37(1) to (4) or Article 111(1) or Article 111(1a) of [the New Law on the Supreme Court] shall be reinstated in the same functions that they exercised on the date on which [that law] entered into force. The service of the judges of the [Sąd Najwyższy (Supreme Court)] ... is deemed to have been uninterrupted.

The need to adjudicate

The need to adjudicate

| 21 | Having regard to the entry into force of the Law of 21 November 2018, the Court asked the referring court whether it considered that an answer to the questions referred for a preliminary ruling was still needed to enable it to give judgment in the main proceedings, to which the referring court responded in the affirmative. |
| --- | --- |

21

Having regard to the entry into force of the Law of 21 November 2018, the Court asked the referring court whether it considered that an answer to the questions referred for a preliminary ruling was still needed to enable it to give judgment in the main proceedings, to which the referring court responded in the affirmative.

| 22 | In this respect, the referring court relied, in particular, on the fundamental importance of those questions for the preservation of the rule of law within the EU, the fact that those questions were referred when the provisions of national legislation at issue were still valid, the fact that the Law of 21 November 2018 — which was adopted to give legal effect to the order of 17 December 2018, Commission v Poland (C‐619/18 R, EU:C:2018:1021), by which the Court ordered the provisional suspension of those provisions of national legislation — is not final in nature and the fact that the effects of those provisions of national legislation have not been removed ex tunc. Accordingly, the referring court takes the view that an answer to the questions referred for a preliminary ruling is still needed in order to clarify the status of the judges of the Sąd Najwyższy (Supreme Court) affected by the provisions of the national legislation at issue. The referring court states that, while the Law of 21 November 2018 is based on the premiss that some of those judges have retired under the provisions of the national legislation at issue and have now been reinstated at the Sąd Najwyższy (Supreme Court), the questions referred for a preliminary ruling are based on the premiss that the judges concerned never retired since those provisions of national legislation had to be disapplied, so that the referring court as currently composed and, more generally, all the judges of the Sąd Najwyższy (Supreme Court) who have indicated that they wish to continue to perform their functions beyond the age of 65 may continue to adjudicate. |
| --- | --- |

22

In this respect, the referring court relied, in particular, on the fundamental importance of those questions for the preservation of the rule of law within the EU, the fact that those questions were referred when the provisions of national legislation at issue were still valid, the fact that the Law of 21 November 2018 — which was adopted to give legal effect to the order of 17 December 2018, Commission v Poland (C‐619/18 R, EU:C:2018:1021), by which the Court ordered the provisional suspension of those provisions of national legislation — is not final in nature and the fact that the effects of those provisions of national legislation have not been removed ex tunc. Accordingly, the referring court takes the view that an answer to the questions referred for a preliminary ruling is still needed in order to clarify the status of the judges of the Sąd Najwyższy (Supreme Court) affected by the provisions of the national legislation at issue. The referring court states that, while the Law of 21 November 2018 is based on the premiss that some of those judges have retired under the provisions of the national legislation at issue and have now been reinstated at the Sąd Najwyższy (Supreme Court), the questions referred for a preliminary ruling are based on the premiss that the judges concerned never retired since those provisions of national legislation had to be disapplied, so that the referring court as currently composed and, more generally, all the judges of the Sąd Najwyższy (Supreme Court) who have indicated that they wish to continue to perform their functions beyond the age of 65 may continue to adjudicate.

ex tunc

| 23 | The referring court states, however, that, since the judge referred to in paragraph 12 of the present order is no longer at risk of not fulfilling the conditions relating to the independence of the courts, it is in fact in relation to judges who have turned 65 before the date of entry into force of the Law of 21 November 2018, and thus in particular, the judge referred to in paragraph 11 of this order, that it is still necessary to answer the questions referred. |
| --- | --- |

23

The referring court states, however, that, since the judge referred to in paragraph 12 of the present order is no longer at risk of not fulfilling the conditions relating to the independence of the courts, it is in fact in relation to judges who have turned 65 before the date of entry into force of the Law of 21 November 2018, and thus in particular, the judge referred to in paragraph 11 of this order, that it is still necessary to answer the questions referred.

| 24 | In the first place, it should be observed that the importance of the questions referred is not in issue. Moreover, that importance has already been underlined in paragraph 15 of the order of the President of the Court of 13 November 2018, Zakład Ubezpieczeń Społecznych (C‐522/18, not published, EU:C:2018:909), by which the latter decided to apply an expedited procedure to this case. |
| --- | --- |

24

In the first place, it should be observed that the importance of the questions referred is not in issue. Moreover, that importance has already been underlined in paragraph 15 of the order of the President of the Court of 13 November 2018, Zakład Ubezpieczeń Społecznych (C‐522/18, not published, EU:C:2018:909), by which the latter decided to apply an expedited procedure to this case.

| 25 | Furthermore, in its judgment of 24 June 2019, Commission v Poland(Independence of the Supreme Court) (C‐619/18, EU:C:2019:531), which was delivered after the request for a preliminary ruling was submitted in the present case, the Court held that, first, by providing that the measure consisting in lowering the retirement age of the judges of the Sąd Najwyższy (Supreme Court) is to apply to serving judges who were appointed to that court before 3 April 2018 and, second, by granting the President of the Republic the discretion to extend the period of judicial activity of judges of that court beyond the newly fixed retirement age, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU. |
| --- | --- |

25

Furthermore, in its judgment of 24 June 2019, Commission v Poland(Independence of the Supreme Court) (C‐619/18, EU:C:2019:531), which was delivered after the request for a preliminary ruling was submitted in the present case, the Court held that, first, by providing that the measure consisting in lowering the retirement age of the judges of the Sąd Najwyższy (Supreme Court) is to apply to serving judges who were appointed to that court before 3 April 2018 and, second, by granting the President of the Republic the discretion to extend the period of judicial activity of judges of that court beyond the newly fixed retirement age, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU.

| 26 | That being said, the fact that questions referred for a preliminary ruling are of particular importance does not in itself suffice to justify that the Court be required to answer them. |
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26

That being said, the fact that questions referred for a preliminary ruling are of particular importance does not in itself suffice to justify that the Court be required to answer them.

| 27 | In that regard, it should be noted, in the second place, that, according to the settled case‐law of the Court, the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them (judgment of 19 December 2013, Fish Legal and Shirley, C‐279/12, EU:C:2013:853, paragraph 29 and the case-law cited). The preliminary ruling procedure presupposes that the referring court is called upon, in a dispute pending before it, to give a decision which is capable of taking account of the preliminary ruling (see, to that effect, judgments of 27 June 2013, Di Donna, C‐492/11, EU:C:2013:428, paragraph 26; of 24 October 2013, Stoilov i Ko, C‐180/12, EU:C:2013:693, paragraph 44; and order of 3 March 2016, Euro Bank, C‐537/15, not published, EU:C:2016:143, paragraph 32 and the case-law cited). |
| --- | --- |

27

In that regard, it should be noted, in the second place, that, according to the settled case‐law of the Court, the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them (judgment of 19 December 2013, Fish Legal and Shirley, C‐279/12, EU:C:2013:853, paragraph 29 and the case-law cited). The preliminary ruling procedure presupposes that the referring court is called upon, in a dispute pending before it, to give a decision which is capable of taking account of the preliminary ruling (see, to that effect, judgments of 27 June 2013, Di Donna, C‐492/11, EU:C:2013:428, paragraph 26; of 24 October 2013, Stoilov i Ko, C‐180/12, EU:C:2013:693, paragraph 44; and order of 3 March 2016, Euro Bank, C‐537/15, not published, EU:C:2016:143, paragraph 32 and the case-law cited).

| 28 | As such, it should be borne in mind that the justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute (judgment of 10 December 2018, Wightman and Others, C‐621/18, EU:C:2018:999, paragraph 28 and the case-law cited). If it appears that the question raised is manifestly no longer relevant for the purposes of deciding the case, the Court must declare that there is no need to proceed to judgment (judgment of 19 November 2019, A. K. and Others(Independence of the Disciplinary Chamber of the Supreme Court), C‐585/18, C‐624/18 and C‐625/18, EU:C:2019:982, paragraph 70 and the case-law cited). |
| --- | --- |

28

As such, it should be borne in mind that the justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute (judgment of 10 December 2018, Wightman and Others, C‐621/18, EU:C:2018:999, paragraph 28 and the case-law cited). If it appears that the question raised is manifestly no longer relevant for the purposes of deciding the case, the Court must declare that there is no need to proceed to judgment (judgment of 19 November 2019, A. K. and Others(Independence of the Disciplinary Chamber of the Supreme Court), C‐585/18, C‐624/18 and C‐625/18, EU:C:2019:982, paragraph 70 and the case-law cited).

| 29 | In this instance, it should be recalled that, after the request for a preliminary ruling submitted by the Sąd Najwyższy (Supreme Court) in the present case, the order of the Vice‐President of the Court of 19 October 2018, Commission v Poland (C‐619/18 R, not published, EU:C:2018:852) and the order of 17 December 2018, Commission v Poland (C‐619/18 R, EU:C:2018:1021) were delivered in turn. In those cases, the Court ordered the Republic of Poland in particular, first, to suspend the application of the provisions of Article 37(1) to (4) and of Article 111(1) and (1a) of the New Law on the Supreme Court as well as all measures adopted pursuant to those provisions and, second, to take all necessary measures to ensure that the judges of the Sąd Najwyższy (Supreme Court) affected by those provisions could continue to perform their duties in the positions which they held on 3 April 2018, the date on which the New Law on the Supreme Court entered into force, while continuing to enjoy the same status and the same rights and working conditions as they did until 3 April 2018. |
| --- | --- |

29

In this instance, it should be recalled that, after the request for a preliminary ruling submitted by the Sąd Najwyższy (Supreme Court) in the present case, the order of the Vice‐President of the Court of 19 October 2018, Commission v Poland (C‐619/18 R, not published, EU:C:2018:852) and the order of 17 December 2018, Commission v Poland (C‐619/18 R, EU:C:2018:1021) were delivered in turn. In those cases, the Court ordered the Republic of Poland in particular, first, to suspend the application of the provisions of Article 37(1) to (4) and of Article 111(1) and (1a) of the New Law on the Supreme Court as well as all measures adopted pursuant to those provisions and, second, to take all necessary measures to ensure that the judges of the Sąd Najwyższy (Supreme Court) affected by those provisions could continue to perform their duties in the positions which they held on 3 April 2018, the date on which the New Law on the Supreme Court entered into force, while continuing to enjoy the same status and the same rights and working conditions as they did until 3 April 2018.

| 30 | Following the delivery of those orders, the President of the Republic signed, on 17 December 2018, the Law of 21 November 2018, which was published in the Dziennik Ustaw Rzeczypospolitej Polskiej and entered into force on 1 January 2019. |
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30

Following the delivery of those orders, the President of the Republic signed, on 17 December 2018, the Law of 21 November 2018, which was published in the Dziennik Ustaw Rzeczypospolitej Polskiej and entered into force on 1 January 2019.

Dziennik Ustaw Rzeczypospolitej Polskiej

| 31 | As is apparent from the details set out in paragraphs 19 and 20 of the present order, the Law of 21 November 2018 repealed the provisions of national legislation at issue inasmuch as those provisions, first, provided for the application of the newly set retirement age of 65 for serving judges who had been appointed to that court before 3 April 2018 and, second, granted a discretionary power to the President of the Republic to extend the active period of service of the judges of that court beyond the new retirement age thus set. It is also apparent from those details that, under the Law of 21 November 2018, all judges of the Sąd Najwyższy (Supreme Court) who have been retired under the provisions of the New Law on the Supreme Court thus repealed are to be reinstated in the same functions that they exercised on the date on which that law entered into force and may perform their duties at the Supreme Court until the age of 70, the applicable retirement age under the Law on the Supreme Court of 2002, before the New Law on the Supreme Court entered into force. |
| --- | --- |

31

As is apparent from the details set out in paragraphs 19 and 20 of the present order, the Law of 21 November 2018 repealed the provisions of national legislation at issue inasmuch as those provisions, first, provided for the application of the newly set retirement age of 65 for serving judges who had been appointed to that court before 3 April 2018 and, second, granted a discretionary power to the President of the Republic to extend the active period of service of the judges of that court beyond the new retirement age thus set. It is also apparent from those details that, under the Law of 21 November 2018, all judges of the Sąd Najwyższy (Supreme Court) who have been retired under the provisions of the New Law on the Supreme Court thus repealed are to be reinstated in the same functions that they exercised on the date on which that law entered into force and may perform their duties at the Supreme Court until the age of 70, the applicable retirement age under the Law on the Supreme Court of 2002, before the New Law on the Supreme Court entered into force.

| 32 | In those circumstances, it is apparent that there is no longer anything to prevent the judges of which the panel which has submitted this request for a preliminary ruling to the Court is composed from continuing to perform their duties in the future at the Sąd Najwyższy (Supreme Court) and thus at the referring court until the age of 70, and that they are no longer affected either by the measure lowering the retirement age to 65 or the mechanism which granted the President of the Republic the discretionary power to extend their active judicial functions beyond the normal age of their retirement. |
| --- | --- |

32

In those circumstances, it is apparent that there is no longer anything to prevent the judges of which the panel which has submitted this request for a preliminary ruling to the Court is composed from continuing to perform their duties in the future at the Sąd Najwyższy (Supreme Court) and thus at the referring court until the age of 70, and that they are no longer affected either by the measure lowering the retirement age to 65 or the mechanism which granted the President of the Republic the discretionary power to extend their active judicial functions beyond the normal age of their retirement.

| 33 | The entry into force of the Law of 21 November 2018 has thus resulted in the questions referred to the Court for a preliminary ruling being rendered redundant in view of the decision to be given by the referring court in the pending case (see, by analogy, judgment of 27 June 2013, Di Donna, C‐492/11, EU:C:2013:428, paragraphs 27 to 31, and order of 3 March 2016, Euro Bank, C‐537/15, not published, EU:C:2016:143, paragraphs 33 to 35). |
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33

The entry into force of the Law of 21 November 2018 has thus resulted in the questions referred to the Court for a preliminary ruling being rendered redundant in view of the decision to be given by the referring court in the pending case (see, by analogy, judgment of 27 June 2013, Di Donna, C‐492/11, EU:C:2013:428, paragraphs 27 to 31, and order of 3 March 2016, Euro Bank, C‐537/15, not published, EU:C:2016:143, paragraphs 33 to 35).

| 34 | From that point of view, those questions were justified, prior to the entry into force of the Law of 21 November 2018, by the need to clarify a preliminary procedural matter relating to the composition of the referring court and whether that court should be allowed to continue to sit with the participation of the two judges mentioned in paragraphs 11 and 12 of the present order — this being both a matter of EU law and a question of compliance with EU law — for the purposes of ruling on the dispute in the main proceedings. Since that preliminary matter is no longer in issue in the case in the main proceedings, the referring court will no longer have to take account, for the purposes of the decision that it is called upon to give in that case, of the answer that the Court might give to the questions referred (see, by analogy, judgment of 24 October 2013, Stoilov i Ko, C‐180/12, EU:C:2013:693, paragraph 44). |
| --- | --- |

34

From that point of view, those questions were justified, prior to the entry into force of the Law of 21 November 2018, by the need to clarify a preliminary procedural matter relating to the composition of the referring court and whether that court should be allowed to continue to sit with the participation of the two judges mentioned in paragraphs 11 and 12 of the present order — this being both a matter of EU law and a question of compliance with EU law — for the purposes of ruling on the dispute in the main proceedings. Since that preliminary matter is no longer in issue in the case in the main proceedings, the referring court will no longer have to take account, for the purposes of the decision that it is called upon to give in that case, of the answer that the Court might give to the questions referred (see, by analogy, judgment of 24 October 2013, Stoilov i Ko, C‐180/12, EU:C:2013:693, paragraph 44).

| 35 | In the light of all the foregoing considerations, it must be held that there is no longer any need for the Court to adjudicate on this request for a preliminary ruling. |
| --- | --- |

35

In the light of all the foregoing considerations, it must be held that there is no longer any need for the Court to adjudicate on this request for a preliminary ruling.

Costs

Costs

| 36 | Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. |
| --- | --- |

36

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

| | On those grounds, the Court (Third Chamber) hereby orders: |
| --- | --- |

On those grounds, the Court (Third Chamber) hereby orders:

| | There is no longer any need to adjudicate on the request for a preliminary ruling from the Sąd Najwyższy (Supreme Court, Poland), made by decision of 2 August 2018 in Case C‐522/18. |
| --- | --- |

There is no longer any need to adjudicate on the request for a preliminary ruling from the Sąd Najwyższy (Supreme Court, Poland), made by decision of 2 August 2018 in Case C‐522/18.

There is no longer any need to adjudicate on the request for a preliminary ruling from the Sąd Najwyższy (Supreme Court, Poland), made by decision of 2 August 2018 in Case C‐522/18.

| | [Signatures] |
| --- | --- |

[Signatures]

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(
  *1
  )	Language of the case: Polish.

*1