Opinion of the Advocate General — ECLI:EU:C:2019:529
Date: 2019-06-20
Language of the case: Polish
Subject matter: Provisions governing the Institutions;Principles, objectives and tasks of the Treaties;Social Policy;Fundamental rights;Charter of Fundamental Rights
Procedure: Action for failure to fulfil obligations - successful
Origin: Poland

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. 34 C‑235/17, EU:C:2018:971. Judgment of 21 May 2019, EU:C:2019:432. 35 Ibid., paragraph 111. 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. 37 COM(2017) 835 final, 20 December 2017. 38 EU:C:2019:325. 39 Ibid., points 48 to 51. 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. 42 C‑19/02, EU:C:2004:204. 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. 44 Ibid. Emphasis in original. 45 Ibid., point 49. 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. 49 Judgment of 28 September 1994, Beune, C‑7/93, EU:C:1994:350. 50 Judgment of 25 May 2000, Podesta, C‑50/99, EU:C:2000:288. 51 Judgment of 29 November 2001, Griesmar, C‑366/99, EU:C:2001:648. 52 Judgment of 12 September 2002, Niemi, C‑351/00, EU:C:2002:480. 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. 59 Judgment of 27 February 2018, C‑64/16, EU:C:2018:117. 60 Ibid., paragraph 45, and the case-law cited. 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. 73 Footnotes 32 and 33 above. 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. 78 Ibid. 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’. 84 See footnotes 5 and 7 above. 85 EU:C:2019:325. 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. 87 Footnote 68 above. 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’. 91 Report of 5 April 2018, A/HRC/38/38/Add. 1, footnote 5 above. 92 Ibid., paragraph 83. 93 Ibid. See also Venice Commission Opinion, footnote 5 above, p. 27. 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. 97 Ibid.