Opinion of the Advocate General — ECLI:EU:C:2019:325
Date: 2019-04-11
Language of the case: Polish
Subject matter: Provisions governing the Institutions;Principles, objectives and tasks of the Treaties;Fundamental rights;Charter of Fundamental Rights
Procedure: Action for failure to fulfil obligations - successful
Origin: Poland

Summary — Order of the Court (Grand Chamber), 17 December 2018 1. Interim relief — Suspension of application — Interim measures — Conditions for granting — Prima facie case — Urgency — Serious and irreparable damage — Cumulative nature — Weighing-up of the interests involved — Discretion of the court hearing the application for interim relief (Arts 278 and 279 TFEU; Rules of Procedure of the Court, Art. 160(3)) 2. Interim relief — Suspension of application — Interim measures — Conditions for granting — Prima facie case — Prima facie examination of the pleas in law put forward in support of the main action — Action for failure to fulfil obligations — Provisions of national legislation lowering the retirement age for supreme court judges and granting the President of the Member State the discretion to extend the period of active service of those judges — Pleas in law raising the issue of the precise scope of 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 in the context of the exercise, by a Member State, of its power to organise its judicial system — Pleas revealing the existence of difficult legal issues — Pleas not prima face unfounded (Art. 19(1) TEU; Arts 278 and 279 TFEU; Charter of Fundamental Rights of the European Union, Art. 47) 3. Interim relief — Suspension of application — Interim measures — Conditions for granting — Urgency — Serious and irreparable damage — Concept — Risk of a threat to the independence of the supreme court of a Member State — Included (Arts 2 and 19(1) TEU; Arts 278 and 279 TFEU; Charter of Fundamental Rights of the European Union, Art. 47) 4. Interim relief — Suspension of application — Interim measures — Conditions for granting — Weighing-up of all the interests involved — Action for failure to fulfil obligations — Provisions of national legislation lowering the retirement age for supreme court judges and granting the President of the Member State the discretion to extend the period of active service of those judges — Risk of a threat to the independence of the supreme court of a Member State — Interest of the Member State concerned in the proper functioning of the supreme court — Prevailing general interest of the European Union (Art. 19(1) TEU; Arts 278 and 279 TFEU; Charter of Fundamental Rights of the European Union, Art. 47) 5. Member States — Obligations — Failure to fulfil obligations — Domestic legal order pleaded as justification — Not permissible (Art. 258 TFEU) 1. See the text of the decision. (see para. 29) 2. The fumus boni juris requirement is met where at least one of the pleas in law relied on by the applicant for interim measures in support of the main action appears, prima facie, not unfounded. That is the case, inter alia, where one of the pleas relied on reveals the existence of difficult legal issues the solution to which is not immediately obvious and therefore calls for a detailed examination that cannot be carried out by the court hearing the application for interim relief but must be the subject of the main proceedings, or where the discussion of issues by the parties reveals that there is a major legal disagreement whose resolution is not immediately obvious. In the context of an application for interim relief lodged in connection with an action for failure to fulfil obligations seeking a finding that by, first, lowering the retirement age for supreme court judges and applying that measure to serving judges who were appointed to that court before a certain date and, second, granting the President of the Member State concerned the discretion to extend the period of active judicial service of judges of that court beyond the newly-set retirement age, that Member State 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, as the pleas in law relied on by the Commission raise the issue of the precise scope of those provisions in the context of the exercise, by a Member State, of its power to organise its judicial system, this is a difficult legal issue, which is the subject of discussion between the parties and to which the solution is not immediately obvious, and therefore calls for a detailed examination that cannot be carried out by the court hearing the application for interim relief. Furthermore, in view of, inter alia, the case-law of the Court, in particular the judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117), and of 25 July 2018, Minister for Justice and Equality (Deficiencies in the System of Justice) (C‑216/18 PPU, EU:C:2018:586), the pleas put forward by the Commission do not appear, prima facie, unfounded. Indeed, according to that case-law, every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the ‘fields covered by EU law’ as referred to in the second subparagraph of Article 19(1) TEU meet the requirements of effective judicial protection. In order for that protection to be ensured, maintaining the independence of those bodies is essential, as confirmed by the second paragraph of Article 47 of the Charter, which refers to access to an ‘independent’ tribunal as one of the requirements linked to the fundamental right to an effective remedy. In the light of the foregoing, it cannot be excluded, prima facie, that the provisions of national legislation at issue are at odds with the Member State’s obligation under the combined provisions of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter to ensure effective judicial protection in the fields covered by EU law. (see paras 30, 39-42, 44) 3. In the context of an application for interim relief lodged in connection with an action for failure to fulfil obligations seeking a finding that by, first, lowering the retirement age for supreme court judges and applying that measure to serving judges who were appointed to that court before a certain date and, second, granting the President of the Member State concerned the discretion to extend the period of active judicial service of judges of that court beyond the newly-set retirement age, that Member State 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, the fact that the independence of the supreme court may not be guaranteed pending delivery of the final judgment is likely to cause serious damage to the EU legal order and thus to the rights which individuals derive from EU law and to the values, set out in Article 2 TEU, on which the European Union is founded, in particular the rule of law. Furthermore, national supreme courts play a crucial role, within the judicial systems of the Member States of which they form part, in the implementation, at national level, of EU law, so that any threat to the independence of a national supreme court is likely to affect the entirety of the judicial system of the Member State concerned. In addition, the serious damage referred to above is also likely to be irreparable. First, as a court adjudicating at last instance, the supreme court makes decisions, including in cases giving rise to the application of EU law, which have the authority of res judicata and are thus likely to have an irreversible effect on the EU legal order. Second, because of the authority of decisions of the supreme court with regard to lower national courts or tribunals, the fact that the independence of that court may not be guaranteed pending delivery of the final judgment is likely to undermine the trust of the Member States and their courts in the judicial system of the Member State concerned and, as a result, in that Member State’s observance of the rule of law. In such circumstances, the principles of mutual trust and mutual recognition between Member States, which are justified by the premiss that the Member States share a series of common values on which the European Union is founded, such as the rule of law, could be jeopardised. The undermining of those principles may have serious and irreparable effects on the proper functioning of the EU legal order, in particular in the area of judicial cooperation in civil and criminal matters, which is based on a particularly high degree of trust between the Member States in the compliance of their judicial systems with the requirements of effective judicial protection. The fact that the independence of the supreme court may not be guaranteed pending delivery of the final judgment could lead the Member States to refuse to recognise or enforce the judicial decisions handed down by the courts of the Member State concerned, which is likely to result in serious and irreparable damage with regard to EU law. (see paras 68-71, 73-76) 4. It is clear that, in most interlocutory proceedings, the decision to grant or to refuse the suspension of application sought is likely to produce, to a certain extent, certain definitive effects, and it is for the court hearing the application for interim relief to weigh up the risks attaching to each of the possible solutions. In practical terms, this involves, in particular, examining whether or not the interest of the applicant for interim measures in obtaining suspension of the application of provisions of national legislation outweighs the interest in their immediate implementation. In that examination, it must be determined whether the possible repeal of those provisions after the Court has upheld the action in the main proceedings would make it possible to reverse the situation that would have been brought about by their immediate implementation and conversely whether suspension of their application would be such as to impede the objectives pursued by those provisions in the event of the action in the main proceedings being dismissed. In the context of an application for interim relief lodged in connection with an action for failure to fulfil obligations seeking a finding that by, first, lowering the retirement age for supreme court judges and applying that measure to serving judges who were appointed to that court before a certain date and, second, granting the President of the Member State concerned the discretion to extend the period of active judicial service of judges of that court beyond the newly-set retirement age, that Member State 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, there would be a risk that the general interest of the European Union in the proper functioning of its legal order would be seriously and irreparably affected, pending the final judgment, if interim measures were not ordered but the action for failure to fulfil obligations were to be upheld. By contrast, the interest of the Member State concerned in the proper functioning of the supreme court is not likely to be thus affected in the event that interim measures are granted but the action for failure to fulfil obligations is dismissed, given that that grant would merely have the effect of maintaining, for a limited period, the application of the legal system which existed prior to the adoption of the provisions of national legislation referred to above. (see paras 91, 115, 116) 5. See the text of the decision. (see para. 108)