Opinion of the Advocate General — ECLI:EU:C:2023:150
Date: 2023-03-02
Language of the case: Polish
Subject matter: Provisions governing the Institutions
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Poland

Summary C-718/21 – 1 
Case C-718/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
26 November 2021 
Referring court: 
Sąd Najwyższy (Poland) 
Date of the decision to refer: 
20 October 2021 
Appellant: 
L.G. 
Other party to the proceedings: 
Krajowa Rada Sądownictwa 
  
Subject matter of the main proceedings 
Appeal against a resolution by the Krajowa Rada Sądownictwa (National Council 
of the Judiciary) on the continued holding of a judicial office by a judge who has 
reached an age entitling him or her to retire 
Subject matter and legal basis of the request 
Making the effectiveness of a declaration of intent to hold a judicial office after 
reaching retirement age subject to the consent of another body; Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Does the second subparagraph of Article 19(1) of the Treaty on European 
Union preclude a provision of national law such as the first sentence of 
Article 69(1b) of the Ustawa z dnia 27 lipca 2001 r. – Prawo o ustroju sądów 
powszechnych (Law of 27 July 2001 on the System of Ordinary Courts; … Dz, U. 
of 2020, item 2072), which makes the effectiveness of a declaration by a judge of 
EN 
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his or her intention to continue to hold a judicial office after reaching retirement 
age subject to the consent of another body? 
2. Does the second subparagraph of Article 19(1) of the Treaty on European 
Union preclude the adoption of an interpretation of a national provision under 
which a judge’s belated declaration of his or her intention to continue to hold a 
judicial office after reaching retirement age is ineffective, irrespective of the 
reason for the failure to observe the time limit and the significance of that failure 
for the proceedings concerning consent to his or her continuing to hold a judicial 
office? 
Provisions of European Union law relied on 
Second subparagraph of Article 19(1) TEU 
Provisions of national law and case-law relied on 
Ustawa z dnia 27 lipca 2001 r. – Prawo o ustroju sądów powszechnych (Law of 
27 July 2001 on the system of ordinary courts, ‘the LSOC’) – the first sentence of 
Article 69(1b);  
Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland) – 
Articles 178, 179 and 180; 
Ustawa z dnia 8 grudnia 2017 r. o Krajowej Radzie Sądownictwa (Law of 
8 December 2017 on the National Council of the Judiciary, ‘the Law on the 
NCJ’) – Articles 33, 41, 43 and 44; 
Judgment of the Sąd Najwyższy (Supreme Court, Poland) of 4 November 2003, 
Ref. No III KRS 4/03; 
Judgment of the Supreme Court of 14 December 2004, Ref. No III KRS 8/04; 
Judgment of the Supreme Court of 6 July 2005, Ref. No III KRS 3/05; 
Judgment of the Supreme Court of 19 January 2021, Ref. No I NKRS 2/21; 
Resolution of a panel of seven judges of the Supreme Court of 30 June 2021, Ref. 
No I NZP 3/21 
Succinct presentation of the facts and procedure in the main proceedings 
1 The appeal lodged with the Supreme Court is directed against the resolution of the 
National Council of the Judiciary (‘the NCJ’) which discontinued the proceedings 
concerning L.G., who is a judge of the Sąd Okręgowy (Regional Court) in K., 
continuing to hold his judicial office after reaching retirement age. 
KRAJOWA RADA SĄDOWNICTWA 
 
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2 In the grounds of the resolution, it was pointed out that in his letter of 
30 December 2020, L.G. declared to the NCJ his intention to continue to hold his 
judicial office, indicating that he would turn 65 on 12 June 2021. By another 
letter, dated 31 December 2020, L.G. requested that the deadline for submitting 
his declaration of intent to continue to hold a judicial office be restored, arguing 
that his failure to comply with the time limit was due to his numerous other 
activities, including ongoing work as a judge. 
3 The declaration, together with the request to restore the deadline for its 
submission, was received by the NCJ Office. L.G. enclosed with his declaration a 
medical certificate dated 30 November 2020 stating that there were no medical 
contraindications to him performing judicial duties; a psychological certificate 
dated 30 December 2020 stating that he does not exhibit significant psychological 
dysfunction; and a certificate dated 30 December 2020 stating that he is fit to 
perform the duties of a judge or public prosecutor in terms of psychological 
aptitude and ability. 
4 At the meeting on 16 February 2021, a panel of NCJ members appointed by the 
President of the NCJ, having examined the facts, decided unanimously (by 3 votes 
in favour) to recommend that the NCJ adopt a resolution to discontinue the 
proceedings concerning consent to L.G. continuing to hold his judicial office. 
5 The NCJ concluded that, since L.G.’s request had been submitted beyond the 
statutory deadline, it could not be considered, and therefore the proceedings 
concerning the continued holding of a judicial office by a judge who has reached 
the age entitling him or her to retire should be discontinued. 
6 In view of the above, at the meeting of the NCJ on 18 February 2021, 13 votes 
were cast in favour of discontinuing the proceedings concerning consent to L.G. 
continuing to hold his judicial office, with no votes against and one abstention. In 
view of the result of the vote, the NCJ adopted a resolution to discontinue the 
proceedings concerning consent to L.G. continuing to hold his judicial office.  
7 L.G. appealed against that resolution, requesting that it be set aside and that the 
matter be referred back to the NCJ. Moreover, by letter dated 1 April 2021, L.G. 
requested the adoption of protective measures suspending the effectiveness of the 
resolution of the NCJ to discontinue the proceedings concerning the continued 
holding of a judicial office by a judge who has reached the age entitling him or her 
to retire. That request was granted by order of the Supreme Court of 29 April 
2021, Ref. No I NO 23/21. 
8 The President of the NCJ moved that the appeal be dismissed in its entirety on the 
ground that it was inadmissible as a matter of law. 
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The essential arguments of the parties in the main proceedings 
9 At the meeting on 18 February 2021, when deciding on the issue of the continued 
holding of a judicial office by a judge who has reached the age entitling him or her 
to retire, the NCJ noted that pursuant to Article 69(1b) of the LSOC, consent to 
the continued holding of judicial office is possible if it is justified by the interest 
of the judicial system or an important public interest, in particular, the rational 
distribution of ordinary court judges or the needs arising from the workload of 
individual courts. The NCJ emphasised that granting consent to the continued 
holding of a judicial office requires a declaration of the judge’s intention to 
continue to hold his or her office and the presentation of a certificate confirming 
his or her capacity to perform judicial duties given his or her state of health. 
Pursuant to the aforementioned provision, a judge who is eligible for retirement 
must submit the declaration no later than six months and no earlier than twelve 
months before reaching the age of 65. 
10 The NCJ noted that L.G., who was born on 12 June 1956, submitted a declaration 
of intent to continue to hold his judicial office on 30 December 2020, that is to 
say, outside the time limit set in Article 69(1b) of the LSOC. At the same time, the 
NCJ emphasised that according to its established practice, which was endorsed by 
the Supreme Court, it was not possible to restore the deadline indicated in that 
provision.  
11 In addition, the NCJ pointed out that L.G. had submitted a medical certificate 
issued on the basis of a referral for a periodic medical examination rather than the 
required certificate issued in accordance with the rules laid down for candidates 
for judicial posts. 
12 L.G. alleges an infringement of procedural provisions. In his opinion, Article 41 
of the Law on the NCJ was infringed by the unjustified discontinuance of 
proceedings concerning the continued holding of a judicial office by a judge who 
has reached the age entitling him or her to retire in a situation in which the 
application for restoring the deadline for submitting the declaration was well-
founded, and, as a consequence, Article 33(1) of the Law on the NCJ was 
infringed by the adoption of a resolution without comprehensively considering all 
the circumstances of the case, particularly those related to a comprehensive 
assessment of the judge’s service, and Article 69(1b) of the LSOC was also 
infringed by the unjustified assumption that the continued holding by L.G. of his 
judicial office was not supported by the interest of the judicial system or by an 
important public interest. 
13 L.G. also argued that Article 44(1) of the Law on the NCJ was infringed by the 
failure to inform him of the remedy to which he was entitled and of the time limit 
for lodging it. 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
14 The referring court refers to recent judgments of the Court of Justice: of 
5 November 2019, Commission v Poland (Independence of ordinary courts), 
C-192/18, EU:C:2019:924, paragraphs 104, 112, 113 and 115; of 15 July 2021, 
Commission v Poland (Disciplinary regime for judges), C-791/19, 
EU:C:2021:596, paragraphs 55, 57 and 58; of 6 October 2021, W.Ż. (Chamber of 
Extraordinary Control and Public Affairs of the Supreme Court – Appointment), 
C-487/19, EU:C:2021:798, paragraphs 106, 107 and 108; of 18 May 2021, 
Asociaţia ‘Forumul Judecătorilor din România’ and Others, C-83/19, C-127/19, 
C-195/19, C-291/19, C-355/19 and C-397/19, EU:C:2021:393, paragraphs 194, 
197; of 20 April 2021, Repubblika, C-896/19, EU:C:2021:311, paragraphs 51, 53. 
15 Citing that case-law, the referring court points out that a Polish court is part of the 
Polish system of legal remedies ‘in the fields covered by Union law’ within the 
meaning of the second subparagraph of Article 19(1) TEU, and refers to the need 
for guarantees to protect the independence of judges, among which the principle 
of their irremovability is fundamental. 
16 Pursuant to Article 69 of the LSOC, a judge may declare his or her intention to 
continue to hold office after reaching the age entitling him or her to retire. 
However, in order to be effective, that declaration requires the consent of another 
body, namely, the NCJ. This raises doubts as to whether making a judge’s ability 
to continue to hold his or her office conditional on the consent of another body in 
such a manner might potentially breach the principles of the irremovability and 
independence of judges, as the consent procedure can be a means of controlling 
the content of judicial decisions and of assessing and verifying them in terms of a 
judge’s suitability to continue to hold his or her office. That, in turn, may 
influence the judgments given by judges so that they meet the expectations of the 
body making the subsequent assessment. The result of that assessment has 
significant implications for the lives and careers of the judges in question. 
17 In the case-law of the Supreme Court (the Chamber of Extraordinary Control and 
Public Affairs), which is the referring court, it has been accepted that Article 69 of 
the LSOC should be interpreted so as to fully protect judicial independence. 
According to that case-law, if the legislature provides for the possibility of 
‘continued holding of a judicial office’ after reaching the statutory retirement age 
and determines the conditions to be fulfilled by such a judge, then, in the light of 
Article 180(1) of the Constitution of the Republic of Poland, a judge who fulfils 
those conditions should remain active, since the legislature has not provided for 
the possibility of any state body, including the NCJ, to influence the judge’s active 
status by an individual act, and thus the decision in that regard should be left 
primarily to the judge concerned. 
18 The referring court has doubts as to whether, in the light of the aforementioned 
principles of European Union law relating to the protection of judicial 
independence, a body other than the judge himself or herself has any discretion in 
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that regard and, consequently, whether a review of such a declaration submitted 
by a judge other than in formal terms is at all possible. This is on the ground that 
such a review is based on the assumption that some kind of assessment or 
verification of the judge’s fitness to serve is to be made, and that must concern 
circumstances other than health, since obtaining a medical certificate attesting to 
one’s fitness to perform judicial duties is a clear prerequisite for the declaration to 
be effective. The ability to decide whether judges are fit or unfit to serve on 
account of the ‘interest of the judicial system’, which has not been clearly defined, 
may interfere with their independence. 
19 As regards the second question, the referring court points out that in the case-law 
of the Supreme Court, it has been accepted that the time limit laid down in 
Article 69(1) of the LSOC is a preclusive one. In view of the above, the NCJ may 
not grant its consent for a judge to continue to hold his or her office if the request 
is made after that time limit has passed. The Supreme Court also indicated in 
another judgment that the deadline for submitting a declaration of intent to 
continue to hold a judicial office cannot be restored, as there is no provision 
allowing for such a decision to be made. It should be noted that pursuant to the 
initial part of Article 69(1) of the LSOC, a judge retires on reaching the age of 65. 
Only if the judge submits the request for consent to continue to hold his or her 
office in a timely manner does he or she remain in post until the completion of the 
relevant proceedings, including proceedings before the Supreme Court (the second 
sentence of Article 69(3) of the LSOC (now Article 69(1b) of the LSOC)). In 
other words, if a judge fails to submit that request in a timely manner, the 
substantive legal effect is that the judge retires on reaching the age of 65. 
Therefore, it is not possible to restore that deadline. The Supreme Court also held 
that the preclusive effect of a failure to observe the time limit for submitting the 
request in question, consisting in the judge’s retirement on the date stipulated in 
the statute, renders a request for the restoration of that deadline devoid of purpose 
(inadmissible). 
20 The categorical exclusion of a review by the NCJ of the merits of a declaration of 
intent to continue to hold a judicial office where that declaration is made in breach 
of the time limit laid down in Article 69(1) of the LSOC, irrespective of the 
circumstances in which that time limit was exceeded and irrespective of the actual 
impact of that breach on the possibility of considering that motion and organising 
the work of the court in which the judge serves, raises doubts as to compatibility 
with the principles stipulating the criteria of an independent court within the 
meaning of European Union law. 
21 Part of a judge’s irremovability is also the obligation to respect the judge’s 
expressed will to continue to hold his or her office. In that situation, making the 
judge’s ability to continue to hold his or her office conditional upon the timeliness 
of his or her declaration of intent in that regard (and presuming the absolute 
inadmissibility of the case being considered by the NCJ in the event that said time 
limit is breached) would also appear to be in conflict with the principle of judicial 
independence, as to adopt such a position would de facto result in the judge 
KRAJOWA RADA SĄDOWNICTWA 
 
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concerned being deprived of his or her ability to independently decide whether to 
continue to hold his or her office solely for formal reasons, that is to say, because 
of his or her failure to observe the time limit laid down in Article 69(1) of the 
LSOC, irrespective of the circumstances of that failure. 
22 It should be stressed that retirement does not occur as a result of the judge’s 
failure to meet the deadline for submitting a declaration of intent to continue to 
hold a judicial office, but as a result of the judge reaching the age of 65. Also 
against this background, a serious doubt arises as to whether the breach of the 
time limit laid down in Article 69(1) of the LSOC should result in the judge’s 
retirement by operation of law regardless of the judge’s will to continue to hold 
his or her office and irrespective of the effects that this may have in the case in 
question from the point of view of the interest of the judicial system or an 
important public interest, in particular the rational distribution of ordinary court 
judges or the needs arising from the workload of individual courts. 
23 In view of the doubts set out above, the referring court has ruled as stated in the 
operative part of the order.