62023CJ0646_RES
Joined Cases C‑646/23 [Lita] and C‑661/23 [Jeszek], (
i
)
Criminal proceedings
against
P.B. and Others
(Requests for a preliminary ruling from the Wojskowy Sąd Okręgowy w Warszawie)
Judgment of the Court (Fourth Chamber) of 3 July 2025
(Reference for a preliminary ruling – Rule of law – Independence of the judiciary – Second subparagraph of Article 19(1) TEU – Effective judicial protection in areas covered by Union law – Principle of irremovability of judges – Military judge found unfit for professional military service – National legislation requiring the early retirement of that judge)
Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Principles of the irremovability of judges and judicial independence – Right to an independent and impartial tribunal previously established by law – Military courts – Military judge declared unfit for professional military service – National legislation requiring the early retirement of that judge – National legislation not applying to military prosecutors who have also been released from the obligations of their professional military service but who may continue in office – Measure having the nature of a sanction against a particular judge – No judicial remedy available – Not permissible
(Art. 19(1), second subpara., TEU; Charter of Fundamental Rights of the European Union, Art. 47, second para.)
(see paragraphs 57-80, operative part 1)
Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – Principles of the irremovability of judges and judicial independence – Primacy and direct effect of EU law – Obligations of the national courts and other authorities of the Member State concerned – Obligation to disapply national legislation contrary to a provision of EU law having direct effect – Military courts – National legislation requiring the early retirement of a judge – Obligation on the referring court to disapply that legislation – Obligation on the competent judicial bodies to reinstate the judge concerned in his or her duties
(Art. 19(1), second subpara., TEU; Art. 267 TFEU; Charter of Fundamental Rights of the European Union, Art. 47)
(see paragraphs 82-89, operative part 2)
Member States – Obligations – Provision of remedies sufficient to ensure effective legal protection – National legislation requiring the early retirement of a judge – Power of the national court to suspend provisionally the application of that legislation – Whether permissible
(Art. 19(1), second subpara., TEU; Art. 267 TFEU)
(see paragraphs 91-94, operative part 3)
Résumé
Hearing a reference for a preliminary ruling from the Wojskowy Sąd Okręgowy w Warszawie (Regional Military Court, Warsaw, Poland), the Court of Justice rules on the interpretation of the second subparagraph of Article 19(1) TEU (
1
) and on the principle of primacy of EU law, in relation to national legislation which provides, from its entry into force, for the compulsory early retirement of a military judge declared unfit for professional military service, without there being any judicial remedy to challenge that measure.
Two professional soldiers, P.B. and R.S., were found guilty of criminal offences by the Wojskowy Sąd Garnizonowy w Warszawie (Garrison Military Court, Warsaw, Poland). They appealed to the referring court. Both cases were assigned to a single-judge formation of that court, composed of Judge P.R. The hearings were held in October and November 2023 respectively.
Judge P.R. had been declared unfit for professional military service in July 2017, although he was declared fit to continue performing his or her duties as a judge. Following that decision, he applied (
2
) for a transfer to a position as a judge in an ordinary court. On 27 December 2021, despite a proposal to that effect by the Krajowa Rada Sądownictwa (National Judicial Council, Poland), the President of the Republic of Poland refused to grant that request.
On 24 April 2022, Article 233 of the Law on the defence of the homeland (
3
) came into force, allowing any military judge who had been released from the obligations of professional military service to continue in office. As a result, P.R. returned to the Wojskowy Sąd Okręgowy w Warszawie (Regional Military Court, Warsaw) in March 2023.
However, that retention rule was abolished for military judges by the amending law of 28 July 2023, (
4
) which now applies only to military prosecutors. (
5
) According to that law, (
6
) a judge who, on 15 November 2023, had been retained in his or her duties within a military court after having been released from his or her professional military service obligations, is automatically retired on the latter date.
The referring court observes that the provision of the amending law which abolished the possibility for a judge of a military court to remain in his or her post when he or she has been released from the obligations of his or her professional military service, while maintaining it for military prosecutors who are in a similar situation, was adopted without any justification. (
7
) As for the provision of the same law imposing early retirement, it would in fact affect only one judge, while forming part of a series of measures taken in respect of that judge, having the nature of a sanction. No judicial remedy would be available to challenge that measure of compulsory early retirement.
The referring court questions whether EU law precludes national legislation requiring compulsory early retirement in the circumstances referred to above. If so, it seeks to ascertain whether that legislation must be disapplied, which would entail an obligation to reinstate a judge who has been retired pursuant to that legislation, and whether it may temporarily suspend its application.
Findings of the Court
Concerning its jurisdiction, the Court points out that the second subparagraph of Article 19(1) TEU is intended to apply to any national court or tribunal capable of deciding questions concerning the interpretation or application of EU law. Since the referring court may be called upon, in its capacity as a military court, to rule on questions relating to the application or interpretation of EU law, the second subparagraph of Article 19(1) TEU applies. In interpreting that provision, due regard must be had to Article 47 of the Charter.
Concerning the substance, the Court points out, in the first place, that the requirement of independence of the courts and tribunals presupposes the existence of rules, in particular as regards the composition of the body, the appointment, the term of office and the grounds for abstention, recusal and dismissal of its members, which make it possible to remove any legitimate doubt in the minds of litigants as to the imperviousness of that body to external factors and as to its neutrality in relation to the conflicting interests.
In that regard, the Court notes that the principle of the irremovability requires, inter alia, that judges may remain in office until they reach the mandatory retirement age or until the expiry of their term of office where that term is fixed. Exceptions may only be made to that principle if there are legitimate and compelling reasons for doing so, in accordance with the principle of proportionality. Therefore, judges may be removed from office if they are unable to continue in office due to incapacity or serious misconduct, subject to compliance with appropriate procedures.
In addition, the guarantee of irremovability of members of a court requires that the cases in which its members may be dismissed be determined by special rules, by means of express legislative provisions offering guarantees that go beyond those provided by the general rules of administrative law and labour law that apply in cases of wrongful dismissal.
While stating that it will be for the referring court to determine whether the national legislation which, in the abovementioned circumstances, introduced a measure of early retirement for military judges released from their obligations of professional military service, infringes the requirements arising from the principle of the independence of judges, as set out in the second subparagraph of Article 19(1) TEU, since Article 267 TFEU does not empower the Court to apply the rules of EU law to a particular case, the Court states that it may, however, on the basis of the material in the case file available to it, provide the national court with any guidance as to the interpretation of EU law which it may require.
In the present case, no justification can be found for the amending law providing for the compulsory early retirement of military judges who, despite having been released from their professional military service obligations, had been retained in their duties as military judges. In addition, it appears that that law applies only to military judges and not to military prosecutors, whereas those two categories of magistrates were previously subject to the same rules on continued service after being released from their professional military service obligations. That difference in treatment was not justified on the basis of an objective difference in situation between those two categories of magistrates. In those circumstances, subject to the verifications incumbent on the referring court, national legislation such as that at issue fails to comply with the requirement that exceptions to the principle of the irremovability of judges must be justified on legitimate and overriding grounds.
Moreover, the Court notes that the early retirement of Judge P.R. was adopted, not because of his or her unfitness to continue in office, but because of his or her public criticism of the reform of the Polish judiciary. Accordingly, that measure appears to form part of a series of measures taken in respect of that judge which are in the nature of sanctions. The Court also points out that the amending law does not provide for any means of appeal for a judge who is the subject of an early retirement measure justified by his or her unfitness for professional military service.
Consequently, national legislation which, in such circumstances, provides, with effect from its entry into force, for the compulsory early retirement of a military judge declared unfit for professional military service infringes the second subparagraph of Article 19(1) TEU.
In the second place, the Court states that the principle of primacy of EU law requires a national court or tribunal and any other authority of the Member State concerned to disapply such legislation where it has been adopted in breach of the second subparagraph of Article 19(1) TEU, which means that a judge who has been retired pursuant to that legislation must be reinstated in his or her duties. (
8
)
In the last place, as regards the possibility of suspending the application of such national legislation, the Court emphasises that the full effectiveness of EU law requires that the court seised must be able to grant such interim measures as are necessary to ensure the full effectiveness of the judicial decision to be given. In addition, the national court must rule out the application of rules of domestic law which would impede that power to grant interim measures.
It follows, in particular, that the referring court must be able to suspend the application of the provisions of the amending law which have the effect of imposing a retirement measure on it of its own motion until it has ruled on the criminal proceedings in the main proceedings following the Court’s reply.
(
i
)	The names of the present cases are fictitious names. They do not correspond to the real name of any party to the proceedings.
(
1
)	That provision requires all Member States to establish the legal remedies necessary to ensure effective judicial protection in the areas covered by EU law.
(
2
)	In accordance with the national law in force at the time.
(
3
)	Ustawa o obronie Ojczyzny (Law on the defence of the homeland) of 11 March 2022 (Dz. U., item 655).
(
4
)	Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw (Law amending the Civil Code and certain other laws) of 28 July 2023 (Dz. U., item 1615; ‘the amending law’). That law came into force on 15 November 2023.
(
5
)	Article 10 of the amending law.
(
6
)	Article 13 of the amending law.
(
7
)	Also in breach of Article 180(3) of the Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland), which provides for early retirement of a judge only in the event of illness or infirmity rendering him or her incapable of performing his or her duties.
(
8
)	The judicial bodies responsible for determining and modifying the composition of panels are required to ensure that reinstatement.