45

In those circumstances, the Naczelny Sąd Administracyjny (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Should Article 2 TEU, in conjunction with the third [subparagraph] of Article 4(3), Articles 6(1) and 19(1) TEU, in conjunction with Article 47 of the [Charter] and Article 9(1) of [Directive 2000/78] and the third paragraph of Article 267 TFEU, be interpreted as meaning that an infringement of the rule of law and of the right to an effective remedy and to effective judicial protection occurs in a situation where the national legislature, in granting the right of appeal to a court in individual cases concerning service in the office of judge of the court of last instance of a Member State [the Sąd Najwyższy (Supreme Court)], stipulates that a decision made during the selection procedure preceding the submission of a motion for appointment to the position of judge of [that] court is final and effective where not all parties to the selection procedure have appealed against the decision made with respect to the joint consideration and assessment of all candidates for appointment as [Sąd Najwyższy (Supreme Court)] judges, who also include a candidate who has no interest in appealing that decision, namely a candidate designated in the motion for appointment to the aforementioned position, which as a result: – undermines the effectiveness of the remedy and the competent court’s ability to carry out a genuine review of the aforementioned selection procedure, and – where the scope of that procedure also includes those positions as judges [of the Sąd Najwyższy (Supreme Court)] to whose holders the new lower retirement age has been applied without leaving the decision on whether to take advantage of the lower retirement age to the sole discretion of the judge concerned, in the context of the principle of the irremovability of judges – where it is found that this principle has been thereby undermined – also has an impact on the scope and outcome of the judicial review of the aforementioned selection procedure? (2) Should Article 2 TEU, in conjunction with the third [subparagraph] of Article 4(3) and Article 6(1) TEU, in conjunction with Articles 15(1) and 20, in conjunction with Articles 21(1) and 52(1), of the [Charter], in conjunction with Articles 2(1), 2(2)(a) and 3(1)(a) of [Directive 2000/78] and the third paragraph of Article 267 TFEU, be interpreted as meaning that: – an infringement of the rule of law, of the principle of equal treatment and of equal and non discriminatory access to the civil service, namely access to the office of judge [at the Sąd Najwyższy (Supreme Court)], occurs in a situation where, although a right of appeal to a competent court in individual cases concerning service in the office of judge of the aforementioned court is available, as a consequence of the rules governing the finality of the resolutions described in the first question, the appointment to a vacant position as judge [at the Sąd Najwyższy (Supreme Court)] may take place without the competent court conducting a review of the aforementioned selection procedures assuming such a review is initiated, and the absence of such a review, by infringing the right to an effective remedy, infringes the right of equal access to the civil service, and does not therefore serve the objectives of the public interest, and – must be interpreted as meaning that a situation in which the composition of the body in a Member State whose purpose is to safeguard the independence of the judiciary ([the KRS]), and before which the procedure concerning service in the office of judge [at the Sąd Najwyższy (Supreme Court)] takes place, is designed in such a way that representatives of the judiciary in that body are elected by the legislature, undermines the principle of institutional balance?’