European Commission v Republic of Poland.
Date: 2019-11-05
36


In that regard, it should be noted, first, that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court of Justice make no provision for the parties to submit observations in response to the Advocate General’s Opinion (judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 26 and the case-law cited).
37


Second, under the second paragraph of Article 252 TFEU, the Advocate General, acting with complete impartiality and independence, is to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s conclusion or by the reasoning which led to that conclusion. Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he examines in his Opinion, cannot in itself constitute grounds justifying the reopening of the oral part of the procedure (judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 27 and the case-law cited).
38


Nevertheless, the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in accordance with Article 83 of its Rules of Procedure, in particular if it considers that it lacks sufficient information or where the case must be decided on the basis of an argument which has not been debated between the parties (judgment of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 28 and the case-law cited).
45


Without there even being any need to examine whether or not the legislative amendments thereby relied upon by the Republic of Poland are capable of having brought the alleged failures to fulfil obligations to an end, in whole or in part, it is sufficient to note, as is clear from settled case-law, that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (judgment of 6 November 2012, Commission v Hungary, C‑286/12, EU:C:2012:687, paragraph 41 and the case-law cited).
59


For the purpose of determining whether a retirement pension falls within the scope of Article 157 TFEU, the only criterion which may be regarded as decisive is whether the pension is paid to the worker by reason of the employment relationship between him and his former employer, that is to say, the criterion of employment, based on the wording of that article (judgment of 15 January 2019, E.B., C‑258/17, EU:C:2019:17, paragraph 45 and the case-law cited). Benefits granted under a pension scheme which essentially relates to the employment of the person concerned form part of the pay received by that person and come within the scope of that provision (judgment of 26 March 2009, Commission v Greece, C‑559/07, not published, EU:C:2009:198, paragraph 42 and the case-law cited).
60


In accordance with settled case-law, a pension which concerns only a particular category of workers, which is directly related to the period of service completed and whose amount is calculated by reference to the final salary comes within the scope of Article 157 TFEU (judgment of 15 January 2019, E.B., C‑258/17, EU:C:2019:17, paragraph 46 and the case-law cited).
61


In the present case, the judges of the ordinary Polish courts, judges of the Sąd Najwyższy (Supreme Court) and public prosecutors in Poland to whom the three pension schemes at issue apply must be considered to be three particular categories of workers for the purposes of the case-law recalled in the previous paragraph. It follows from settled case-law that civil servants who benefit under a pension scheme are distinguished from employees grouped within an undertaking or group of undertakings, in a particular sector of the economy, or in a trade or inter-trade sector, only by reason of the specific features governing their employment relationship with the State, or with other public employers or bodies (judgments of 29 November 2001, Griesmar, C‑366/99, EU:C:2001:648, paragraph 31 and the case-law cited, and of 26 March 2009, Commission v Greece, C‑559/07, not published, EU:C:2009:198, paragraph 52 and the case-law cited).
67


Such circumstances affect neither the fact that, as is clear from the findings made in paragraphs 63 to 65 of the present judgment, the period of service completed by the persons concerned plays, in the present case, a decisive role in the calculation of the amount of their pension nor the fact that the pensions paid under the pension schemes at issue essentially relate to the employment of the persons concerned, a factor which, under the settled case-law recalled in paragraph 59 of the present judgment, constitutes the decisive criterion for the purposes of classification as ‘pay’ within the meaning of Article 157 TFEU (see, to that effect, judgments of 28 September 1994, Beune, C‑7/93, EU:C:1994:350, paragraphs 5 and 46; of 29 November 2001, Griesmar, C‑366/99, EU:C:2001:648, paragraphs 33 to 35; and of 12 September 2002, Niemi, C‑351/00, EU:C:2002:480, paragraphs 45 and 55).
72


In that regard, it is apparent from recital 14 of Directive 2006/54 that the EU legislature sought to take formal notice of the fact that, in accordance with the Court’s case-law recalled in paragraph 60 of the present judgment, a pension scheme for public servants falls within the scope of the principle of equal pay set out in Article 157 TFEU if the benefits payable under the scheme are paid to the worker by reason of his/her employment relationship with the public employer, that condition being satisfied if the pension scheme concerns a particular category of workers and its benefits are directly related to the period of service and calculated by reference to the public servant’s final salary.
73


It is clear from paragraphs 61 to 69 of the present judgment that the three pension schemes that the present action concerns satisfy those conditions, with the result that they fall within the material scope of Chapter 2 of Title II of Directive 2006/54 and, therefore, within that of Articles 5 and 9 of the directive.
74


In the second place, it should be noted that, as is clear from settled case-law, Article 157 TFEU prohibits any discrimination with regard to pay as between men and women, whatever the mechanism by which that inequality arises. According to that case-law, it is contrary to Article 157 TFEU to impose an age condition which differs according to sex for the grant of a pension that constitutes pay within the meaning of that provision (see, to that effect, judgments of 17 May 1990, Barber, C‑262/88, EU:C:1990:209, paragraph 32; of 12 September 2002, Niemi, C‑351/00, EU:C:2002:480, paragraph 53; and of 13 November 2008, Commission v Italy, C‑46/07, not published, EU:C:2008:618, paragraph 55).
76


Article 9(1) of Directive 2006/54 identifies a number of provisions which, when they are based on sex, either directly or indirectly, are to be included among the provisions contrary to the principle of equal treatment. That is so, as is clear from Article 9(1)(f), inter alia in the case of provisions based on sex for fixing different retirement ages. The EU legislature thus decided that the rules to which Article 9(1) refers in the field of occupational social security schemes are contrary to the principle of equal treatment laid down by Directive 2006/54 (judgment of 3 September 2014, X, C‑318/13, EU:C:2014:2133, paragraph 48).
80


Even though Article 157(4) TFEU authorises the Member States to maintain or adopt measures providing for specific advantages in order to prevent or compensate for disadvantages in professional careers, with a view to ensuring full equality between men and women in working life, it cannot be inferred that that provision permits the setting of such age conditions that differ according to sex. The national measures covered by that provision must, in any event, contribute to helping women to conduct their professional life on an equal footing with men (see, to that effect, judgments of 29 November 2001, Griesmar, C‑366/99, EU:C:2001:648, paragraph 64, and of 13 November 2008, Commission v Italy, C‑46/07, not published, EU:C:2008:618, paragraph 57).
81


The setting, for retirement, of an age condition that differs according to sex does not offset the disadvantages to which the careers of female public servants are exposed by helping those women in their professional life and by providing a remedy for the problems which they may encounter in the course of their professional career (judgment of 13 November 2008, Commission v Italy, C‑46/07, not published, EU:C:2008:618, paragraph 58).
98


First of all, it should be pointed out that Article 19 TEU, which gives concrete expression to the value of the rule of law affirmed in Article 2 TEU, entrusts the responsibility for ensuring the full application of EU law in all Member States and the judicial protection that individuals derive from EU law to national courts and tribunals and to the Court of Justice (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 50 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 47).
99


In that regard, as provided for by the second subparagraph of Article 19(1) TEU, Member States are to provide remedies sufficient to ensure for individuals compliance with their right to effective judicial protection in the fields covered by EU law. It is, therefore, for the Member States to establish a system of legal remedies and procedures ensuring effective judicial review in those fields (judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 34 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 48).
100


The principle of the effective judicial protection of individuals’ rights under EU law, thus referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and which is now reaffirmed by Article 47 of the Charter (judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 35 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 49).
101


As regards the material scope of the second subparagraph of Article 19(1) TEU, that provision refers to the ‘fields covered by Union law’, irrespective of whether the Member States are implementing Union law within the meaning of Article 51(1) of the Charter (judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 29, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 50).
102


Furthermore, although, as the Republic of Poland points out, the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law and, in particular, from the second subparagraph of Article 19(1) TEU (judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 40, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 52 and the case-law cited).
103


In that regard, every Member State must, under the second subparagraph of Article 19(1) TEU, in particular 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 and which, therefore, are liable to rule, in that capacity, on the application or interpretation of EU law, meet the requirements of effective judicial protection (see, to that effect, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 55 and the case-law cited).
105


To ensure that such ordinary courts are in a position to offer such protection, maintaining their independence 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 (see, to that effect, judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 53 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 57).
106


That requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraphs 48 and 63, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 58).
108


The requirement that courts be independent, a requirement which the Member States must — under the second subparagraph of Article 19(1) TEU — ensure is observed in respect of national courts which, like the ordinary Polish courts, are called upon to rule on issues relating to the interpretation and application of EU law, has two aspects to it (see, to that effect, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 71).
109


The first aspect, which is external in nature, requires that the court concerned exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions (judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 44 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 72).
110


The second aspect, which is internal in nature, is linked to impartiality and seeks to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 65 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 73).
111


Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, that are such as to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 66 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 74).
112


As is also clear from settled case-law, the necessary freedom of judges from all external intervention or pressure requires certain guarantees appropriate for protecting the individuals who have the task of adjudicating in a dispute, such as guarantees against removal from office (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 64 and the case-law cited, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 75).
113


The principle of irremovability requires, in particular, that judges may remain in post provided that they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term. While it is not wholly absolute, there can be no exceptions to that principle unless they are warranted by legitimate and compelling grounds, subject to the principle of proportionality. Thus it is widely accepted that judges may be dismissed if they are deemed unfit for the purposes of carrying out their duties on account of incapacity or a serious breach of their obligations, provided the appropriate procedures are followed (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 76).
114


In that latter respect, it is apparent, more specifically, from the Court’s case-law that the requirement of independence means that the rules governing the disciplinary regime and, accordingly, any dismissal of those who have the task of adjudicating in a dispute must provide the necessary guarantees in order to prevent any risk of that disciplinary regime being used as a system of political control of the content of judicial decisions. Thus, rules which define, in particular, both conduct amounting to disciplinary offences and the penalties actually applicable, which provide for the involvement of an independent body in accordance with a procedure which fully safeguards the rights enshrined in Articles 47 and 48 of the Charter, in particular the rights of the defence, and which lay down the possibility of bringing legal proceedings challenging the disciplinary bodies’ decisions constitute a set of guarantees that are essential for safeguarding the independence of the judiciary (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 67, and of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 77).
115


Having regard to the cardinal importance of the principle of irremovability, an exception thereto is thus acceptable only if it is justified by a legitimate objective, it is proportionate in the light of that objective and inasmuch as it is not such as to raise reasonable doubt in the minds of individuals as to the imperviousness of the courts concerned to external factors and their neutrality with respect to the interests before them (see, to that effect, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 79).
117


In that regard, it should be noted, as a preliminary point, that the mechanism thus criticised by the Commission deals not with the process for the appointment of candidates to carry out judicial duties, but with the possibility, for serving judges who thus enjoy the guarantees inherent in carrying out those duties, to continue to carry them out beyond the normal retirement age, and that that mechanism accordingly concerns the conditions under which their careers progress and end (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 109).
118


Furthermore, although it is for the Member States alone to decide whether or not they will authorise such an extension to the period of judicial activity beyond the normal retirement age, the fact remains that, where those Member States choose to adopt such a mechanism, they are required to ensure that the conditions and the procedure to which such an extension is subject are not such as to undermine the principle of judicial independence (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 110).
119


As regards the need, noted in paragraphs 109 to 111 of the present judgment, to ensure that courts can exercise their functions wholly autonomously, objectively and without any interest in the outcome of the proceedings, while being protected against external intervention or pressure liable to impair the independent judgement of their members and to influence their decisions, it is true that the fact that an organ, such as the Minister for Justice, is entrusted with the power to decide whether or not to grant any extension to the period of judicial activity beyond the normal retirement age is not sufficient in itself to conclude that the principle of judicial independence has been undermined. However, it is necessary to ensure that the substantive conditions and detailed procedural rules governing the adoption of such decisions are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 111).
120


To that end, it is necessary, in particular, that those conditions and procedural rules are designed in such a way that those judges are protected from potential temptations to give in to external intervention or pressure that is liable to jeopardise their independence. Such procedural rules must thus, in particular, be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 112 and the case-law cited).
122


First of all, Article 69(1b) of the Law on the ordinary courts provides that the Minister for Justice may decide whether or not to authorise such continuation on the basis of certain criteria. However, those criteria are too vague and unverifiable and, moreover, as the Republic of Poland conceded at the hearing, the minister’s decision is not required to state reasons, inter alia by reference to those criteria. Nor can such a decision be challenged in court proceedings (see, to that effect, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 114).
124


Having regard to the foregoing, it must be found that the power held in the present instance by the Minister for Justice for the purpose of deciding whether or not to authorise judges of the ordinary Polish courts to continue to carry out their duties, from the age of 60 to 70 years in the case of women and the age of 65 to 70 years in the case of men, is such as to give rise to reasonable doubts, inter alia in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to any interests that may be the subject of argument before them (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 118).
125


Furthermore, that power fails to comply with the principle of irremovability, which is inherent in judicial independence (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 96).
127


First, having regard, in particular, to certain preparatory documents relating to the reform at issue, the combination of the two measures referred to in the previous paragraph is such as to create, in the minds of individuals, reasonable doubts regarding the fact that the new system might actually have been intended to enable the Minister for Justice, acting in his discretion, to remove, once the newly set normal retirement age was reached, certain groups of judges serving in the ordinary Polish courts while retaining others of those judges in post (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 85).
133


Unlike national judges who are appointed until they reach the statutory retirement age, the appointment of judges within the Court of Justice occurs, as provided for in Article 253 TFEU, for a six-year fixed term. Moreover, under that article, a new appointment to such a post held by a judge whose term of office is coming to an end requires, as was the case in respect of the initial appointment of that judge, the common accord of the Governments of the Member States, after consultation of the panel provided for in Article 255 TFEU (see, to that effect, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 121).
134


The conditions thus set by the Treaties cannot modify the scope of the obligations imposed on the Member States pursuant to the second subparagraph of Article 19(1) TEU (judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 122).