Opinion of Advocate General Rantos delivered on 2 March 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:150
• Date: 02 March 2023
• Celex Number: 62021CC0718
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 2 March 2023 (1)

Case C‑718/21

L.G.

v

Krajowa Rada Sądownictwa

(Request for a preliminary ruling from the Sąd Najwyższy (Supreme Court, Poland))

(Reference for a preliminary ruling – Article 267 TFEU – Concept of ‘court or tribunal’ – Jurisdiction of the Court – Second subparagraph of Article 19(1) TEU – Effective legal protection in the fields covered by EU law – Principles of the irremovability of judges and judicial independence – Possibility of continuing to hold a judicial office after reaching retirement age – Effects of the declaration of intention to continue to hold a judicial office after reaching retirement age subject to the authorisation of another body – Effects of exceeding the time limit for filing such a declaration)

I. Introduction

1. This request for a preliminary ruling was made by the Izba Kontroli Nadzwyczajnej i Spraw Publicznych (Chamber of Extraordinary Control and Public Affairs; ‘the Chamber of Extraordinary Control’) of the Sąd Najwyższy (Supreme Court, Poland) in an appeal brought by L.G. (‘the appellant’), a judge at the Sąd Okręgowy w K. (Regional Court of K., Poland), against the resolution of the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland; ‘the KRS’) to discontinue consideration of his request for authorisation to continue to hold a judicial office after reaching retirement age, due to the fact that the deadline for submission of the declaration of intention to that effect had passed.

2. This request for a preliminary ruling raises, at the outset, the delicate issue of whether the Chamber of Extraordinary Control can be classified as a ‘court or tribunal’ within the meaning of Article 267 TFEU. As to the substance of the case, the request for a preliminary ruling essentially concerns the interpretation of the principles of the irremovability of judges and judicial independence, as a corollary of the principle of ‘effective legal protection’ enshrined in the second subparagraph of Article 19(1) TEU, in relation to national legislation which, on the one hand, makes the effect of a judge’s declaration of intention to continue to exercise his or her functions after reaching retirement age subject to authorisation by the KRS and, on the other hand, lays down an absolute preclusive time limit for that declaration.

3. The present case must be viewed against the background of the recent reforms of the Polish judicial system (2) and the abundant case-law of the Court of Justice relating to those reforms, in particular in connection with actions for failure to fulfil obligations brought by the European Commission (3) and references for a preliminary ruling brought by the Polish courts. (4)

II. Legal context: Polish law

A. The Law on the Supreme Court

4. The ustawa o Sądzie Najwyższym (Law on the Supreme Court), of 8 December 2017, (5) which, among other things, created the Chamber of Extraordinary Control, states as follows in Article 26(1):

‘The areas of jurisdiction of the [Chamber of Extraordinary Control] include extraordinary complaints, electoral disputes and challenges concerning the validity of national or constitutional referendums, and determination of the validity of elections and referendums, as well as other cases in the field of public law, including disputes relating to the protection of competition, energy regulation, telecommunications and rail transport, and appeals against decisions of the Przewodniczy Krajowej Rady Radiofonii i Telewizji [(President of the National Television and Radio Broadcasting Council, Poland)] as well as complaints concerning the excessive duration of proceedings before ordinary and military courts and the [Sąd Najwyższy (Supreme Court)].’

B. The Law on the system of ordinary courts

5. Article 69(1) and (1b) of the ustawa – Prawo o ustroju sądów powszechnych (Law on the system of ordinary courts), of 27 July 2001, as amended, (6) states as follows:

‘1. A judge shall retire upon reaching 65 years of age unless, no later than 6 months and no earlier than 12 months before reaching that age, he or she submits a declaration to the [KRS] indicating his or her wish to continue in his or her post and presents a certificate, issued in accordance with the rules specified for candidates applying for a judicial post, confirming that his or her health is no impediment to performing the duties of a judge.

…

1b. The [KRS] may authorise a judge to continue in his or her post, if there is a legitimate interest for the administration of justice or an important social interest in that judge continuing in that role, having regard to the rational use of the staff of the ordinary courts and the needs resulting from the workload of individual courts. The resolution of the [KRS] shall be final. In a situation where the procedure connected with the judge continuing in his or her post has still not come to an end after he or she has reached the age referred to in paragraph 1, the judge shall remain in post until such time as that procedure has come to an end.

…’

C. The Law on the KRS

6. Under Article 42 of the ustawa o Krajowej Radzie Sądownictwa (the Law on the KRS), of 12 May 2011, as amended: (7)

‘1. Resolutions issued by the Council in individual cases shall be reasoned.

2. The statement of reasons for a resolution shall be drawn up within one month of its adoption.

3. Resolutions issued in individual cases shall be served on the participants in the procedure, along with the associated statement of reasons and instructions on how those resolutions may be challenged before the Supreme Court.’

7. Article 44(1) of the Law on the KRS states as follows:

‘A participant in the procedure may appeal to the [Sąd Najwyższy (Supreme Court)] on the ground that the [KRS] resolution is unlawful, unless separate provisions provide differently. …’

III. The dispute in the main proceedings, the questions referred and the procedure before the Court

8. By letter of 30 December 2020, the appellant submitted a declaration to the KRS indicating his intention to continue to work as a judge after reaching the retirement age of 65 years, which he would reach on 12 June 2021, in accordance with Article 69 of the Law on the system of ordinary courts. (8) By letter of 31 December 2020, the appellant also submitted a request to the KRS for leave to proceed with his declaration beyond the stated time limit, given that he had not submitted that declaration at least six months before he reached retirement age, as required by that legal provision. (9)

9. By a resolution of 18 February 2022, the KRS declared that declaration inadmissible on the ground that it had been submitted beyond the time limit of six months before retirement age laid down in the relevant legal provision and adopted a resolution discontinuing consideration of the case, thus closing the procedure concerning the granting of authorisation for the appellant to continue to hold office as a judge. (10)

10. The appellant brought an appeal against that resolution before the Sąd Najwyższy (Supreme Court), sitting as the Chamber of Extraordinary Control, which is the referring court. (11) The referring court wishes to determine whether Article 69 of the Law on the system of ordinary courts infringes the principles of the irremovability of judges and judicial independence, enshrined in the second subparagraph of Article 19(1) TEU, inasmuch as, first, that national provision makes the performance of the duties of a judge after retirement age subject to authorisation from another body, which could influence the content of the judgments delivered by the judge in question and, second, that same provision establishes that a request to exercise the duties of a judge after retirement age has been reached cannot be considered if the time limit for submission of that request has expired, irrespective of the effects of the retirement in the specific circumstances, in particular with regard to the interests of the administration of justice or the possible existence of an important social interest.

11. In those circumstances the Chamber of Extraordinary Control of the Sąd Najwyższy (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does the second subparagraph of Article 19(1) [TEU] preclude a provision of national law such as the first sentence of Article 69(1b) of the [Law on the system of ordinary courts], which makes the effectiveness of a declaration by a judge of his or her intention to continue to hold a judicial office after reaching retirement age subject to the authorisation of another body?

(2) Does the second subparagraph of Article 19(1) [TEU] 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 authorisation for his or her continuing to hold a judicial office?’

12. Written observations were filed by the KRS, by the Polish, Danish and Netherlands Governments and by the European Commission. The KRS, the Polish, Belgian and Netherlands Governments and the Commission submitted oral observations at the hearing on 8 November 2022. The appellant, the KRS, the Belgian and Netherlands Governments and the Commission also submitted written observations on the order from the referring court of 3 November 2022, by which that court submitted additional observations to the Court of Justice to support its request for a preliminary ruling, particularly concerning its status as a ‘court or tribunal’ within the meaning of Article 267 TFEU.

IV. Analysis

A. The jurisdiction of the Court

1. The doubts raised as to the status of the referring court...