78) The Netherlands proposes that the questions referred should be answered in the affirmative. ( 36 ) It takes the view that, following from the Court’s case-law, ( 37 ) national measures which, as explained by the referring courts, involve or allow political influence on disciplinary proceedings against judges and which may be used to exercise political control over the content of judicial decisions, infringe the principle of judicial independence under the second subparagraph of Article 19(1) TEU, along with Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

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81) The Commission submitted in the alternative at the hearing that, under the Court’s case-law, ( 40 ) the disciplinary system in Poland breaches the principle of judicial independence because it does not offer the necessary guarantees to avoid the risk of using that system as an instrument for political control of the content of judicial decisions. For this reason, the Commission stated that it launched an infringement procedure under Article 258 TFEU against Poland, alleging that the new disciplinary regime for judges is incompatible with the second subparagraph of Article 19(1) TEU, in conjunction with Article 47 of the Charter. ( 41 )

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87) In its judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court) (C‑619/18), ( 42 ) the Court affirmed that, 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. In paragraph 51 of that judgment, the Court held as follows:

‘Contrary to what has been claimed by the Republic of Poland and Hungary in this respect, the fact that the national salary reduction measures at issue in the case which gave rise to the judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117) were adopted due to requirements linked to the elimination of the excessive budget deficit of the Member State concerned and in the context of an EU financial assistance programme for that Member State did not, as is apparent from paragraphs 29 to 40 of that judgment, play any role in the interpretation which led the Court to conclude that the second subparagraph of Article 19(1) TEU was applicable in the case in question. That conclusion was reached on the basis of the fact that the national body which that case concerned, namely the Tribunal de Contas (Court of Auditors, Portugal), could, subject to verification to be carried out by the referring court in that case, rule, as a court or tribunal, on questions concerning the application or interpretation of EU law and which therefore fell within the fields covered by EU law (see, to that effect, judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 40).’ ( 43 )

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125) Finally, I note that while the second subparagraph of Article 19(1) TEU has a broad material scope and extends to all national courts which ‘could’ make references under Article 267 TFEU (see points 87 to 89 of this Opinion), substantively speaking and in terms of EU competence, I take the position that, in the context of judicial independence, the second subparagraph of Article 19(1) TEU is confined to structural breaches which compromise the essence of judicial independence. I have expressed the view in previous Opinions that such a structural breach occurs when it impacts on an entire tier of the judiciary, and I reached the same conclusion with respect to the Disciplinary Chamber in a context in which it is the forum provided under Polish law to decide on cases involving judges affected by measures lowering the retirement age of Supreme Court judges, ( 82 ) which were held by the Court in its judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court) (C‑619/18) to infringe the guarantees of judicial independence under the second subparagraph of Article 19(1) TEU. ( 83 ) Compliance with Article 94 of the Court’s Rules of Procedure also requires sufficient explanation as to why the breach of judicial independence at issue is structural in nature for the purposes of the second subparagraph of Article 19(1) TEU, rather than one to be dealt with under Article 47 of the Charter, but only when Member States are implementing EU law under Article 51(1) of the Charter.