Key facts of the case:

1 The present cases, like the problems which I considered in my Opinions in Commission v Poland (Independence of the Supreme Court) (C‑619/18) and Commission v Poland (Independence of the ordinary courts) (C‑192/18), are situated within the context of the reform of the Polish justice system instituted by measures adopted in 2017 and which have been the subject of the Commission’s reasoned proposal in accordance with Article 7(1) TEU regarding the rule of law in Poland, along with considerable international criticism. 

2. They concern actions, based in part on EU law, brought before the Chamber of Labour Law and Social Security of the Sąd Najwyższy (Supreme Court, Poland) by judges affected by Polish measures lowering the judicial retirement age. Those measures were held by the Court, in its judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court) (C‑619/18), to be incompatible with Poland’s obligations under the second subparagraph of Article 19(1) TEU, given that they are inconsistent with the principles of the irremovability of judges and judicial independence, both of which are protected under EU law.

3. Even though under Member State law the newly created Disciplinary Chamber of the Supreme Court has been designated to adjudicate the actions, the referring court queries whether the Disciplinary Chamber offers sufficient guarantees of independence under EU law to hear such claims. This is in view of the fact that the group of judges eligible for appointment by the President of the Republic to the Disciplinary Chamber are selected by the Krajowa Rada Sądownictwa (National Council of the Judiciary, ‘NCJ’) which is the body charged with safeguarding judicial independence in Poland. However, the independence of the NCJ has, in turn, been put in doubt by Polish legislation modifying the manner in which its judicial members are appointed. Its composition is now primarily determined by the legislative and executive authorities.

4. There are also more specific concerns about the procedure for selecting judges of the Disciplinary Chamber employed by the NCJ.

5. The key question for the Court to decide, therefore, in the present cases is whether the Disciplinary Chamber of the Supreme Court meets the requirements of independence under EU law, in light of the manner in which members of the NCJ are appointed and the means for selecting judges to the Disciplinary Chamber.

6. If the Court were to find that the Disciplinary Chamber of the Supreme Court does not meet those requirements, the referring court also wishes to know whether it is entitled under EU law to disapply provisions of Member State law which might be viewed as precluding the referring court from assuming jurisdiction in the main proceedings.

Consequently, the Court is essentially invited by the referring court to develop its case-law on Member State obligations to ensure judicial independence under the second subparagraph of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union (’Charter’) for upholding respect for the rule of law in the Union legal order.

Conclusion:

157. In light of the aforementioned considerations, I propose that the Court of Justice answer the questions referred by the Sąd Najwyższy (Supreme Court, Poland) as follows:

1. There is no need to give a ruling on Question 1 in Cases C‑624/18 and C‑625/18.

In the alternative, Article 47 of the Charter of Fundamental Rights of the European Union, in conjunction with Article 9(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, should be interpreted as meaning that, where an appeal is brought before a court of last instance in a Member State against an alleged infringement of the prohibition of discrimination on the ground of age in respect of a judge of that court, together with a motion for granting security in respect of the reported claimed, that court — in order to protect the rights arising from EU law by ordering an interim measure provided for under national law — must disapply national provisions which confer jurisdiction, in the case in which the appeal was lodged, on an organisational unit of that court which is not operational by reason of a failure to appoint judges adjudicating within it.

2. The requirements of judicial independence laid down in Article 47 of the Charter should be interpreted as meaning that a newly-created chamber of a court of last instance of a Member State which has jurisdiction to hear a case by a national court judge and which is composed exclusively of judges selected by a national body tasked with safeguarding the independence of the courts, namely the Krajowa Rada Sądownictwa (National Council of the Judiciary), which, having regard to the systemic model for the way in which it is formed and the way in which it operates, is not guaranteed to be independent from the legislative and executive authorities, does not satisfy those requirements.

The same is precluded by the second subparagraph of Article 19(1) TEU.

3. A chamber of a court of last instance of a Member State which does not have jurisdiction in the case but meets the requirements of EU law for a court seised with an appeal in an EU case is required by the primacy of EU law to disapply provisions of national legislation which preclude it from having jurisdiction in that case.