Commission v Poland (Independance de la Cour supreme) (Rule of law - Principles of independence and irremovability of judges - Opinion)

(Failure of a Member State to fulfil obligations — Article 258 TFEU — Article 7 TEU — Rule of law — Article 19(1) TEU — Principle of effective judicial protection — Principles of independence and irremovability of judges — Charter of Fundamental Rights of the European Union — Articles 47 and 51 — National measures lowering the retirement age of Supreme Court judges in office — Absence of a transitional period — National measures granting the President of the Republic discretion to extend the active mandate of Supreme Court judges)

‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.’

On 20 December 2017, the President of the Republic signed Ustawa z dnia 8 grudnia 2017 r. o Sądzie Najwyższym (Law of 8 December 2017 on the Supreme Court, Dz. U. of 2018, heading 5, as amended) (‘Law on the Supreme Court’) which entered into force on 3 April 2018.

‘1. A judge of the Supreme Court shall retire on the day of his 65 th birthday, unless, not later than 6 months before that day and not earlier than 12 months before that day, he submits a declaration that he is willing to continue serving in the office of judge and presents a certificate confirming that his health is no impediment to performing the duties of a judge, issued in accordance with the rules specified for candidates applying for the office of judge, and the President of the Republic of Poland consents to his continuing to serve as a Supreme Court judge.

1a. Prior to granting consent for a judge to continue to serve as a judge of the Supreme Court, the President of the Republic of Poland shall consult the National Council of the Judiciary. The National Council of the Judiciary shall provide the President of the Republic of Poland with an opinion within 30 days of the date on which the President of the Republic of Poland requests submission of such an opinion. If the opinion is not submitted within the period referred to in the second sentence, the National Council of the Judiciary shall be deemed to have submitted a positive opinion.