(AGENPARL) - Roma, 2 Marzo 2023

(AGENPARL) – gio 02 marzo 2023 Dear All,
Please find attached press release in respect of Case C-718/21 | Krajowa Rada Sądownictwa (Continued holding of a judicial office):
Advocate General Athanasios Rantos doubts whether the mechanism whereby the KRS authorises Polish judges to continue to hold judicial office beyond retirement age offers sufficient guarantees of independence
The decision whether or not to authorise a judge to continue to hold judicial office cannot be based on criteria that are too vague and difficult to verify
Kind regards,
Natassa Mouzouki
Press and Information Unit, Ireland / Malta
Communication Department
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Testo Allegato:
Communications Directorate

Press and Information Unit

curia.europa.eu

PRESS RELEASE No
40
/23

Luxembourg, 2 March 2023

Advocate General’s Opinion in Case C
–
718/21 | Krajowa Rada Sądownictwa (
Continued holding of a
judicial office
)

the mechanism
whereby the KRS

authorises P
olish judges

to

continue to hold

judicial
office

offer
s

sufficient guarantees of independence

The decision

to authorise

a judge to continue to hold judicial office cannot be based on

criteria
that are

too

vague and
diff
icult to verify

In Poland,
the
Law on the system of ordinary courts

provides that judges who

wish to continue
to work as

judge
s

age are required to declare their intention to that effect to the
Nat
ional Council of the
Judiciar
y (
Poland, ‘the
KRS
’
). That declaration must be made within a statutory time limit, which if exceeded, would
render the application inadmissible.

The KRS may authorise a judge to continue
in his or her post, if
, inter alia,

there
is a legitimate interest f
or the administration of justice or an important social interest in that judge continuing in
that role
.

The
Chamber of Extraordinary Control and Public Affairs

of the Supreme Court of Poland

(
‘the Chamber of
Extraordinary Control’)

is seised of an appeal b
rought by a judge against the resolution of the KRS not to grant his
application for his term of office to be extended
,

on the ground that that application was submitted beyond the
deadline laid down by law. The
Chamber of Extraordinary Control

has asked t
he Court of Justice whether the
national legislation
infringes the principle

of the irremovability of judges and judicial independence, enshrined in
the
Treaty on European Union
, inasmuch as, first, that
legislation

makes the performance of the duties of a

judge after
authorisation

from another body and, second, establishes that
an application

to exercise
statutory
time limit for submissio
n of that
application h
as expired.

In today’s Opinion, Advocate General Athanasios Rantos observes,
at the outset,

that the request for a preliminary
ruling

raises

the

issue of whether the Chamber of Extraordinary Control can be classified as a ‘court or tribunal’
,

within the me
aning of
the Treaty on the Functioning of the European Union,
entitled

to submit questions for a
preliminary ruling to the Court of Justice
.

The doubts in relation to the independence of that chamber

concern, in
particular, the appointment of the judges th
ereof on the basis of a resolution
—

subsequently annulled
—

of the

KRS
whose independence has

been questioned in several judgments of the Court of Justice
.

1

In addition
,
the
European Court of Human Rights (‘the ECtHR’)

2

has held

that two panels of the C
hamber of Extraordinary Control
composed of three judges did not constitute ‘tribunal[s] established by law’ within the meaning
of the

Convention
for the Protection of Human Rights and Fundamental Freedoms

(‘ECHR’)
.

1

Judgments of 19 November 2019
,
Joined Cases
,
A.

K
. and Others (Independence of the Disciplinary Chamber of the Supreme Court)
,

C
–
585/18, C
–
624/18
and

C
–
625/18
,
paragraphs 136 to

145 (
see also

Press Release No

1
45/19
)
, and of

2

March

2021,
A.B. and

Others (Appointment of judges to the Supreme
Court
–

Actions
)
,
C
–
824/18
,
paragraphs 130 and

131 (
see also

Press Release No

31/21
).

2

Judgment of the ECtHR of

8
November

2021,
Dolińska
–
Ficek
and

Ozimek
v
. Pol
and

(
CE:ECHR:2021:1108JU
D004986819
)
.

Communications Directorate

Press and Information Unit

curia.europa.eu

On that point, the Advocate General

cons
ider
s

that

rinciple of independence in the
context of the entitlement to refer questions to the Court of Justice for a preliminary ruling
calls for a different
examination
separate
from that required, respectively, in the context

of
the principle

of
the irremovability of judges
and jud
icial independence, enshrined in the Treaty on European Union
,
and of the right to

an effective remedy
enshrined in the Charter of Fundamental Rights of the European Union,
having regard to the diffe
rent

functions and
objectives of tho
se texts
.

According to the Advocate General
,
the concept of
a

‘
court or tribunal’ entitled to submit questions to the
Court of Justice for a preliminary ruling has a ‘functional’ nature
,

which refers
primarily to the abs
ence of
hierarchical control
,

by the administration
, of the body which submitted the question, and not
to
the individuals who
sit in the body
.
It follows that
any irregularities in the appointment of the members of a judicial formation can
deprive a body o
f the status of ‘court or tribunal’ to that effect only if they affect the very ability of such a
body to judge independently
.

is more concerned with
respect for the right

t
o effective judicial protect
ion. Consequently, it

m
ight

play a role in the
application
of the

Charter

of Fundamental Rights
, but not necessarily
as regards the entitlement to submit questions
to the Court of Justice for a preliminary ruling
.

Thus
, in the

view of the Advocate General, the Court is validly
seised by
the Chamber of Extraordinary Control

and, therefore, has jurisdiction to
answer the questions
referred for a preliminary ruling
.

Next, as regards those questions

referred
, the Advocate General r
ecalls that, in its case
–
law, the Court
accepts that
Member States may

invest a body outside the judiciary (either independent or under the authority of the legislature
or the executive) with the power to take decisions relating, in particular, to the appo
intment of judges or their
continued holding of a judicial office
.

3

For that reason, he concludes that, even if, f
ollowing
the

reforms of the Polish
judicial system,
the KRS

is said to have become

a ‘captive institution’, con
trolled by the executive branc
h,
the fact
that it is vested with the power to decide whether or not to grant a possible extension of the exercise of
judicial functions is not in itself sufficient to conclude that the principle of judicial independence has been
infringed.

However
, as re
gards the substantive conditions and procedural rules
,
the Advocate General observes
that the
criteria on which the KRS decision relating to the continued holding of judicial office is based are too vague
and unverifiable
.

4

There is also uncertainty given

that the Polish legislation

does not lay down a time limit within
which the
KRS

is required to adopt its resolution.

T
aking into account all the relevant factors, both
factual and legal, relating

to the
nature of the KRS itself

and
also
to
the way in whic
h

that body fulfils its role, the Advocate General concludes that the
principle

of the irremovability of
judges and judicial independence
, enshrined in the Treaty on European Union,

preclude
s

national legislation that
makes the effectiveness of a judge’s d
eclaration of intention to continue to hold a judicial office after
reaching retirement age subject to authorisation from a body that has been shown to be lacking in
independence from the legislative or executive branches and that adopts its decisions on t
he basis of
criteria that are vague and difficult to verify.

As regards the time
–
barring of a belated declaration of
a judge’s intention to continue to hold a judicial office
, the
Advocate General states that
clear and foreseeable deadlines for that declar
ation constitute objective
procedural requirements that are likely to contribute to the legal certainty and objectivity of the entire
procedure in question
.

F
ixed in relation
to

the date of
the judge’s

birthday,
the six
–
month time limit provided for in
Pol
ish law is, according to Advocate General Rantos,
sufficiently generous to give that judge the opportunity to take
a reasoned decision as

intention to continue in office.

Similarly,
given the

3

Judgments of 24 June 2019,
Commission

v
Poland (Independence of the Supreme Court)
,
C
–
619/18
, paragraphs

108 and 110 (see also
Press Release
No

81/19
), and of 5 November 2019,
Commission

v
Poland (Independence of ordinary courts)
,
C
–
192/18
,
paragraph

119 (see also
Press Release
No

134/19
).

4

Like the situation
that
was the subject of the judgment in

C
–
192/18
,
paragraphs

119

and

122.

Communications Directorate

Press and Information Unit

curia.europa.eu

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fact that there is no po
ssibility of an exemption from that time limit being granted, judges are not subjected
to any external pressure or influence and, moreover, the KRS is deprived of the possibility of exercising any
discretionary power
. Notwithstanding that assessment, the A
dvocate General leaves to the
Chamber of
Extraordinary Control

the task of determining whether that
time limit

is proportionate.

NOTE:

The Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General
to propos
Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.

NOTE:

A reference for a preliminary
ruling allows the courts and tribunals of the Member States, in disputes which
European
Union

law or the validity of a
European Union

act. The Court of Ju
stice does not decide the dispute itself. It is for the
national court or tribunal to dispose of the case in accordance with the Court
’
s decision, which is similarly binding on
other national courts or tribunals before which
a similar

issue is raised.

Unof
ficial document for media use, not binding on the Court of Justice.

The
full text

of the Opinion is published on the CURIA website on the day of delivery.

Press contact: Jacques René

Zammit
✆
(+352) 4303 3355

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