27.1.2020

Official Journal of the European Union

C 27/6

(Joined Cases C-585/18, C-624/18 and C-625/18) (1)

(Reference for a preliminary ruling - Directive 2000/78/EC - Equal treatment in employment and occupation - Non-discrimination on the ground of age - Lowering of the retirement age of judges of the Sąd Najwyższy (Supreme Court, Poland) - Article 9(1) - Right to a remedy - Article 47 of the Charter of Fundamental Rights of the European Union - Effective judicial protection - Principle of judicial independence - Creation of a new chamber of the Sąd Najwyższy (Supreme Court) with jurisdiction inter alia for cases of retiring the judges of that court - Chamber formed by judges newly appointed by the President of the Republic of Poland on a proposal of the National Council of the Judiciary - Independence of that council - Power to disapply national legislation not in conformity with EU law - Primacy of EU law)

(2020/C 27/07)

Language of the case: Polish

Referring court

Parties to the main proceedings

Applicant: A. K. (C-585/18), CP (C-624/18), DO (C-625/18)

Defendant: Krajowa Rada Sądownictwa (C-585/18), Sąd Najwyższy, (C-624/18), (C-625/18)

Third party: Prokurator Generalny, represented by the Prokuratura Krajowa

Operative part of the judgment

1.It is no longer necessary to answer questions referred by the Izba Pracy i Ubezpieczeń Społecznych (Labour and Social Insurance Chamber) of the Sąd Najwyższy (Supreme Court, Poland) in Case C-585/18 or the first question referred by the same court in Cases C-624/18 and C-625/18.

2.The answer to the second and third questions referred by the referring court in Cases C-624/18 and C-625/18 is as follows:

Article 47 of the Charter of Fundamental Rights of the European Union and Article 9(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal, within the meaning of the former provisions. That is the case where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law. It is for the referring court to determine, in the light of all the relevant factors established before it, whether that applies to a court such as the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court).

If that is the case, the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply the provision of national law which reserves jurisdiction to hear and rule on the cases in the main proceedings to the abovementioned chamber, so that those cases may be examined by a court which meets the abovementioned requirements of independence and impartiality and which, were it not for that provision, would have jurisdiction in the relevant field.

OJ C 44, 4.2.2019.