The Supreme Court referred five questions to the Court of Justice of the EU and suspended the application of the provisions of the Supreme Court Act laying down the rules for the retirement of judges.
2 August 2018 III UZP 4/18 the Supreme Court of the Chamber of Labour and Social Security decided to refer to the EU Court of Justice for preliminary rulings on the principle of judicial independence and the independence of the judiciary as principles of EU law and on the EU prohibition of discrimination on grounds of age in relation to a legal question that has been brought before the Court of Justice. Questions were asked by the enlarged composition of the Supreme Court, appointed to examine the legal issue presented in the case of EU coordination of social security systems (case in the Supreme Court, ref. III UZP 4/18). The enlarged composition considered that, before proceeding with the substantive examination of the case, it was necessary to clarify preliminary questions, requiring the interpretation of the provisions of EU law (derivative and secondary) in connection with the appointment of two judges of the Chamber of Labour and Social Security who were 65 years of age or older to take part in the examination of the legal issue.
At the same time, the Supreme Court, in accordance with the existing jurisprudence of the EU Court of Justice, applied a protective measure and decided to suspend the application of the provisions of the Act on the Supreme Court determining the rules of retired judges – both in the ordinary procedure and in the transitional provisions (Article 111 § 1 and § 1a, Article 37 and Article 39 of the Act on the Supreme Court).
The extended composition of the Supreme Court referred five questions for a preliminary ruling.
The first question concerns the interpretation of the provisions of the Treaties (Articles 2, 4(3), 19(1) TEU and 267 TFEU) and of the Charter of Fundamental Rights (Article 47) in so far as it concerns the principle of the indelibility of judges, a principle which the Supreme Court considers to be infringed whenever the national legislature decides to lower the retirement age and to apply a new lower retirement age to judges against their will.
The second question concerns the interpretation of the same provisions of EU law in the context of the provisions of the Act on Missing Persons, which make the possibility of further ruling by a judge dependent on the consent of an executive body (the President of the Republic of Poland after the countersigning of the Prime Minister of the Republic of Poland). In the opinion of the Supreme Court, such a solution is inconsistent with the understanding of the principle of court independence and independence of judges adopted in the previous case law of the CJEU and the case law of the ECtHR.
The third question from the Supreme Court concerns the interpretation of Council Directive 2000/78 on the prohibition of discrimination on grounds of age. The Supreme Court requests confirmation of the interpretation given by the CJEU in case C-286/12, Commission v. Hungary. The Supreme Court decided that due to the seriousness of the situation and the need to apply Directive 2000/78 and the Supreme Court to the judges of the Court, it is justified to obtain a judgment of the CJEU concerning the interpretation of EU law, directly related to the provisions of the Act on MV. Therefore, the Supreme Court decided not to appeal to the acte éclairé institution.
The fourth question was asked in relation to the need for the CJEU to clarify how a national court in a situation such as that of the Supreme Court should ensure the effectiveness of the EU prohibition of discrimination on grounds of age. The Supreme Court is of the opinion that the CJEU’s response should be aimed at ensuring that each panel composed of a judge aged 65+ may refuse to apply the provisions of the Act on MC discriminating against judges on grounds of age and may adjudicate with the participation of such a judge regardless of the President of Poland’s consent to continue to hold the position of a judge.
The fifth question concerns the obligations of the Supreme Court as an EU court to apply protective measures. The Supreme Court applied an appropriate security measure on the basis of the provisions of the CPC in connection with Article 4(3) TEU and the case law of the CJEU. Given the limited number of CJEU interventions and the controversy over the application of interim measures required by EU law but not provided for by national law, the Supreme Court considered that the question of the use of national law provisions contrary to EU law as a protective measure of the institution’s temporary refusal to apply should be brought up again before the CJEU.
Given the importance of answering the preliminary questions for the Supreme Court to be able to perform its tasks with the participation of judges aged 65+, the Supreme Court requested that the CJEU apply an accelerated procedure.
In accordance with the current case law of the CJEU, the Supreme Court, pursuant to Article 755 § 1 of the C.C.P., decided to suspend the application of Article 111 § 1 and § 1a, Article 37 and Article 39 of the Act on the Supreme Court.