Case: C-192/18.

Descriptors: Judge’s immobility Principle / Appointment procedure, retirement age and prohibition of discrimination based on age and sex regarding judicial independence.

In the case, the Court resolves a procedure initiated by the Commission against the modified Polish Law of July 12, 2017 on the grounds that violates article 19.1 TEU and 47 of the Charter, regarding judicial independence and effective judicial protection. Although Poland alleges process loss of purpose as a result of the entry into force, on May 23, 2018, of a new Law that modifies the “Law of Ordinary Courts” ,the “Law of the National Council of the Judicial Power” and the “Law of December 8, 2017”. The Court reiterates its jurisprudence, where it is established that “the existence of a breach must be assessed based on the situation of the Member State as it was presented at the end of the the deadline set in the reasoned opinion and the changes that have occurred subsequently cannot be taken into account by the Court of Justice”(paragraph 45).

The Court declares the discriminatory nature of the establishment of an early retirement scheme for judges, set respectively, at 60 years for women and 65 years for men. A distinction that would have an unequivocal discriminatory effect in the the retirement pension (paragraphs 77 and 79), the amount of which is calculated considering, in addition to the base salary, the length of time during which the profession has been exercised; this being contrary to article 157 TFEU.

In addition, the Court analyzes, from the perspective of its compliance with article 19.1 TEU, the Polish President’s power, whether or not to grant extensions, once the retirement age has been reached, in relation to the exercise of the jurisdictional function. A capacity that, per se, is not contrary to the principle of judicial independence, provided that the material conditions and the procedural rules that govern it do not raise doubts about the judge’s impermeability (paragraph 119); a principle of irremovability that the Court will consider violated (paragraph 130).

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