96Furthermore, as regards the substance of the cases in the main proceedings, the referring court indicated that the Law of 21 November 2018 was not intended to render national law compatible with EU law, but to apply the interim measures ordered by the Vice-President of the Court in her order of 19 October 2018, Commission v Poland (C‑619/18 R, not published, EU:C:2018:852), upheld by order of the Court of 17 December 2018, Commission v Poland (C‑619/18 R, EU:C:2018:1021). That law did not therefore repeal the provisions of national law at issue or their legal effects ex tunc. Whereas that law purports to reinstate those judges who are applicants in the main proceedings to their office after their retirement and to introduce a legal fiction as to the continued nature of their term in office effected by that reinstatement, the actions in the main proceedings seek a declaration that the judges in question never took retirement and remained fully in their posts during that entire period, which can result only from the invalidity of the rules of national law at issue, under the primacy of EU law. That distinction is fundamental in determining the status of the judges in question from the perspective of their capacity to take judicial, organisational and administrative measures and from the perspective of any mutual rights and obligations in respect of the Sąd Najwyższy (Supreme Court) on the basis of an employment relationship, or even that of disciplinary sanctions. In that latter respect, the referring court notes that, according to the declarations of representatives of the political authorities, those judges were exercising their judicial office illegally until 1 January 2019, the date of the entry into force of the Law of 21 November 2018.
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