Criminal proceedings against P.B. and R.S (C-646/23)

Contents

Judgment of the Court (Fourth Chamber)3 July 2025^note(Reference for a preliminary ruling — Rule of law — Independence of the judiciary — Second subparagraph of Article 19(1) TEU — Effective judicial protection in areas covered by EU law — Principle of irremovability of judges — Military judge found unfit for professional military service — National legislation requiring the early retirement of that judge)In Joined Cases C‑646/23 [Lita] and C‑661/23 [Jeszek]^note,TWO REQUESTS for a preliminary ruling under Article 267 TFEU from the Wojskowy Sąd Okręgowy w Warszawie (Regional Military Court, Warsaw, Poland), made by decisions of 25 October 2023 and 9 November 2023, received at the Court on 27 October 2023 and 9 November 2023, respectively, in the proceedingsTHE COURT (Fourth Chamber),composed of I. Jarukaitis (Rapporteur), President of the Chamber, N. Jääskinen, A. Arabadjiev, M. Condinanzi and R. Frendo, Judges,Advocate General: T. Ćapeta,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– the Polish Government, by B. Majczyna and S. Żyrek, acting as Agents,– the European Commission, by K. Herrmann, P. Stancanelli and P.J.O. Van Nuffel, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1These requests for a preliminary ruling concern the interpretation of Article 2, Article 4(2) and (3) and the second subparagraph of Article 19(1) TEU, read in conjunction with Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings (OJ 2016 L 65, p. 1), Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Article 267 TFEU and the principles of primacy and effectiveness of EU law and of the separation of powers.

2The requests have been made in the context of criminal proceedings brought against P. B. for theft of fuel (Case C‑646/23) and against R. S. for failing to comply with his or her obligation to be present in his or her military unit (Case C‑661/23).

Polish law

The Constitution

3Article 175(1) of the Konstytucja Rzeczypospolitej Polskiej (Constitution of the Republic of Poland) (‘the Constitution’) provides:‘In the Republic of Poland, justice is dispensed by [the Sąd Najwyższy (Supreme Court, Poland)], the ordinary courts, the administrative courts and the military courts. …’

4Under Article 176(2) of the Constitution:‘The organisation and jurisdiction of the courts and judicial procedure shall be defined by law.’

5Article 179 of the Constitution provides:‘Judges are appointed by the President of the Republic, on the proposal of [the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland) (‘the KRS’)], for an indefinite period.’

6Article 180 of the Constitution states:1. Judges shall be irremovable.2. A judge may only be dismissed, suspended from office, transferred to another jurisdiction or transferred to another office against his or her will by virtue of a court order and only in the cases provided for by law.3. A judge may be retired as a result of illness or infirmity rendering him or her unable to perform his or her duties. The procedure and method of recourse to the courts are defined by law. …’

The Law on the ordinary courts

7Article 70(1) and (2) of the ustawa – Prawo o ustroju sądów powszechnych (Law on the organisation of the ordinary courts) of 27 July 2001 (Dz. U., No 98, item 1070), in the version applicable to the disputes in the main proceedings (‘the Law on the ordinary courts’), provides:1. A judge shall be retired at his or her own request or at the request of the competent panel of the court if, as a result of illness or infirmity, he or she has been found … permanently unfit to perform his or her duties as a judge.2. An application for retirement and for a review of a judge’s incapacity to perform his or her duties and give judgment may be made by the judge concerned or by the competent panel of the court. …’

8Article 71(2) and (3) of that law provides:2. A judge may be retired if, without good reason, he or she has not submitted to the examination referred to in Article 70(2), if the examination has been requested by the panel of the court or the Minister for Justice.3. A judge may also be retired, at the request of the Minister for Justice, in the event of a change in the organisation of the courts or a change in the boundaries of the judicial districts, if he or she has not been transferred to another court.’

9Under the terms of Article 73(1) to (3) of that law:1. In the cases of retirement of a judge referred to in Articles 70 and 71, the decision shall be taken by the [KRS], at the request of the judge, the panel of the competent court or the Minister for Justice.2. Decisions of the [KRS] in cases referred to in Articles 70 and 71 may be appealed to the [Sąd Najwyższy (Supreme Court)].3. The appeal must be lodged via the [KRS] … The appeal is open to the judge, the president of the competent court and the Minister for Justice …’

The Law on military courts

10Article 22(1) of the ustawa – Prawo o ustroju sądów wojskowych (Law on the organisation of military courts) of 21 August 1997 (Dz. U., No 117, item 753), in the version applicable to the disputes in the main proceedings (‘the Law on military courts’), provides:‘A military court judge … may be an officer performing professional military service …’

11Pursuant to Article 23(1) of that law:‘A military court judge is a person appointed to that position by the President of the Republic of Poland and who has taken an oath before the President of the Republic of Poland. …’

12Article 35(1) and (4) of that law provides:1. A judge may not be released from the obligations of professional military service until the judge’s service relationship is terminated by operation of law or until the judge loses his or her position or is retired.…4. If a judge is definitively found unfit for professional military service by a decision of the military medical commission, the [KRS], on the initiative of the person concerned, shall propose to the President of the Republic of Poland – without consulting the competent assembly of judges – that the judge of the military court be appointed to the office of judge of a court of general jurisdiction.’

13Article 70(1) and (2) of that law provides:1. The provisions of … Articles 70, 71 [and] 73 … of the [Law on the ordinary courts] shall apply mutatis mutandis to military courts …2. In matters not regulated by [the present] law, the rights and duties of judges of military courts are determined by the provisions relating to the military service of professional soldiers.’

The Law on the defence of the homeland

14Under Article 226(3) of the ustawa o obronie Ojczyzny (Law on the defence of the homeland) of 11 March 2022 (Dz. U., item 655), in the version which entered into force on 23 March 2022 (‘the Law on the defence of the homeland’):‘A professional soldier is released from his or her professional military service obligations following: … a finding of unfitness for service by the military medical commission. …’

15Article 229(2) of that law provides:‘Release from professional military service obligations in [the case referred to] in Article 226 [point 3] shall take effect ipso jure from the date on which the relevant judgment has become res judicata or from the date on which the decision has become final, or from the date on which the circumstances giving rise to release from professional military service occurred, subject to Article 233. …’

16Under Article 233 of that law:‘In the event that a military court judge or a prosecutor for military affairs who is a professional soldier is discharged from professional military service, he or she shall remain in his or her position as a judge or prosecutor in the respective organisational entity of the court or of the prosecutor’s office irrespective of the number of positions in those entities. …’

The amending law

17Article 10 of the ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw (Law amending the Civil Code and certain other laws) of 28 July 2023 (Dz. U., item 1615) (the ‘amending law’) amended Article 233 of the Law on the defence of the homeland as follows:‘When a military prosecutor, who is a professional soldier, is released from the obligations of his or her professional military service, he or she shall be retained in his or her post as prosecutor in the organisational entity concerned of the public prosecutor’s office, regardless of the existing number of prosecutor posts in that entity.’

18Under the terms of Article 13 of that law:‘A military court judge who has been released from his or her professional military service obligations and who remains in his or her position as a judge on the date on which this law comes into force shall be retired with effect from that date.’

19Pursuant to Article 14 of that law, Articles 10 and 13 thereof came into force on 15 November 2023.

The disputes in the main proceedings and the questions referred for a preliminary ruling

20P. B. and R. S., who are career soldiers, are the subject of the criminal proceedings in the main proceedings for, in relation to the first, stealing fuel and, in relation to the second, failing to comply with his or her obligation to be present in his or her military unit. In two separate judgments, the Wojskowy Sąd Garnizonowy w Warszawie (Garrison Military Court, Warsaw, Poland) found P. B. and R. S. guilty of those offences. The former was sentenced to pay a ‘daily fine’, while the latter was granted a conditional suspension of the sentence and a probationary period of one year.

21P. B. and R. S. appealed against those judgments to the Wojskowy Sąd Okręgowy w Warszawie (Regional Military Court, Warsaw, Poland), which is the referring court. Both cases were assigned to a single-judge formation of that court, composed of Judge P.R., who held a hearing on 25 October 2023 in the case concerning P. B. and on 9 November 2023 in the case concerning R. S.

22In its references for a preliminary ruling, the referring court states that, having been appointed to that court on 29 January 2013, Judge P.R. was declared unfit for professional military service in July 2017 on account of his state of health, although he or she was declared fit to continue to perform his or her duties as a judge. In addition, in accordance with Article 35(4) of the Law on military courts, that judge applied for a transfer to an equivalent position as a judge in an ordinary court.

23On 25 July 2017, the KRS proposed to the President of the Republic of Poland that the request be granted. However, on 27 December 2021, more than four years later, the latter refused to appoint Judge P.R. to the post requested.

24Moreover, in December 2019 the Minister for Justice submitted a proposal for the retirement of Judge P.R. to the KRS, which refused to grant it on the ground that he or she had not been declared unfit to perform the duties of a judge. A similar request had been made in January 2022 by the Minister for Defence, but on 12 June 2023, the KRS refused to order such a measure on the grounds that, on 24 April 2022, Article 233 of the Law on the defence of the homeland had come into force, allowing any military magistrate who had been released from his or her professional military service obligations to continue to perform his or her duties.

25For the same reason, the President of the Wojskowy Sąd Okręgowy w Warszawie (Regional Military Court, Warsaw) released Judge P.R. from his or her professional military service obligations and retained that judge in his or her duties in the referring court, where he or she sat again from March 2023.

26However, by the amending law, the Sejm Rzeczypospolitej Polskiej (Sejm of the Republic of Poland), first, amended Article 233 of the Law on the defence of the homeland to the effect that the possibility of a military court judge being retained in office after being released from the obligations of professional military service now applied only to military prosecutors and, secondly, provided that any judge who had been released from his or her professional military service obligations, but who had been retained in office on the date on which the amending law came into force, would be automatically retired on the latter date.

27The referring court has doubts as to whether, following that legislative amendment, it meets the criteria of an ‘independent and impartial tribunal previously established by law’, within the meaning of EU law.

28In that regard, it claims that the provision which abolished the possibility for a military court judge to remain in his or her post when he or she has been released from the obligations of his or her professional military service, while maintaining it for military prosecutors who are in a similar situation, was adopted without any overriding public interest or even the slightest justification and in breach of Article 180(3) of the Constitution, which provides for the early retirement of a judge only in the event of illness or infirmity rendering him or her incapable of performing his or her duties.

29That measure of early retirement to which Judge P.R. is subject as a result of the amending law has an impact on the independence and impartiality of the referring court and, consequently, on the legality of the criminal proceedings brought against P. B. and R. S. and on respect for the presumption of innocence, which Directive 2016/343 is intended to guarantee.

30The referring court further states that the provisions of Articles 10 and 13 of the amending law have no connection with the original purpose of that law, which was unrelated to the organisation of the judiciary.

31It adds that no review of the constitutionality of those provisions can be carried out, given the current composition and case-law of the Trybunał Konstytucyjny (Constitutional Court, Poland), and that no judicial review is possible in respect of the compulsory retirement order against Judge P.R.

32Lastly, it claims that Articles 10 and 13 of the amending law were in fact ad hominem provisions aimed solely at Judge P.R. The introduction of those provisions was explained by the Polish Government’s wish to oust that judge on account of his or her public stance in favour of the rule of law and his or her previous activities as Vice-President of the KRS in its former composition. Judge P.R. was the victim of harassment by both the public authorities and the media close to the government. False information concerning his or her private life was circulated and criminal proceedings were brought against him or her without foundation. In addition, that judge was dismissed without cause from his or her position as President of the Wojskowy Sąd Garnizonowy w Warszawie (Garrison Military Court, Warsaw) and subjected to pressure to retire early.

33In that context, the referring court questions, in the first place, whether EU law precludes the retirement measure provided for by the amending law when, first of all, that measure concerns only one judge and does not apply to military prosecutors, who are in a situation similar to that of that judge, and that provision is included in a law which does not concern the organisation of the courts. Next, that measure was not justified on any grounds of public interest and was, on the contrary, punitive in nature in respect of the judge concerned, who would find him or herself exposed to the vindictiveness of the executive because of his or her activities aimed at protecting the independence of judges. Lastly, the judge has no means of appealing against his or her early retirement.

34In the second place, the referring court asks whether EU law allows it provisionally to suspend the application of Articles 10 and 13 of the amending law until the Court has answered its questions referred for a preliminary ruling. In that regard, that court, which states that Polish law does not provide a mechanism for suspending those provisions, considers that such a measure, which would enable Judge P.R. to continue to exercise his or her judicial functions pending the judgment of the Court, is the only one capable of ensuring the full effectiveness of EU law.

35In the third and last place, that court asks whether, if the Court were to hold that the second subparagraph of Article 19(1) TEU precludes the application of Article 13 of the amending law, it would then be required to disapply that provision and whether, as a result, Judge P.R. would not be retired.

36In those circumstances, the Wojskowy Sąd Okręgowy w Warszawie (Regional Military Court, Warsaw) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling in Case C‑646/23:(1) Must the second subparagraph of Article 19(1) [TEU] and Article 47 of [the Charter], read in conjunction with the provisions of [Directive 2016/343] be interpreted as precluding a provision of national law such as Article 13 or Article 10 [of the amending law], which provides for the retirement by operation of law of a judge hearing an appeal in a case subject to the provisions of [Directive 2016/343], in a situation where: (i) the provision is structured in such a way as to apply to only one of all active judges; (ii) the provision does not apply to prosecutors in an analogous situation, even though prosecutors and judges in situations analogous to that of the judge hearing the appeal were treated in the same way under the previously applicable laws; (iii) the law in which that provision is included does not concern the organisation of courts, but a completely different matter, and its explanatory memorandum offers no explanation of the reasons for the introduction of the provision, does not indicate any compelling public interest that its introduction would serve, and does not justify the reasons why its introduction would be proportionate to those aims; and (iv) neither the provision concerned nor any other provision of national law provides for the possibility for a court or any other body to hear an appeal or any other legal remedy of a judge affected by that provision in order to verify the legitimacy of his or her retirement or the compatibility of the provision with higher-ranking provisions of national law or provisions of EU or international law?(2) Is it relevant to the answer to Question 1 that the judge to whom [Article 13 of the amending law] applies had previously, because of his activities aimed at protecting the independence of courts and the independence of judges, been subject to repression by the executive, which attempted to retire him on the basis of previously applicable laws, and the aforementioned provision of national law was enacted due to the failure of those attempts? Is it relevant to the answer that, in the view of the referring court, the provision concerned does not serve any compelling public interest, but is repressive in nature?(3) Must the second sentence of Article 19(1) TFEU, Article 47 of the Charter, [Article 2 and Article 4(3)] TEU and the principles of the primacy of [EU law] and effective judicial review, in [the] light of the judgment of the Court of Justice of 13 March 2007 in Unibet, C‑432/05[, EU:C:2007:163], be interpreted as meaning that a court which includes the judge referred to in Questions 1 and 2 is entitled to suspend of its own motion[,] the application of the provision of national law referred to in Question 1 that provides for his retirement and to continue to adjudicate in this and other cases pending a response from the Court of Justice, in so far as that court considers it necessary for the case pending before it to be decided in accordance with the applicable provisions of [EU law]?(4) Must the provisions and principles referred to in Question 3 be interpreted as meaning that if the Court of Justice, taking into account the circumstances indicated in Question 2, answers Question 1 in the affirmative, the provision of national law referred to in Question 1 that provides for the judge’s retirement cannot be applied and the judge shall not be retired unless there is another legal basis for his retirement?’

37In Case C‑661/23, that court also decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Must EU law, including Article 2 [TEU] and the value of the rule of law enshrined therein, as well as the second subparagraph of Article 19(1) thereof, read in conjunction with Article 47 of [the Charter], be interpreted as precluding provisions of national law such as:(a) Article 233 of [the Law on the defence of the homeland], as amended by the [amending law], pursuant to which a national military court judge is to be deprived of his or her right to remain in the position of judge at a given court after being discharged from professional military service (including as a result of being declared permanently unfit for professional military service), which includes the right to sit on the adjudicating panels of that court in cases assigned to him or her prior to the entry into force of those provisions;(b) Article 13 of the [amending law], pursuant to which, upon the entry into force of the provisions referred to in point (a) above, a national military court judge who is discharged from professional military service in the circumstances described above is to be retired by operation of law?Is the fact that the provision referred to in point (b) concerns, and will continue to concern, only a single judge sitting on the panel of the referring court (ad hominem law), and that at the same time prosecutors have retained their similar right to remain in the position of prosecutor for military affairs despite being discharged from professional military service, relevant to the answer to be given to this question?(2) Must EU law, including the provisions indicated in Question 1, be interpreted as meaning that the retirement by operation of law of a national military court judge, in the circumstances referred to in that question, is ineffective, as a result of which that judge may continue to sit on the panel of the referring court, and all state bodies, including judicial bodies, are obliged to enable him or her to continue to sit on that panel in accordance with the previously existing rules?(3) Must EU law – including (i) Article 2 TEU and the value of the rule of law enshrined therein, Article 4(3) TEU and the principle of sincere cooperation enshrined therein, the second subparagraph of Article 19(1) TEU, Article 267 TFEU, and the principles of effectiveness and primacy, and (ii) Article 2 TEU and the value of democracy enshrined therein, Article 4(2) TEU, and the principle of the separation of powers – be interpreted as meaning that the power, or obligation, of a national court to suspend the application of provisions of national law, including statutory provisions, which are the subject of the reference for a preliminary ruling derives directly from EU law?Is the fact that national law does not provide for the possibility of suspension of the application of provisions of national law by the court which has made a reference for a preliminary ruling, and that a ruling ordering such suspension, until the referring court has taken into account the points of interpretation of EU law contained in the Court’s response to that reference, is necessary in the circumstances of the case in the main proceedings, relevant to the answer to be given to this question?’

The proceedings before the Court

The joinder of the cases

38By decision of the President of the Court of 6 December 2023, Cases C‑646/23 and C‑661/23 were joined for the purposes of the written and oral phases of the proceedings and of the judgment.

The requests for application of the expedited preliminary ruling procedure

39The referring court has asked the Court to subject the present references for a preliminary ruling to the expedited procedure laid down in Article 105 of the Rules of Procedure of the Court of Justice.

40In support of those claims, it claimed, in essence, that the questions referred for a preliminary ruling concern the fundamental right to effective judicial protection before an independent and impartial tribunal established in advance by law and that such essential considerations justify a prompt reply from the Court.

41Under Article 105(1) of the Rules of Procedure, at the request of the referring court or, exceptionally, of his or her own motion, the President of the Court may, where the nature of the case requires that it be dealt with without delay, after hearing the Judge-Rapporteur and the Advocate General, decide to make a reference for a preliminary ruling subject to an expedited procedure derogating from the provisions of those rules.

42By order of 30 January 2024, Lita (C‑646/23 and C‑661/23, EU:C:2024:107), the President of the Court decided, after hearing the Judge-Rapporteur and the Advocate General, that the requests that the present references for preliminary rulings be made under the expedited procedure should be rejected on the grounds, first, that the national legislation providing for the compulsory retirement, on 15 November 2023, of a military court judge declared unfit for professional military service affected only one military judge and not a significant number of magistrates, so that the application of that legislation was not liable to call into question the operation of the Polish judicial system in a systemic manner and, secondly, that the use of an expedited procedure would not have enabled the Court to give a decision within a period which would have enabled the referring court to determine the disputes in the main proceedings before the entry into force of that legislation.

Developments subsequent to the submission of the references for a preliminary ruling

43By letter of 19 April 2024, the referring court stated that Judge P.R. had applied to the Sąd Rejonowy dla Warszawy-Śródmieścia w Warszawie (District Court, Śródmieście, Warsaw, Poland) for a declaration of the existence of his or her employment relationship and that, following precautionary measures adopted by that court, he or she had been temporarily reinstated in his or her judicial functions by the President of the Wojskowy Sąd Okręgowy w Warszawie (Regional Military Court, Warsaw).

44In response to a request for information from the Court, the referring court, however, stated that, in the proceedings concerning the assessment of the existence of an employment relationship in respect of Judge P.R., the Sąd Rejonowy dla Warszawy-Śródmieścia w Warszawie (District Court, Śródmieście, Warsaw) could not rule on the validity of Articles 10 and 13 of the amending law or call into question the effects already produced by those provisions.

45On 29 January 2025 the referring court forwarded to the Court an order of 7 January 2025 by which the Sąd Rejonowy dla Warszawy-Śródmieścia w Warszawie (District Court, Śródmieście, Warsaw) stayed the proceedings pending before it pending the Court’s decision.

The jurisdiction of the Court

46As a preliminary point, it should be borne in mind that, according to settled case-law, the Court itself must examine the circumstances in which cases are referred to it by the national court in order to assess whether it has jurisdiction or whether the request submitted to it is admissible (judgment of 11 July 2024, Hann-Invest and Others, C‑554/21, C‑622/21 and C‑727/21, EU:C:2024:594, paragraph 29 and the case-law cited).

47The questions referred for a preliminary ruling concern the interpretation of the second subparagraph of Article 19(1) TEU, read in conjunction with Articles 2 and 4 TEU and Directive 2016/343, and the interpretation of Article 47 of the Charter.

48As regards, in the first place, the second subparagraph of Article 19(1) TEU, that provision is intended to apply, from a substantive point of view, to any national judge or court capable of ruling on questions concerning the interpretation or application of EU law and which therefore fall within the fields covered by EU law, within the meaning of that provision (see, to that effect, judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraphs 32 to 40; of 26 March 2020, Miasto Łowicz and Prokurator Generalny, C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 34; and of 25 February 2025, Sąd Rejonowy w Białymstoku and Adoreikė, C‑146/23 and C‑374/23, EU:C:2025:109, paragraph 34 and the case-law cited).

49It is clear from the information contained in the requests for a preliminary ruling, confirmed by the explanations provided by the Polish Government in its written observations, that that is the case in the present case with the referring court, which may be called upon, in its capacity as a military court, to rule on questions relating to the application or interpretation of EU law.

50As regards, in the second place, Article 47 of the Charter, it is settled case-law that, in the context of a reference for a preliminary ruling under Article 267 TFEU, the Court may interpret EU law only within the limits of the powers conferred on it (judgment of 6 March 2025, D.K. (Withdrawal of cases from a judge), C‑647/21 and C‑648/21, EU:C:2025:143, paragraph 37 and the case-law cited).

51Article 51(1) of the Charter provides that its provisions are addressed to the Member States only when they are implementing EU law, the latter provision confirming the settled case-law according to which the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations (judgment of 14 November 2024, S. (Modification of the formation of the court), C‑197/23, EU:C:2024:956, paragraph 37 and the case-law cited).

52In the present case, the referring court has not provided any indication that the cases in the main proceedings concern the interpretation or application of a rule of EU law which is implemented at national level. Indeed, even though the first question in Case C‑646/23 refers to Directive 2016/343, that question is not raised in the light of the provisions of that directive and the referring court provides no explanation as to the link which would exist between that directive and the present case (see, by analogy, judgment of 6 March 2025, D.K. (Withdrawal of cases from a judge), C‑647/21 and C‑648/21, EU:C:2025:143, paragraph 39).

53Therefore, in accordance with Article 51(1) of the Charter, Article 47 thereof is not, as such, applicable to those cases.

54Nevertheless, since the second subparagraph of Article 19(1) TEU requires all Member States to establish such legal remedies as are necessary to ensure effective judicial protection in the fields covered by EU law, in particular within the meaning of Article 47 of the Charter, that provision must be duly taken into account for the purposes of interpreting the second subparagraph of Article 19(1) TEU (see, to that effect, the judgments of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions), C‑824/18, EU:C:2021:153, paragraph 143, and of 25 February 2025, Sąd Rejonowy w Białymstoku and Adoreikė, C‑146/23 and C‑374/23, EU:C:2025:109, paragraph 43 and the case-law cited).

55The Court therefore has jurisdiction to answer the questions referred by the referring court.

The questions referred for a preliminary ruling

The first two questions in Case C‑646/23 and the first question in Case C‑661/23

56By its first two questions in Case C‑646/23 and the first question in Case C‑661/23, which must be considered together, the referring court asks, in essence, whether the second subparagraph of Article 19(1) TEU must be interpreted as precluding national legislation which provides for the compulsory early retirement, as from the entry into force of that legislation, of a military judge declared unfit for professional military service, in circumstances where, first of all, that legislation does not explain the reasons justifying the introduction of its provisions or indicate any public interest which they serve and, next, that legislation does not apply to military prosecutors declared unfit for professional military service, whereas those two categories of judges were previously subject to the same rules, and in fact affects only one judge, while forming part of a series of measures taken in respect of that judge, having the nature of a sanction and, finally, no judicial remedy is available to the judge to challenge the measure of compulsory early retirement to which he or she is thus subject.

57In order to answer those questions, it should be noted, in the first place, that, under the second subparagraph of Article 19(1) TEU, Member States are to establish such legal remedies as are necessary to ensure that individuals enjoy their right to effective judicial protection in the areas covered by EU law.

58The principle of effective judicial protection to which that article refers is a general principle of EU law enshrined, in particular, in Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (the ECHR), to which the second paragraph of Article 47 of the Charter corresponds.

59Furthermore, in so far as the Charter sets out rights corresponding to those guaranteed by the ECHR, Article 52(3) of the Charter is intended to ensure the necessary consistency between the rights contained in the Charter and the corresponding rights guaranteed by the ECHR, without that undermining the autonomy of EU law. According to the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17), the second paragraph of Article 47 of the Charter corresponds to Article 6(1) ECHR. The Court must therefore ensure that the interpretation which it gives in the present cases provides a level of protection which does not infringe that guaranteed by Article 6(1) ECHR, as interpreted by the European Court of Human Rights (see, by analogy, judgments of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraphs 47 and 77; of 11 July 2024, Hann-Invest and Others, C‑554/21, C‑622/21 and C‑727/21, EU:C:2024:594, paragraph 46; and of 6 March 2025, D.K. (Withdrawal of cases from a judge), C‑647/21 and C‑648/21, EU:C:2025:143, paragraphs 64 and the case-law cited).

60In the second place, as is clear from the case-law, in order to ensure that a court or tribunal which is called upon to rule on questions relating to the application or interpretation of EU law is able to provide the effective judicial protection required under the second subparagraph of Article 19(1) TEU, the preservation of its independence is of paramount importance, as confirmed by the second paragraph of Article 47 of the Charter, which lists access to an ‘independent’ court or tribunal among the requirements linked to the fundamental right to an effective remedy (see, to that effect, judgments of 27 February 2018, Associação Sindical dos Juízes Portugueses, C‑64/16, EU:C:2018:117, paragraph 41, and of 7 September 2023, Asociaţia ‘Forumul Judecătorilor din România’, C‑216/21, EU:C:2023:628, paragraph 61 and the case-law cited).

61That requirement of independence of the courts, which is inherent in the task of adjudication, is part of the essential content of the right to effective judicial protection and the fundamental right to a fair trial, which are of cardinal importance as guarantees of the protection of all the rights which individuals derive from EU law and of the preservation of the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law (see, to that effect, judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraphs 48 and 63, and of 6 March 2025, D.K. (Withdrawal of cases from a judge), C‑647/21 and C‑648/21, EU:C:2025:143, paragraph 66 and the case-law cited).

62The Court has thus held that these guarantees presuppose the existence of rules, in particular as regards the composition of the body, the appointment, the term of office and the grounds for abstention, challenge and dismissal of its members, which enable any legitimate doubt to be removed, in the minds of litigants, as to the imperviousness of that body to external factors and as to its neutrality in relation to the conflicting interests (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 66, and of 13 January 2022, Minister Sprawiedliwości, C‑55/20, EU:C:2022:6, paragraph 65 and the case-law cited).

63Furthermore, as is clear from established case-law, the freedom of the judges from all external intervention or pressure, which is essential, requires certain guarantees appropriate for protecting the individuals who have the task of adjudicating in a dispute, such as guarantees against removal from office (judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 64, and of 13 January 2022, Minister Sprawiedliwości, C‑55/20, EU:C:2022:6, paragraph 66 and the case-law cited).

64The principle of irremovability, the cardinal importance of which has been stressed by the Court on several occasions, requires, in particular, that judges should be able to remain in office until they reach the mandatory retirement age or until the expiry of their term of office where that term is fixed. Although that principle is not absolute, exceptions may only be made if there are legitimate and compelling reasons for doing so, in accordance with the principle of proportionality. Thus, it is commonly accepted that judges may be removed from office if they are unfit to continue to hold office because of incapacity or serious misconduct, subject to compliance with appropriate procedures (judgments of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C‑619/18, EU:C:2019:531, paragraph 76; of 5 November 2019, Commission v Poland (Independence of ordinary courts), C‑192/18, EU:C:2019:924, paragraph 113; and of 17 May 2024, NADA and Others, C‑115/22, EU:C:2024:384, paragraph 43 and the case-law cited).

65The guarantee of irremovability of members of a court thus requires that the cases in which its members may be dismissed be determined by specific rules, by means of express legislative provisions offering guarantees going beyond those provided for by the general rules of administrative law and employment law which apply in cases of unfair dismissal (see, to that effect, judgment of 17 May 2024, NADA and Others, C‑115/22, EU:C:2024:384, paragraph 44 and the case-law cited).

66In the third place, it follows from the case-law that a Member State may not amend its legislation in such a way as to entail a diminution in the protection of the value of the rule of law, a value which is embodied, in particular, in Article 19 TEU. The Member States are thus required to ensure that their legislation on the organisation of justice does not regress in relation to that value, by refraining from adopting rules which would undermine the independence of judges (see, to that effect, judgments of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, paragraphs 63 and 64, and of 7 September 2023, Asociaţia ‘Forumul Judecătorilor din România’, C‑216/21, EU:C:2023:628, paragraph 69, and the case-law cited).

67In that context, the Court has already held, in essence, that the second subparagraph of Article 19(1) TEU must be interpreted as precluding national provisions relating to the organisation of the judiciary which are liable to constitute a step backwards, in the Member State concerned, in the protection of the value of the rule of law, in particular the guarantees of the independence of judges (judgment of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, paragraph 65 and the case-law cited).

68In the present case, it is clear from the information provided by the referring court that the national legislation at issue in the main proceedings, which governs the situation of a military judge declared unfit for professional military service, has undergone several successive amendments.

69In a first stage, under Article 35(4) of the Law on military courts, a military judge who found him or herself in such a situation could apply to the KRS to propose to the President of the Republic of Poland that he or she be appointed to an equivalent post in an ordinary court, and the President then had a discretionary power to make such an appointment.

70In a second stage, the Polish legislature introduced, in Article 233 of the Law on the defence of the homeland, which came into force on 23 March 2022, the rule that a military judge or prosecutor released from the obligations of professional military service was to be retained by operation of law in the functions he or she performed.

71In a third stage, that rule on continuance in office was abolished, in the case of military judges, by the amendment made to Article 233 of the Law on the defence of the homeland by Article 10 of the amending law. It is apparent from the explanations provided by the Polish Government in its written observations that that amendment resulted in a return to the state of the law prior to the entry into force of the Law on the defence of the homeland, with the result that military judges released from their obligations of professional military service may, in principle, again apply to be appointed by the President of the Republic of Poland, on a proposal from the KRS, to an equivalent post in an ordinary court on the basis of Article 35(4) of the Law on military courts. However, pursuant to Article 13 of the amending law, an exception is made to that principle for military judges who have been released from their professional military service obligations before the date on which that law came into force, namely, 15 November 2023, but who have been retained as military judges in accordance with Article 233 of the Law on the defence of the homeland. In application of that Article 13, the judges concerned are automatically retired with effect from the date of entry into force of the amending law.

72It is for the referring court to determine whether those national rules, which introduced, in the circumstances referred to in the preceding paragraph, a measure of early retirement for military judges released from their professional military service obligations, infringe the requirements arising from the principle of the independence of judges, as set out in the second subparagraph of Article 19(1) TEU. It should be borne in mind that Article 267 TFEU does not empower the Court to apply the rules of EU law to a particular case, but only to rule on the interpretation of the Treaties and of acts adopted by the EU institutions. However, in accordance with settled case-law, the Court may, in the context of the judicial cooperation established by Article 267 TFEU, on the basis of the material in the case file before it, provide the referring court with such guidance as to the interpretation of EU law as may be of assistance to it in assessing the effects of a particular provision of that law (judgment of 17 October 2024, NFŠ, C‑28/23, EU:C:2024:893, paragraph 39 and the case-law cited).

73First, it is apparent from the references for a preliminary ruling and the observations of the Polish Government that no reason can be found, in particular in the preparatory work for the amending law, to justify the national legislation providing for the compulsory early retirement, on 15 November 2023, of military judges who, although having been released from their professional military service obligations, had been retained in their duties as military judges. In addition, it appears that that law applies only to military judges and not to military prosecutors, whereas those two categories of magistrates were previously subject to the same rules for remaining in office after being released from their professional military service obligations. It also follows that that difference in treatment was not justified by the Polish legislature in the light of the existence of an objective difference in situation between those two categories of judges, in relation to the purposes of that legislation. In those circumstances, and subject to the verifications incumbent on the national court, it appears that national legislation such as that at issue in the main proceedings disregards the requirement, referred to in paragraph 64 of the present judgment, that exceptions to the principle of the irremovability of judges must be justified on legitimate and compelling grounds.

74Second, according to the information contained in the references for a preliminary ruling and confirmed by the Polish Government in its written observations, the amending law is the result of a parliamentary amendment, without any link whatsoever being established between that amendment concerning military courts and the subject matter of the initial draft law. Secondly, Article 13 of that law, in fact, affected only Judge P.R. Only the latter found him or herself in the position of a military judge who, on 15 November 2023, had been retained in his or her functions within a military court after having been exempted from his or her professional military service obligations. In such a case, the regulation in question, while taking the form of a provision of general application, is in fact an individual measure.

75In that regard, the European Court of Human Rights, in accordance with its settled case-law, has emphasised, in particular, in paragraphs 59 and 115 to 117 of the judgment of 23 June 2016, Baka v. Hungary (CE:ECHR:2016:0623JUD002026112), in essence, that interference with the exercise of a right must in principle be based on an instrument of general application.

76Third, it is apparent both from the references for a preliminary ruling and from the Polish Government’s written observations that the measure of early retirement of Judge P.R. was adopted not because of that judge’s inability to continue in office as a result of incapacity or a serious breach of his duties, but because of the criticisms publicly expressed by that judge regarding the reform of the justice system in Poland. As the Commission points out in its written observations, the development of that judge’s career and status, summarised in paragraphs 22 to 26 of the present judgment, also tend to confirm the existence of a causal link between, first, the exercise by that judge of his or her freedom of expression on matters relating to the reforms of the Polish judicial system and, secondly, the early retirement measure to which he was subject pursuant to Article 13 of the amending law. Accordingly, subject to the verifications which it is for the referring court to carry out, that measure appears to be one of a series of measures taken in respect of that judge which have the nature of a penalty.

77Fourth, it is apparent from the information contained in the references for a preliminary ruling that, while Article 73(2) and (3) of the Law on the ordinary courts provides that an appeal may be brought against a decision compulsorily to retire a judge early on the ground that he is unfit to perform his or her duties, the amending law does not provide for any remedy for a judge who is compulsorily retired early pursuant to Article 13 of that law, justified not by his or her unfitness to perform the duties of a judge but by his or her unfitness for professional military service. Subject to the verifications which it is for the referring court to carry out, that assessment does not appear to be contradicted by the fact that Judge P.R. was able to bring an action before the Sąd Rejonowy dla Warszawy-Śródmieścia w Warszawie (District Court, Śródmieście, Warsaw) for a declaration that his or her employment relationship existed. As is apparent from paragraph 44 of the present judgment, in response to the Court’s request for information, the referring court stated that a decision finding that Judge P.R.’s employment relationship had not been terminated would be limited in scope, since it would entail neither the retroactive annulment of the effects already produced by the measure of early retirement pursuant to Article 13 of the amending law nor the reinstatement of that judge in his or her judicial functions within the court in which he or she exercised his or her functions.

78It is clear from the case-law of the European Court of Human Rights that members of the judiciary are entitled to protection against arbitrariness and that only review of the lawfulness of a decision to dismiss them by an independent judicial body can make that right effective (see, to that effect, ECtHR, 24 October 2023, Pająk and Others v. Poland, CE:ECHR:2023:1024JUD002522618, paragraph 194 and the case-law cited).

79Fifth, by abolishing the right of a military judge who has been released from the obligations of his or her professional military service to continue to perform his or her duties within the military court to which he or she had been appointed and by requiring the early retirement, on 15 November 2023, of the military judge who had thus been retained in his or her duties by virtue of the law, the provisions of Articles 10 and 13 of the amending law are, subject to the verifications which it is for the referring court to carry out, such as to entail a regression in Polish legislation on the organisation of justice, contrary to the principle of non-regression referred to in paragraphs 66 and 67 of the present judgment.

80Having regard to all of the foregoing considerations, the answer to the first two questions in Case C‑646/23 and the first question in Case C‑661/23 is that the second subparagraph of Article 19(1) TEU must be interpreted as precluding national legislation which provides for compulsory early retirement, as from the entry into force of those rules, of a military judge declared unfit for professional military service, in circumstances where, first of all, those rules do not explain the reasons justifying the introduction of their provisions or indicate any public interest to which they respond, next, those rules do not apply to military prosecutors declared unfit for professional military service, whereas those two categories of magistrates were previously subject to the same rules, and in fact affects only one judge, while forming part of a series of measures, taken in respect of that judge, having the nature of a sanction and, finally, no judicial remedy is available to that judge to challenge the measure of compulsory early retirement to which he or she is thus subject.

The second question in Case C‑661/23 and the fourth question in Case C‑646/23

81By its second question in Case C‑661/23 and its fourth question in Case C‑646/23, the referring court asks, in essence, whether the second subparagraph of Article 19(1) TEU and the principle of primacy of EU law must be interpreted as requiring a national court and any other authority of the Member State concerned to disapply national legislation requiring the early retirement of a judge, where that legislation has been adopted in breach of the second subparagraph of Article 19(1) TEU, and if it follows that the judge retired pursuant to that legislation must be reinstated in his or her office.

82In order to answer those questions, it should be borne in mind that, according to settled case-law, the principle of the primacy of EU law establishes the pre-eminence of that law over the law of the Member States. That principle therefore requires all Member State bodies to give full effect to the various EU provisions, and the law of the Member States may not undermine the effect accorded to those provisions in the territory of those States (judgments of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraphs 157 and 158, and of 6 March 2025, D.K. (Withdrawal of cases from a judge), C‑647/21 and C‑648/21, EU:C:2025:143, paragraph 88 and the case-law cited).

83That principle thus imposes, inter alia, on any national court responsible for applying, within the scope of its jurisdiction, the provisions of EU law, the obligation to ensure that the requirements of that law have full effect in the dispute before it by, if necessary, disapplying, on its own authority, any national legislation or practice which is contrary to a provision of EU law having direct effect, without its having to seek or await the prior elimination of that national legislation or practice by legislation or by any other constitutional process (judgments of 9 March 1978, Simmenthal, 106/77, EU:C:1978:49, paragraph 24; of 24 June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph 58; and of 6 March 2025, D.K. (Withdrawal of cases from a judge), C‑647/21 and C‑648/21, EU:C:2025:143, paragraph 89 and the case-law cited).

84The second subparagraph of Article 19(1) TEU, interpreted in the light of Article 47 of the Charter, which imposes on the Member States a clear and precise obligation as to the result to be achieved and which is not subject to any conditions, in particular as regards the independence and impartiality of the courts called upon to interpret and apply EU law and the requirement that those courts must be previously established by law, has direct effect which means that any provision, case-law or national practice contrary to those provisions of EU law, as interpreted by the Court, must be disapplied (judgment of 6 March 2025, D.K. (Withdrawal of cases from a judge), C‑647/21 and C‑648/21, EU:C:2025:143, paragraph 90 and the case-law cited).

85The Court has held, in the context of a measure suspending a judge from office, taken by a disciplinary body in breach of the second subparagraph of Article 19(1) TEU, that the national court, in order to comply in particular with the obligations referred to in paragraphs 82 to 84 of the present judgment, must disapply that measure where that is indispensable in the light of the procedural situation in question in order to guarantee the primacy of EU law (see, to that effect, judgment of 13 July 2023, YP and Others (Lifting of a judge’s immunity and his or her suspension from duties), C‑615/20 and C‑671/20, EU:C:2023:562, paragraph 65 and the case-law cited).

86That interpretation also applies in the comparable context of the cases in the main proceedings, characterised by the adoption of legislation requiring the early retirement of a judge in breach of the second subparagraph of Article 19(1) TEU.

87Since, in proceedings under Article 267 TFEU, the final assessment of the facts and the application and interpretation of national law is a matter for the referring court alone, it is for that court to determine the concrete consequences arising, in the main proceedings, from the principle noted in the preceding paragraph. However, as pointed out in paragraph 72 of the present judgment, the Court may, on the basis of the material in the case file before it, provide that court with any guidance as to the interpretation of EU law which it may require for that purpose.

88In that regard, it follows from the answer to the first two questions in Case C‑646/23 and the first question in Case C‑661/23 that the primacy and direct effect of the second subparagraph of Article 19(1) TEU require the referring court to disapply national legislation which, contrary to that provision, requires the early retirement of the single judge sitting on it. That court must also be able to continue, in the same composition, to examine the proceedings before it on the date of the retirement of that judge, who must therefore be reinstated in his duties, the judicial bodies competent to determine and amend the composition of the national court being required to ensure that reinstatement (see, by analogy, judgments of 13 July 2023, YP and Others (Lifting of a judge’s immunity and his or her suspension from duties), C‑615/20 and C‑671/20, EU:C:2023:562, paragraph 72, and of 6 March 2025, D.K. (Withdrawal of cases from a judge), C‑647/21 and C‑648/21, EU:C:2025:143, paragraph 95 and the case-law cited).

89The answer to the second question in Case C‑661/23 and the fourth question in Case C‑646/23 is therefore that the second subparagraph of Article 19(1) TEU and the principle of the primacy of EU law must be interpreted as requiring a national court or tribunal and any other authority of the Member State concerned to disapply national legislation requiring the early retirement of a judge, where those rules have been adopted in breach of the second subparagraph of Article 19(1) TEU, which means that a judge retired pursuant to those rules must be reinstated in his or her office. The judicial bodies responsible for determining and amending the composition of panels are required to ensure such reinstatement.

The third questions in Cases C‑646/23 and C‑661/23

90By its third questions in Cases C‑646/23 and C‑661/23, the referring court asks, in essence, whether the second subparagraph of Article 19(1) TEU is to be interpreted as meaning that a referring court which decides to stay proceedings and to refer questions to the Court for a preliminary ruling is entitled temporarily to suspend the application of national legislation providing for the compulsory early retirement of the single judge sitting on it, even if, under national law, it does not have the power to order such a suspension. The referring court also asks whether, if so, such a suspension implies that that judge must be authorised to continue hearing the other cases before him or her on the date on which the compulsory early retirement measure imposed on him or her took effect.

91According to settled case-law, the full effectiveness of EU law requires that the court hearing a case governed by that law be able to grant such interim measures as are necessary to ensure the full effectiveness of the judicial decision to be given on the existence of the rights relied on the basis of that law. If the national court which stays proceedings pending the Court’s reply to its question referred for a preliminary ruling were unable to grant interim measures until it has delivered its decision following the Court’s reply, the effectiveness of the system established by Article 267 TFEU would be impaired. The effectiveness of that system would also be compromised if the authority attaching to such interim relief could be disregarded, in particular, by a public authority of the Member State in which those measures were adopted (judgment of 6 October 2021, W.Ż. (Chamber of Extraordinary Control and Public Affairs of the Supreme Court – Appointment), C‑487/19, EU:C:2021:798, paragraph 142 and the case-law cited).

92The Court has also made it clear that, where appropriate, the national court must disapply the rules of domestic law which would impede that power to grant interim measures (see, to that effect, judgment of 19 June 1990, Factortame and Others, C‑213/89, EU:C:1990:257, paragraph 21, and order of the President of the Court of 25 February 2021, Sea Watch, C‑14/21 and C‑15/21, EU:C:2021:149, paragraph 32 and the case-law cited).

93It follows that the referring court must be able to suspend the application of the provisions of the amending law which have the effect of imposing an automatic retirement measure on it until it has ruled on the criminal proceedings in the main proceedings following the Court’s reply. That provisional suspension of the application of those rules and, consequently, of the measure of early retirement of the single judge composing that court, also implies that the latter cannot be deprived of jurisdiction over the other cases before it on the date on which that measure took effect for reasons connected with its application, so that it must be able to continue to examine those cases, at least during the period covered by that provisional suspension.

94In the light of the foregoing considerations, the answer to the third questions in Cases C‑646/23 and C‑661/23 is that the second subparagraph of Article 19(1) TEU must be interpreted as meaning that a national court which decides to stay proceedings and to refer questions to the Court for a preliminary ruling is entitled temporarily to suspend the application of national legislation providing for the compulsory early retirement of the single judge sitting on that court, even if, under national law, it does not have the power to order such a suspension. That provisional suspension means that the judge affected by the compulsory retirement measure must be able to continue hearing other cases before him or her on the date on which that measure takes effect.

Costs

95Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Fourth Chamber) hereby rules:

1.The second subparagraph of Article 19(1) TEUmust be interpreted as meaning that it precludes national legislation which provides for compulsory early retirement, as from the entry into force of those rules, of a military judge declared unfit for professional military service, in circumstances where, first of all, those rules do not explain the reasons justifying the introduction of their provisions or indicate any public interest to which they respond, next, those rules do not apply to military prosecutors declared unfit for professional military service, whereas those two categories of magistrates were previously subject to the same rules, and in fact affects only one judge, while forming part of a series of measures, taken in respect of that judge, having the nature of a sanction and, finally, no judicial remedy is available to that judge to challenge the measure of compulsory early retirement to which he or she is thus subject.

2.The second subparagraph of Article 19(1) TEU and the principle of primacy of EU lawmust be interpreted as meaning that they require a national court or tribunal and any other authority of the Member State concerned to disapply national legislation requiring the early retirement of a judge, where those rules have been adopted in breach of the second subparagraph of Article 19(1) TEU, which means that a judge retired pursuant to those rules must be reinstated in his or her office. The judicial bodies responsible for determining and amending the composition of panels are required to ensure such reinstatement.

3.The second subparagraph of Article 19(1) TEUmust be interpreted as meaning that a national court which decides to stay proceedings and to refer questions to the Court for a preliminary ruling is entitled temporarily to suspend the application of national legislation providing for the compulsory early retirement of the single judge sitting on that court, even if, under national law, it does not have the power to order such a suspension. That provisional suspension means that the judge affected by the compulsory retirement measure must be able to continue hearing other cases before him or her on the date on which that measure takes effect.