THE STATE OF THE EUROPEAN UNION. Reforming Europe in a time of war

The Rule of Law Situation in the European Union 63 in the Article 7.1 procedure against Poland launched in December 2017 and which was already enunciated in the Communication of 2014 on the Rule of Law Framework as a complementary channel. Thus, on 15 March 2018 the Commission brought an action on the grounds of nonfulfillment against Po- land for the reduction in the retirement age for judges of the regular courts (C-192/18) and the assignment to the Minister of Justice of the discretionary power to extend (or not) their judicial function beyond the age of retirement, followed by another action on 2 October 2018 over the lowering of the retirement age for the judges of the Supreme Court and the assignment to the President of the Republic of the discretionary power to extend (or not) their judicial function beyond the age of retirement (C-619/18). Of the two cases, the Court gave priority to the latter for procedural reasons, ending in the judgment of 24 June 2019 28 , where the Court rejected the arguments of the Republic of Poland, which claimed that the contro- versial national rules bore no relation to EU law, with the Court arguing instead that the Polish Supreme Court may be required to settle matters linked to the application or interpretation of EU law and that, therefore, it is sub- ject to the demands of effective legal protection already explained in the case of the Association of Portuguese Judges. In this respect, the judgment emphasises the issue of the perception of litigants, which requires dis- pelling “any reasonable doubt as to its neutrality with re- spect to the interests before it” 29 . In conclusion, the Court ruled against Poland for failure to fulfil its obligations to respect Article 2 TEU; as it also did in case C-192/18 30 . The outcome of this case law reprehending Poland and declaring the legislation on lowering the retirement age of judges and the discretionary power over exten- sions of judiciary tenures to be contrary to EU law, apart from being confirmed once again as far as the discipli- 28  Judgment Commission/Poland C-619/18 (EU: C:2019:531). 29  C-619/18, paragraphs 74, 85 and 86. 30  Judgment Commission/Poland C-192/18 (EU:C:19:924). nary procedure for judges is concerned by the judgment of 15 July 2021 in Case 791/19 31 , has led to several requests for preliminary rulings being lodged by Polish judges and in the face of which the Court of Justice has been consistent in its responses, also adding a direct attack on the composition and method of appointment of the Disciplinary Chamber of the Polish Supreme Court in charge of hearing matters relating to the compulsory retirement of magistrates, considering that in its powers and because of how it is appointed the Chamber does meet the requirements of being an independent and impartial court, with abundant support from European Court of Human Rights case law 32 . In addition, this case law has been consolidated in relation to other prelimi- nary references, from Romania in particular 33 . And, finally, this development of case law has cul- minated with case C-204/21 in which the Commission has launched a fresh infringement procedure after con- sidering that the new legislation introduced in 2019 modifying the powers of the Disciplinary Chamber of the Supreme Court does not conform to the case law laid down primarily in the previously mentioned 585/18 (A.K./National Council of the Judiciary). Case 204/21 is still sub judice, but the Court has given a further twist to the EU’s response capability by imposing, via an edict from the Vice-President of the Court on 14 July 2021, interim measures consisting of the suspension of the application of the legislation modified in 2019 and, fol- lowing Poland’s failure to comply, via a new edict from 31  Judgment Commission/Poland of 15 July 2021 C-791/19 (EU:C:2021:596). 32  See in particular the judgments A.K./National Council of the Judiciary and C.P. and D.O./Supreme Court of Poland in the accumulated matters C-585/18, C-624/18 and C-625/18 /EU:C:2019:98) of 19 November 2019; A.B. and e.a./National Council of the Judiciary of 2 March 2021 C-824/18 (EU:C:2021:153). Also the judgments W.Z./ SCAP-TS of 6 October 2021 on compulsory transfer of judges C-487/19 (EU:C:2021:798) andW.B. &X.A./Prokuratura Krajowa of 16 November 2021 on secondment of judges 748/19 (EU:C:2021:931). 33  For an excellent run-through of all this anthology of case law see: Ulloa Rubio, Ignacio: La primacía del Derecho de la Unión en materia de Estado de Derecho: un repaso a la jurisprudencia del TJUE sobre la independencia judicial. La Ley. Unión Europea nº 104, June 2022, p. 1.