HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

While this argument is partly valid, it can be countered by noting that a preliminary ruling is not the only available mechanism for protecting the rule of law principle. In particular, the Commission has the authority to initiate an infringement procedure. The functionality of this mechanism is also evidenced by the fact that an infringement procedure indeed challenged the issue of disciplinary proceedings. In Commission v. Poland II. , the CJEU ruled that Poland had violated its obligations under Article 19 TEU. This mechanism is particularly effective, as it is not subject to procedural limitations related to specific cases or proceedings before the CJEU. It will be examined further in the second selected case. 2.2 Commission vs. Poland Unlike Miasto Łowicz , this case involved an infringement procedure initiated by the Commission against Poland. As previously mentioned, the Commission outlined the complaints in two points: 1. the enactment of a lower age limit for Supreme Court judges appointed before April 3, 2018, and 2. allowing the President’s discretion to enable judges to remain in active service even after reaching the set age limit. 36 CJEU first assessed whether the contested measures fell within the material scope of Article 19 TEU. In this consideration, it is unequivocally concluded that they indeed do. This conclusion was based on the nature of the Supreme Court institution, leading to the determination that it “may be called upon to rule on questions concerning the application or interpretation of EU law and that, as a ‘court or tribunal’, within the meaning of EU law, it comes within the Polish judicial system in the ‘fields covered by Union law’ within the meaning of the second subparagraph of article 19(1) TEU ”. 37 As the Advocate General correctly noted, the CJEU did not need to address the separate application of Article 47 of the Charter in this case, as the Commission failed to meet the formal justification requirements. 38 The CJEU found violations in both alleged points. The Polish government defended the measures, arguing that they aimed to harmonise and unify the retirement age. 39 The CJEU believed this goal was not genuine and that both measures were set up to exclude a particular circle of judges. 40 Consequently, the CJEU ruled that lowering the retirement age for Supreme Court judges lacked a legitimate objective. 41 Regarding the second point of the Commission’s complaint, the Polish government argued that it constitutes a measure intended to prevent interventions by the executive or legislative powers into the judicial power, as anticipated in the Polish Constitution. However, the CJEU did not conclude that this measure could be unproblematic. It

36 Ibid. § 1. 37 Ibid. § 56. 38 Ibid. § 65–67. 39 Judgement – Commission v Poland, C-619/18. § 80.

40 Ibid. § 85. 41 Ibid. § 97.

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