On Friday 19 October, the EU Court of Justice ordered Poland to suspend "immediately" the law on lowering the retirement age of Supreme Court judges, a law that came into force in April and took effect in early July and which the European Commission immediately decided to challenge. It has also ordered a return to the situation prior to 3 April 2018.
After a letter of formal notice and a reasoned opinion, each with a deadline for replying shortened by one month, the Commission announced on 24 September (see EUROPE 12102) that it would refer the matter to the Court of Justice for provisional suspension pending a judgement. The Court accepted the urgent request submitted to it by the Commission and ordered Polish authorities to suspend the application of this law, with retroactive effect for the "Supreme Court judges affected by these provisions", the institution said.
According to this law, serving judges of the Supreme Court who had reached the age of 65 years before the date of entry into force of this law or, at the latest, on 3 July 2018, were to retire on 4 July 2018, unless they had submitted such a declaration and certificate before 3 May 2018 inclusive, and if the Polish President granted them permission to extend their term of office.
In taking his decision, the Polish President is not bound by any criteria and this decision is not subject to any judicial review, the Court also observes. The Supreme Court Act also empowers the President to decide freely, until 3 April 2019, to increase the number of judges on the Supreme Court.
The Court of Justice therefore granted all the Commission's requests, considering that the urgency procedure was legitimate, given the situation and the fact that the Commission's arguments did not seem a priori unfounded. These measures must produce "their effects before the final decision is taken, in order to avoid serious and irreparable damage to the Union's interests".
In accordance with the Commission's requests, Poland is thus ordered to: - suspend the application of the law; - ensure that the Supreme Court judges affected by the disputed provisions can exercise their functions in the same position, while enjoying the same status and enjoying the same rights and conditions of employment as before the entry into force of the Supreme Court Act; - refrain from adopting any measure to appoint Supreme Court judges in place of the Supreme Court judges affected by these provisions, as well as any measure to appoint the new first Chief Justice; - communicate to the Commission, no later than one month after notification of the order, and then on a monthly basis, all measures it has adopted to comply fully with this order.
Polish Prime Minister Mateusz Morawiecki confirmed on Friday in Brussels on the margins of the ASEM summit (see other news) that the country had received this decision and would "now analyse it". The Court also specified in its order that this decision was without prejudice to the content of the forthcoming judgement.
The Commission had done so with the forest of Białowieża, and also asked the Court to take interim measures under the threat of financial penalties (see EUROPE 11109). (Original version in French by Solenn Paulic)