Advocate General Evgeni Tanchev has asked the Court of Justice of the EU to rule that the provisions of Polish legislation on lowering the retirement age of Supreme Court judges, which entered into force on 3 April 2018, are contrary to EU law (see EUROPE 11997/2), in its conclusions delivered on 11 April in case C-619/18 for which the Commission requested the accelerated procedure.
In his view, the disputed measures violate the principles of the irremovability of judges and judicial independence.
Polish law reduces the retirement age of Supreme Court judges to 65 with immediate effect for judges who have already reached this age before the law came into force. They may continue their careers beyond this age, but this extension is subject to many conditions, including the authorisation of the President of the Republic.
On 2 October 2018 (see EUROPE 12102/1), the Commission introduced an action for failure to fulfil obligations before the Court of Justice. It considered that Warsaw, by lowering the retirement age and applying it to judges appointed to the Supreme Court until 3 April 2018 and, on the other hand, by granting the President the discretionary power to extend the active judicial office of Supreme Court judges, Poland was in breach of Union law.
In his Opinion, the Advocate General considers that the irremovability of the members of the Supreme Court is one of the guarantees inherent in the independence of judges. According to him, this irremovability "is the cause and reflection of judicial independence; it means that judges may only be dismissed, suspended, transferred or retired for the few reasons provided and within the framework of the guarantees established by law".
Thus, according to the guidelines of European and international bodies on the independence of judges, they are irremovable until they reach the mandatory retirement age or the end of their term of office and can only be suspended or dismissed if they are unable to continue their duties because of incapacity or misconduct. In addition, early retirement may only be implemented at the request of the person concerned or for medical reasons and no change in the retirement age may have retroactive effect.
Mr Tanchev added that while Member States are competent to adapt the retirement age of judges taking into account societal and economic changes, they must not, in this context, compromise the independence and irremovability of judges, in violation of their obligations under Union law.
The Advocate General also recalls that the concept of "independence" presupposes, inter alia, that the body concerned exercises its judicial functions in complete autonomy, without being subject to any hierarchical relationship or subordination to anyone and without receiving orders or instructions, whatever their origin, and that it is thus protected from outside intervention or pressure likely to affect the independence of judgment of its members and to influence their decisions.
According to the Advocate General, Poland's arguments concerning the prerogatives conferred on the President of the Republic by the Polish Constitution and the system of guarantees of the independence of judges are not sufficient to dispel the impression that the Supreme Court lacks objective independence as a result of the disputed measures.
See the conclusions: https://bit.ly/2UxzOlB. (Original version in French by Camille-Cerise Gessant)