By lowering the retirement age of judges of ordinary courts and giving the Minister of Justice the discretion to extend the activity of these judges, Poland has failed to fulfil its obligations under European Union law, Advocate General Evgeni Tanchev stated in his Opinion delivered on Thursday 20 June (Case C-192/18).
In July 2017, Poland adopted a law lowering the retirement age for judges of ordinary courts, prosecutors and judges of the Supreme Court to 60 years for women and 65 years for men, whereas previously this age was set for both sexes at 67 years.
In addition, this law gave the Minister of Justice the discretionary power to extend the period of activity of individual judges of ordinary courts beyond the new retirement ages, whereas this power had previously been exercised by the National Judicial Council.
Considering that these rules are contrary to Article 157 of the TFEU Treaty and Directive 2006/54 on equal opportunities and equal treatment of men and women in matters of employment, the Commission has brought an action before the Court of Justice for failure to fulfil obligations.
With its conclusions, similar to those resulting from a similar case concerning the judges of the Polish Supreme Court (see EUROPE 12234/7), the Advocate General agrees with the Commission.
Mr Tanchev first rejects the Polish argument that there is no direct link between completed service time and pension benefits. According to him, in accordance with European case law requiring that pension benefits be “directly related” to the length of service, Directive 2006/54 prohibiting discrimination on grounds of sex applies and not Directive 79/7, which leaves Member States free to set a different retirement age for men and women in public social security systems.
On the Polish argument on positive discrimination, the Advocate General observes that such measures are usually aimed at facilitating women's participation in the labour market. As retired women judges do not pursue a career, the measures criticised by the Commission do not constitute positive discrimination measures, he adds. He stressed that rules perpetuating a traditional distribution of roles should not be considered as measures promoting equality.
Moreover, Mr Tanchev points out that Union law ensures the irremovability of court members, one of the essential guarantees for the independence of judges. The notion of independence implies, in particular, that the body concerned is not subject to any hierarchical relationship with anyone, nor receives instructions from any source whatsoever and is thus protected from external pressures likely to influence its decisions.
However, according to the Advocate General, lowering the retirement age of judges without providing guarantees to avoid the de facto dismissal of a judge does not satisfy the guarantee of the irremovability and independence of judges.
Finally, by transferring to the Minister of Justice the power to extend a judge's period of office and lowering the retirement age of judges, Polish law is not compatible with the objective element of impartiality as protected by the case law of the European Court of Human Rights, considers Mr Tanchev.
See conclusions: http://bit.ly/2IthVwx (Original version in French by Mathieu Bion)