In a judgment of Monday 24 June, the judges of the Court of Justice of the European Union (CJEU) ruled in Case C-619/18 that the provisions of Polish law relating to the lowering of the retirement age of Supreme Court judges were contrary to European Union law, thus following the opinion of the Advocate General (see EUROPE 12234/7).
In April 2018, a Polish law came into force, lowering the retirement age of Supreme Court judges to 65 years. This new age limit applied retroactively from the date of entry into force of the law. The extension of the activity was possible, but it required the presentation of a declaration indicating the wish to continue to exercise, a certificate attesting a state of health in accordance with the continuation of the functions and a discretionary decision of the President of the Republic not subject to any judicial review.
The European Commission brought an action for failure to fulfil obligations against Poland in October 2018, considering that the law was contrary to EU law (see EUROPE 12102/1). Although amendments to the law were made in November 2018, the Commission maintained its action for failure to fulfil obligations.
In April this year, Advocate General Evgeni Tanchev agreed with the Commission's analysis, considering that this legislation was contrary to EU law (see EUROPE 12234/7).
While, in their judgment, the judges of the Court recall that States are free to organise justice on their territory, they point out that they [the States] must nevertheless respect the obligations arising from Union law, in particular the principle of effective legal protection. In order for the Supreme Court to be able to offer this protection, European judges consider that the preservation of its independence is essential.
In order for this independence to be maintained, a number of safeguards must be in place, including irremovability, which requires that judges may remain in post provided they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term. And only legitimate and compelling grounds, in accordance with the principle of proportionality, could justify exceptions. The Court is concerned here with verifying whether these criteria are met.
The judges in Luxembourg thus consider that the real aims of this reform are surrounded by "serious doubts". Moreover, for them, this measure appears neither appropriate to achieve the alleged objectives of harmonising the general retirement age applicable in Poland nor proportionate. Consequently, the judges consider that the application of the measure is not justified by a legitimate objective and infringes the principle of the irremovability of judges.
Secondly, the CJEU adds that the guarantees of the independence and impartiality of the courts require that they exercise their functions in complete autonomy and, therefore, by being protected against external interference or pressure. The President's discretionary power to extend the exercise of the judge's office, without this decision being subject to judicial review, is not compatible with these guarantees of independence and impartiality.
The CJEU therefore concludes that Polish legislation is incompatible with Union law.
Reactions. The European Commission reacted quickly, in a press release, to this Court ruling. "This is an important ruling in support of the independence of the judiciary in Poland and beyond. It is also a welcome clarification of the principles of irremovability and independence of judges, which are essential elements of effective legal protection in the European Union", it writes.
A Polish source stated that there would be no substantial change since "After the case was sent to the CJEU, Poland made changes in the legislation which reversed the changes in the retirement age and reinstated the judges". (Original version in French by Lucas Tripoteau with Pascal Hansens)