The Court of Justice of the European Union confirmed on Tuesday 5 November that Poland has failed to fulfil its obligations under European Union law by: - introducing a different retirement age for women and men in the Polish judiciary; - lowering the retirement age for judges on general law courts, while giving the Minister of Justice the power to extend these judges’ period of service (Case C-192/18).
In July 2017, Poland adopted a law lowering the retirement age for judges on general law courts, prosecutors and Supreme Court judges 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 for individual judges on general law courts beyond the new retirement ages, whereas this power had previously been exercised by the National Council of the Judiciary.
Invoking 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 European Commission brought an action before the Court of Justice for failure to fulfil obligations.
Relying on the reasoning of the Advocate General (see EUROPE 12279/13), the Court confirms that the Polish law of 2017 introduced discrimination on grounds of sex, in particular as regards the time at which the persons concerned have access to the benefits provided for by the pension schemes. It also rejects Poland’s argument that the measures constituted positive discrimination towards women.
Secondly, the EU judge is of the opinion that Polish law was likely to infringe on the independence of judges. In his view, the fact that the Minister of Justice has the power to grant or not grant an extension of the exercise of judicial functions beyond the normal retirement age is certainly not sufficient, in itself, to conclude that the principle of independence has been violated.
However, the Court finds that the substantive and procedural conditions surrounding that power of decision may give rise to legitimate doubts as to the imperviousness of the judges concerned with regard to external factors and, ultimately, to their neutrality. The criteria on which the Minister is called to make his decision are too vague and unverifiable, it added. Furthermore, this decision need not be justified or subject to judicial review. Finally, the Court considers that the length of time during which judges are likely to wait for the Minister’s decision is at the Minister’s discretion.
Another argument put forward by the Court is that the judges’ indispensable imperviousness to external pressure requires certain guarantees, such as their irremovability.
This principle is certainly not absolute. However, in the present case, the combination of lowering the normal retirement age for judges on general law courts and giving the Minister of Justice the discretion to extend the performance of their duties beyond the new legal age (ten years for female judges and five years for male judges) does not respect this principle, the Court considers.
It added that this combination is likely to create legitimate doubts in the minds of litigants that the new system would allow the Minister to remove certain judges while keeping others in office.
Situation from the past. On Tuesday, the Polish authorities pointed out that, since April 2018, a law had taken into account the European Commission's criticisms by re-establishing the same retirement age for female and male judges and by giving the National Council of the Judiciary the power to extend their term of office (see EUROPE 12001/8).
However, for the Commission, not all the elements referred to in the judgment have been answered. In particular, “the fact that no redress mechanism has been put in place is the remaining issue”, said Mina Andreeva on behalf of the European institution.
Poland is not subject to a specific deadline to comply with the Court’s judgment.
In June, the Court ruled that Polish legislation on lowering the retirement age of Supreme Court judges was contrary to EU law (see EUROPE 12281/2).
See the judgment: http://bit.ly/2JT4lCV (Original version in French by Mathieu Bion)