In an opinion delivered on Thursday, 2 March, the advocate general of the Court of Justice of the EU (CJEU) felt that the mechanism allowing Polish judges to remain in office beyond retirement age does not offer sufficient guarantees of independence (Case C-718/21).
In Poland, a judge who has reached retirement age is challenging the decision of the National Council of the Judiciary (KRS) to refuse to extend his term of office on the grounds that his application was submitted after the deadline imposed by Polish law.
A chamber of the Polish Supreme Court has asked the CJEU whether Polish law infringes the principle of the irremovability of judges and judicial independence, enshrined in the Treaty on European Union, inasmuch as Polish legislation makes the performance of the duties of a judge after retirement age subject to authorisation from another public authority and establishes that an application for a term of office to be extended cannot be considered if the legal deadline has passed.
In his opinion, Advocate General Athanasios Rantos observes that the chamber of the Polish Supreme Court can be classified as a “court or tribunal” within the meaning of the TFEU and is entitled to submit questions referred for a preliminary ruling to the CJEU, although there are doubts as to [the chamber’s] independence with regard to the appointment of its judges on the basis of a (subsequently annulled) resolution of the KRS, whose independence has been called into question by the CJEU (judgments C-585/18, C-624/18, and C-625/18) (see EUROPE 12372/28).
Mr Rantos then reiterates that Member States may invest a body outside the judiciary (either independent or under the authority of the legislative or executive branch) with the power to take decisions on the appointment or retention in office of judges (see EUROPE 12281/2). For this reason, he concludes that even if the KRS has become a “captive institution” controlled by the executive following the reforms of the Polish judicial system, the fact that it is vested with the power to decide whether or not to grant a possible extension of the exercise of judicial functions is not sufficient, in itself, to conclude that the principle of judicial independence has been infringed.
Nevertheless, the advocate general notes that the criteria on which the KRS decision on the retention of judges is based are too vague and unverifiable—as in the case on the Polish law lowering the retirement age of judges, which the Court of Justice has criticised (see EUROPE 12363/4). Uncertainty has also arisen, since the Polish law does not establish a time limit within which the KRS is obliged to adopt its resolution.
Consequently, the advocate general concludes that the principle of the irremovability of judges and judicial independence precludes the Polish regulation at issue that makes a judge’s desire to continue to perform his or her duties beyond retirement age subject to authorisation from an authority whose lack of independence from the legislative and executive branches has been proven and that makes its decisions based on criteria that are vague and difficult to verify.
With regard to the refusal to consider an application for a term of office to be extended if the legal deadline has passed, the advocate general is of the opinion that the six-month period set (based on the date of the judge’s birthday) in Polish law allows the judge sufficient time to take a reasoned decision. He also believes that the impossibility of granting an exemption from that deadline does not subject Polish judges to any external pressure and deprives the KRS of discretionary power. However, Mr Rantos leaves it to the chamber of the Supreme Court to verify whether that deadline [to submit an application] is proportionate.
See the Opinion of the Advocate General: https://aeur.eu/f/5m5 (Original version in French by Mathieu Bion)