Poland’s 2017 judicial reform broke EU law, bloc’s top court rules

People hold placards 'Constitution' during their protest in front of the Supreme Court building in Warsaw, Poland, 11 October 2018. [EPA-EFE/JAKUB KAMINSKI]

Poland’s change to the retirement age of its judges breaks EU law, the bloc’s top court ruled on Tuesday (5 November), intensifying a standoff over basic democratic standards between Brussels and the conservative government in Warsaw.

The rules Poland’s conservative Law and Justice (PiS) government brought in two years ago, setting lower retirement ages and making them different for male and female judges, “are contrary to EU law,” the Luxembourg-based European Court of Justice (ECJ) said, siding with the European Commission.

Poland “had failed to fulfil its obligations under EU law, first, by establishing a different retirement age for men and women who were judges or public prosecutors in Poland and, second, by lowering the retirement age of judges of the ordinary courts while conferring on the Minister for Justice the power to extend the period of active service of those judges,” the ECJ ruled.

One of the laws in question had lowered the retirement age of judges of the ordinary courts and public prosecutors, and the age for early retirement of judges of the Supreme Court, to 60 years for women and 65 years for men, whereas those ages were previously set at 67 years for both sexes.

Earlier this year, the ECJ had come to a similar conclusion concerning the pension age of Supreme Court justices.

In the latest ruling, EU judges rejected the Polish argument that the difference made between men and women constitutes a measure of positive discrimination.

“Where the Commission considers that the member state has not complied with the judgment, it may bring a further action seeking financial penalties,” the court statement adds, leaving the door effectively open for further steps under the Article 7 procedure.

In 2017, the European Commission triggered Article 7 of the EU Treaty, marking the first time it had formally threatened to revoke a member state’s voting rights.

Judicial reforms imposed by the PiS posed “a clear risk of a serious breach of the rule of law in Poland,” the European Commission argued.

Poland, meanwhile, argues that the Commission’s infringement cases are the result of political point-scoring against what it assumes to be the disobedient right-wing government in Warsaw.

The Polish government has already withdrawn from the regulations in 2018 – the retirement age has been equalised – and the extension of active service is now decided by the National Court Register, rather than by the minister himself.

The European Commission, however, did not withdraw its complaint as the Polish government representative to the court had requested during an April hearing in Luxembourg, as it considered the changes insufficient and the significance of the case so great that there is a clear interest in resolving it.

“We stand ready to support the Polish Government and to continue discussions on the resolution of all other outstanding issues related to the rule of law in Poland under the ongoing Article 7 Procedure,” the European Commission said in a statement after the judgement was announced.

The Advocate General of the Court in Luxembourg, Evgeni Tanchev, had concluded that the changes in the retirement age of judges enacted in 2017 were affecting judicial independence in the country and issued a negative opinion on 20 June.

In response to the ruling, the Polish Ministry of Foreign Affairs replied that the judgement “will be subject to detailed scrutiny”, but it “concerns the historical state of play, which does not reflect the provisions currently in force.”

“In accordance with current practice, the European Commission should have withdrawn the complaint after the amendments came into force. The lack of withdrawal is unreasonable,” the statement adds.

According to the Polish MFA, Warsaw “does not question the obligation to enforce CJEU judgments, but it remains convinced that the amendments made and challenged by the European Commission did not violate judicial independence.”

Ahead of the ruling, PiS nominated three new judges to the Constitutional Tribunal on Monday (4 November), two of them former hardline PiS lawmakers, in a move its opponents said further weakened judicial independence.

Ten of the tribunal’s 15 judges are already PiS appointees. The new nominees must be approved by the lower house of parliament, the Sejm, where PiS has a majority.

[Edited by Zoran Radosavljevic]


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