The European Commission took another step in its infringement procedure against Poland over the rule of law Tuesday, pursuing efforts to protect the independence of the Polish Supreme Court.
The new Polish law on the Supreme Court lowers the retirement age of Supreme Court judges from 70 to 65, which puts 27 out of 72 sitting Supreme Court judges at risk of being forced to retire. This measure also applies to the First President of the Supreme Court, whose 6-year mandate, set out in the Polish Constitution, would be prematurely terminated.
According to the law, current judges affected by the lowered retirement age are given the possibility to request a prolongation of their mandate by the President of the Republic, which can be granted for a period of three years, and renewed once. There are no criteria established for the President’s decision and no judicial review is available if the request is rejected.
The EU Commission believes that the introduction of a consultation of the National Council for the Judiciary (NCJ) does not constitute an effective safeguard, as claimed by the Polish authorities. The NCJ’s opinion is not binding and is based on vague criteria. Moreover, following the reform of 8 December 2017, the NCJ is now composed of judges-members appointed by the Polish Parliament, in violation of European standards on judicial independence.
The EU executive says it has carried out a ‘thorough analysis’ of the response of the Polish authorities to the Letter of Formal Notice sent by the Commission on 2 July 2018 concerning the Law on the Supreme Court. The response of the Polish authorities does not alleviate the Commission’s legal concerns.
The Commission’s position is that the Polish law on the Supreme Court is incompatible with EU law as it undermines the principle of judicial independence, including the irremovability of judges, and thereby Poland fails to fulfil its obligations under Article 19(1) of the Treaty on European Union read in connection with Article 47 of the Charter of Fundamental Rights of the European Union.
The Commission has now moved to the next stage of the infringement procedure.
The Polish authorities have one month to take ‘the necessary measures’ to comply with this Reasoned Opinion. If the Polish authorities do not take appropriate measures, the Commission may decide to refer the case to the Court of Justice of the EU.