EU top court lands another blow against Polish judiciary reforms

The CJEU said laws lowering the retirement age of Polish judges contravened EU rules.

The EU’s top court ruled Tuesday that lowering the retirement age of Polish judges and prosecutors breached the EU law, undermining yet again the legality of Poland’s judiciary reforms.

The laws, introduced in 2017 by Poland’s ruling Law and Justice (PiS) party, were brought to the Court of Justice of the EU (CJEU) by the European Commission. The rules established a different retirement age for male and female judges and prosecutors. They also lowered the retirement age of ordinary court judges while giving the justice minister, Zbigniew Ziobro, the power to extend their active service.

The CJEU decided that the combination of these measures violates the principle that judges should be protected from removal from office. It also said that the rules breach a ban on gender discrimination.

“That combination of measures is such as to create, in the minds of individuals, reasonable doubts regarding the fact that the new system might actually have been intended to enable the minister to remove, once the newly set normal retirement age was reached, certain groups of judges while retaining other judges in post,” the judges in Luxembourg said in a statement.

Poland backtracked on the law in 2018 — the government evened the retirement age of male and female judges and shifted the power to defer retirement from the ministry of justice to the National Judiciary Council. Nevertheless, the Commission decided to continue with the case.

Poland’s foreign ministry said in a statement that the court judgement will be subject to “detailed analysis,” but complained that the Commission hadn’t taken into account the changed law.

“According to previous practice, the Commission should have withdrawn the complaint after the law was updated. The lack of a withdrawal is not justified,” the Polish statement said.

The ministry said the government won’t question the CJEU’s judgment, but it’s still convinced that the law didn’t impact judicial independence and that the reform falls within permitted national competences.

The ruling is one of a series of blows against PiS’s judicial reforms from the court. In June, the CJEU decided that a reform lowering the retirement age of Supreme Court judges violated EU law.

On November 19, the CJEU is also set to decide on the legality of the newly-elected National Judiciary Council. According to an opinion from the court’s advocate general, it doesn’t guarantee judicial independence because the council was largely chosen by politicians.

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