25 September 2018

Poland's controversial judicial reform could force 27 judicial retirements

Concerns about change in Poland's supreme court law leads to referral on grounds of incompatibility threatening judicial independence.

The EU has referred Poland to the court of justice of the EU due to a new law that would force 27 Supreme Court judges to retire.

Incompatible law

Poland passed a new law lowering the retirement age of supreme court judges from 70 to 65, which means that 27 out of 72 sitting Supreme Court judges would be required to retire. The measure equally applies to the first president of the supreme court, whose six-year mandate, set out in the Polish Constitution, would be prematurely terminated. According to the law, which entered into force on 3 April 2018, judges affected by the lowered retirement age are given the possibility to request a prolongation of their mandate, which can be granted by the President of the Republic for a period of three years, and renewed once. There are no clear criteria established for the President's decision and no judicial review is available if he rejects the request. The European Commission contends 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 fulfill 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 EU states the law creates ‘a risk of serious and irreparable damage to judicial independence in Poland.’

Ongoing dialogue

Following a letter of formal notice to the Polish authorities on 2 July 2018 concerning the law, a reasoned opinion was given on 14 August 2018. The response from Polish authorities failed to satisfy the Commission's legal concerns, leading to the next stage of the infringement procedure, deciding to refer the case to the EU’s court of justice. In addition to referring Poland to the Court of Justice, the Commission is asking the court of justice to order interim measures to restore Poland’s supreme court to its original format under an expedited procedure. The infringement procedure does not stop the ongoing rule of law dialogue with Poland, which remains the commission's preferred channel for resolving the systemic threat to the rule of law in Poland.