In a long-awaited opinion addressing an element of the so-called reform of the judiciary in Poland, the Court of Justice Advocate General Tanchev states that “by lowering the age of retirement of judges of the common law courts, and by vesting the Minister of Justice with the discretion to extend the active period of such judges, Poland has breached its obligations under EU law”.

Changes in the system of common courts

In July 2017, after massive protests in defense of the independence of courts, the President of Poland decided to veto two of three highly controversial bills concerning the judiciary system. Whereas the two bills concerned the position of the Supreme Court and the National Council of the Judiciary, the third bill, which was eventually signed by the President and came into force in August 2017, related to the common courts.

The Act of August 2017 lowered the retirement age of judges (from 67 years old to 60 in the case of women and 65 in the case of men). Judges who reached the new retirement age were required to file an application with the Minister of Justice, who could decide whether a justice could remain in office until the age of 70 or not. The decision was a wholly discretional one, and the procedure did not provide any possibility for challenging the Minister’s decision.

Although after a couple of months, in April 2018, the governing majority yet again changed these provisions and reinstituted a uniform retirement age for judges (65 years), the damage had already been done. According to data obtained by the Helsinki Foundation for Human Rights, by April 2018 the Minister of Justice received 219 applications from common court judges, and reviewed 130 of them. Of those applications reviewed, the Minister allowed only 69 judges to remain in office, while the remaining 61 were dismissed.

Contrary to the situation of justices of the Supreme Court who returned to their offices in October 2018 following the CJEU’s interim measure, the dismissed judges of ordinary courts never had the possibility to return to office.

Common courts infringement proceeding

“It is with a heavy heart that we have decided to initiate Article 7(1), but the facts leave us no choice,” said Vice President of the European Commission Frans Timmermans in December 2017, announcing that for the very first time in its history the European Commission had decided to activate the sanction proceedings prescribed by Article 7 TEU. At the same time, the European Commission decided to take the next step in infringement proceedings regarding the changes in the common courts system and direct the case to the European Court of Justice.

Although the Article 7 procedure has been turned into something of a political football, infringement proceedings seem to be the most effective tool for upholding and protecting the rule of law in Poland, forcing the governing majority to step back from some of the changes.

Comparing to other pending proceedings (such as those concerning Supreme Court justices initiated in 2018), this one was carried out rather slowly. While the governing majority was going full steam ahead with other changes in the Polish judiciary system (especially the ones concerning the Supreme Court), the infringement proceedings went essentially unnoticed.

It took exact one and a half years for the Advocate General’s opinion to be released. Much like other pending proceedings concerning the Polish judiciary saga, this opinion as well touches upon the very core of the crisis in Poland – judicial independence.

In the opinion of Advocate General Tanchev, “lowering the retirement age of judges must and of itself be accompanied by safeguards to ensure against de facto removal of a judge, while the law of 2017 fails to meet the guarantee of the irremovability of judges and their independence.”

What is left behind and what will be next

Regrettably, neither the European Commission nor the Advocate General concentrated on another aspect of the reform of ordinary courts, namely, the dismissal of the courts’ senior justices. In the period between August 2017 and February 2018, the Minister of Justice dismissed over 140 presidents and deputy presidents of courts solely on the basis of discretional decisions, and replaced them with people hand-picked by senior Ministry officials (a process HFHR has documented).

These changes had an even more detrimental impact on the courts’ functioning than the forced early retirement of judges, but this problem has not been addressed by the Commission.

A ruling by the ECJ in the case of the lower retirement age for common court judges is expected later this year. The decision will be one link in a longer chain of ECJ judgements addressing independence of the judiciary in Poland. It remains unclear how the governing majority will respond to these decisions. On the one hand, it is not in Poland’s best interest to escalate the existing conflict with Brussels, but on the other hand this governing majority has on several occasions already demonstrated its nonchalance in ignoring binding decisions of courts.

There is no doubt that the ECJ’s decisions in Polish cases will constitute a milestone in the Court’s jurisprudence concerning the rule of law and judicial independence. The question is, however, if they will be enough to protect Polish judges’ independence.