EU Court Censures Poland for Purge of Older Judges

On Oct. 8, 2018, government opponents with signs reading “Constitution” protest an overhaul of the justice system and the forced early retirement of Supreme Court judges aged 65 and above, before the court’s building in Warsaw, Poland. The European Union’s top court ordered Poland on Oct. 19, 2018, to immediately suspend the politically charged legal change. (AP Photo/Czarek Sokolowski)

(CN) – Following up on its October injunction, the European Court of Justice ruled Monday that Poland threatened “serious and irreparable damage to the EU legal order” by lowering the retirement age for Supreme Court judges to 65.

Poland had forced out 27 of its 73 high court judges this past April when the law took effect, but the European Court of Justice intervened in October, and Poland’s parliament subsequently passed legislation to compel reinstatement.

On Monday, the European Court of Justice granted the request by the European Commission for interim measures. Though a copy of the decision is not available, a press release states that such an order is justified to avoid serious and irreparable harm.

“In the present case, the arguments put forward by the commission do not appear, prima facie, unfounded and it cannot therefore be excluded that the provisions of national legislation at issue jeopardize the principles of the irremovability of judges and of judicial independence and, consequently, infringe Poland’s obligation to ensure effective legal protection in the fields covered by EU law,” the release states. 

Agreeing with the commission that the matter is urgent, meanwhile, the court emphasized that Poland’s rule change would likely “cause serious and irreparable damage to the EU legal order.”

“Because of the authority of the decisions of the Supreme Court over the lower Polish courts, the fact that, in the event that the provisions of national legislation at issue are applied, the independence of that court may not be ensured pending delivery of the final judgment is likely to undermine the trust of the member states and their courts in the Polish legal system and, as a result, in that state’s observance of the rule of law,” the release states. “The fact that, because of the application of the provisions of national legislation at issue, the independence of the Supreme Court may not be ensured pending delivery of the final judgment could lead the member states to refuse to recognize and enforce judicial decisions made by the Polish courts, which is likely to cause serious and irreparable damage to EU law.”

A third factor that the court mentioned is “the general interest of the Union in the proper working of its legal order.”

“By contrast, Poland’s interest in the proper working of the Supreme Court is not likely to be thus affected in the event that the interim measures requested by the commission are granted but the main action is dismissed, given that that grant would merely have the effect of maintaining, for a limited period, the application of the legal system which existed before the adoption of the law on the Supreme Court,” the release states.

While the court’s October order is not available in English, there is a copy of a related order from November.

Poland’s law reduced the retirement age from 70.

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