EU Court Shreds Sex-Based Retirement Law for Polish 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. (AP Photo/Czarek Sokolowski)

(CN) — Europe’s highest court cracked the whip on Poland’s ruling populists Tuesday, overruling the government’s attempt to force women out of the judiciary sooner than their male counterparts.

All told, the European Commission counts 13 laws adopted by Poland to restructure its legal system since the constitutional crisis began in 2015. Challenges to these laws have been moving through the courts for years, and the European Court of Justice took aim today at a July 2017 law that introduced sex-based changes to the previous judicial retirement age of 67.

Under the new law, which took effect in April 2018, women had to retire at 60 and met at 65 if they worked as public prosecutors, judges of the ordinary courts and judges on Poland’s Supreme Court. The law also gave the Minister for Justice discretion to extend the active service past retirement any ordinary court judge. Though public outcry led Poland to rescind the changes, it never reinstated the judges who had already been forced out. 

The European Commission hauled Poland to court in Luxembourg, and that body’s Grand Chamber ruled Tuesday that Poland had contravened EU sex-discrimination laws.

Focusing on how sex-based retirement results in male and female judges earning different pensions, the ruling says the law demonstrably violates the principle of equal pay for equal work. Social security is another consideration, according to the ruling, which otherwise rejects Poland’s argument that its law somehow eliminates discrimination.

“The setting, for retirement, of an age condition that differs according to sex does not offset the disadvantages to which the careers of female public servants are exposed by helping those women in their professional life and by providing a remedy for the problems which they may encounter in the course of their professional career,” the opinion states.

While the EU views so-called judicial reform as an attempt at neutering institutions providing democratic checks and balances, Poland’s foreign ministry denied in a tweet Tuesday that its change to retirement rules infringed judicial independence.

Noting that it had changed the law again last year, it said: “The commission should have withdrawn its complaint after the amended law came into force.”

Commission spokeswoman Mina Andreeva indicated meanwhile that Poland could face sanctions, including reduced EU spending, if it does not offer redress for the judges dismissed under the 2017 measure.

“The ball is in the camp of the Polish authorities to tell us how they will comply with this judgment,” Andreeva told reporters, as quoted by Agence France Presse.

Whether the commission could pull grants remains uncertain as the EU decision-making process requires unanimity. 

Tuesday’s ruling balks at Poland’s argument  that earlier retirement is actually necessary for judicial independence.

“The fear that serving judges may, over a period of 6 to 12 months, be tempted to give rulings favorable to the executive, on account of uncertainty as to the decision which will be adopted regarding the possible extension of the period for which they carry out their duties, is unfounded,” the ruling states. “It is mistaken to believe that a judge may, after having acted as a judge for so many years, feel pressure linked to the fact that his duties may not be extended for a further few years. Nor does the guarantee of judicial independence necessarily entail a complete absence of relations between the executive and the judiciary. Thus, the renewal of the term of office of a judge of the Court of Justice of the European Union also itself depends upon the assessment of the government of the Member State of the judge concerned.”

In concluding the ruling, the EU judges cited case law that ties judicial independence to guarantees against the government using disciplinary regimes “as a system of political control of the content of judicial decisions.”

“It must be found that the power held in the present instance by the Minister for Justice for the purpose of deciding whether or not to authorize judges of the ordinary Polish courts to continue to carry out their duties, from the age of 60 to 70 years in the case of women and the age of 65 to 70 years in the case of men, is such as to give rise to reasonable doubts, inter alia in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to any interests that may be the subject of argument before them,” the ruling states.

“Furthermore, that power fails to comply with the principle of irremovability, which is inherent in judicial independence.”

Tuesday’s is is the second landmark judgment against Poland’s court changes. The same court rapped Poland in June for trying to force the retirement of 40% of its Supreme Court, and just a month ago the European Commission brought a third case over a new disciplinary regime for Polish judges that it says threatens their independence.

Poland’s Justice Minister Zbigniew Ziobro has called the new case a “political act” that “could prove counter-productive.”

The fiercely conservative Law and Justice Party — otherwise known as Prawo i Sprawiedliwość or PiS — came to power in late 2015 and won re-election last month, wooing rural voters with boosts to welfare spending while otherwise opposing LGBT rights.

Party leader Jaroslaw Kaczynski said in October his party has a mandate “to continue to change Poland.”

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