EU High Court Blocks Forced Retirement of 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. The European Union’s top court ordered Poland to immediately suspend the politically charged legal change. (AP Photo/Czarek Sokolowski)

(CN) – A scheme by Poland’s parliament and its president to overhaul the judiciary by forcing older judges into retirement is unconstitutional and is an affront to the rule of law, the European Court of Justice ruled Monday.

The rare Monday ruling by the EU’s highest court comes six months after the court granted the European Commission’s request for a restraining order. In that order, the court found Poland will do “serious and irreparable damage to the EU legal order” if allowed to carry through with plans to force judges to retire at 65.

In what many call a deepening constitutional crisis after the far-right nationalist Law and Justice party won elections in 2015 and took control of the government, the party passed a series of laws that critics say undermine the rule of law and target opposition voices. One of the laws lowered the mandatory retirement age for judges and prosecutors from 70 to 60 for women and 65 for men, forcing the removal of 27 of Poland’s 73 high court judges alone.

A separate case on the disparate treatment of female and male judges is pending before the Luxembourg-based high court.

But on Monday, the court rejected Poland’s claims it lowered the retirement age for judges with the goal of standardizing the retirement age for all Polish workers while at the same time improving the age balance of its courts.

“The court holds that the application of the measure lowering the retirement age of the judges of the Supreme Court to the judges in post within that court is not justified by a legitimate objective and undermines the principle of the irremovability of judges, that principle being essential to their independence,” the high court said in a statement. The court’s order was not made available by press time.

Furthermore, the court noted extensions allowed under the law can only be granted by the Polish president, is not governed by any objective or verifiable criteria, and his decisions cannot be challenged in court. The scheme therefore may cause people to have reasonable doubts as to the stability and neutrality of Poland’s legal system – doing damage to the rule of law in the EU, the court held.

In a statement, the commission applauded the ruling and said it stands ready to help Poland resolve the other outstanding cases involving the rule of law.

“This is an important ruling in support of the independence of the judiciary in Poland and beyond. It is also a welcome clarification of the principles of irremovability and independence of judges, which are essential elements of effective judicial protection in the European Union,” the commission said. “The judgment also clarifies that, although the organization of justice in the member states falls within national competence, when exercising that competence the member states are required to comply with their obligations under EU law.

“Every national court is also a European court when applying EU law. Member states must therefore ensure effective judicial protection for individuals in the fields covered by EU law.”

A third legal battle over the Law and Justice party’s assault on the judiciary – this time a bid to punish judges for the content of their rulings – may also end up before the EU high court, depending on Poland’s answer to objections filed by the commission in April.

For its part, the Polish government says its actions are needed to correct flaws in a justice system ruled by corrupt judges.

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