(CN) – Weighing in on the ongoing war between the European Union and Poland over the rule of law, a European Court of Justice magistrate said Thursday that a law forcing Polish Supreme Court justices into retirement at age 65 undermines judicial independence and violates the foundations of EU law.
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 Polish government, lawmakers have been changing the laws governing the judiciary to combat what they say are flaws in a justice system ruled by corrupt judges.
One of the changes that took effect in 2018 is the forced retirement of high court judges at age 65, regardless of their ability or desire to keep working. The law is retroactive and applies to all judges on the high court bench.
The European Commission sued Poland to undo the law. In December 2018, the European Court of Justice found the law – which forced out 27 of Poland’s 73 high court judges when it took effect – did “serious and irreparable damage to the EU legal order” and granted the commission’s request for a temporary restraining order.
While Poland tinkered with the law shortly after the commission sued but before the restraining order was issued, European Court of Justice Advocate General Evgeni Tanchev said in an advisory opinion Thursday it is unclear whether the changes comply with EU law and there remains a public interest in deciding the case.
Removing a judge from office for no reason other than age violates the guarantees of judicial independence, Tanchev said. Furthermore, changes to the mandatory retirement age for judges – it was 70 previously – cannot be applied retroactively.
“Even if, as argued by Poland, it is considered that the objective of the contested measures is to align the retirement age of Supreme Court judges with the general retirement age, it is not disputed that those measures were applied retroactively to all judges in office without any safeguards in place by way of appropriate measures to guarantee the irremovability of judges,” Tanchev wrote in a 13-page opinion. “As illustrated by the court’s case law, while the member states have competence to adjust the retirement ages of judges in view of societal and economic changes, they must do so without compromising the independence and irremovability of judges in violation of their obligations under EU law.”
Tanchev added the commission has made its case that the law “exposes the Supreme Court and its judges to external intervention and pressure from the president of the republic which impairs the objective independence of that court and influences the judges’ independent judgment and decisions.”
Tanchev’s opinion is not binding on the European Court of Justice, which has already begun its deliberations in the case.
Thursday’s opinion comes on the heels of another threat of legal action against Poland by the commission, over new judicial disciplinary rules the commission says will also make it impossible for judges to be independent and free from political control. The new rules allow judges to be brought up on disciplinary charges for the content of their rulings, through investigations conducted by a panel of judges appointed by the Polish parliament.
The Polish government has two months to respond to the commission’s latest concerns or face a third legal tangle with the EU at the Court of Justice.