(CN) – In an ongoing tussle between the European Union and Poland over the rule of law, an EU magistrate judge urged his colleagues Thursday to strike down mandatory retirement rules for Polish judges and prosecutors as sexist and an assault on judicial independence.
Advocate General Evgeni Tanchev’s advisory opinion for the European Court of Justice stems from 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. Since then, critics say, the party has passed a series of laws that 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. Although Poland’s parliament passed legislation to reinstate the judges, the EU high court handed down a restraining order in December 2018, finding Poland will do “serious and irreparable damage to the EU legal order” if it carries through with plans to force future judges to retire.
Digging deeper into the case Thursday – and rejecting Poland’s argument that the European Commission’s action is “devoid of purpose” because the law has since been amended and men and women alike are now forced into retirement at 65 – Tanchev found “there is compelling interest for the member states, individuals, and the Union for the court to issue a ruling in the complaint” as doing so will “build on respect for the rule of law in the EU.”
Tanchev then rejected Poland’s argument that forcing women to retire earlier than men is “positive discrimination” in that it compensates them for taking a break in their careers to raise children.
“The purpose of positive discrimination measures is to ‘give a specific advantage to women with a view to improving their ability to compete on the labor market and pursue a career on an equal footing with men,’” Tanchev wrote, citing case law. “Given that retired women judges are no longer competing on the labor market or pursuing a career, on no account can the measures challenged by the commission amount to measures of positive discrimination. Further, caution is to be exercised in viewing rules that perpetuate the traditional division of roles into the future as measures to promote equality.”
The magistrate added: “As argued by the commission, the challenged measure lacks nuance. It is not available to men who have missed career opportunities due to child rearing, or taken into account women who have never been involved in it.”
Tanchev also weighed in on the retirement scheme as a way for the Polish government to strip the judiciary of its independence.
“Lowering the retirement age of judges must be accompanied by safeguards to ensure against de facto removal of a judge,” Tanchev wrote. “Indeed, the court has held recently that dismissal of judges ‘should be determined by express legislative provisions.’”
Tanchev’s opinion is not binding on the European Court of Justice, which has begun its deliberations in the case.
In April, the commission took the first steps to sue Poland over new judicial disciplinary rules the commission says will make it impossible for Polish 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.
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