By Łukasz Kuczkowski, Firm: Raczkowski Paruch
The European Court of Justice has held that new Polish provisions determining the retirement age of judges (as well as prosecutors) are incompatible with EU law, as they discriminated on grounds of sex and violated judicial independence.
The Court's judgment was the result of a complaint about Poland lodged by the European Commission two years ago. The Commission questioned the compatibility with European law of new provisions that reduced the retirement age of common court judges and which introduced an early retirement age for Supreme Court judges: 60 for women and 65 for men. Before the new law, this age was 67 and was identical for both sexes. The Commission also questioned the right of the Minister of Justice to decide to extend the period of service of judges beyond the retirement age indicated above.
These provisions were subsequently amended by Poland, as a result of which the retirement age of judges of both sexes was equalised, and the Minister's authority was delegated to the National Council of the Judiciary. However, this did not convince the Commission, which did not withdraw the complaint, arguing that these changes did not resolve, inter alia the problem of female judges who had retired because they had reached the lower retirement age before the equal retirement age was reintroduced.
After examining the Commission's complaint, the Court found that Poland had introduced directly discriminatory provisions based on sex by differentiating the point at which judges could benefit from access to benefits provided upon retirement.
The European Court of Justice also questioned the Minister’s right to decide on holding the position of judge after reaching a lower retirement age. The Court considered this right contrary to the principles of independence of the judiciary, its autonomy and impartiality. It is true that the Court emphasised that the Minister's right does not violate judicial independence as such, but the conditions for exercising this right raise justified doubts in view of the unclear criteria that would apply in making such decisions, the absence of an obligation to justify the Minister's decision and the absence of a time limit for making these decisions.
The European Court of Justice's verdict is another judgement that puts in question the changes introduced by the Polish Parliament regarding the functioning of courts in Poland on the grounds that they violate EU law.