AG Tanchev suggests that Poland violated judicial independence

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According to the Court of Justice’s Advocate General, Poland failed to guarantee effective legal protection by lowering the retirement age of Supreme Court judges and granting the President the discretion to prolong their mandate. The AG opinion is not binding on the ECJ, but the bench usually follows its conclusions.



The case Commission/Poland (C-619/18) was initiated in October 2018 in response to the ruling majority’s attempts to force about 30% of the top court’s judges into early retirement. Despite the government adhering to the ECJ’s order and amending the law, the proceedings are still pending. This is because the Court of Justice determines breaches of EU law by reference to the situation as of the deadline for compliance set by the European Commission during the pre-litigation procedure. In this case, that date is mid-September 2018.

 

As AG Tanchev expressed in his opinion, this is the first direct action in which the Court of Justice has the opportunity to rule on whether certain measures regarding the organisation of a Member State’s judicial system are in line with “the standards for ensuring respect for the rule of law.”

 

In his opinion, while Member States are at liberty to amend the retirement age of one group so as to align it with the general scheme, at the same time they must not violate the principle of irremovability of judges – a fundamental guarantee of judicial independence. According to AG Tanchev, the fact that the measure affected 27 out of 72 judges of one court and was not intended to be temporary poses a threat to public confidence in the judiciary. Consequently, Poland failed to ensure the effective legal protection enshrined in Article 19(1) of the EU Treaty.

 

Moreover, the Advocate General concurs that the mechanism to extend the active mandate of Supreme Court judges allows the President to exert influence on the top court and its judges. Contrary to the role of the head of state as guardian of the Polish constitution, under the relevant legislation the said judges are exposed to external intervention and pressure which influences their independent judgment. This belief is further justified by the lack of concrete criteria which the President must follow during the prolongation, the non-binding nature of the opinion of the National Council of the Judiciary (irrespective of its current composition), and no judicial review of such decisions.

 

The final judgment is expected in mid-2019.

 

[by Patryk Wachowiec]