text by Anna Wójcik

The CJEU Grand Chamber concurred with the arguments presented by Advocate General Evgeni Tanchev.

The Court ruled that the provisions in the 2017 Common Courts Act which were challenged by the European Commission breached the prohibition on discrimination (Art. 157 TfEU and Directive 2006/54/EC), as well as the principle of effective judicial protection (Art. 19.1 TEU).

The Common Courts Act of 2017 lowered the age at which judges retire, and differentiated this age for men and women acting as common court judges, Supreme Court judges, and prosecutors. In addition, the Act gave the Minister of Justice discretionary authority to permit judges to remain active on the bench.

This is a landmark ruling of tremendous significance.

First, the judgement is hard evidence that the changes rammed through by the governing majority of the previous Sejm were not prepared with thought to adhering to the laws of the European Union.

Second, the highest court of the EU has elaborated the standard of protection of judicial independence that applies in all EU Member States.

“The CJEU has established a standard – we now know what actions the legislature and the executive cannot take towards judges in order to remain in compliance with EU law. This standard applies to the governments of all EU Member States with respect to making changes in the courts, and it constitutes a guarantee for judges,” – explains Maciej Taborowski, deputy Human Rights Commissioner.

In June, ruling on the provisions of the Supreme Court Act, the EU Court of Justice ruled that the legislature and executive must not jeopardise judicial independence through reviewing the capacity of judges to rule without convincing arguments, and if such changes are not introduced in a manner proportionate to a legally legitimate aim.

Now, the CJEU has specified that authorities may not discriminate against judges based on age when revising the rules for going into retirement. The Court emphasised that such changes can negatively impact judicial independence, thereby breaching the principle of effective judicial protection.

In addition, in its 5 November ruling the CJEU held that judicial independence can be jeopardised when the Minister of Justice enjoys essentially arbitrary authority to decide whether to extend judges’ careers upon their reaching retirement age. This was the power wielded in Poland by the Minister of Justice (who is also the Prosecutor General), Zbigniew Ziobro, when the European Commission filed its complaint against the Polish government.

Another European Commission complaint about the disciplinary system for judges is pending before the EU Court of Justice. The Commission feels that this system violates the principle of judicial independence. Apart from three complaints by the European Commission, the CJEU has received 14 preliminary questions submitted by Polish courts addressing elements of recent justice system “reforms”. On 19 November, the CJEU will issue a ruling assessing the status of the new National Council of the Judiciary and the Disciplinary Chamber of the Supreme Court in terms of compatibility with EU law.