Laurent Pech, a Professor of European Law at Middlesex University London, and Sébastien Platon, a Professor of Public Law at the University of Bordeaux, have written about a situation unfolding in a country within the EU where the government and parliament, both controlled by the same political party, have made changes to their judicial system.

These changes include lowering the retirement age for judges on the country’s highest court. This move has been presented by the government as a necessary reform to hold accountable judges who were supposedly involved in the country’s previous communist regime, even though that regime ended three decades ago. Despite these actions, the government insists it is upholding the rule of law.

What makes this situation alarming is that it’s happening within the EU. This specific case, focusing on the change in judges’ retirement age, prompted legal action by the European Commission against the country last July. This led to the European Court of Justice issuing its first ruling on whether the country’s judicial changes align with EU law.

This article will delve into the significance of the Court’s ruling, examine its key findings, and assess its immediate and potential impact.

1. A Significant Ruling

This ruling marks the first time the Court of Justice has determined that a national government failed to fulfill its obligations under Article 19(1) TEU. This article mandates that Member States must provide sufficient remedies to ensure effective legal protection within areas covered by Union law.

However, this is not the first time this EU member state has been found in violation of EU law. It was:

• The first EU Member State subject to the Commission’s Rule of Law Framework in January 2016.
• The first EU Member State threatened with a daily fine of at least €100,000 in November 2017 by the ECJ if it continued to disregard an interim order the Court issued in July 2017.
• The first EU Member State to face Article 7(1) TEU proceedings in December 2017.
• The first EU Member State to have its “judicial reforms” temporarily suspended by the ECJ through two interim orders in October and December 2018.

It has now become the first EU Member State found by the ECJ to have failed to fulfill its Treaty obligations by violating the principles of both the irremovability of judges and judicial independence.

The Court firmly rejected all of the arguments presented by the country’s government, including the frequently repeated claim that the Court of Justice lacks the authority to review the numerous and continuous changes made to the structure of the country’s judicial system.

2. The Court’s Findings

2.1 The Organization of the Country’s Judicial System as an Allegedly Exclusive Competence Not Subject to EU Review

The country’s government, with support from another EU member state, argued that the organization of their national justice system falls under the exclusive competence of the Member States. This would imply that EU institutions, including the Court of Justice, cannot evaluate their judicial changes based on EU law requirements.

The Court countered this argument by reminding the government that by joining the EU, they willingly committed to upholding the common values outlined in Article 2 TEU, including the rule of law. While the Court acknowledged that organizing a justice system is within a Member State’s competence, this does not grant them the freedom to violate their obligations under EU law.

Regarding the argument that the EU principle of judicial independence only applies in situations governed by EU law, the Court reiterated its previous stance: national authorities must respect judicial independence even when national judicial reforms don’t directly implement EU law. Article 19(1) TEU applies to any national court that might rule on matters concerning the application or interpretation of EU law, therefore, any national measure impacting the independence of that court falls within EU law’s scope.

2.2 Lowering the Retirement Age as Allegedly Necessary to Align the Supreme Court’s Retirement System with the General Retirement System

The country’s government claimed that the Court’s own case law permits Member States to adjust employment conditions for judges, including their retirement age. They argued this is allowed, particularly in this case, to align the retirement age with the general retirement scheme and improve the age structure within the court.

This defense was considered unconvincing, as the ruling party has a history of criticizing the judiciary. Furthermore, the government’s own documentation suggests that the change to the judicial retirement age stems from concerns about their communist past and the perceived long-standing dysfunction within the courts.

The ECJ easily concluded that the forced early retirement of Supreme Court judges is incompatible with the principle of irremovability, a key guarantee of judicial independence. The Court strongly implied that the government deliberately attempted to mislead them by suggesting that the retirement age reform was not intended to sideline specific judges.

The Court, in an effort to discourage similar actions by future governments, conducted a proportionality test. It found no justification for forcing Supreme Court judges into retirement in the name of standardizing retirement age, particularly when other workers have the right to choose whether or not to retire. The Court concluded that immediately lowering the retirement age without any transitional measures is disproportionate.

2.3 Discretionary Power Granted to the Country’s President as (Allegedly) Necessary to Protect the Judiciary

The government argued that granting the President the authority to decide whether Supreme Court judges can continue working past the newly established retirement age serves to protect the judiciary from interference by both the legislative and executive branches.

In essence, they suggested that the President, being part of the executive branch, is best positioned to shield the judiciary from interference by deciding unilaterally, without any substantive conditions, procedural rules, or judicial review, which judges can continue their service. Ironically, this is the same office that has disregarded court orders, criticized judges, and questioned the independence of a judge from the country’s court within the ECJ system, as well as the authority of the ECJ itself.

The Court concluded that by giving the President discretionary power to extend the service of Supreme Court judges beyond the new retirement age, the country violated Article 19(1) TEU. The Court also noted concerns about the newly established National Council of the Judiciary (NCJ), which is considered to lack independence and was potentially established in violation of the country’s constitution. The Court clarified that the NCJ’s involvement doesn’t legitimize the President’s power to extend judges’ service, as the NCJ hasn’t demonstrated the ability to provide well-reasoned opinions based on objective and relevant criteria to the President.

3. Immediate and Potential Impact

The Court’s ruling has been recognized as a landmark decision that could help safeguard the rule of law within the EU against leaders who undermine democratic checks and balances.

While the ruling addresses only one of the many rule of law issues identified by the European Commission in its Article 7 proposal, it validates the Commission’s assessment of the escalating systemic threat to the rule of law in the country. This legal victory strengthens the Commission’s position within the ongoing Article 7 proceedings.

The ruling sets a strong precedent against future attempts, whether in this country or elsewhere, to control a court through manipulating the retirement age of judges under false pretenses. It further contributes to the growing evidence of the country’s government repeatedly violating the principle of sincere cooperation in its dealings with the Commission, the Council, and now the ECJ.

Although not explicitly addressed in the ruling, the Court made it clear that it shares the Commission’s concerns about the new disciplinary system. The Court emphasized that any disciplinary regime must include safeguards to prevent it from being used as a tool for political control over judicial decisions. This can be interpreted as implicit support for the Commission to proceed with its latest infringement action, which means a ruling against the so-called “Disciplinary Chamber” is likely forthcoming.

Despite these developments, the immediate practical impact of the ruling will be limited. Many Supreme Court judges had already refused to comply with the unlawful retirement regime, and those forced to retire were invited back to work following an interim order from the ECJ.

Furthermore, the ruling doesn’t directly address the Polish President’s decision to increase the number of Supreme Court posts, a move that could allow the ruling party to eventually gain control of the court. However, considering potential irregularities in the process of appointing new judges, this issue may eventually reach the ECJ.

Additionally, it is hoped that the ECJ will address the forced retirement of numerous ordinary court judges in a separate infringement action concerning the country’s law on ordinary courts. However, other significant issues, such as the dismissal of court presidents and vice-presidents and the alleged political pressure on prosecutors, may not be reviewed by the ECJ due to the lack of legal actions that would allow the Court to do so.

Finally, one critical issue yet to be addressed is the lack of effective constitutional review in the country. This problem is expected to surface sooner or later, especially if the ruling party wins future elections and attempts to further exploit the current situation to justify noncompliance with ECJ rulings.

4. Key Lesson

The main takeaway from this ruling is that any dialogue with authorities eroding the rule of law should always be coupled with swift and comprehensive legal action. To maximize effectiveness and prevent the complete undermining of legal systems before a final ECJ ruling, swift infringement actions should be the standard response when a Member State demonstrably violates the rule of law.

The Commission should also consistently request expedited procedures for such cases at the ECJ, including relevant interim measures to prevent further manipulation of the situation before final rulings are issued. The Commission’s handling of this case should serve as an example for addressing any future threats to the judicial independence of national courts within the EU.