Constitutional Tribunal of Poland – Image by Adrian Grycuk
(BRUSSELS) – The EU Commission launched an infringement procedure against Poland Monday over changes to Polish law on the Supreme Court, which it says undermines the principle of judicial independence.
On 3 July, 27 out of 72 Supreme Court judges face the risk of being forced to retire – more than one in every three judges – due to the fact that the new Polish law on the Supreme Court lowers the retirement age of Supreme Court judges from 70 to 65. This measure also applies to the First President of the Supreme Court, whose 6-year mandate would be prematurely terminated.
According to the law, current judges are given the possibility to declare their will to have their mandate prolonged by the President of the Republic, which can be granted for a period of three years and renewed once. There are no criteria established for the President’s decision and there is no possibility for a judicial review of this decision.
The EU executive believes these measures ‘undermine the principle of judicial independence’, including the irremovability of judges, and accuses Poland of failing fulfil its obligations under Article 19(1) of the Treaty on European Union read in connection with Article 47 of the Charter of Fundamental Rights of the European Union.
While the Polish Supreme Court law has already been discussed in the Rule of Law dialogue between the Commission and the Polish authorities, it has not been satisfactorily addressed through this process. The Commission believes that the introduction of a consultation of the National Council for the Judiciary (NCJ) does not constitute an effective safeguard, as argued by the Polish authorities. The NCJ’s opinion is not binding and is based on vague criteria. Moreover, following the reform of 8 December 2017, the NCJ is now composed of judges-members appointed by the Polish Parliament which is not in line with European standards on judicial independence.
Given what the Commission says is a lack of progress through the Rule of Law dialogue, and the imminent implementation of the new retirement regime for Supreme Court judges, the Commission has decided to launch the infringement procedure ‘as a matter of urgency’.
The Polish government will have one month to reply to the Commission’s Letter of Formal Notice. At the same time, the Commission says it stands ready to continue the ongoing rule of law dialogue with Poland, which remains the Commission’s preferred channel for resolving the systemic threat to the rule of law in Poland.
The rule of law is one of the common values upon which the European Union is founded. It is enshrined in Article 2 of the Treaty on European Union. The Commission, together with the European Parliament and the Council, is responsible under the Treaties for guaranteeing the respect of the rule of law as a fundamental value of our Union and making sure that EU law, values and principles are respected.
