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Independence day

07 Feb 2020 / EU Print

Independence day

The EU’s Court of Justice has again highlighted the importance of resisting threats to the rule of law in a judgment that seeks to protect the judicial independence of the Polish Supreme Court.

In again highlighting the importance of resisting threats to the rule of law, the EU’s Court of Justice (CJEU) has emphasised that national judges must be protected against external pressure.

In its 24 June 2019 judgment in Case C-619/18, European Commission v the Republic of Poland, the CJEU examined whether the lowering of the retirement age of the Sąd Najwyższ (the Polish Supreme Court or PSC), allied to creating a presidential right to extend a PSC judge’s term in office infringes the Treaty on European Union (TEU) and the Charter of the Fundamental Rights of the European Union. More broadly, this case represents yet another milestone in the ongoing efforts by the commission to stymie any undermining by member states of fundamental EU values.

Reform of the Polish Court

Under the Polish Constitution, the Krajowa Rada Sądownictwa (the National Council of the Judiciary or NCJ) is the guardian of the independence of judges. The majority of the NCJ is comprised of judges, including the First President of the PSC.

Other members include the Polish Minister for Justice plus nominees of both houses of the Polish Parliament. Under a 2002 statute, the retirement age of PSC members was 70. Moreover, PSC members could, at their own discretion, work until the age of 72 provided they submitted an appropriate medical certificate.

New legislation

In late 2017, Poland adopted new legislation providing that PSC members would retire at 65 unless the Polish President granted an extension. This statute was amended on various occasions up to May 2018. (For ease of reference, we collectively refer to this legislation as the 2017 law.)

Prior to extending a PSC member’s term of office, the 2017 law required the president to consult the NCJ. The president could grant two separate extensions of three years. Importantly, the 2017 law applied to existing PSC members. For example, existing PSC judges aged 65 or over would have to retire three months after the entry into force of this legislation unless the president decided otherwise.

Common values of the EU

Article 2 TEU provides that the EU is founded on various common values, including respect for both democracy and the rule of law. Article 7 TEU aims at ensuring that all member states respect these common values. Specifically, the sanctioning mechanism enshrined in article 7(2) TEU may only be actioned in case of a “serious and persistent breach” by a member state of one of the EU’s common values.

Sanctions may only be applied with unanimous support. Broadly speaking, article 19 TEU provides for the establishment of the EU judicial system, including the CJEU and the General Court. Specifically, article 19(1) TEU stipulates that each member state shall provide remedies to ensure effective legal protection in the fields covered by EU law.

Charter of Fundamental Rights

The charter enshrines certain civil, political, social, and economic rights into EU law. The charter is split into various titles containing the main categories of rights, including dignity, freedoms, equality, solidarity, and justice.

For example, article 47 of the charter guarantees everyone the right to a fair and public hearing, within a reasonable time, by an independent and impartial tribunal established by law.

Member states must abide by the charter when they are implementing EU law. National legislation that conflicts with the charter is subject to the doctrines of supremacy and direct effect of EU law. The EU and national courts must therefore disapply any national laws that conflict with the charter.

However, in purely domestic situations, the charter is not justiciable – it is only binding on a member state when the latter acts within the scope of EU law. 

Pre-litigation

In July 2018, the commission wrote to Poland alleging that the 2017 law infringes the combined provisions of article 19(1) of the TEU and article 47 of the charter. In both its response to this July letter and its reply to the commission’s August 2018 reasoned opinion, Poland denied any such infringement.

Therefore, the commission, in early October 2018, issued proceedings against Poland for failure to fulfil its obligations under the TEU and the charter.

Under pressure from the EU and other member states, Poland repealed the 2017 law in December 2018. This meant that PSC judges, previously affected by the reform, were retained or reinstated.

In addition, the president no longer had the discretion to extend a PSC member’s term in office beyond the normal retirement age. Nonetheless, the commission was keen to continue with the proceedings.

Relying on the fact that the 2017 law remained in force by the deadline for responding to the commission’s reasoned opinion, the CJEU allowed the case to proceed.

EU law and national courts

The commission argued that article 19(1) TEU provides that in order to allow for effective legal protection in the fields covered by EU law, national courts must be independent. If not, the fundamental right to a fair trial would be undermined. In response, Poland, supported by Hungary, claimed that the organisation of the national justice system is a matter for member states only.

Recalling the common values of the EU as listed in article 2 TEU, the CJEU stipulated that the rule of law (that is, the rule of EU law) must be followed.

As recognised by the CJEU in its 27 February 2018 judgment in Case C-64/16Associação Sindical dos Juízes Portugueses v Tribunal de Contas, articles 2 and 19 TEU entrust national courts (and the EU courts) to protect the rights of legal and natural persons.

Domestic justice system

While the organisation of the domestic justice system falls under national competence, member states must, nevertheless, follow EU law when exercising that right. The CJEU thus stipulated that, since the PSC may clearly be required to adjudicate on matters of EU law, it must comply with the EU principle of effective judicial protection.

In order to guarantee the right to a fair trial that is intrinsic to the rule of law, PSC members must be independent. Therefore, the CJEU found that the EU legal order is relevant to the 2017 law and, thus, the relevant legislative provisions must be examined under article 19(1) TEU.

Lowering the retirement age

The commission claimed that by lowering the retirement age of PSC members who were appointed prior to the entry into force of the 2017 law, Poland infringed the principle of the irremovability of judges.

The defendant argued that the independence of the PSC was not compromised by the introduction of a common retirement age, since other national measures, such as proper remuneration and the obligation to remain politically neutral, helped achieve that goal.

The CJEU stated that the requirement for domestic courts to be independent meant that national judges must be protected against external pressure capable of influencing their decisions. Therefore, the judiciary should, in general, benefit from guarantees against removal.

Exceptions

This means that judges should continue in office until they have reached the mandatory retirement age or until the expiry of their mandate. Exceptions to this principle are only warranted on legitimate or compelling grounds. (For example, judges may be dismissed on account of incapacity or a serious breach of their obligations, provided the appropriate procedures are followed.)

The CJEU did acknowledge that the lowering of the retirement age may be justified by a legitimate objective, provided it does not raise reasonable doubts regarding the neutrality of the PSC. Poland argued that the goal of the reform was to standardise the retirement age across the public sector, while facilitating access for young lawyers to the judiciary.

However, the preparatory texts to the 2017 law instead suggest that this statute’s real aim was to sideline certain current PSC members. Moreover, the fact that while lowering the retirement age by five years, the 2017 law also allowed the president to extend a judge’s term by six years, tended to contradict the goal of standardising retirement ages. Indeed, the real aim of the legislation was probably to force certain PSC members into retirement, while allowing others to continue in office

Separately, the CJEU noted that the general Polish public sector retirement age of 65 entails the right of public servants but, crucially, not the obligation to quit their employment.

Finally, the court observed that the 2017 law did not contain any transitional arrangements. Therefore, the CJEU found that lowering the retirement age of PSC members to 65 was not justified. This provision thus breached article 19(1) TEU.

Presidential right

The commission argued that the right of the Polish President to extend a PSC member’s term in office by up to six years infringed the principle of effective legal protection. Notably, the 2017 law did not contain any criteria that the president must follow, nor was his/her decision challengeable by means of judicial review. In addition, the president was only obliged to consult the NCJ.

Poland counter-argued that the power to extend was derived from the president’s constitutional prerogative to appoint judges, thus protecting them from interference by both the executive and the legislature.

The CJEU found that, while it is a member state’s competence to extend a judge’s term in office beyond the normal retirement age, any such grant must not undermine the principle of judicial independence. In other words, judges must be protected from the potential temptation to succumb to external pressure.

The CJEU noted that, in addition to the lack of stated substantive criteria, the president was not required to give any reasons for his decision. Moreover, the role of the NCJ was undermined by the fact it regularly gave no, or merely formal, reasons for its decisions.

In sum, the court found that the discretion of the president to extend a PSC member’s term in office undermined judicial imperviousness. Therefore, the CJEU held that this discretion breaches the principle of judicial independence contained in article 19(1) TEU.

Threats to the rule of law

Which member states (if any) exercise their right to intervene in a given case before the EU courts is usually telling as to the legal or, indeed, political context of the relevant litigation. In the PSC case, it is therefore noteworthy that Hungary saw fit to intervene in favour of its northern near neighbour.

Both member states have, in recent years, come under sharp criticism for undermining the rule of law and other perceived threats to the EU’s common values. Given the difficulty of achieving unanimity under the article 7 TEU procedure, the commission’s success in the Polish case shows that article 19 TEU, coupled with the charter, is an alternative and useful legal tool.

Indeed, the commission, in October 2019, initiated separate proceedings against Poland regarding the new regime under which certain judges can be subjected to disciplinary investigations and/or sanctions based on the content of their judgments and/or decisions to request preliminary rulings from the CJEU.

Given the latter’s reasoning in the PSC case, Poland will face a real challenge in mounting a convincing defence.

Cormac Little
Cormac Little is head of competition and regulation at William Fry