Niels Kirst (Dublin City University)
- Background of the case
In its recent judgment, the European Court of Justice (hereafter ‘Court’ or ‘Court of Justice’) declared the reform of the retirement age of judges of the ordinary courts of the Polish judiciary contrary to European Union law (hereafter ‘EU law’). Besides the pending Article 7 procedure against Poland, the case is the second infringement proceeding concerning the ongoing overhaul of the Polish judiciary. In its judgement in C‑619/18 of 24 June 2019, the European Court of Justice ruled for the first time on the reform of the judiciary in Poland. Further, a preliminary reference (C-585/18) concerning the newly established disciplinary chamber of the Supreme Court in Poland is currently pending at the Court of Justice.
While some of the cases concerning the ‘rule of law crisis’ in Poland are pending under the preliminary ruling procedure of Article 267 Treaty on the Functioning of the European Union (hereafter ‘TFEU’), the two main cases concerning the supreme court (C-619/18) and the ordinary courts (C-192/18) are under the infringement proceeding of Article 258 TFEU.
The reform of the judiciary was initiated by the Prawo i Sprawiedliwość (hereafter ‘PIS’) government in Poland, with the declared aim to dismantle a legal system which is, according to PIS, corrupt and subservient to post-communist elites. The Polish Government subsequently reformed the constitutional tribunal, the supreme courts, the ordinary courts and the office of the public prosecutor in a sweeping overhaul of the judicial system in Poland.
The European Commission (hereafter ‘Commission) considered the reforms of the judiciary as a failure to fulfil obligations under EU law, taking into account the founding values of the EU. Specifically, the rule of law which is enshrined in Article 2 of the Treaty on European Union (hereafter ‘TEU’). Therefore, the Commission initiated a legal dialogue with the Polish Government. However, the ritual exchange of letters between the Commission and the Polish Government did not allow the parties to find a solution (cf. judgement para. 31 – 32). Consequently, the European Commission decided to bring a case in front of the Court of Justice.
- Substance of the case
The Polish reform was challenged on two grounds by the Commission. First on the ground that the new law prescribed mandatory retirement ages for female judges, by the age of 60, and male judges, by the age of 65, whereas those ages were previously set at 67 years for both sexes. According to the Commission, this infringed the principle of non-discrimination based on sex in primary EU law of Article 157 TFEU, and also secondary EU law as by the ‘equal pay for equal work’ Directive 2006/54.
Second, the Commission challenged the discretionary power of the Minister for Justice to prolong the tenure of judges of the ordinary courts to 65 for female and 70 for male judges. The Commission argued that this discretionary power award to a member of the executive amounted to an infringement of the principle of effective legal protection which derives from Article 19 (1) TEU read in combination with Article 47 of the Charter. Further, the Commission argued that the discretionary power of the Minister for Justice to extend the tenure of judges without clear criteria, timeframe, motivation, and without the possibility of appeal for the respective judge infringed the principle of judicial independence in EU law.
- The first complaint
Regarding the first complaint, the Court had to analyze if the pension schemes covered by the judges of the ordinary courts fall under the ‘concept of pay’ within the meaning of Article 157 TFEU. In its analysis of the three factors, the Court determined that the pension scheme of the Polish judges does fall within the ‘concept of pay’ in the meaning of Article 157 TFEU and thereby, followed the arguments of the Commission and declared that Article 157 TFEU applies to the proposed reform.
Concerning the applicability of Directive 2006/54 onto the provisions of the reform of the Polish ordinary courts, the Court found that the judges of the ordinary courts are considered public servants and therefore fall within the material scope of Chapter 2 of the Directive, which explicitly deals with pension schemes of public servants. In its analysis, the Court found that the lowering of the retirement age impinges on Article 5 (1) (a) and Article 9 (1) (f) of the Directive which explicitly prohibit fixing different retirement ages based on sex, and on Article 157 TFEU.
In its defence, the Polish Government invoked Article 157 (4) TFEU and Article 3 of Directive 2006/54, by arguing that the measures of the Polish reform amounted to a positive action of indirect compensation for women (this, inter alia, arguing that the early retirement acts as compensation for women for the burden of motherhood and raising children which prevents them from having a comparable successful career as man). The Court found in his judgement that this argument cannot succeed and that the measure would rather further discriminate against women than support their employment or promotion.
- The second complaint
The second complaint of the Commission focused on the new discretionary power of the Minister for Justice in Poland to prolong the tenure of judges. The Commission argued that this power given to the Minister for Justice will infringe the principle of ‘effective legal protection’ which derives from Article 19 (1) TEU read in conjunction with Article 47 of the Charter.
In its argument, the Commission relied heavily on its previous case-law in Associação Sindical dos Juízes Portugueses, a judgement known for the first combined application of Article 19 (1) TEU, 4 (3) TEU and Article 47 of the Charter. As is known, in this judgement, the Court derived remit to safeguard the judicial independence of the judiciary in the Member States by the combined reading of the three articles.
The Commission argued that the mechanism of prolongation of service is not in compliance with the principle of judicial independence which is inherent in a system of legal remedies ensuring effective judicial protection in EU law (cf. para. 87 – 92). Poland contested the reading of the mechanism by the Commission. On the admissibility of the second complaint, Poland invoked in its defence the principle of procedural autonomy by arguing that the national system of justice does not fall within the competence of the EU law, therefore, Article 19 TEU does not apply to the national laws in question.
The Court did not follow the reasoning proposed by the agent of the Polish Government. First, it treated the applicability of Article 19 (1) TEU to the situation in question. The rationale of the Court was as follows: since the ordinary courts in Poland potentially apply EU law, they are within the material scope of Article 19 TEU. This requires that the courts meet the standard of effective judicial protection which the article requires, the mechanism for the Minister for Justice threatens this effective judicial protection.
The Court found that the mechanism of the Minister for Justice to prolong the tenure of selected judges does actively undermine their external and internal judicial independence in the proceedings in front of them. Since the measure, “is such as to create, in the minds of individuals, reasonable doubts regarding the fact that the new system might actually have been intended to enable the Minister for Justice, acting in his discretion, to remove, […], certain groups of judges serving in the ordinary Polish courts while retaining others of those judges in post.” (cf. para. 127) This threatens the imperviousness of the judge concerned to any external pressure which might influence its internal law-making for cases to come.
As conclusion, the Court followed the Commission’s argument entirely and found that the lowering of the retirement age fails to fulfill the obligations arising out of Article 157 TFEU and Directive 2006/54, since it discriminates on the basis of sex, and that the mechanism for prolongation by decision of the Minister for Justice fails to fulfill the obligations under Article 19 (1) TEU, since it impedes the principle of effective judicial protection.
Out of the two legal complaints in this case (sex discrimination and judicial independence), Poland had only a probability to win the latter, while the first was already lost from the start. The crucial legal battle, in this case, was the argument if the mechanism for the Minister of Justice to prolong the tenure of judges over retirement is within the jurisdiction of the Court of Justice and if yes if it infringes the principle of effective judicial protection. Taking first a look at the discrimination case which was lost on the start for the Polish Government.
The Polish judicial reform directly violated Article (9) (f) of Directive 2006/54 and Article 157 TFEU, therefore, it was foreseeable that the Court would strike it down on that basis. It should be added that it took almost one year for the Court to decide on the issue. This calls into question the effectiveness of the legal proceedings. In the meantime, the Polish legislator re-amended the law shortly after it became aware of this apparent non-compliance with European law and adjusted the retirement age for both sexes on a unitary basis.
Further, Poland’s argument about the role of women as mothers and primary raisers of children reveals a deeper conception of the view on society of the governing PIS party in Poland. Arguing that “the possibility of early retirement, therefore, constitutes indirect compensation for the difficulties that they [women] thus suffer generally [sic].” (para. 57) seems out of a Victorian age theatre play. Rightly, the Court dismissed this out of time argument. Notably, the Court is protecting the rule of law in Poland via the principles of equality law. This shows a further road to go for the Court on how to use the principles of social rights to protect the rule of law.
To determine the meaning of Article 19 (1) TEU the Court relied on the concepts of Article 47 of the Charter without actively affirming the applicability of Article 47 of the Charter to the present proceedings. An interesting gambit by the Court. Rightly, the Court is cautious in applying the Charter directly to a rule of law proceeding, since the scope of the Charter is limited by Article 51. However, it supports the doctrine of combined reading which allows the Court to use the concepts of the Charter as general principles when applying Treaty articles.
The Court follows this combined reading to find that the mechanism of the Minister for Justice is infringing the principle of judicial independence. The argument is plausible as a judge is under the arbitrary power of the Minister for Justice after he reached the mandatory retirement age. Under these circumstances, it is not verifiable if a judge makes independent judgements. As the Commission highlights, “the provision as issue thus undermines the personal and operational independence of serving judges.” (para. 90) Reading between the lines, the Court found that the mechanism supports the appearance of a judicial system which only formalistically follows the rule of law, while its influenced by the executive and build upon patrimonialism.
The invocation of the principle of procedural autonomy by the Polish Government regarding the reform of the national judiciary fell on deaf ears at the Court. The Court did not consider the principle in the present case. Instead, the Court reiterated the principle of effective judicial protection as cornerstone of the EU legal order, which requires judicial independence from courts which apply EU law. This principle of judicial independence comprises the principle of irremovability of judges, which the Court further defined as a principle which is important but not absolute.
As an outlook, the Commission might consider bringing a new complaint against Poland since the laws of the polish judiciary have changed after the proceedings at the Court were commenced. The retirement age has been equalized – and the extension of active service is now decided by the National Court Register, rather than by the Minister for Justice himself. Thereby, Poland tries to circumvent the restraints of EU law. Further, the Polish Government stated that “The verdict concerns a historical state which does not reflect the current regulations.” Therefore, the Commission is in the case of Poland confronted with rapidly changing laws which make it difficult to bring substantive legal complaints which will allow to restore the status quo.
Niels Kirst is Ph.D. Researcher in European Union Law at the School of Law and Government of Dublin City University
Photo credit: Court of Justice of the European Union
 See Petra Bárd and Anna Śledzińska-Simon, “Rule of law infringement procedures” in CEPS Paper in Liberty and Security in Europe, No. 2019-09, May 2019.
 Article 258 TFEU is a legal action which allows the European Commission to bring a direct claim against a Member State in case of non-compliance with EU law.
 See Jakub Jaraczewski, “Age is the limit? Background of the CJEU case C-619/18 Commission v Poland”, VerfBlog, 2019/5/28 available at https://verfassungsblog.de/age-is-the-limit-background-of-the-cjeu-case-c-619-18-commission-v-poland/, DOI: https://doi.org/10.17176/20190529-122056-0.
 Article 157 (1) TFEU provides: “Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.” The article is the expression of the equal pay for equal work principle in EU law.
 Directive 2006/54 or the Equal Treatment Directive was adopted under the legal basis of Article 157 TFEU and gives further expression to the principle promulgated by that article. The Directive is comparable to the Equal Pay Act of 1963 in the United States. Specifically, Chapter 2 of the Directive on ‘equal treatment in occupational social security schemes’ was of crucial importance for the claim of the Commission.
 Article 19 (1) TEU second subparagraph provides: “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.” In its recent case-law, the Court of Justice has interpreted that article in the way that it is upon the Court to safeguard the effective legal protection of the judiciary system within the Member States.
 Article 47 of the Charter provides for the ‘right to an effective remedy and a fair trial’ in the area of EU law. Having said that, the scope of the Charter is limited by Article 51 thereof as in it applies only to areas covered by EU law.
 See Pech, Laurent and Platon, Sebastien, “Rule of Law backsliding in the EU: The Court of Justice to the rescue? Some thoughts on the ECJ ruling in Associação Sindical dos Juízes Portugueses” on EU Law Analysis Blog, http://eulawanalysis.blogspot.com/2018/03/rule-of-law-backsliding-in-eu-court-of.html, March 13, 2018.
 See Brzozowski, Alexandra, “Poland’s 2017 judicial reform broke EU law, bloc’s top court rules”, Euractiv.com, https://www.euractiv.com/section/justice-home-affairs/news/polands-2017-judicial-reform-broke-eu-law-blocs-top-court-rules/, November 5, 2019.
 Press Release, Polish Ministry of Foreign Affairs, “Position of the Ministry of Foreign Affairs of the Republic of Poland following the judgment of the CJEU in Case C-192/18 Commission v Poland”, https://www.gov.pl/web/dyplomacja/stanowisko-ministerstwa-spraw-zagranicznych-rp-w-zwiazku-z-wyrokiem-tsue-w-sprawie-c-19218-komisja-przeciwko-polsce, November 5, 2019.