The Rule of Law and the Judicial Retirement Age in Poland: Is the ECJ Judgment the End of the Story?

—Matteo Mastracci, Koç University

On June 24, 2019, the Grand Chamber of the European Court of Justice delivered its long hoped for judgment over the retirement age dispute introduced by the Polish legislator through the so-called “Law on the Supreme Court.” Following the passage of this law, all sitting judges were forced to retire early (at 60 for women and at 65 for men, rather than 70) and with immediate effect. Because of it, 27 out of 72 judges of the Supreme Court, including the First President, would have been directly affected unless they were given relief through a formal process coming from the hands of the President of the Republic.

The Court was asked to issue a judgment by the Commission on October 2, 2018, relying on Article 258 TFEU, an infringement mechanism devised against failures in complying with Treaty obligations. This infringement was based on the delay of the Polish authorities in replying timely to a reasoned opinion of the Commission dated August 14, 2018. Indeed, the Polish actors should have replied within one month of the delivery of the reasoned opinion, so no later than September 14.

However, while the Court proceedings were pending, and quite surprisingly, on December 17, 2018, the Polish government retraced its steps, by way of a U-turn, when the President of the Republic signed a new Law amending the former one, which entered into force the January 1, 2019. According to the new law, the judges of the Supreme Court, including the First President of the Supreme Court, who were retired pursuant to the earlier one are now reinstated in their position and the performance of their duties is deemed to have continued without interruption. It was then a logical and predictable consequence that Poland requested a procedural withdrawal based on a concrete lack of purpose in keeping the infringement procedure in place.

Most notably, in the proceeding the Commission advanced two order of complaints; first, a violation of the principle of the irremovability of judges under the new Law on the Supreme Court, secondly, a breach of judicial independence as to the discretion granted to the President of the Republic in extending the tenure of the Supreme Court judges (para 26). By contrast, Poland has argued that the proceedings became moot with the entry into force of a repealing Law providing for a reinstatement of the affected judges (para 27), that the organisation of the national justice system falls within the exclusive competence of Member States (para 38) and that no link with EU law is to be found in the present case because the contested rules are under the sole domain of national legislation (para 40).

The Grand Chamber found that the application of the measures lowering the retirement age was not justified by a legitimate objective and as such put at risk the principle of irremovability (para 96); secondly, since it is crucial to safeguard judges from any form of external intervention or pressure (para 112), the discretionary power granted to the President breaches judicial independence as it was not linked to any criterion nor subject to judicial review (para 114). The Court also dismissed Poland’s claims of exclusive domestic competence, noting instead that the principle of effective judicial protection of individuals is a common heritage of EU law (para 49. Likewise, it rejected as the claim of an absence of a link with EU law in view of the fact that the “fields covered by Union law” find application irrespective of whether Member States are implementing EU law (para 50).

In any event, the major and preliminary challenge looming before the Court was a procedural impasse: to what extent a new fact occurring during the infringement procedure could bring the closure of a case, and under which conditions the new fact could satisfy the purpose of the proceeding. Advocate General (AG) Tanchev, in his opinion of April 11, 2019, interestingly, advanced two classes of reasons why the Court retained jurisdiction over the dispute. First, a temporal argument whereby the Court must refer to the actual situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (para 44), or September 14, 2018. Since the repealing law entered into force on January 1, 2019, its passage is irrelevant to the proceeding. Tanchev also advanced a further legal argument, namely the interests of those who have acquired rights at the time of the precedent legal regime (para 45). On these grounds, the AG argued that there was a compelling interest for the Union, other Member States and individuals in receiving a clarification on the rule of law and on what is required in order for it to be protected (para 47).

In its much-acclaimed Grand Chamber judgment, the Court essentially accepted the arguments of the AG. At the outset, the Court emphasized the crucial need for mutual trust between Member States in upholding the common values embedded under Article 2 TEU (para 43) where, definitely, the rule of law plays a leading role. In a similar vein to what normally happens between private parties of a contract, the Member States as parties of the European Union “contract” must relate to each other in a good faith fashion and with mutual trust with respect to democratic performance. Ergo, and even though not expressly mentioned, it seems that the Court endorsed in a subtle way the AG argument of a compelling interest. As a second step, the Court recalled its settled case-law on the matter (from Commission v. Greece, Case C-2000/88, para 11, onwards) on the relevant time period in which to assess infringement. In order to assess the demands of the defendant State, reference must be made to the position held by the Member State at the end of the period laid down in the reasoned opinion and, as a corollary, the Court cannot take into account any subsequent changes (para 30). Rather unexpectedly, however, no straightforward reference was made to the need in protecting the interests of those persons who acquired rights as a result of the State infringement.

In any case, what seems to be the most debatable argument is the one under which the Court “cannot take into account any subsequent changes” but only the ones occurring within the stretch of time determined by the reasoned opinion. Whether or not it suggests the maxima formalism trumps over realism is an open and somewhat blurred question. First, the very brevity of the period, one month, could raise serious doubts as to whether a national parliament can easily pass a new law in such a speedy way; thus, it is far from clear whether the meaning of any subsequent changes must refer to a communication, a draft proposal, a formal approval by the competent organs or, conversely, entry into force.

Before claiming a rule of law victory, it remains to be seen whether and how the enforcement process will work. Even if non-compliance with ECJ judgments has been limited to few cases only, the initiation of a further infringement proceeding, this time under Article 260 TFEU, cannot be ruled out. There will also be further developments in the joined cases C-585/18, C-624/18 and C-625/18, dealing with the independence of the Polish Supreme Court’s disciplinary chamber.

In particular, a strategy of non-compliance seems like a realistic threat for Poland following a cost/benefit analysis.[1] Even assuming persistent non-compliance, which would result in a procedure under Article 260 TFEU, the adherence of a Member State to the ECJ ruling may not be achieved 100 percent. Indeed, Article 260 TFEU, similarly to Article 258 TFEU, requires the opportunity for the Member State concerned to submit an observation within a certain period of time laid down by the Commission and, only after that, if the non-compliance still persists, a recurring penalty payment or lump sum can be imposed. Ironically, in the very first application of Article 258 TFEU (Case C-387/97 Commission v Greece), the Advocate General Ruiz-Jarabo Colomer came to the conclusion that “It is unlikely, however, that delivery of the judgment will put an end to the uncertainty”[2] and, therefore, guarantee 100 percent compliance.

Consider too the following hypothetical scenario: since Article 260 TFEU allows the Member State to disclose an observation, which is nothing more than a new fact or a subsequent change able to fully satisfy the purpose of the proceeding, Poland could submit and therefore rely once more, this time arguably with a higher degree of success, on the repealing law entered into force last January. This could persuade the Polish actors to run the risk of non-compliance with the latest ECJ judgment. Moreover, if the matter concerns an important political interest, which is clearly the case with judicial reforms, a non-compliance strategy may well continue[3] and the Member State may not be put off by the threat of a mere financial sanction.[4]

That being the case, in this twisted and seemingly unending scenario, it seems premature to say that we have learned a key lesson on the need for informal attempts (dialogues) about the rule of law to be followed by an iron hand (infringement proceedings), and thus that EU institutions should carry out “as many infringement actions as possible and as soon as possible.”[5]

Suggested citation: Matteo Mastracci, The Rule of Law and the Judicial Retirement Age in Poland: Is the ECJ Judgment the End of the Story? Int’l J. Const. L. Blog, July 19, 2019, at: http://www.iconnectblog.com/2019/the-rule-of-law-and-the-judicial-retirement-age-in-poland-is-the-ecj-judgment-the-end-of-the-story/

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[1] See, Tanja A. Börzel, Tobias Hofmann, and Diana Panke, Who’s Afraid of the ECJ? Member States, Court Referrals, and (Non-) Compliance, ECPR Joint Sessions, Granada, April 14-19, 2005, at p. 12.

[2] Commission of the European Communities v Hellenic Republic, Case C-387/97, Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 28 September 1999, at para. 1.

[3] Brian Jack, Article 260(2) TFEU: An Effetive Judicial Procedure for the Enforcement of Judgments?, European Law Journal, 19(3) 2013, at p. 19.

[4] Trevor C. Hartley, Constitutional Problems of the European Union, Hart Publishing, Oxford, 1999, at pp. 109-110.

[5] Laurent Pech and Sébastien Platon, The beginning of the end for Poland’s so-called “judicial reforms”? Some thoughts on the ECJ ruling in Commission v Poland (Independence of the Supreme Court case), EU Law Analysis, July 8, 2019.