EC refers Poland to the European Court of Justice to protect the independence of the Polish Supreme Court

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On Monday, the European Commission decided to refer Poland to the Court of Justice of the EU due to the violations of the principle of judicial independence created by the new Polish Law on the Supreme Court, and to ask the Court of Justice to order interim measures until it has issued a judgment on the case, a release posted on the EC website informs.

The new Polish law on the Supreme Court lowers the retirement age of Supreme Court judges from 70 to 65, putting 27 out of 72 sitting Supreme Court judges at risk of being forced to retire. This measure also applies to the First President of the Supreme Court, whose 6-year mandate, set out in the Polish Constitution, would be prematurely terminated.

According to the law, which entered into force on 3 April 2018, judges affected by the lowered retirement age are given the possibility to request a prolongation of their mandate, which can be granted by the President of the Republic for a period of three years, and renewed once. There are no clear criteria established for the President’s decision and no judicial review is available if he rejects the request. Moreover, the only safeguard proposed by the Polish authorities is a non-binding consultation of the National Council for the Judiciary, a body which is now composed in violation of European standards on judicial independence.

The European Commission maintains that the Polish law on the Supreme Court is incompatible with EU law as it undermines the principle of judicial independence, including the irremovability of judges, and thereby Poland fails to 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.

The Commission sent a Letter of Formal Notice to the Polish authorities on 2 July 2018 concerning the Law on the Supreme Court, and followed this with a Reasoned Opinion on 14 August 2018. The response of the Polish authorities on both occasions has failed to alleviate the Commission’s legal concerns.

The implementation of the contested retirement regime for Supreme Court judges in Poland is being accelerated and is creating a risk of serious and irreparable damage to judicial independence in Poland, and therefore of the EU legal order. The independence of national courts and tribunals is essential for the functioning of judicial cooperation between EU Member States, and particularly for the preliminary ruling mechanism under Article 267 TFEU.

The Commission has therefore moved to the next stage of the infringement procedure, deciding to refer the case to the Court of Justice of the EU. With its referral, the Commission has also decided to ask the Court of Justice to order interim measures, restoring Poland’s Supreme Court to its situation before 3 April 2018, when the contested new laws were adopted. Finally, the Commission has decided to request an expedited procedure at the Court of Justice, to obtain a final judgment as soon as possible, the release concludes.

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