In the judgment issued on 24 June 2019 in Commission v Poland (Case C-619/18), the Court of Justice held that the law reducing the retirement age of judges of the Supreme Court of Poland violated Art. 19 of the Treaty on European Union, which amplifies the principle of the rule of law set forth in Art. 2 of the treaty. Why was this judgment issued?
First we should mention what the proceeding brought against Poland by the European Commission was about. The Supreme Court Act of 8 December 2017, which entered into force on 3 April 2018, introduced the rule that judges of the Supreme Court of Poland entered retirement upon reaching age 65. However, if their health allowed, judges could submit a statement, no earlier than 12 months and no less than 6 months before turning 65, declaring their wish to continue in active service on the court, and the President of Poland could then consent to their continuing in office for a further three years (which consent could be renewed once, for a further three years).
Considering that under the prior Supreme Court Act of 23 November 2002 judges of the Supreme Court entered retirement upon reaching age 70, with the possibility of an extension to age 72 if their health permitted (without obtaining anyone’s consent), the Commission found that the new regulation violated the principle of judicial independence.
The case was filed with the Court of Justice. The Commission also applied to the court for interim relief staying the application of the new regulations until a judgment was issued in the case, and the Court of Justice (Grand Chamber) granted that application. Moreover, at the Commission’s request, the case was considered under an expedited procedure.
Meanwhile, pursuant to the Act of 21 November 2018 Amending the Supreme Court Act, which entered into force on 1 January 2019, Poland repealed the provisions challenged by the Commission. The Commission maintained its complaint, however, and the court held that because the amending act was adopted after the deadline set by the Commission to repeal the disputed provisions, the proceeding against Poland would continue.
EU’s competence to review compliance with the rule of law by member states
In its judgment, the Court of Justice pointed out that under Art. 49 of the Treaty on European Union, the Union is composed of states which have freely and voluntarily committed themselves to the common values referred to in Art. 2 TEU. These values are “respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”
Thus EU law is “based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that those Member States share with it, those same values.” This entails a mutual trust between the member states of respect for these shared values, ensuring the effectiveness of EU law and enabling judicial cooperation between the member states.
And as the Court of Justice has repeatedly held, a key element of the EU’s judicial system, ensuring the uniform application and autonomy of EU law, is the procedure for national courts to apply to the Court of Justice for preliminary rulings, ensuring a single, consistent interpretation of the law established by EU institutions.
Moreover, as the court stressed, “the European Union is a union based on the rule of law in which individuals have the right to challenge before the courts the legality of any decision or other national measure concerning the application to them of an EU act.”
For these reasons, Art. 19 TEU, which gives concrete expression to the principle of the rule of law referred to in Art. 2 TEU as a fundamental value observed in the Union, entrusts to the courts of the member states the responsibility for ensuring the application of EU law and judicial protection of rights derived from EU law. Therefore, the member states are obliged to establish a system of legal remedies and procedures ensuring effective judicial review in fields covered by EU law.
Moreover, according to the court, the principle of the effective judicial protection of individuals’ rights under EU law is a general principle of EU law stemming from the constitutional traditions common to the member states, and is enshrined in Art. 6 and 13 of the European Convention on Human Rights, to which all EU countries are parties, and reaffirmed by Art. 47 of the Charter of Fundamental Rights of the European Union, which applies in fields covered by EU law.
Consequently, the court held that although the organisation of the justice system in the member states lies within the competence of those states, when exercising that competence the member states are required to comply with their obligations deriving from EU law.
Considering the arguments presented, the Court of Justice pointed out that in certain instances, the Supreme Court of Poland may rule on issues connected with the application or interpretation of EU law, and the Supreme Court is a part of the system of legal remedies and procedures of judicial review in fields covered by EU law for purposes of Art. 19 TEU. Thus the Supreme Court must guarantee effective legal protection of rights under EU law.
Effective legal protection is guaranteed only if the judicial body maintains independence, which is also indicated in Art. 47 of the Charter by the phrase “a fair and public hearing … by an independent and impartial tribunal.”
In C-216/18 PPU, involving extradition of a Polish citizen from Ireland to Poland (which we discussed here), the Court of Justice held that “the requirement of judicial independence forms part of the essence of the fundamental right to a fair trial, a right which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded.”
Requirement of judicial independence
In evaluating the allegations of the European Commission, the court cited its earlier rulings in the cases of Hungarian judges (C-286/12), Portuguese judges (C-64/16), and extradition of a Polish citizen from Ireland under a European arrest warrant (C-216/18 PPU).
The court pointed out that the right to an independent court includes two aspects. First, “that the court concerned exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever.” This aspect requires “certain guarantees appropriate for protecting the individuals who have the task of adjudicating in a dispute, such as guarantees against removal from office.”
The second aspect, that the court be impartial, “requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law.” To ensure the independence of the court, the case law of the Court of Justice requires in particular that any dismissal of those who have the task of adjudicating disputes must be based on express statutory provisions, and the disciplinary regime must contain guarantees against “being used as a system of political control of the content of judicial decisions.”
And as the court further held, “The principle of irremovability requires, in particular, that judges may remain in post provided that they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term.” Any exceptions to that principle must be “warranted by legitimate and compelling grounds,” and thus judges may be dismissed if they are unfit to carry out their duties on account of incapacity or a serious breach of their obligations, and the appropriate procedures are followed. Exceptions to the rule of irremovability must meet the requirement of proportionality and not raise reasonable doubt “as to the imperviousness of the court concerned to external factors and its neutrality with respect to the interests before it.”
In the view of the Court of Justice, even if the changes introduced by the 2017 Supreme Court Act were intended to align the retirement age for judges with the general retirement age, they did not meet the requirement of proportionality. Firstly, unlike the general rules applicable to workers, where retirement is voluntary, under this act the retirement of judges occurred automatically, subject to the possibility of continuing to serve on the basis of a discretionary decision of the President. Moreover, this change was introduced without any transitional measures protecting the legitimate expectations of judges holding office at the time the new regulations entered into force. In the view of the Court of Justice, the conditions and procedural rules under the new act for further service as a judge of the Supreme Court did not guarantee judicial independence.
Evolution of the case law of the Court of Justice
This judgment represents a further step in the case law of the Court of Justice giving concrete expression to the foundational principles of the rule of law in the European Union. Paradoxically, the atmosphere of crisis surrounding the EU creates an atmosphere highlighting in the rulings of the Court of Justice the fundamental values underlying the European project and essential to its functioning. Alongside the judgments discussed above, there were also two interesting judgments handed down in May 2019 concerning the independence of the body issuing a European arrest warrant (Case C-509/18 and Joined Cases C-508-19 and C-82/19 PPU). And soon a judgment should be expected responding to requests from Poland for preliminary rulings on the independence of the National Council of the Judiciary (Cases C-585/18, C-624/18 and C-625/18). The advocate general’s opinion in those cases was issued on 27 June 2019.
Agnieszka Kraińska, attorney-at-law, EU Law practice, Wardyński & Partners