Updated | EU court slams Poland’s law lowering retirement age of judges

The European Court of Justice has slammed Poland after it lowered the retirement age for supreme court judges and gave the president discretionary power to grant exceptions.

In a judgment delivered today, the EU’s top court in Luxembourg said the measures taken by the Polish government affecting sitting judges was not justified by a legitimate objective.

“[The Polish government’s decision] undermines the principle of the irremovability of judges, that principle being essential to their independence,” the ECJ ruled.

The case concerns a new law introduced last year in which the retirement age for supreme court judges was lowered to 65. Any sitting judge beyond that age would lose his post unless he applied with the country’s president, who was given unfettered discretion as to whether the application was accepted or not.

The new law meant that a third of sitting judges, including the first judge, would have had to apply with the president to continue serving in court.

The ECJ found that EU principles requiring that independence and impartiality of the courts are guaranteed and kept free from external interventions or pressure, were compromised by the rules on the potential extension of terms beyond normal retirement age.

The ECJ noted that the president’s decision was not only discretionary but could not be challenged in court proceedings.

Malta case: Repubblika welcomes ECJ ruling

The outcome of this case could have a bearing on a constitutional case filed in Malta last April by NGO Repubblika to stop the appointment of six judges and magistrates.

Repubblika had gone to court to try and block the appointments, insisting these should be postponed until the government enacted the necessary judicial reforms as proposed by the Council of Europe’s Venice Commission.

The court in Malta had refrained from blocking the appointments but accepted Repubblika’s request to refer the matter to the ECJ.

Judge Mark Chetcuti will now take note of the ECJ ruling on Poland and determine whether and how it is applicable to the Maltese case.

But Repubblika have already hailed the ECJ case as a landmark judgment that “will also shape the future of the judiciary in Malta and put a stop to the systematic capture of the last remaining pillar of our democracy”. 

Repubblika said that Prime Minister Joseph Muscat had, in one day, appointed six members of the judiciary, despite a clear warning from the Venice Commission to change the system before making further appointments.

“These appointments changed the composition of our judiciary by a staggering 13% in one fell swoop, proving that the current system is dysfunctional and easily leads to corruption,” Repubblika said. 

Repubblika insisted that the ECJ’s guidance on judicial independence was “now clear” and urged the government not to ignore it.

No link between judgment and Maltese judiciary - government

Reacting to Repubblika’s statement as well as comments by former PN leader Simon Busuttil, the Justice Ministry said it could not understand the reason the NGO was linking the decision to the Maltese judiciary.

It noted that in Poland’s case, laws regarding the retirement age of members of the judiciary were in breach of European law. No such law had been passed in Malta, the ministry said.

“If anything, the law introduced in our country during the last legislature which relates to the judiciary was one that even Simon Busuttil voted in favour of, and was one that for the first time ever established an independent organ to advise the government on appointments to the judiciary,” read the statement.

It added that this had been done to strengthen laws that had been around for years, and which had been scrutinised and approved by the European Union when Malta became a full member back in 2004.

“The government would also like to clarify that, contrary to what is being reported in some sections of the media, there is nothing to support the claim that the Venice Commission advised the government to stop all appointments to the judiciary until reforms are enacted.”

It said the government remained committed to strengthening the rule of law in the country through further modernising legislation.