The Court of Justice of the European Union (‘CJEU’) has found Poland in contravention of EU law for seeking to lower the retirement age for ordinary judges. The action was seen to give too much power to the executive and the requirement that female judges retire 5 years earlier than male was in breach of EU equality law.
The laws, introduced in 2017, introduced a retirement age of 60 years for female and 65 years for male judges of the Supreme Court, previously set at 67 years for both sexes. In addition, that law conferred on the Minister for Justice the power to allow some judges work beyond the new retirement age.
The Court first found breaches of Article 157 of the Treaty on the Functioning of the European Union (‘TFEU’) and the Equality Directive 2006/54 retrospectively. Article 157 TFEU encompasses the principle of equal pay for male and female workers for equal work and the Directive is devoted to equal treatment in occupational social security schemes.
The Court highlighted the directly discriminatory conditions based on sex that the new legislation introduced. The Court rejected Poland’s submission that the legislation was a measure of ‘positive discrimination’ in the sense that it was more advantageous for women to retire earlier than men. The Court noted that those differences did not offset the disadvantages which female public servants were exposed by helping them in their professional life or by providing a remedy for the problems which they may encounter in the course of their career.
Secondly, the Court found the new legislation to be unlawful because it gave too much power to the Executive. The legislation allowed the Minister for Justice to authorise judges of the ordinary courts to continue to carry out their duties beyond the new retirement age. The Court regarded the 2019 judgement in the case Commission v Poland which stressed the importance of having the Supreme Court as an independent entity to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law. In that regard, the Court observed that the fact that an organ, such as the Minister for Justice, was entrusted with the power to decide whether or not to grant an extension to the period of judicial activity beyond the normal retirement age was, admittedly, not sufficient in itself to conclude that the principle of independence had been undermined.
The Court argued that the Minister would be able to make decisions on “vague and unverifiable” criteria and would help to create “reasonable doubts” that the new system “might have been intended to enable the minister to remove… certain groups of judges while retaining others in post”.
Lastly, the Court found that the combination of lowering the normal retirement age of judges and the discretion conferred upon the Minister for Justice failed to comply with the principle of irremovability.
That combination of measures 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 to remove, once the newly set normal retirement age was reached, certain groups of judges while retaining other judges in post.
Click here for the decision.