News & Analysis

Poland backtracks on law forcing judges to retire at 65

warsaw supreme court

Poland’s ruling party Law and Justice (PiS) has caved in to pressure from the European Commission regarding the forced retirement of Supreme Court judges.

On November 21, PiS proposed a legislative amendment backtracking on the reforms which are at the centre of its conflict with the European Union over democratic standards, primarily a law which forced judges to retire at the age of 65.

“As we have said, we respect the decisions of the Court of Justice of the European Union (CJEU),” said Marek Ast, a PiS MP. “We have now proposed an amendment which is in line with the expectations of the CJEU and will repeal the provision under which judges above the age of 65 were forced into retirement.”

The draft amendment will repeal the procedure under which judges needed the Polish president’s consent to continue working after reaching the age of 65.

“If the law comes into force, these judges will be able to return to the Supreme Court,” added Mr Ast.

However, there are a few caveats to the proposed amendment.

First of all, judges appointed after the initial reform that forced judges to retire once they reach the age of 65 will not be able to apply to extend their term. Secondly, another condition of the reinstatement of those forcibly retired is that they would only be reinstated provided that they return all severance pay received thus far, and will be paid the same salary they received prior to retiring.

“Judges who return to adjudicate in the Supreme Court will be treated as if they have continued to work, from the date of entry into force of the law on the Supreme Court, ” concluded Mr Ast.

“I believe that this is both a win for Poland and a catch 22 situation,” explains Professor Michał Romanowski, professor at the University of Warsaw, and a partner in the law firm Romanowski and Partners. “Those who were dismissed can return to work based on the previous rules, which means they will be able to serve until the age of 70. The regulations in the Polish Act on the Supreme Court pertaining to the truncation of the retirement age of the Polish Supreme Court justices from 70 to 65 will be applied only to the new justices nominated after that law entered into force. Such a solution is in line with the rule of law.”

Professor Romanowski also points out that: “such an amendment is not required from the legal point of view to change the status of the dismissed justices from retired to active. There are no doubts between leading scholars and experts in Poland that the decision in question of the CJEU is binding for all branches of the Polish authorities, directly on the basis of such a decision and the Treaties of the European Union.”

In regards to the reappointment of the dismissed judges, based on the explanation provided by Professor Romanowski and the decision provided by the CJEU back in October, the first president of the Polish Supreme Court and the presidents of specific chambers of the Supreme Court could return to work with immediate effect.

“They did not wait for any reaction of Polish government and the Polish parliament. The new amendment put forward by the Polish government will make it possible to tidy up circumstances, legally speaking, regarding a law that is no longer in force, because of the decision of the CJEU,” adds Professor Romanowksi.

“Poland’s president, the prime minister and the ruling party have been forced by the CJEU to accept that its rulings have the character of law,” concludes Professor Romanowski