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Financial Times (11 April 2019)

The overhaul of Poland’s supreme court that forced more than a third of its judges into early retirement broke EU law, the chief adviser to the bloc’s top court said on Thursday.

The supreme court reform was one of a number of changes introduced by Poland’s ruling Law and Justice party that give politicians sweeping powers of the judiciary, prompting fears that the rule of law in Poland was being fundamentally undermined, and setting Warsaw at loggerheads with Brussels.

The reform cut the retirement age for supreme court judges from 70 to 65. Judges could apply to stay on beyond 65, but their applications had to be approved by Poland’s president, a requirement seen by many judges as a naked threat to their independence.

In an attempt to reverse the reform, the European Commission took Poland to the European Court of Justice and, in a statement on Thursday, Evgeni Tanchev, the court’s advocate general, agreed that the changes “violate the requirements of judicial independence, since they are liable to expose the Supreme Court and its judges to external intervention and pressure from the president of the republic”.

Following the commission’s complaint against the overhaul, which forced 27 of the 72 judges on Poland’s supreme court into early retirement last summer, the ECJ ordered Poland to suspend the reform until it could take a final view on the matter.

Poland eventually backed down and reinstated the ousted judges. But the commission maintained its complaint as it was keen for a formal verdict from the ECJ on the reform. The advocate general’s decision paves the way for a final ruling. His decision is not binding, but the ECJ tends to follow the advocate general’s position in the majority of cases.