The European Commission launched an infringement procedure against Poland by sending a Letter of Formal Notice, following the publication in the Polish Official Journal of the Law on the Ordinary Courts Organisation on Friday 28 July. The Polish authorities have one month to reply to the Letter of Formal Notice.

“The Commission’s hand is still extended to the Polish authorities, in the hope of a constructive dialogue.” –  said the First Vice-President Frans Timmermans in a letter to the Polish Minister of Foreign Affairs reiterating the invitation to him and the Polish Minister of Justice for a meeting in Brussels at their earliest convenience in order to relaunch the dialogue. Formal Notice requests the Polish Government to reply within one month. After examining Poland’s reply, or if no observations have been submitted within the prescribed time-limit, the Commission may issue a Reasoned Opinion, the second stage of the infringement procedure.

The Commission’s key legal concern identified in the law on the organisation of ordinary courts relates to the discrimination on the basis of gender due to the introduction of a different retirement age for female judges (60 years) and male judges (65 years). This is contrary to Article 157 Treaty on the Functioning of the European Union (TFEU) and Directive 2006/54 on gender equality in employment.

In the Letter of Formal Notice, the Commission also raises concerns that by giving the Minister of Justice the discretionary power to prolong the mandate of judges who have reached retirement age, as well as to dismiss and appoint Court Presidents, the independence of Polish courts will be undermined (see Article 19(1) of the Treaty on European Union (TEU) in combination with Article 47 of the EU Charter of Fundamental Rights).

The new rules allow the Minister of Justice to exert influence on individual ordinary judges though, in particular, the vague criteria for the prolongation of their mandates thereby undermining the principle of irremovability of judges. While decreasing the retirement age, the law allows judges to have their mandate extended by the Minister of Justice for up to ten years for female judges and five years for male judges. Also, there is no time-frame for the Minister of Justice to make a decision on the extension of the mandate, allowing him to retain influence over the judges concerned for the remaining time of their judicial mandate.

“The Commission’s hand is still extended to the Polish authorities, in the hope of a constructive dialogue.” –  said the First Vice-President Frans Timmermans sent a letter to the Polish Minister of Foreign Affairs reiterating the invitation to him and the Polish Minister of Justice for a meeting in Brussels at their earliest convenience in order to relaunch the dialogue. As Timmermans underlined in the context of the Rule of Law dialogue. Formal Notice requests the Polish Government to reply within one month. After examining Poland’s reply, or if no observations have been submitted within the prescribed time-limit, the Commission may issue a Reasoned Opinion, the second stage of the infringement procedure.