The European Commission on August 14 took the next step in infringement procedures against Poland. It sent a Reasoned Opinion to the government in Warsaw calling on lawmakers to retract new laws governing the country’s Supreme Court.

The Commission maintains its position that the Polish law on the Supreme Court is incompatible with EU law as it undermines the principle of judicial independence, including the irremovability of judges. As such, the Commission says Poland fails to fulfil its obligations under Article 19(1) of the Treaty on European Union read in connection with Article 47 of the Charter of Fundamental Rights of the European Union.

Now, Poland has one month to take the necessary measures to comply with this Reasoned Opinion. If Poland fails to do so, the Commission may decide to refer the case to the EU’s Court of Justice.

According to the Commission, 27 out of 72 sitting Supreme Court judges are at risk of being forced to retire under new rules lowering the retirement age of Supreme Court judges from 70 to 65. This measure also applies to the First President of the Supreme Court, whose six-year mandate, set out in the Polish Constitution, would be prematurely terminated.

According to the law, current judges affected by the lowered retirement age are given the possibility to request a prolongation of their mandate by Poland’s president. This can be granted for a period of three years and renewed once.

However, there are no criteria established for the president’s decision and no judicial review is available if the request is rejected.

According to the European Commission, the introduction of a consultation of the National Council for the Judiciary (NCJ) does not constitute an effective safeguard, as claimed by the Polish authorities. The NCJ’s opinion is not binding and is based on vague criteria.

According to a Commission press release, Brussels has carried out a thorough analysis of the response of the Polish authorities to the Letter of Formal Notice sent by the Commission on July 2 concerning the law on the Supreme Court. The response of the Polish authorities does not alleviate the Commission’s legal concerns.