In an opinion delivered on Thursday, the Advocate General of the Court of Justice of the European Union, Athanasios Rantos, questioned whether the Polish mechanism that allows the National Judicial Council to approve or deny an ongoing tenure for judges who have reached retirement age provides adequate safeguards for judicial independence.
Under Polish law, judges who wish to continue serving after retirement must inform the National Council for the Judiciary. The notice of intent must be filed within a legally set window; failure to comply leads to inadmissibility. The National Council for the Judiciary may authorize continued service if it is justified, including considerations of the judiciary’s interests or other compelling social reasons.
The Chamber of Extraordinary Audit and Public Affairs of the Supreme Court asked the Court of Justice whether this approach is compatible with the principle of irremovability and independence of judges as enshrined in the Treaty on European Union.
In his opinion, the Advocate General noted that the question of a preliminary ruling touches on whether the Extraordinary Control Chamber functions as a judicial body within the meaning of EU law, particularly given its lack of hierarchical subordination to the administration of the requesting authority rather than to the people who sit on it.
He explained that any irregularities in the appointment process of members of the jury panel could only deprive the body of its status as a court in that sense if they undermine its capacity to adjudicate independently.
Regarding the questions posed, the Advocate General recalled that EU case law allows member states to involve a non-judicial authority in decisions on matters such as the selection of judges or their renewal in active service.
Therefore, Rantos concluded that the mere fact that the National Council for the Judiciary has the right to approve or withhold continuation does not by itself establish a breach of the principle of judicial independence.
He did, however, reserve judgement on the substantive legal standards and procedural rules, noting that the criteria on which decisions about continuing a judge’s office are based remain too vague and difficult to verify.
Rantos also highlighted concerns arising from Polish law, which does not set a deadline for when the national court registry must decide on this issue.
Considering all essential facts about the National Council for the Judiciary and the way it carries out its designated role, the principle of irremovability and independence enshrined in EU law opposes national rules that make a judge’s ability to stay in office conditional on consent from a body shown not to be independent of the legislature or the executive, especially when that body relies on unclear and hard-to-verify criteria.
The Advocate General thus underscored the core tension between formal continuity provisions for judges and the need to preserve the independence of judicial decision-makers from political influence.
On the question of a late directive to continue serving, he suggested that clear and predictable deadlines for submitting such intent declarations are objective formal requirements that help ensure legal certainty and the overall fairness of the proceedings. The six-month window provided by Polish law, tied to a judge’s birthday, is long enough to allow careful consideration of whether to continue in office.
The Advocate General’s opinion serves as an introduction to the Court’s judgment. The Court of Justice may endorse, reject, or modify this view in its final ruling.