The European Commission sent a “reasoned opinion” [press release] to the Polish government Tuesday over the new law [JURIST report] lowering the mandatory retirement age of the Polish Supreme Court from 70 to 65.

The lowering of the mandatory retirement age is largely seen as a way to pack the Polish judiciary by the Law and Justice Party. The European Commission’s sending of the reasoned opinion the next step towards referring Poland to the European Court of Justice for an infringement procedure.

An infringement procedure is the power of the EU to take legal action against a member state that is not respecting its obligations under EU law.

On 29 July 2017 the Commission launched an infringement procedure on the Polish Law on Ordinary Courts, also on the grounds of its retirement provisions and their impact on the independence of the judiciary. The Commission referred this case to the Court of Justice on 20 December 2017. The case is pending before the Court.

On 20 December 2017, due to a lack of progress through the Rule of Law Framework, the Commission invoked the Article 7(1) procedure for the first time, and submitted a Reasoned Proposal for a Decision of the Council on the determination of a clear risk of a serious breach of the rule of law by Poland. Article 7(1) of the Treaty on European Union provides for the Council, acting by a majority of four fifths of its members, to determine that there is a clear risk of a serious breach by a Member State of the common values referred to in Article 2 of the Treaty.

If the EU Commission refers Poland to the European Court of Justice, Poland will be obligated to pay a financial penalty.