ECJ Issues Order Freezing Polish Judicial Changes
The Court of Justice of the European Union (commonly the European Court of Justice, ECJ) has issued an order mandating the Polish government “immediately” halt its reforms of the Supreme Court of Poland while judicial proceedings brought by the European Commission (EC) against Warsaw are underway. The Polish government has not announced its intent to oppose the ECJ’s interim measures, which would effectively halt efforts by Warsaw to force out Supreme Court judges on the basis of judicial reform legislation. Passed in December 2017, the legislation lowered the mandatory retirement age for Polish judges and granted the president of Poland the exclusive right to determine the size of the Supreme Court.
Poland’s government has been dominated by the right-wing Law and Justice Party (PiS) since successive elections in 2015 that resulted in PiS control over the legislature and presidency. High among its slate of policies was wholesale reform of Poland’s judicial system, including effectively subordinating the judiciary to the Minister of Justice, packing Poland’s Constitutional Court with PiS appointees, expanding parliamentary influence into the otherwise legal professional-dominated National Judicial Council, and lowering the mandatory retirement age of judges on the Supreme Court from 70 to 65.
Critics, both domestic and foreign, have labeled the reforms as an outright erosion of the rule of law and a naked attempt by PiS to consolidate its hold over power. While the EC, the executive arm of the European Union, threatened Poland with disciplinary measures under Article 7 of the 2009 Treaty of Lisbon for its flagrant disregard of EU values — measures which include suspension of Poland’s voting rights in EU decision-making bodies — the Polish government continued its push for the reforms into 2018, suspending nearly 40% of all judges in the Polish judiciary who were above the new retirement age. Furthermore, the Polish president was reportedly seeking the immediate retirement of First President of the Supreme Court Małgorzata Gersdorf, along with 11 of her colleagues on the high court’s bench.
The issue came to a head in August 2018, when the Supreme Court issued a formal query to the ECJ to rule on the compatibility of the change of retirement age — with its associated provision that obliges judges that wish to continue to sit to request permission from the President of Poland — with EU law and ruled that incumbent judges could continue to sit until the ECJ delivered a final opinion. The EC formally referred the matter to the ECJ as well on Sept. 24, 2018, after hearing unsatisfactory answers from the Polish delegation in rounds of questioning over the judicial reforms as required under Article 7 proceedings.
The ECJ began interim proceedings on Oct. 2, 2018 over Poland’s “failure to fulfill obligations” and infringement of EU law. Under the authority of the Vice-President of the ECJ, the ECJ issued its interim order on Oct. 19, 2018, provisionally granting “all the Commission’s requests until such time as an order is made closing the interim proceedings.” As such, Poland is legally obliged to “suspend the provisions of national legislation relating to the lowering of the retirement age” for judges on the Polish Supreme Court; to ensure “Supreme Court judges concerned by the provisions at issue may continue to perform their duties in the same post” and enjoy the same rights and benefits prior to the judicial reform law; to not appoint replacement judges for those affected by the law or circumventing the First President of the Supreme Court; and to regularly inform the EC about all measures taken to comply with the ECJ order.
While the order is not a definitive final judgment by the ECJ on the matter, the reasoning laid out by the ECJ Vice-President specifically notes the “real risk of serious and irreparable damage to individuals if the interim measures were not adopted” owing to the “profound and immediate change in the composition of the Supreme Court.” The interim order is also justified on the grounds that if the ECJ ultimately finds Poland’s reforms to be legal, the legislation’s effects will merely be delayed by the interim measures. However, if no interim measures were ordered and the ECJ finds Poland’s reforms to be illegal, then the immediate application of the judicial reform laws “would be likely to irreparably damage the fundamental right to an independent court or tribunal.”
While Polish government officials warned in late August that Warsaw “will probably have no choice” but to ignore any adverse ruling by the ECJ, a terse statement issued by Polish Prime Minister Mateusz Morawiecki on the same day of the interim order stated that “certainly after an exacting analysis we will respond.” PiS leader Jarosław Kaczyński issued a similarly vague statement asserting that Poland “would observe EU law” without mention of whether or not the PiS-controlled government would actually comply with the ECJ order.
The ECJ’s interim order comes two days before Polish voters head to the polls for local elections — the first nationwide vote since PiS secured control of Warsaw in 2015. The ramifications of the ECJ’s order with regards to the Polish political scene remains to be seen. The ECJ is not expected to issue a final judgment for several months.