Poland Breaks Ranks With EU Over Judges
Poland’s National Judicial Council has been suspended from the European Network of Councils for the Judiciary — the European Union’s premier national judicial coordination association — after months of turmoil in Warsaw over the judicial reforms passed by the governing Law and Justice Party earlier this year. The move comes as the European Commission (EC) debates referring Poland to the European Court of Justice (ECJ) over the reforms, criticized as “threatening the independence of the judiciary.” It also signals a deepening rift between Poland and the European Union (EU) — alongside other recent spats between the EU and its eastern member-states.
In 2015, successive elections for the Polish presidency and parliament granted the right-wing Law and Justice Party (PiS) effective control of the Polish government. PiS proceeded to implement a slate of policies criticized by domestic and foreign observers as illiberal and undemocratic, including concerted attacks on the independence of Poland’s highest constitutional court, limits on discourse regarding Poland’s role in the Holocaust, and a wholesale reorganization of the judicial system that would effectively reduce the courts to a subservient department of the PiS-controlled government.
A first set of bills containing judicial reforms was passed by the Parliament of Poland in late July 2017, which drew mass protests across the country. As a result, President of Poland, Andrzej Duda, vetoed the bills on the grounds that the laws would not “strengthen a sense of justice” and called for the bills to be amended. A second set of bills, mainly centered around Duda’s proposals to make the National Judicial Council, which nominates judges for appointment wholly elected by the lower house of Parliament and lowers the retirement age of Supreme Court judges from 75 to 65, easily passed in the Parliament and was signed by Duda into law on Dec. 20, 2017.
On the same day, the EC, the executive arm of the EU, announced that it would launch disciplinary measures against Poland and gave Warsaw three months to reverse the measures. Under Article 7 of the 2009 Lisbon Treaty, the EC may propose to member-states to find a fellow member-state in violation of EU values — which would require the consent of the European Parliament and a four-fifths affirmative majority of the European Council — and, should the “serious and persistent breach” not be remedied, suspend the voting rights of the offending member-state in question provided the requisite majorities are met in the European Council.
The crisis continued into the current year as the PiS government suspended judges above the new retirement age — approximately 40% of the Polish judiciary — while President Duda was reported to be seeking the immediate retirement of President of the Supreme Court Małgorzata Gersdorf by July 3, 2018 and the further sacking of another 11 judges on Supreme Court by July 4. Amidst protests by judges refusing to take the forced retirement, the Supreme Court ruled on Aug. 2 that all judges could remain in their posts pending an ECJ ruling on the legality of the new laws.
As the ECJ began deliberations on whether or not to consider appeal by the Polish Supreme Court, the Polish government, on Aug. 27, warned that it will “probably have no choice” but to ignore the ECJ should the European court suspend the early retirement law. The European Network of Councils for the Judiciary suspended Warsaw’s National Judicial Council on Sept. 17 while Polish officials headed to Brussels to face questioning over the entire situation as required by Article 7.
Unnamed EU officials were cited in media reports claiming that the EC, after hearing unsatisfactory responses from the Polish delegation on Sept. 18, was ready to formally request the ECJ to rule on the retirement age law. However, the EC declined to refer the case to the ECJ in statements made on Sept. 21. As such, with a hesitant EC, a still-deliberating ECJ, and a firm commitment by its allies (namely, Hungary) to veto any punitive action by the EU, Poland’s PiS-dominated government appears to remain unchallenged over its historic judicial reforms.
In a parallel situation reflecting the widening rift between Poland and the EU, a ruling by the ECJ on July 25 found that judicial authorities in EU member-states — namely, Ireland — could decline to give effect to arrest and extradition warrants if the issuing member-state — in this case, Poland — could not guarantee an independent judiciary and a fair trial for the accused — in this instance, a Polish national arrested in Ireland on a Polish warrant for drug trafficking.
It remains to be seen where the legal drama, now blossoming into a EU-wide issue, will ultimately be dealt with and what ramifications it has for future relations between Warsaw (and its fellow Eastern European allies) and Brussels.