“The rule of law means that law and justice are upheld by an independent judiciary. The judgments of the European Court of Justice have to be respected by all. To undermine them, or to undermine the independence of national courts, is to strip citizens of their fundamental rights. The rule of law is not optional in the European Union. It is a must.” The words of Jean-Claude Juncker, president of the European Commission. For which reason it will come as no surprise that the Commission in its reasoned opinion has rejected the Polish government’s explanation of its judicial reforms, on the basis that it regards them as ‘incompatible with EU law’.
On Tuesday the Commission urged Poland either to change the law which forces judges of the supreme court to retire early or to face an action in the European Court of Justice. This is the latest round in the conflict with the Polish government over its reforms to the Polish judiciary which reforms, the Commission argues, are eroding the rule of law. The government as a month to respond.
This particular episode arises following last month’s formal notice from the commission to Poland of an infringement process for Poland’s breaking EU law by increasing political influence over judicial appointments. The Polish government responded by saying that the Commission’s concerns were unfounded and that under EU rules “the organisation of the justice system is the exclusive competence of the Member States”, and that “Poland is not in breach of the general provisions of EU law when it determines the retirement age of Supreme Court judges”. This response, as reported in the Financial Times, “did not alleviate the commission’s legal concerns”. The opinion itself said that: “The European 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”.
If the government fails to act, the infringement procedure could result in Poland being brought before the ECJ. One EU official said it is a political to escalate the process so quickly “and a sign that political dialogue is non-existent.” And, in addition to this infringement process, the Commission last year launched the Article 7 procedure in reaction to concerns about the rule of law in Poland, which could ultimately lead to Poland’s losing its EU voting rights.
Infringement proceedings before the ECJ can take years so the Article 7 procedure is likely to be of more immediate concern. However, sanctions under Article 7 require unanimity and Hungary, itself no stranger to battles with EU, has said in the past that it will veto sanctions against Poland.
At is heart the problem is simple. The supreme court law which came into force in July lowers the retirement age for judges from 70 to 65 which could force 27 out of the 72 judges to retire early. The government argues these changes are necessary to deal with reforms left unfinished from the communist era while the EU is concerned that these changes increase the government’s political influence over the judiciary. Indeed, Malgorzata Gersdorf, head of the supreme court and one who would be affected, has resisted early retirement, branding the reforms a “purge”.
In its reasoned opinion, the Commission said that measures that allow a judge to appeal against early retirement and remain in office with the explicit permission of the Polish president did not constitute an “effective safeguard” for the rule of law. “There are no criteria established for the president’s decision and no judicial review is available if the request is rejected”, said the Commission. And it’s hard not to agree that as safeguards go, that one is not safe.
Be that as it may, the supreme court has suspended applying parts of the law, citing provisions in the civil code that allow courts to suspend the execution of a law when it could prejudice a judicial appeal process. It has also referred five questions to the ECJ, including whether the law breaches EU anti-discrimination rules, and whether law violates the Polish constitution. The Polish president’s office said there was “no legal basis” for the supreme court’s move, while the head of the Constitutional Tribunal – changes to which kicked off this saga – said it was “against the constitution”.
So there you have it. Plucky Poland taking on the malign interventionist forces of the EU to bring about necessary changes to the judiciary, or the EU stepping in to defend the fundamental values of the rule of law without which freedom itself is under threat. As ever, much depends on viewpoint and context. While each individual change to the Polish judicial arrangements might be defensible on its own, taken as a whole, and in the context of a government which seems keen to consolidate its hold in every possible area, the EU is right to voice concern.