No Practical Significance

‘There is nothing insignificant in the world. It all depends on the point of view.” The words of Johann Wolfgang von Goethe, the German writer, poet, and philosopher, inter alia. And while poets and philosophers naturally take that view, others do not. Thus, for Poland’s foreign minister, Monday’s judgment by the European Court of Justice (ECJ) that Poland’s lowering of the retirement age for judges was unlawful has “no practical significance” because Poland had already reversed the move.

In its judgment, the ECJ said that: “the Court holds that the application of the measure lowering the retirement age of the judges of the Supreme Court to the judges in post within that court is not justified by a legitimate objective and undermines the principle of the irremovability of judges, that principle being essential to their independence.”

Last December Poland’s president Duda signed into law a measure to reinstate retired Supreme Court judges.  This legislation to reinstate those forcibly retired had been approved by the Polish parliament in November following the ECJ’s issuing an interim injunction in October which required that the operation of the reforms to Poland’s Supreme Court be suspended.

A year earlier, in December 2017, the European Commission took the unprecedented step of triggering the procedure under article 7 of the Treaty of the European Union (TEU) against Poland in reaction to the government’s judicial reforms, and the potential threat ti the rule of law.  The procedure opens the possibility of sanctions against Poland, although this would require a unanimity among EU member states which, Hungary for one, is unlikely to show.

This move to trigger the article 7 procedure was followed in July last year by the European Commission beginning a separate case against Warsaw over the enforced judicial retirement provision, arguing that it undermined “the principle of judicial independence, including the irremovability of judges.”

Speaking to broadcaster Polsat News after the judgment on Monday, Jacek Czaputowicz said that “the ruling has been issued, but it will have no practical significance in Poland, because we have already adapted to the interim injunction.” “Those judges are working, and [the latest ruling] will have no practical consequences in Poland. We will take no action,” he added. While not wishing to be unduly pedantic, of course, there is a difference between insignificant and of no practical significance. Czaputowicz did agree that rulings by the ECJ are important albeit that Monday’s ruling in his view “carries no significance” for his country.

The significance of the judgment is that the ECJ reiterated that while the organisation of justice in the member states falls within the competence of the latter, when exercising that competence, each member states is required to comply with its obligations under EU law, including respecting the common values referred to under article 2 of the TEU, of which the rule of law is one. A key feature of the rule of law is the independence of the judiciary.

And there may be more to come. In April the EU commission launched another case against Poland in relation to the new disciplinary rules for judges. The Commission argued that the new rules undermined the independence of Polish judges “by not offering necessary guarantees to protect them from political control.” These guarantees are required by the ECJ, although this particular case has yet to reach the ECJ.

The Law and Justice (PiS) government, which came to power in late 2015, has consistently maintained that sweeping changes are needed to reform an inefficient and sometimes corrupt judicial system which is tainted by the communist past.  Indeed, the government would no doubt argue the fact that it complied so readily with the ECJ injunction decision is evidence that the rule of law is alive and well in Poland.

That may well be true, but it may also be argued that without the pressure coming from the European Commission the rule of law might be om shakier ground since no matter how well-intentioned, reforms which allow for greater political influence over the judiciary are bound, sooner or later, to end up being abused. Politicians, however noble their intentions, however great their personal integrity, are still in danger of falling foul of Lord Acton’s dictum that power corrupts, and absolute power corrupts absolutely.  Which is why judges should always be, and seen be, truly independent.

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