Explainer: Battle over Poland’s Supreme Court

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The disputed retirement of the Chief Justice Małgorzata Gersdorf and other Justices of Poland’s Supreme Court opens another chapter in the fight over the reform of the judiciary in Poland.

It was the likelihood that the judges would be deemed to be retired that led the European Commission to move from a political to a judicial front in the dispute with Poland.

The Chief Justice arrived for work on Wednesday, in order to demonstrate her unwillingness to accept that according to the disputed Supreme Court Law she is now deemed to have retired from her position as she has reached the new retirement age for judges.

There was a crowd of protesters waiting to welcome her to work and to protest against the implementation of the Supreme Court Law.

However, the demonstrations taking place so far against this law are not as large as the demonstrations that took place against the judicial reform laws when they were debated in July last year. The size of the demonstrations back then led President Andrzej Duda to veto some of the legislation.

The redrafted legislation has not satisfied the judges, the demonstrators nor the EC. The legislation did, however, have widespread public backing as voters were dissatisfied with the performance of the Polish judiciary. There were complaints of slow progress in cases, corruption and cronyism in the work of the courts. Many felt that a shakeup of the judiciary was long overdue.

The fact that the protests in Poland have renewed, even if at a smaller level than last year, will create some pressure on the Polish government, already being challenged by the EC. But the governing party has become used to demonstrations against it. It is the international dimensions of the dispute which may prove more decisive.

The EC applies pressure

The decision to begin infringement of European law proceedings against the Polish government, taken in early July opens up a new front in the drawn-out dispute over the rule of law in Poland between the EC and the current Law and Justice (PiS) administration.

The present Polish government has, since winning the 2015 elections, instituted sweeping reforms of the Constitutional Tribunal, the Supreme Court, the National Judicial Council and the district courts.

The reforms are intended to increase internal accountability of the judicial system and to make changes in management and senior positions in the judiciary. The government argues that the judiciary was not reformed after the fall of the communist system and that the system is in need of a major overhaul. The reforms have been criticized in Poland as an attempt to limit the independence of the judiciary in violation of the Polish constitution. These sentiments have found a receptive echo in the European Commission.

The EC’s Article 7 threat has not worked

The Commission in December 2017 instigated the political procedure via the activation of Article 7 of the Lisbon Treaty which allows for member states to be sanctioned for violating the provisions of the Treaty on the rule of law.

This political route depends on the willingness of the member states sitting in the European Council to agree with the EC by a majority of 4/5 of its members (22 countries) and then unanimity among 27 member states for the applications of financial sanctions, or even the suspension of Poland’s right to vote in the European Council.

Hungary has already declared that it will not support the EC over Poland’s judicial reform as it has no wish to face similar proceedings over its legislation. Other Central and Eastern European States such as the Czech Republic and Lithuania have also indicated their unease with confronting Poland.

The Polish government has made 25 amendments to the reform legislation in an attempt to placate the EC. The amendments included some to the disputed Supreme Court Law. The Commission, however, did not feel that sufficient progress had been made and dismissed the amendments as minor and technical and refused to withdraw from pursuing Poland under Article 7 of the Lisbon Treaty. Now its changing tactics and moving onto the judicial route.

Time to try through the ECJ

The EC has decided to proceed not only because it is not satisfied with the Polish government’s response to the recommendations it has been making on the judicial reforms in Poland.

There is little doubt that the Commission has taken note of the opposition to the reform that has come from senior judges and lawyers in Poland as well as Poland’s Parliamentary opposition.

Law on the Supreme Court: the battleground chosen by the EC

The law on the Supreme Court has been chosen for this action because its implementation in Poland implies the forced retirement of senior judges at the age of 65. All judges who have reached that retirement age and wish to continue their work are obliged to submit a formal request together with results of a medical exam.

However, as the EC has pointed out, the law gives no way for judges to seek a review of their request and does not oblige the President to explain the reasons for rejecting such applications. Judges who decide not to file such a request will automatically be deemed to have retired from office. This is a part of the legislation which the President is using to rule that Chief Justice Gersdorf has retired. Out of the 74 judges currently serving in the Supreme Court, 27 are already over 65 years of age.

The constitutionality of the Supreme Court Law has been an issue. The Polish constitution specifies the length of terms of office. However, in another article, it also states that the retirement age of judges is set by separate legislation. The two seemingly conflicting articles are at the root of numerous debates between constitutionalists in Poland.

The Polish government to defend its stance

The Polish government is disappointed that the EC has decided to test them in the ECJ. It engaged in extended dialogue with the Commission to remove the threat of Article 7 proceedings and has made concessions. This has not worked and the Commission has effectively ratcheted up the tension by moving the dispute onto the ECJ.

The government will argue with the EC at the European level making the case that since European treaties and laws do not specify the way states organize their judicial systems the EC’s approach threatens the sovereignty of member states in a highly sensitive area of public policy.

It is certainly not a foregone conclusion that the EC will win their dispute with Poland in the ECJ. The Commission has until recently been reluctant to begin the process of using this route as its lawyers have expressed doubts about the legal basis for the ECJ to rule on the matter. There is no specific EU directive on the way member states should structure the governance of their judicial systems.

Domestic political battle

On the domestic level, the Polish government will portray itself as defending its electoral mandate and Poland’s sovereignty. It will also attack the Opposition for having campaigned for EC action on Poland’s judicial reforms. The Opposition has been urging EC to take action and has suggested to the EC that Poland’s EU funds should be frozen in advance of the general election and released again if the Opposition parties win the election and form a government, or if the present government returns the situation of the Polish judiciary to its previous state.

The governing PiS party cannot afford to lose face by simply abandoning the reforms. That would be a gift to the opposition which it is not willing to make. It would also mean a serious loss of credibility at an international level that would be considered to be humiliating back at home. The Opposition cannot back down either, it has invested all its political capital in portraying the government as being a threat to democracy and the rule of law.

As a result of this face-off, the stakes couldn’t be higher. A battle looms not only over who is to govern the country after next year’s election but also over how much sovereignty a member state has within the EU.