Opinion: EU court orders suspension of Polish Supreme Court act: unofficial

The ECJ decision to suspend implementation of Poland’s Supreme Court law has leaked out just hours before the local government campaign in Poland ends.

EU court orders suspension of Polish Supreme Court act: unofficial

According to unofficial reports, the Vice-president of the European Court of Justice (ECJ) ordered the suspension of Poland’s recent Supreme Court...

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The development is clearly unwelcome for the Polish government. It has said that it cannot comment in detail until it receives and is able to study the full notification from the ECJ. It has simply stated that Poland abides by EU laws. However, it has always argued that there are no specific EU laws covering the organization of the judiciary in member states.

The disputed Chief Justice of the Supreme Court, Małgorzata Gersdorf, whom the government deems to have retired in accordance with the provision to lower the retirement age to 65, has gone on record welcoming the ECJ decision and criticised the government for having led to such an “embarrassment” that the country “could have done without”.

Błażej Spychalski, one of Polish President Andrzej Duda’s senior aides, commented the ECJ decision for commercial radio RMF FM. He argued that it was now up to the government to take some action. He hinted that maybe one of these decisions could be “amending the Supreme Court law” and that such legislation could reverse the changes that have been questioned, for example the removal of the controversial legislative provisions on retirement of judges.

The Polish government will feel that the leaking of such information to the media just hours before a key nationwide election is hostile act by the ECJ. The European Commission in turn will consider it to be a vindication of the position it has taken on the issue of judicial reform in Poland.

The Polish government may have had an unofficial warning about the likely decision this week. This could be the reason why just two days ago Zbigniew Ziobro, the Justice Minister, decided to ask Poland’s Constitutional Court whether EU treaties can effectively overrule the provisions of the Polish constitution and whether pre-judicial questions can be asked of the ECJ by Polish courts when there is no European legislation governing the way the judicial system is organised in a member state.

Critics of the government’s judicial reform will however point to the fact that rule of law and judicial independence are referred to in EU treaties which Poland signed up to at the time of its accession to the bloc in 2004. The government argues that its judicial reform does not challenge the independence of the judiciary or the rule of law, and is merely a measure to change the way courts are organized.

The key to the reform is to institute a degree of accountability on the judiciary and to move away from absolute power of self-government by judges. Since the constitution does not specify that judges will themselves elect the National Judicial Council, which makes recommendations on the members of the Supreme Court, it was possible to transform this body away from self-rule by judges. The National Judicial Council is now elected by a 3/5 majority in Parliament, a majority no single party has or is likely to have.

The Polish government will now need to decide how to proceed. Will it accept the ECJ’s suspension of the Supreme Court Law despite of the existence of the Polish-British protocol signed as part of the ratification of the Lisbon Treaty? The protocol excludes the EC or any member state from being able to refer Poland or Britain to the ECJ over violating the Charter of Fundamental Rights. Yet the EC has referred Poland to the ECJ citing article 47 of that charter for violating the right to independent and impartial courts and the ECJ has consented to the EC’s wish to suspend the provisions of Poland’s Supreme Court Law.

The ECJ will be criticised in conservative circles for undermining national sovereignty and for adopting a stance of solidarity with senior judges in Poland rather than adherence to the actual provisions of European law.

However, the Polish government must now decide if it would not be best to take a step back and withdraw from at least the changes made to the retirement age and possibly reinstate Małgorzata Gersdorf to the office of Chief Justice of the Supreme Court. The problem is that so much political capital has been invested in the judicial reform that it would be a major internal blow to the government to have to retreat now. Its opponents would read it as encouragement to press for reversing all the changes to the judicial system the government has been implementing.

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