- October 2018
- Otto Ilveskero
Poland found to be in breach of EU law
Source: Krakow Post
As the judges of Poland’s Supreme Court returned to their seats this Monday, the clash between the Polish government and the EU entered a new chapter.
On Friday 19 October, the European Court of Justice (ECJ) ordered Poland to ‘immediately suspend’ the changes made to the country’s Supreme Court under the controversial law that lowered the retirement age of Supreme Court judges from 70 to 65, requiring over a third of the current judges to step down. The landmark decision also retroactively froze all actions taken by the government on Poland’s judiciary since 3 April this year when the new law entered into force, including freezing the appointment of new judges. Although only an interim measure to relieve an urgent situation, the ECJ is set to issue a final verdict at a later date.
Reacting to the verdict, the leader of the Law and Justice party (Prawo i Sprawiedliwość, PiS) and the de facto leader of Poland Jarosław Kaczyński said that the country would “comply with EU law”. Similarly, President Andrzej Duda’s spokesperson Błażej Spychalski admitted that the ECJ order might force a “decision to update the law on the Supreme Court”. Nevertheless, the Polish government is expected to challenge the interim measure and claim that the ECJ’s order is ultra vires, or beyond its powers, after a review to the order has been conducted. To this end, Zbigniew Ziobro, Poland’s Minister of Justice and Prosecutor-General, brought a case before the country’s Constitutional Court in early October, challenging the ECJ’s mandate and competence, as well as the constitutionality of Article 267 TFEU in ‘matters pertaining the design, shape, and organisation of the judiciary’ of a member state. A ruling to the government’s favour would definitely encourage PiS to escalate the confrontation. The ball is now quite literally in Poland’s court.
Engaging in a bitter battle with the EU since assuming office in October 2015, PiS has actively tested the boundaries of the rule of law and Europe’s tolerance for illiberalism with divisive judicial reforms. Immediately after forming a majority government, the party launched its “Good Change” illiberal policy platform, which has included, inter alia, significantly restricting the competencies of Poland’s Constitutional Court and enabling a government takeover of the public media. In January 2018, a new law reforming the Polish National Council for the Judiciary (KRS) came into effect, allowing the parliament to choose the body’s members and terminate its term prematurely. This significantly reduced the independence of the KRS, which is responsible for overseeing judicial impartiality and deciding judicial appointments, and thus restricted the independence of Polish judiciary as a whole. In fact, the European Network of Councils of the Judiciary (ENCJ), which acts as an advisory body to EU institutions and represents judiciaries across the EU, suspended its Polish member body in September 2018, stating that the changes made to the KRS infringed ‘very seriously the independence of the judiciary and the separation of powers’.
PiS’s radical programme challenging the rule of law follows the logic (using the word lightly) of “legal impossibilism”, a term coined by Mr Kaczyński, which posits that a nation’s free will should not be impeded by checks and balances on its democratically elected government. In other words, Poland’s most influential politician has put forward an idea that the independent constitutional power of courts should conform to the “will of the people” as represented by politicians.
Furthermore, Poland had consistently rejected the European Commission’s recommendations to avoid a serious breach of the rule of law ever since a dialogue was launched under the Rule of Law Framework in January 2016. The first concessions were made only after the Commission recommended sanctions under Article 7 TEU and referred Poland to the ECJ for the first time in December 2017. Yet, these changes were merely cosmetic, and ultimately – as has been the case with Hungary – the EU’s dialogue and recommendations had very little impact on the drifting member state’s actions. Following the Polish Supreme Court’s request this August that the ECJ rule on whether the controversial retirement rules are in violation of the EU law, however, the Commission finally referred Poland to the ECJ for undermining the principle of judicial independence in September 2018.
Which brings us to the key player of the current stage of this showdown. This year, the ECJ has woken up to the existential challenge posed by rule of law backsliding within the Union. In February, the ECJ rendered itself competent to evaluate the judicial independence of national courts through its interpretation of Article 19 TEU in a landmark case on austerity measures and the salaries of Portuguese judges. On the grounds of Articles 2, 4, and 19 TEU, the court also established in this case an obligation for the member states to guarantee and protect full judicial independence in the EU. In addition, in July, the ECJ allowed in its verdict the Irish High Court to refuse to send an alleged drug dealer to Poland, citing “failures” in the country’s rule of law and the possibility that the defendant would not receive a fair trial due to a “lack of independence of the jurisdictions” as reasons for the verdict. Thus, the Commission’s legal challenge was only a matter time, especially since it could not rely on unanimous support of the 27 to put pressure on PiS.
But the situation is obviously far from over. A long-term opponent of a two-speed Europe, Poland is now risking self-imposed marginalisation over its reckless illiberalism and contempt over the rule of law enshrined in EU values. As a net beneficiary of the EU budget, Poland is vulnerable for targeted penalty payments, and with over 70% of the population seeing the EU in a positive light, PiS will find it difficult to justify lost benefits to the voting public. For the EU, the Polish government’s actions show just how difficult the enforcement of commons values is within the EU and how fragile the authority of its institutions can be. With yet another challenge from Poland on EU competencies on the horizon, the stakes remain high as the next chapter in this struggle of values unfolds.