„To be, or not to be [in the EU]”? News in the Polish judicial reform battle

The European Court of Justice (ECJ) ordered the Polish government to immediately halt its ongoing reform of Poland’s Supreme Court – in a move that puts further pressure on the already strained ties between Brussels and Warsaw about a month ago (on 19 October). The ECJ said that Polish authorities must suspend implementing its April 2018 “Law on the Supreme Court”: to reinstate all of the Supreme Court judges who were forced to retire under the law and to refrain from any further attempt to replace them. Read more… (Petra Ágnes Kanyuk)

The European Court of Justice (ECJ) ordered the Polish government to immediately halt its ongoing reform of Poland’s Supreme Court – in a move that puts further pressure on the already strained ties between Brussels and Warsaw about a month ago (on 19 October). The ECJ said that Polish authorities must suspend implementing its April 2018 “Law on the Supreme Court”: to reinstate all of the Supreme Court judges who were forced to retire under the law and to refrain from any further attempt to replace them.

Polish judicial reform 1×1

The Supreme Court legal tussle forms the latest chapter in the long-standing dispute between Poland and the EU over the recent judicial reform intended to rid the Polish judiciary of its communist legacy, improve the efficiency of the court. Some aspects of the reform provoked a wave of criticism from Poland’s opposition and the EU, with alleged rule of law violations prompting the ECJ to begin proceedings against Poland. The fight over the courts stretches back three years, when the Law and Justice party swept into power, partly on the strength of a promise to reform the courts. Firstly, it renewed the Constitutional Tribunal – which is tasked with ensuring that laws do not violate the Constitution –  next, it gave authority over the country’s prosecutors to the Ministry of Justice, and before moving on to the Supreme Court, it asserted new powers to select judges.

The recent reform changed the judicial retirement age, resulting in a wholesale remodelling of the Supreme Court’s composition. It retroactively lowered the retirement age for Supreme Court judges from 70 to 65, so that nearly 40 percent of the sitting judges could be forced into retirement, including its president, Małgorzata Gersdorf. She refused to comply, arguing the measure violates the Polish constitution, which gives her a six-year term ending in 2020 and she also criticised the government’s movements intensely. Furthermore, the law empowered the president to pack the court with new judges (the number of Supreme Court judges was increased from 93 to 120) with the help of the national judicial council.

Poland’s government claims the Law on the Supreme Court is simply part of a broader reform and reorganization of the national judiciary: „…without (judiciary) reforms, we cannot rebuild the Polish state so that it serves its citizens,” said Jarosław Kaczyński, the leader of the Eurosceptic party. However, critics have depicted it as an attempt to capture the Supreme Court – moreover, basically as a constitutional coup d’état – going against not only the Polish Constitution but also the principle of judicial independence enshrined in EU law. What is more, after an amendment, which has been designed to make it easier to name the new supreme court chief, thousands of people have staged protests across Poland. Consequently, the modifications were viewed by the European Commission and many international bodies as well. According to the Venice Commission, the law seriously jeopardizes independence of „all parts of the Polish judiciary,” in addition to this, Amnesty International said that judges in Poland are „experiencing political pressure” in connection with the judicial reforms.

Prolonged battle

The Commission has been battling Poland over rule-of-law concerns on several fronts for more than two years, with Warsaw refusing to reverse a series of legislative changes that the Commission says have undermined the independence and integrity of the country’s judicial system. It started investigating violations of the rule of law in Poland in January 2016. In July 2016, the Commission recommended remedial measures, which Poland’s government dismissed as interference in its affairs. A year later, the Commission raised additional concerns about a law empowering the justice minister to remove and appoint the presidents of ordinary courts, so it launched an infringement procedure on the grounds of its retirement provisions and their impact on the independence of the judiciary. The Commission referred this case to the ECJ in December and the case is pending before the Court.

Also in December 2017, due to a lack of progress through the Rule of Law Framework, the Commission activated – for the first time in the Block’s history – the Article 7(1) procedure against Poland over changes to the judicial system, beginning a process that theoretically could lead to Poland losing its voting rights in the Council (in reality, the procedure has no chance of total success because Poland’s allies have pledged to block it). „Over a period of two years, the Polish authorities have adopted more than 13 laws affecting the entire structure of the justice system in Poland, impacting the Constitutional Tribunal, Supreme Court, ordinary courts, National Council for the Judiciary, prosecution service and National School of Judiciary” the Commission wrote in background material explaining its decision. „The common pattern is that the executive and legislative branches have been systematically enabled to politically interfere in the composition, powers, administration and functioning of the judicial branch.”

According to the lack of progress on this issue in the Rule of Law dialogue with Poland – Article 7 procedure was proving ineffective – the Commission sent a Letter of Formal Notice to the Polish authorities in July 2018 concerning the Law on the Supreme Court, and followed this with a Reasoned Opinion in August. The response of the Polish authorities on both occasions has failed to alleviate the Commission’s legal concerns. As the Commission stated, „…the implementation of the contested retirement regime for Supreme Court judges in Poland is being accelerated and is creating a risk of serious and irreparable damage to judicial independence in Poland, and therefore of the EU legal order. The independence of national courts and tribunals is essential for the functioning of judicial cooperation between EU Member States, and particularly for the preliminary ruling mechanism under Article 267 TFEU.”

Five of the main political groups in the European Parliament also urged the Commission in a joint letter to open infringement proceedings against Poland and to take it to the ECJ to stop planned judicial reforms. Many senior political figures in Poland, including Nobel Peace Prize winner and former leader of the Solidarity movement Lech Walesa, have appealed to the Commission in this question as well. „In reforming the judiciary you still need to respect the independence of the judiciary,” Commission vice-president Frans Timmermans said, who has accused Warsaw of breaking EU obligations. „If you believe that through putting the judiciary under political control you can make it a better judiciary you are wrong and you are violating your own obligations under European treaties,” he said. „That is the core element of our discussion with the Polish government.” 

In the meantime, the Polish National Judicial Council (KRS) was suspended (stripped of its voting rights and excluded from participation) from the European Network of Councils for the Judiciary (ENCJ) after a fact-finding trip by the organization, which unites EU countries’ judicial systems. „The extreme circumstances of this particular case have led to the decision just taken,” said the ENCJ, adding that „member states are free to organise their judicial systems in a way that they see fit, but there are some minimum standards that have to be complied with.

The latest step

The Commission has therefore moved to the next stage of the infringement procedure in September, deciding to refer the case to the ECJ. With its referral, the Commission has also decided to ask the Court to order interim measures, with retroactive effect – freezing all actions by the government and turning back the clock to the situation before the new law entered into force this April. Finally, the Commission has decided to request an expedited procedure at the Court, to obtain a final judgment as soon as possible. The Commission added that this infringement procedure does not stop the ongoing rule of law dialogue with Poland, which is still the Commission’s preferred channel for resolving the systemic threat to the rule of law in Poland.

It’s the second time since last year that the Commission has asked the EU’s top court to intervene. In 2017, it won an order forcing Poland to stop increased logging in the Bialowieza Forest, one of Europe’s last remaining primeval environments. Polish authorities initially resisted the interim decision by the Court to impose a ban on logging in the protected forest but they finally obeyed the order when the court ruled definitively that logging there was in breach of EU laws.

In this regard, we should mention that the ECJ has already dealt with the growing disquiet about the state of Poland’s courts as well. In July 2018 it responded to a query from an Irish court on the independence of the Polish judicial system by saying foreign courts have to assess whether suspects face the risk of an unfair trial if they are extradited to Poland (in other words, Ireland can refuse to hand over an alleged drug dealer to Poland if its judiciary determines he may not receive a fair trial there).

The Polish Supreme Court has also asked the European Court of Justice to rule on the new law. The court suspended the retirement age provisions and sent five questions to the ECJ on whether the retirement law is in line with the EU’s rules. The decision means that steps to impose the new rules should be suspended „until the issues presented in the questions are resolved,” court spokesman Judge Michał Laskowski told reporters in Warsaw. That could take months. Poland’s President Andrzej Sebastian Duda’s office said that the Supreme Court acted improperly and its decision „will have no consequences for the president or any other body.”

The ECJ granted the Commission’s request for an injunction, noting that suspending application of the Law on the Supreme Court was urgent because the government was in the process of carrying out a „profound and immediate change in the composition of the Supreme Court” that might irreparably damage the fundamental right to a fair trial before an independent court or tribunal. This move was only part of an ongoing process. The ECJ gave Polish authorities a month to explain how they will comply with its order, which they may use to press ahead with their reform. The Commission could then request that the ECJ impose penalty payments on the Polish government for noncompliance. The interim order does not tackle the issue of the new judges appointed to the Supreme Court under the disputed law, although its final decision may very likely address this question.

Scales of reactions

The ruling landed like a bombshell in Warsaw, Prime Minister Mateusz Morawiecki said: „Certainly after an exacting analysis we will respond.” The country’s justice ministry also didn’t immediately respond to questions. On the contrary, Malgorzata Gersdorf welcomed the decision by the Court: „Personally I’m pleased that someone has taken our case into account,” she said. „I am only disappointed that the government of my country—my homeland—did not do this earlier and that we had to go to the European Court.”

It wasn’t clear whether the government would obey the ECJ order, as in recent months some Polish ministers have said that ECJ rulings in the case won’t have to be obeyed, while others have sent a more conciliatory message: in August, Justice Minister and Prosecutor General Zbigniew Ziobro filed the motion asking judges of the Polish Constitutional Court to determine the extent of the ECJ’s legal powers over the Polish judicial system. [The motion asked whether Article 267 of the Treaty on the Functioning of the European Union (TFEU) allowing the ECJ to give preliminary rulings, is consistent with Poland’s constitution and, another point, of concern was the legality of the judicial question that Polish judges issued to the ECJ.] Minister of Foreign Affairs Jacek Czaputowicz issued a letter to the Constitutional Tribunal in which he expressed his doubt over the previous motion by the Justice Minister. His position is in not binding for the Tribunal, however, it signals a clear division within the government over how the dispute with the ECJ should be approached. 

Nevertheless, the head of the ECJ, Koen Lenaerts, responding to reports that Poland was delaying implementation of the ECJ’s decision to suspend the implementation of the Supreme Court Law, stated that EU law takes precedence over any provisions of national law and shall be respected as a top priority. He stressed that ECJ is the core of the EU’s judicial system and every EU member state has to abide by its decisions at the European level as well as at the national one. „It’s like ‘to be, or not to be [in the EU]’. A country which cannot comply with the European Court of Justice’s judgements is already on the way to undergoing a process similar to Brexit,” the ECJ head said, adding that all EU member states agreed to adhere to the same European values and regulations. (These remarks are likely to raise many eyebrows in government circles and beyond in Poland, as comparing this dispute to Brexit is particularly controversial, but highlights the ECJ’s view of the topic.)

After all – as days passed and local government elections came as well – Marcin Warchoł, the Deputy Minister of Justice insisted that the ECJ ruling will be respected, even though the Polish government disagrees with it and that Poland will be contesting the ECJ suspension. In order to ensure compliance with the ECJ ruling, the justice ministry is preparing an amendment to the Supreme Court Law for the President to be able to reinstate the 23 judges deemed to have been retired.

The Polish foreign ministry also issued a statement after a hearing of parties on 16 November in the case: „Poland upheld its position previously communicated to the Court of Justice. The Polish government agent emphasised that the Commission had failed to substantiate any of the three requirements for applying interim relief under the case law of the Court of Justice… the Commission had failed to show that the application of such far-reaching measures is justified, prima facie, in fact and in law and that they are urgent in so far as, to avoid serious and irreparable damage, they must be made and produce their effects before a final decision is reached…the Commission incorrectly weighed up the interests of the parties by failing to allow for the need to ensure the uninterrupted functioning of the Supreme Court, independence of its Judges, and legal certainty of the parties to proceedings before this Court.” The Polish agent specifically stressed the failure to meet the urgency requirement for applying interim relief, which should by its nature only secure the possibility of enforcing a future judgement instead of reversing effects produced by legislation at issue whose compliance with EU law has not been yet determined.

Despite of this, during the Future of Transatlantic Relations (FOTAR) international conference held in Hamburg on 17 November, the Prime Minister stressed that: „What we needed was to reach a compromise and then have a dialogue, which is happening now.” He also said that within a few days Poland would present and propose „certain changes” on the Supreme Court Law to the Commission. „We hope that the EC will be satisfied,” he stated. 

In conclusion, one thing is certain: this battle is far from over – and we eagerly await together for the next step.


For the list of references, click HERE.


Petra Agnes Kanyuk, PhD Student, University of Debrecen, Faculty of Law



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