The EU is relying on the Court of Justice of the European Union to block the reform of the Supreme Court in Poland. In a statement released Monday, the European Commission said “the Polish law on the Supreme Court is incompatible with EU law as it undermines the principle of judicial independence, including the irremovability of judges.”
This decision certainly doesn’t come as a surprise to the populist right-wing government of the Law and Justice (PiS) party. The ongoing talks since July between the Polish prime minister, Mateusz Morawiecki, and the vice-president of the European Commission, Frans Timmermans, have been to no avail. The party led by Jaroslaw Kaczynski has not budged an inch on the issue of the forced early retirement of members of the Supreme Court who are older than 65. Quite the opposite: Warsaw picked up the pace in recent weeks to complete the removal of the 27 judges deemed “pensionable on account of age.” Even the president of the Court, Judge Malgorzata Gersdorf, will have to give up her seat, although she is for now protected by the Polish Constitution, which sets the duration of her term at six years. Her mandate is thus guaranteed until 2019.
The administrative chaos in Warsaw is also accentuated by the fact that some of the members of the Supreme Court who are being targeted by the PiS have availed themselves of the opportunity to request an extension of their terms on the Court, as provided for by the controversial reform.
Polish President Andrzej Duda, a lawyer by training, will have the last word on this. Meanwhile, the National Justice Council (KRS) has already identified 40 candidates for the Court after a public competition organized in record time. Again, Duda will have to decide. His final choices will almost certainly be made official in the coming weeks, before the local elections scheduled for Oct. 21.
“I hope that the European Commission’s decision is the beginning of a return to normalcy, as things should be in a democratic country in the 21st century,” said Krzysztof Raczka, a member of the Court, in a statement reported by PAP, the main Polish news agency. However, on Thursday, Duda finalized the appointment of 10 members of a new disciplinary body that is supposed to evaluate the performance of Supreme Court members. It also includes five prosecutors, all considered to be loyalists of the Justice “super-Minister,” Zbigniew Ziobro. Six judges still need to be appointed, but the body can already take disciplinary decisions by a two-thirds majority.
This news will certainly not be viewed in a positive light in Brussels. In recent months, the EU has found itself forced to change its strategy as regards Poland, since implementing Article 7 of the Lisbon Treaty will inevitably run up against the veto of Viktor Orban’s Hungary, always a diplomatic ally to Kaczynski at the European level.
