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People enter the Supreme Court in Warsaw on October 11 under a banner bearing the inscription "Constitution". (Alik Keplicz / AP)
Friday, the highest court of the European Union ordered the Polish government to immediately suspend the purge of the Supreme Court of Poland. The European Court of Justice (ECJ), based in Luxembourg, has ordered the Polish authorities to suspend the implementation of its "Supreme Court Law" of April 2018; reinstate all Supreme Court judges who were forced to retire under the law; and to refrain from further attempts to replace them, including the President of the Supreme Court.
The Polish government claims that the Supreme Court Act is simply part of a broader reform and reorganization of the national justice system. However, critics have described it as a barely disguised attempt to seize the Supreme Court, thus going against the Polish Constitution, but also the principle of judicial independence enshrined in the US law. The Supreme Court of Poland continues to resist this takeover and faces a fierce battle with the ruling party, ruling party, Polish law and justice (PiS).
By intervening on the side of the Supreme Court, the ECJ has come into conflict with the Polish government. The Polish president, Andrzej Duda, a PiS affiliate, had recently ignored a second decision of the national court to stop appointing new judges to the Supreme Court and insisted that the Chief Justice of the Supreme Court, Malgorzata Gersdorf – who continues to go to work at court until that day – was automatically "withdrawn" in July, according to the law.
Why is the US involved in a dispute over national courts? This is because these courts are both the courts of their national legal system and US courts, charged with enforcing the law. This gives the US the benefit of guaranteeing the independence of national jurisdictions, unlike the US law would effectively cease operating in the country. Moreover, since the interconnected legal system of the European Union is based on mutual trust between national judicial systems, the system will collapse if judicial systems cease to trust each other.
This battle has been going on for almost three years
The interim injunction of the ECJ is a milestone in the battle of the Polish judges that has intensified since December 2015. It began with the capture of the Polish Constitutional Court by the new PiS government in 2016 and it was decided by is being pursued with laws aimed at establishing party control of the party over the judiciary. whole.
The US responded to these moves with increasing warnings. Last December, the European Commission had for the first time activated a procedure defined in the EU treaties (the procedure of Article 7) that could, in theory, lead to the imposition of sanctions on Poland for violation of the law EU values. However, it is unlikely that this procedure will lead to concrete sanctions, as it requires all other United States. States to accept them, and Hungary, which also renounced liberal democracy, promised to protect Poland. As a result, the Polish authorities have ignored EU pressure. – as well as tens of thousands of their own citizens who took to the streets in protest – and continued to take judicial control.
The government was about to take over the judiciary
The new law would have been the last step in the government's conquest of the judiciary, which critics describe as a "coup d'etat". It has retroactively lowered the retirement age of Supreme Court judges from 70 to 65 years, so that almost 40% of Supreme Court justices could be forced to retire, including Gersdorf, the first president of the Supreme Court who strongly criticized the government's attacks on the rule of law. The law also allowed the president to endow the court with new judges (the number of judges in the Supreme Court increased from 93 to 120) with the help of a "national council of justice" controlled by the PiS. The law on the Supreme Court has been examined by the European Commission and many other international bodies for violating the principle of judicial independence.
As the Article 7 procedure proved ineffective, the European Commission launched an "infringement procedure" against Poland, taking the rare step of asking the ECJ to suspend the prosecution. The application of the contentious law pending the outcome of the case and the unprecedented step taken The ECJ orders the Polish authorities to reinstate "Supreme Court of Poland to its situation before April 3, 2018, when the new laws challenged were adopted. The Commission was probably worried that the Polish government would be in a rush to complete its cleansing, creating new facts on the ground that would be difficult to reverse, even if the ECJ ruled that Polish law contravened the law.
The ECJ granted the Commission's request for an injunction, noting that it was urgent to suspend the application of the Supreme Court law as the government was in the process of "changing deep and immediate composition of the Supreme Court "undermine the fundamental right to a fair trial before an independent court or tribunal.
The Polish government will be very unhappy
The injunction issued last Friday against the ECJ was bold but was at the same time an aspect of the ongoing process. The ECJ has given the Polish authorities one month to explain how they will comply with this order, which they could use to continue their treatment. The commission could then ask the ECJ to impose penalties on the Polish government for non-compliance. The interim order does not deal with the issue of new judges appointed to the Supreme Court under the impugned law, although its final decision may very well deal with this issue.
The ECJ intervened in this breach to defend the besieged courts of Poland. However, it is unlikely that the PiS government will retreat without a fight. It remains to be seen whether the ECJ will succeed in defending the judiciary in Poland.
Daniel Kelemen is Professor of Political Science and Law and holds the Jean Monnet Chair in European Union Policy at Rutgers University. Laurent Pech is Professor of European Law, Jean Monnet Chair in European Public Law, and Head of Law and Policy at Middlesex University London.
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