EU takes Poland to court over judicial independence

The European Union referred Poland to its top court on Monday, in the latest legal confrontation between Brussels and populist member governments.

EU leaders say they had to move quickly to halt an alleged legal threat to the independence of Poland’s judiciary from its own rightwing government.

But the decision will also stir mounting tensions between the central EU leadership and nationalist politicians from eastern and southern member states.

Brussels took action amid fears Poland and other EU members with populist and authoritarian tendencies are undermining the union’s founding values.

The European Commission, the bloc’s executive arm, targeted Poland’s decision to lower the age at which Supreme Court judges must retire from 70 to 65.

This would hasten the departure of judges appointed under previous governments, allowing the appointment of figures seen as loyal by Warsaw’s current leadership.

The Commission said it has “decided to refer Poland to the Court of Justice of the EU due to the violations of the principle of judicial independence created by the new Polish law on the Supreme Court.”

The Luxembourg-based European Court of Justice could impose fines if it finds Poland in breach of EU law.

‘Risk of serious damage’
Warning that Warsaw is accelerating retirements, the Commission said it has asked the Court of Justice to obtain a final judgement “as soon as possible.”

The Commission said Warsaw’s implementation of the laws creates “a risk of serious and irreparable damage to judicial independence in Poland.”

Consequently, it said, the move also undermines “the EU legal order”, including member states’ mutual recognition of court decisions.

Already in July, the ECJ authorised EU countries to refuse arrest warrants from Poland if they doubt defendants will get a fair trial there.

The Commission also asked the court, pending a final ruling, to take “interim measures” such as restoring the Supreme Court to its situation before April 3.

The Commission has previously urged the Polish authorities to address its concerns about the April 3 law or risk being taken to the top EU court.

“The response of the Polish authorities on both occasions has failed to alleviate the Commission’s legal concerns,” it said.

This was the second such action. In December last year, the Commission took Poland to court for alleged violations in its common law courts.

The commission said the Polish law “undermines the principle of judicial independence, including the removability of judges.”

‘A purge’
The new retirement age requires more than a third of current Supreme Court judges to step down, including chief justice Malgorzata Gersdorf.

However calling the law a “purge,” Gersdorf has refused to step down, citing a constitutional guarantee that she serve a six-year term until 2020.

The law more broadly violates Poland’s obligations under the EU treaty, which it signed onto when it joined the bloc in 2004, the commission said.

The EU first sounded the alarm over Polish judicial reforms shortly after the rightwing Law and Justice Party, PiS, won elections in 2015.

Brussels has since engaged in more than two years of talks, but Warsaw has largely ignored its warnings that the changes would affect democratic checks and balances.

The PiS government insists the reforms are needed to tackle corruption and overhaul a judicial system still haunted by the communist era.

The EU and the Warsaw government’s Polish critics argue these measure undermine the division of powers and therefore threaten democracy and the rule of law.

In December, the Commission triggered proceedings against Poland under Article 7 of the EU treaty, citing “systemic threats” to the rule of law.

This could eventually see Warsaw’s EU voting rights suspended, but Warsaw’s neighbour Hungary has vowed to veto any such penalty.

The European Parliament took a similar action against Hungary earlier this month, accusing it of targeting freedom of the press and judicial independence as well as the rights of minorities.

Both countries have been criticised by Brussels over their refusal to admit asylum seekers relocated from frontline states like Greece and Italy.