EU court orders Poland to suspend contested judicial appointments

The Court of Justice of the European Union has ordered Poland to halt contested supreme court appointments, citing a risk of serious and irreparable damage to the judiciary ahead of a final ruling.

Friday’s order arose from a complaint by the European Commission that far-reaching reforms of the Polish court system undermine judicial independence and the rule of law and are thus in breach of EU law.

The EU court’s intervention is the latest twist in a high-stakes stand-off between Warsaw and Brussels and comes ahead of local elections on Sunday that will test support for the national conservative Law and Justice (PiS) administration before national elections next year.

PiS officials insist their court reform laws are a legal and overdue push to overhaul inefficient, crony-filled court structures. Critics see a rushed push to pack courts with PiS-friendly judges and silence sitting judges through forced retirement or new disciplinary proceedings.

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Prime minister Mateusz Morawiecki said his government would study the order but “as 80 per cent of the public support these reforms, we will continue them”.

Last April Poland enacted a law lowering the retirement age of sitting and future judges from 70 to 65, with special presidential permission required for anyone who wished to remain. The EU Court of Justice noted such presidential decisions were not bound by any criteria or subject to judicial review.

EU sanctions

Last December the European Commission triggered an unprecedented procedure over Poland’s reform programme, raising the prospect of sanctions against Warsaw.

As its investigation continued, the commission – alarmed by the speed of reform implementation – asked the Luxembourg court to suspend the retirement age legislation and halt any new appointments, in particular the appointment of a new first president of the supreme court.

Last week the first president of the Polish supreme court, Prof Malgorzata Gersdorf, forcibly retired but still reporting for work, told The Irish Times the judicial reforms had eliminated legal certainty in Poland and left courts' political independence under severe threat.

In recent months some 27 new bench positions have been filled and 44 vacancies advertised, which the EU court said brought a “profound and immediate change” to the supreme court.

Friday’s order makes no ruling on the facts of the case but halts Warsaw’s speedy implementation of its reforms, demanding that forcibly retired judges be reinstated with “the same status and the same rights” as before, with monthly reviews on progress.

If it eventually sides with the commission, the Court of Justice said such appointments would be in breach of the fundamental right of EU citizens to independent courts and a fair trial.

Unwelcome intrusion

Friday’s emergency order is an unwelcome intrusion for the ruling party, PiS , before local elections on Sunday. This is the first major test of public opinion since voters handed PiS an absolute majority in 2015, and an opportunity for it to make a push beyond its traditional, rural support base into urban areas with more liberal voters.

On the campaign trail, PiS leader Jaroslaw Kaczynski has promised to extend popular welfare reforms, including childrens’ allowance and a lower retirement age. But PiS has revived the emotive migration issue in recent weeks, suggesting opposition parties want to endanger public safety by allowing in Muslim asylum seekers.

The opposition Civic Platform, hoping weekend polls prove a springboard back to national power next year, has warned that PiS judicial reforms pose a threat to Poland’s continued EU membership.

Earlier this week Poland’s justice minister questioned whether the Polish judges were entitled to consult the Luxembourg-based EU court on judicial reform. After protests that he was undermining the legal basis of Poland’s EU membership, the minister subsequently rowed back.