On 31 December 2018, the amended Supreme Court Act of 21 November was published in the official legislative gazette. By the same token, the bill drafted by MPs of Law and Justice (PiS) – considered their “surrender in the fight over the Supreme Court – came into effect on 1 January.

The amended act formally restores to the bench those justices of the Court who had been forced to retire. Their terms of office, including those of the presidents of chambers and the First President of the Court, are considered as uninterrupted.

The legislation flew through the lower and upper houses of Parliament at the end of November, but President Andrzej Duda took his time in signing the legislation, doing so on the last possible day of 17 December. There was also a delay in publishing the Act, which took 14 days from the day of its signing.

The slow pace is quite surprising in light of the way previous changes to the judiciary and court system have been handled by the Sejm. Previous amendments to the Supreme Court Act – in April, May, and July – were implemented at breakneck speed.

This time, members of the ruling party were anxious to delay this blow to its image. The calendar came to their aid. The President’s signature came just before Christmas, and publication at the new year. Public opinion was occupied with other matters.

We documented the statements of panicky PiS politicians who trained their fire on the “rotten” judiciary.

2018 will be remembered as the year of the battle over the Supreme Court. This makes us all the more proud of concessions won by defenders of the rule of law in Poland, after months of struggle and owing to support from Brussels. And what awaits them in 2019.

“A step in the right direction”

The new legislation was announced as a triumph for those battling on behalf of rule of law in Poland, as PiS reversed the majority of controversial provisions put into the Act on December 2017:

1. New retirement age – 65 – only for new judges. The new legislation keeps the lowered retirement age. However, the new provisions specify that this applies only to judges appointed after its entry into force. Judges appointed prior to that will retire according to the old rules, at the age of 70.

2. Dismissed judges return to work. The new Act returns justices of the Supreme Court and Supreme Administrative Court to the bench; under the previous law, they had been forced to retire. Their service on the bench will now be treated as uninterrupted.

3. The terms of office of the First President and presidents of the chambers of the Supreme Court are now treated as uninterrupted.

The new legislation is also important for another reason – Jarosław Kaczyński’s political party has publicly acknowledged its mistakes and agreed with the arguments presented by the “other side.”

The authors of the legislation state in it that the version passed in December 2017 may violate the constitution. They invoke the applications for preliminary rulings filed by Polish courts with the Court of Justice of the European Union. The same ones whose legitimacy had been disputed multiple times by the ruling party.

Members of PiS also admitted that the decision to amend the Act was linked with criticism levelled at it by the European Commission, as well as in response to the 19 October injunction of the CJEU ordering Poland to suspend the law passed in December 2017.

This despite the fact that PiS politicians had previously questioned the role of the Commission as well as the authority of the Court of Justice.

Unnecessary law

While opponents of the PiS-led “reform” do have reason to cheer, we have already written that the new legislation was unnecessary. It arose almost in spite of the recommendations of the CJEU, expert opinions, and the Supreme Court itself.

The Court of Justice stated unequivocally that implementation of the provisions of the interim measure did not require changes in the law. Specialists in European Law warned that new legislation implemented before a final verdict by the CJEU would only deepen the chaos.

Nonetheless, PiS did its own thing. When the government grasped that it couldn’t win the fight with Brussels, it quickly drafted a bill to silence its critics. However, the legislation is not without “booby traps”:

1. It discontinues all proceedings that were being conducted under the old rules. With this move, the authors “pulled the rug” from under the requests for preliminary rulings that Polish courts had filed with the CJEU. These included questions regarding the National Council of the Judiciary.
2. The new Act attempts to entice judges sent into retirement to remain inactive. If they choose not to return to the bench, they can count on preferential treatment – 100 per cent of their pension instead of the standard 75 per cent. This is a difference of several thousand zlotys, and, as Professor Ewa Łętowska emphasises, bears the hallmarks of incitement to corruption

PiS still retains the capacity to influence the composition of the Supreme Court, such as through increasing the number of appointed justices. Jarosław Kaczyński’s party also continues to wield influence over other key institutions – the KRS and the Constitutional Tribunal. Politicisation of those bodies give the authorities the capacity to exert influence over the entire justice system.

What is the European Commission’s next move?

The new legislation meets some of the conditions of the European Commission, which sought to convince the government to reverse changes to the retirement age applicable to judges.

This is why the Commission had submitted a referral to the CJEU under Art. 258 of the Treaty on the Functioning of the European Union. The Court of Justice is to rule on whether the forced retirement of judges is a “failure to fulfil an obligation” by a Member State.

The Polish government is arguing that the new legislation removes the grounds for the Commission’s referral, and that it should be withdrawn from the Court of Justice.

The Commission does not, however, have to follow the government’s reasoning.

Indeed, the CJEU will be ruling on the law as of 14 September 2018 – prior to PiS conceding to the pressure of Brussels. In the opinion of dr Maciej Taborowski, the Commission has good reasons for not withdrawing the referral. A verdict issued by the CJEU regarding the old legislation would contribute to the development of EU law, and if the Court of Justice rules that the Treaty has been breached, this would serve to prevent future such improprieties across the entire EU.

Representatives of the European Commission have already declared they will continue to pursue the matter. The Court of Justice will rule on its referral under accelerated proceedings, and the verdict will likely be handed down in April 2019.

Referrals for preliminary rulings in 2019

Apart from the Commission’s application, in the coming months the CJEU will review issues raised by Polish courts in applications for preliminary rulings.

The Supreme Court, Supreme Administrative Court, and common courts in such cities as Łódź, Gorzów Wielkopolski, and Warsaw have made referrals over issues such as the independence of the KRS and disciplinary proceedings.

The government has made numerous attempts to force these courts to withdraw their referrals by removing the grounds for which they had been made.

The President of the Disciplinary Chamber of the Supreme Court, Jan Majchrowski, even went so far as to inform the President of the Court of Justice that the referrals were “null and void.” In response, the CJEU reminded Majchrowski that only the court that filed an application has the right to withdraw it.

Prosecutor General Zbigniew Ziobro also attacked the courts for their referrals. He has applied for review by the Constitutional Tribunal of the procedure under which they are issued, which has been called “a step towards Polexit.” OKO.press has written in detail about Ziobro’s actions.

To date, no court has elected to withdraw its applications. In mid-December, the Court of Justice announced 19 March 2019 as the date for hearings on the referrals submitted by the Supreme Court on 30 August and 19 September.

The CJEU will decide on such issues as whether the KRS – politicised by the PiS-led “reforms” – is capable of effectively defending the independence of the judicial system.

Its decision will be of key significance for defenders of rule of law in Poland. It may force the government to step back from another element of its controversial “reforms.”