“It’s a symbolic, historical verdict. The first concerning rule of law in Poland and improprieties in the justice system implemented by the current authority,” comments attorney Michał Wawrykiewicz from the “Free Courts” (“Wolne Sądy”) Association.

On Monday 24 June 2019, the Court of justice of the European Union ruled that the provisions of the Law on the Supreme Court of 8 December 2017 were contrary to EU law, as they violated the principles of irremovability and independence of judges.

The term of office for judges was shortened, forcing into retirement justices who were 65 years of age. Before the “reform” by PiS, their retirement age was 70 years.

The Court stressed that if Poland wishes to reform the judiciary, it must be careful that the reforms do not undermine EU values, the Charter of Fundamental Rights and the Treaties, in particular Art. 19 (1) TEU, which obliges Member States to ensure “effective judicial protection in areas covered by Union law.”

According to the CJEU, that protection can only be effective if the courts, including the Supreme Court of Poland, are completely independent and the judges are free to rule without interference.

“The freedom of the judges from all external intervention or pressure, which is essential, requires certain guarantees appropriate for protecting the individuals who have the task of adjudicating in a dispute, including the guarantee against removal from office. The principle of irremovability requires, in particular, that judges may remain in post provided they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term,” the Court explained in its press release.

This judgment is not the last in which the Court will address the destruction of the rule of law in Poland under PiS. On 27 June, Advocate General Tanchev issued a critical opinion on the National Council of the Judiciary and the Disciplinary Chamber of the Supreme Court. The CJEU’s judgement in that case will be released in the coming months.

“Successive judgments will cover successive areas in which the rule of law has been destroyed in Poland”, emphasises Wawrykiewicz.

To prevent a repeat

At the end of 2018, under pressure from the CJEU, the Polish government finally withdrew from part of the planned changes. The seventh amendment to the Law on the Supreme Court, adopted 21 November 2018, restored to the bench judges who had been forced to retire early.

The new provisions entered into force on 1 January 2019, but the European Commission decided against withdrawing its complaint to the Court. The judgment concerns the legal situation as of the date of the Commission’s application (14 September 2018) and not the present state of the law.

“This judgement had to be issued because there was no certainty that the ruling party in Poland would not make further amendments to the Law on the Supreme Court that would result in a repeat infringement of the Treaties,” explains Wawrykiewicz.

The broader European legal order

The CJEU ruling will also be of key importance to the legal order in the European Union.

“This judgment is of systemic importance for the whole legal plane of the EU. The CJEU outlines clearly the distinction between the judiciary and the executive and legislative authorities. It says that the executive and legislative authorities cannot interfere with the independence of the judiciary. And they must not violate one of the fundamental principles of the EU, namely the principle of effective judicial protection,” explains Wawrykiewicz.

“That is why this judgment was needed to establish a standard – not only for Poland, but for the whole European Union. It clearly states that the principle of irremovability of judges is one of the priorities for the functioning of the EU, and that political power cannot encroach on the functioning of the judiciary,” he emphasises.

More cases in the CJEU

Today’s judgment is a symbolic conclusion to the battle over purging the Supreme Court. But it is not the end of the struggle for restoring the rule of law in Poland. The CJEU is set to rule on a wide range of cases involving particular elements of the destruction of the Polish justice system.

“Today’s ruling is the first of several judgments to be issued by the Court in relation to violations of the rule of law in Poland. In just three days we will hear the opinion of the Advocate General in another very important case – concerning the construction of the National Council of the Judiciary and the Disciplinary Chamber of the Supreme Court,” recalls Michał Wawrykiewicz.

“In the autumn, the AG will also issue an opinion on the disciplinary system for judges,” he adds.

These provisions will concern prejudicial questions referred to the CJEU by Polish courts. In addition to these, the Court will rule on cases notified by the Commission under the infringement procedure of 258 TfEU. They concern the provisions of the Act on Common Courts and the new disciplinary system for judges.

“Subsequent judgments will encompass successive fields of the destruction of the rule of law in Poland. First and foremost, this means the structure of the National Council of the Judiciary and the manner in which judges are appointed to posts. There is also the disciplinary system for judges, that is, the removal by the authorities of ‘uncomfortable’ judges. In my opinion, these are two fundamental issues in the process of the destruction of the justice system in Poland,” explains Wawrykiewicz.

“Once we know the Court’s position in all of these matters, it will be the foundation for restoring the rule of law in Poland. To rebuild an independent judiciary, as it is established in the Polish Constitution, and of the kind required by the criteria enshrined in the European Treaties,” says Wawrykiewicz.

[translated by Matthew La Fontaine]