Europe’s top court delivered another blow to Poland’s attempts at overhauling its judiciary, this time questioning the lawfulness of changes to the way Supreme Court judges are appointed.
(CN) — Europe’s highest court on Tuesday found that Poland’s right-wing nationalist government may have violated European laws by overhauling how Supreme Court judges are appointed.
The ruling by the European Court of Justice was the latest volley against Poland by a European Union institution in what has become a defining conflict in European politics between the EU’s transnational powers to enforce the rule of law across the bloc and a national government’s ability to run its affairs how it sees fit.
Specifically, the Court of Justice’s newest ruling found that changes Poland’s ruling Law and Justice party made to the way Supreme Court judges are chosen are “liable to infringe EU law,” as a court news release said.
In 2017, Poland gave parliament and the executive branch control over the National Council of the Judiciary, a body that chooses judges in Poland, including those to the Supreme Court. At the time, critics blasted the overhaul as undermining the independence of Poland’s judiciary and the European Commission initiated unprecedented sanctions proceedings against Poland for violating the rule of law.
On Tuesday, the Court of Justice said the council’s decisions on appointments may break EU laws because they cannot be challenged and therefore curtail the right to a fair trial. The ruling came in a lawsuit brought by five Polish judges whose candidacies for the Supreme Court were rejected by the council.
The five judges charged they were unlawfully denied a chance to appeal the council’s decision to not appoint them to the Supreme Court. The judges brought their lawsuit to Poland’s Supreme Administrative Court and it was that court that asked the EU’s top court for a ruling in the matter.
Previously, the Supreme Administrative Court questioned the overhaul of the rules for appointing Supreme Court judges. The Polish court noted restrictions on appeals were imposed only for Supreme Court appointments.
The Supreme Administrative Court said it was critical that Supreme Court appointments are subjected “to a genuine and rigorous review” because high court judges “exercise judicial supervision over all lower courts,” according to the Court of Justice ruling.
The Court of Justice ruling said the Polish court also was concerned about the independence of the National Council of the Judiciary because its members “were no longer chosen by their peers, as was previously the case,” but by the lower chamber of the Polish parliament. The Polish court said this “creates a risk” that the council’s members “might be subject to influence from the political forces,” the ruling said.
The Polish court also questioned the independence of the council because none of its 15 members are drawn from the Supreme Court, which is contrary to the Polish constitution.
Sitting as the grand chamber, the Luxembourg-based court sided with the five judges and told the Supreme Administrative Court that there are grounds for it to find the overhaul for Supreme Court appointments unlawful under EU law.
The Court of Justice said EU law doesn’t allow states to amend their laws to not allow an appeal such as those sought by the five Polish judges.
In its ruling, the EU court said it was up to Supreme Administrative Court to decide whether “those provisions are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the judges thus appointed.”
It told the Polish court to decide whether those changes also “may lead to those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in subjects of the law.”
Tuesday’s ruling adds a new layer to the confusing state of affairs in Poland’s legal system, which now sees two competing court systems emerging – one set up through the recent judicial reforms and the other one recognized by the EU’s courts.
This conflict goes back to 2015 when the Law and Justice party seized power and became the first post-communist government with a clear majority. It made overhauling Poland’s justice system a priority, saying it wanted to fix a flawed system ruled by a caste of corrupt judges left over from the communist era. The government also argued the old court system was slow, inefficient and tolerated corrupt practices.
Among other changes, the Law and Justice party took aim at the Supreme Court. Its most controversial move was to lower the retirement age for Supreme Court judges from 70 to 65, effectively forcing about 27 of the court’s 73 judges into retirement. But Poland was forced to reverse itself after the Court of Justice in June 2019 found compelling older judges into retirement unconstitutional.
In 2018, the Court of Justice provisionally suspended Poland’s judicial reforms and later ruled that Poland had failed to fulfill its obligations under the EU treaties.
Despite this series of setbacks in the EU’s courts, the Law and Justice party is not backing down. In defiance of EU edicts, in January 2020 it passed a new judicial disciplinary law that critics decried as another device to erode the independence of judges.
At the same time, the Supreme Court’s judges are fighting the reforms and they have refused to recognize the rulings of about 500 judges appointed by the National Council of the Judiciary. In turn, the Justice Ministry called the Supreme Court’s resolution to not recognize those rulings illegal.
All of this has left Poland’s justice system deeply split.
On the one hand, there is the authority of the Supreme Court, which enjoys the backing of Europe’s institutions, and on the other hand a new legal regime being set up by the Polish government.
This legal chaos played out in a real way on Monday when Igor Tuleya, a judge with Warsaw’s district court, was not allowed to resume his work despite a ruling on Friday that had declared his suspension illegitimate, according to Notes from Poland, a Polish-based news website.
Tuleya is a vocal critic of Law and Justice’s judicial overhaul and he was suspended in November by a new Supreme Court disciplinary chamber set up by the ruling government. He even faces criminal charges for a ruling he issued against the government. But last year the Court of Justice ruled that the Supreme Court disciplinary chamber should be suspended, which led Tuleya to refuse to appear before it and he has rejected summonses issued by prosecutors.
Poland’s defiance is seen as a test of the strength of EU courts and institutions meant to ensure EU members uphold the rule of law and make sure there’s no backsliding on democracy.
Courthouse News reporter Cain Burdeau is based in the European Union.