EU High Court Punts on Legality of Polish Court Reform

Government opponents with signs reading “Constitution” protest an overhaul of the justice system and the forced early retirement of Supreme Court judges aged 65 and above, before the court’s building in Warsaw, Poland, on Oct. 8, 2018. (AP Photo/Czarek Sokolowski)

(CN) – While there are reasons to question the independence of a new judicial panel created by the right-wing Polish government and tasked with meting out discipline to judges, Europe’s highest court ruled Tuesday it’s a matter best decided by Polish courts.

Tuesday’s ruling by the European Court of Justice comes amid a multipronged dispute between Poland’s ruling party and the judiciary. In what many call a deepening constitutional crisis after the far-right nationalist Law and Justice party won elections in 2015 and took control of the government, the party passed a series of laws that critics say undermine the rule of law and target opposition voices.

The party won re-election in October.

In addition to flaps over sex-based retirement laws and forcing judges to retire at age 65, the Polish judiciary balked at the government’s creation of a disciplinary panel within the Polish Supreme Court. The reforms set off a firestorm and several judges who were forced to retire brought legal challenges.

Though the judges who sued were subsequently reinstated, the courts hearing their cases felt it was necessary to determine whether the disciplinary panel – which would have been tasked with hearing and ruling on cases of the retiring judges – was independent of government control, and asked the EU high court to weigh in.

In a 28-page preliminary ruling, the Luxembourg-based court held the Polish president’s appointment of the panel does not by itself raise doubts as to the body’s judicial independence. What matters, according to the high court, is whether the panel is free to do its duty without influence from the Legislature or the president.

The high court noted the disciplinary panel had been given exclusive jurisdiction to rule on the cases brought by judges affected by the mandatory retirement rules – which have already been deemed contrary to EU law – and that under Polish law the panel must be made up of only newly appointed judges with a great deal of autonomy within the judiciary. Taken alone, these facts may not necessarily raise doubts about the judicial independence of the panel, the EU court said – leaving it to the referring Polish courts to decide the issue when taken as a whole.

Both the Polish government and the opposition touted Tuesday’s ruling as a win, with the head of the Polish Supreme Court saying the EU high court shares concerns about the independence of the disciplinary panel and the government saying the court knows it lacks jurisdiction to access the justice systems of member states.

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