Polish Judiciary Faces Continued Scrutiny by Top EU Court

The court blocked a scheme to force older judges into retirement last year as well as a move to push out female judges. 

Demonstrators with signs reading “Constitution” protest an overhaul of the Polish justice system in Warsaw on Oct. 8, 2018. (AP Photo/Czarek Sokolowski)

LUXEMBOURG (CN) — The European Union’s highest court heard yet another case involving the Polish judicial system on Monday, in the latest clash between the EU and the central European country over the rule of law. 

Five judges who applied for a position on the Polish Supreme Court but were blocked by an administrative body responsible for judicial nominations brought a complaint before the European Court of Justice, arguing their lack of a right to appeal is illegal under EU law.

“The whole judiciary system of the EU cannot work if courts are not independent,” lawyer Michel Gajdus said on behalf of one of the judges.

The administrative body, the National Council of the Judiciary, has existed in Poland since 1989 but underwent a number of changes in 2017 at the direction of right-wing President Andrzej Duda, which critics say was an attempt to stack the judiciary with judges sympathetic to the ruling Law and Justice Party.

The move was considered so outrageous that the European Commission triggered Article 7 of the Treaty on the European Union for the first time, which allows the EU’s cabinet body to strip certain rights within the 27-member political and economic union. 

Poland, however, disagrees with the commission’s interpretation.

“The treaty [of the European Union] says nothing about how judges are appointed,” said Polish Deputy Minister of Justice Anna Dalkowska. She argued that EU law has no bearing on how countries nominate judges to their high courts. 

Prosecutor Andrzej Reczka, also representing Poland, further argued that appointments have already been made and judges on the Supreme Court are appointed for life.

“This court cannot remove a Polish judge from the high court, so what are we doing here?” he told the 15-judge panel of the Court of Justice. 

Reczka had a combative interaction with court President Koen Lenaerts over the speed of his presentation. Lenaerts repeatedly asked him to slow down but Reczka dismissively said that the interpreters had his text so it didn’t matter. 

“EU law requires that judges must be independent,” the bloc’s legal representative Agnieszka Stobiecka Kuik told the court in response to Poland’s arguments. 

The European Commission has brought numerous complaints to the Court of Justice about rule of law against Poland since the Law and Justice Party began what it called judicial reforms. The court blocked a scheme to force older judges into retirement last year as well as a move to push out female judges. 

Despite these losses, Duda’s right-wing government moved forward with legislation in January that prohibits judges from engaging in any public activities that could be seen as politically motivated. The EU launched an investigation into this law in April. 

“This is a matter for the member states, it is not a matter of EU law,” Dalkowska told reporters before the hearing. 

Following their oral presentations, all of the representatives had the opportunity to respond to the other arguments, which devolved into members of the Polish delegation shouting and name-calling. The hearing ran wildly over time and the presiding judge had to cut off two Polish government representatives who continued talking past their allotted time and were directing their comments at the other side.

While lawyers made their case to the EU’s high court, politicians are making their case to the public in Poland. Voters went to the polls last week to vote for president, in an election delayed by nearly two months due to the Covid-19 crisis. A run-off election is scheduled for July 12. 

A ruling on the judges’ case is expected in a few months.

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