Commission refers Poland to EU’s top court over Supreme Court Act

The EU Court of Justice could takes up the case against Poland over the controversial Supreme Court Act. [EPA/NICOLAS BOUVY]

The European Commission referred Poland to the European Court of Justice (ECJ) on Monday (24 September), upping the ante in the dispute with Warsaw over a controversial legislation that would send dozens of Polish Supreme Court judges into early retirement.

“The European Commission decided to refer Poland to the Court of Justice of the EU due to the violations of the principle of judicial independence created by the new Polish Law on the Supreme Court, and to ask the Court of Justice to order interim measures until it has issued a judgment on the case,” the Commission said in a statement.

If the ECJ shares this view, Poland will be asked to change the law. Otherwise, Warsaw could face significant fines for non-compliance with EU law.

The Commission’s move comes after it gave Poland the first warning in July, asking the country to reverse introduced legislation in a hearing of EU affairs ministers, followed up by another step in August, after the Polish Supreme Court referred to the ECJ the preliminary questions about the compliance of the Act with EU regulations.

Rule of law dispute with Poland simmers on, with no end in sight

Despite expectations to the contrary, the European Commission decided not to refer the Polish Supreme Court law to the EU’s top court on Wednesday (19 September), following a meeting of EU affairs ministers that heard Poland’s arguments on Tuesday. But it does not necessarily mean a detente is on the cards.

The Supreme Court Act, authored by Polish President Andrzej Duda, reduces the Supreme Court judges retirement age from 70 to 65 years. Some 27 judges are affected by the legislation, including the head of the Court, Małgorzata Gersdorf.

Despite expectations to the contrary, the Commission did not refer the Polish Supreme Court law to the EU’s top court last week, but it was already anticipated it would take the step this Monday.

According to the Commission statement, the “Polish law on the Supreme Court is incompatible with EU law as it undermines the principle of judicial independence, including the irremovability of judges” and the country itself does not “fulfil its obligations” of the “Charter of Fundamental Rights of the European Union.”

Poland avoids new EU lawsuit in extremis

First Vice President Frans Timmermans on Wednesday (19 September) was expected to ask the College of Commissioners to refer the Polish Supreme Court law to the EU’s top court, the European Court of Justice.

“The Commission wants judges included in the new law on the Polish Supreme Court to continue to exercise their judicial functions, even if they have already retired,” Commission spokeswoman Mina Andreeva told reporters in Brussels.

To obtain a final judgment as soon as possible, “the Commission has decided to request an expedited procedure at the Court of Justice.” The requested accelerated procedure implies that the judgment in the main case could be taken in up to six months.

Earlier this year, the Commission asked for such a procedure regarding the logging in Poland’s Białowieża Forest and the EU Court ruled that logging was illegal, which could result in heavy fines unless the government – which has no right of appeal – takes action.

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