Commission starts procedure against Poland over Supreme Court overhaul

EU Budget Commissioner Gunther Oettinger (R) chats with Konrad Szymanski, the Polish European affairs minister, during the European general affairs council in Brussels on 14 May 2018. [EPA-EFE/OLIVIER HOSLET]

The European Commission formally notified Poland on Monday (July 2) that it had initiated infringement proceedings against the country because of the controversial Supreme Court Act, but gave the Polish authorities one month to answer.

The Commission communiqué says that the procedure is a response to the provisions in the Act on the Supreme Court prepared by the Polish government entering into force on July 3.

Under the new law, all Supreme Court judges over 65 will have to retire when the legislation takes effect unless they have applied for permission to Polish President Andrzej Duda. After medical examinations, the president may agree to extend their posting.

“The Commission is of the opinion that these measures undermine the principle of judicial independence, including the irremovability of judges, and thereby Poland fails to fulfil its obligations under Article 19(1) of the Treaty on European Union read in connection with Article 47 of the Charter of Fundamental Rights of the European Union,” the statement reads.

The decision marks another escalation in the row between Brussels and Warsaw on rule of law standards that pits the EU executive against Poland’s Eurosceptic Law and Justice (PiS) party, which began sweeping changes to the judiciary after winning power in 2015. It is, however, a separate procedure running parallel to the ongoing Article 7 probe.

The Commission said it was concerned over the “lack of criteria” due to which the procedure will be undertaken and points to the fact that the new legislation might affect every third judge. This includes the First President of the Supreme Court, whose “six-year term would be prematurely terminated.”

Commission spokesman Margaritis Schinas informed journalists in Brussels that a letter of formal notice has been sent to the Polish authorities and Warsaw will have one month to present its reasoning on the matter.

“The decision to start the procedure was made due to the lack of progress in talks with the Polish government on the Supreme Court Act and the inevitable implementation of a new multi-pension for Supreme Court judges,” said Schinas, adding that Brussels still counts on dialogue with Warsaw.

This is the first stage in an infringement procedure in which the Commission may eventually ask the Court of Justice to impose a penalty when the country does not fulfil its obligations under EU law.

“This ruling will be important for the EU system because it will indicate the limits of possible interference of Community law in the scope of the EU’s autonomy regarding the organization of justice,” Poland’s Deputy Foreign Minister Konrad Szymański told the Polish Press Agency. He presented the Polish position at the General Affairs Council last week in Luxembourg, which ended without any declaration.

Poland's defence of contested judicial changes leaves EU unconvinced

EU ministers held the first-ever Article 7 hearing in Luxembourg on Tuesday (June 26) to determine the state of play in the rule of law dispute between Brussels and Poland. The EU remains unconvinced by Poland’s recent efforts, with everyone waiting to see if and how a crucial judicial reform will go ahead on 3 July.

An EU official, however, indicated that Warsaw might expect to be referred to the European Court of Justice, but this is rather likely to happen before fall.

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