Poland Ousts Supreme Court Justices Against EU Wishes

​By Kaitlyn Rentala 
​Kaitlyn Rentala is a freshman at the University of Pennsylvania studying Philosophy, Politics, and Economics in the College of Arts and Sciences.

On October 19th, the Court of Justice of the European Union (ECJ) ordered Poland to first suspend a law that forced judges off the nation’s Supreme Court and then to reinstate those judges [1]. This was in response to the Polish Parliament passing a law lowering the mandatory retirement age for judges, forcing out 27 out of the 72 Supreme Court Justices, including the Supreme Court president, Malgorzata Gersdorf [2]. Despite thousands of critics and protests taking place in the streets, the Polish government went ahead with the purge, resulting in the EU’s order. However, high ranking Polish government officials stated that they would not follow the EU’s ruling, claiming the ECJ did not have the authority to dictate Poland’s legal system [3]. Jaroslaw Gowin, Deputy Prime Minister and Minister of Education, cited this recent incident as yet another conflict with the Lisbon Treaty, a 2007 agreement that was intended to reign in EU oversight and bureaucracy [4]. ​

In recent years, a rise of illiberalism among countries like Hungary and Poland have promoted the EU to take measures to protect the legal boundaries of the bloc. In 2014, the EU moved to adopt Article 7, which allowed the EU to discipline countries that threatened the values of the EU [5]. Conflict between the EU and Warsaw specifically started in 2016, when Poland became the first member country to be threatened with losing its voting rights under Article 7 of the EU bloc’s treaty [6]. Adding in the legal tensions between the two parties, Poland’s future standing in the EU looks unclear.

For background, the ECJ is the EU’s highest legal authority and is composed of two separate courts- the Court of Justice and the General Court. The ECJ decides whether the parties of the EU are acting justly and settles disputes among them. It also ensures that member states are adhering to the legal obligations set out by the EU [7]. The last order is the point of contention between the ECJ and Poland.

This incident is symbolic of a bigger issue that is becoming more pressing. Three years ago, the Law and Justice party in Poland took control of the nation’s Constitutional Tribunal, tasked with ensuring laws do not violate the Constitution. The Polish Constitution does not say that the European court is superior to Poland’s Constitutional Tribunal, presenting a large gray area for the future [8]. If the two contradict each other, there is no system in place to resolve that. With the tensions between Brussels and Warsaw already at new heights, this development only deepens the strife.

Another interesting factor to consider is the increasing polarization of judicial systems in not only Poland but also United States. With the appointment of Brett Kavanaugh to the United States Supreme Court, the nation’s highest court is the most conservative it has been in recent years. Similarly, Poland’s Law and Justice party, a far-right party, had the opportunity to greatly swing the political partisanship of the Polish Supreme Court thanks to the forced retirement of two dozen federal judges. Whether or not Poland complies with the EU and reinstates those judges remains to be seen.

References
[1]  “Poland Must Immediately Suspend the Application of the Provisions of National Legislation Relating to the Lowering of the Retirement Age for Supreme Court Judges.” Europa, 19 Oct. 2018, curia.europa.eu/jcms/upload/docs/application/pdf/2018-10/cp180159en.pdf.

[2] Santora, Marc. “Poland Purges Supreme Court, and Protesters Take to Streets.” The New York Times, The New York Times, 3 July 2018, www.nytimes.com/2018/07/03/world/europe/poland-supreme-court-protest.html.

[3]  Romo, Vanessa. “Top EU Court Blocks Polish Supreme Court Law Forcing Judges To Retire.” NPR, NPR, 20 Oct. 2018, www.npr.org/2018/10/20/659016900/eus-top-court-blocks-poland-s-supreme-court-law-forcing-judges-into-retirement.

[4]  “Gowin: To Nie Jest Krok Do Polexitu.” Do Rzeczy, Magdalena Złotnicka, 27 Aug. 2018, dorzeczy.pl/kraj/75120/Gowin-To-nie-jest-krok-do-Polexitu.html.

[5]  “How the EU Is Fighting to Protect the Rule of Law in Poland.” The Economist, The Economist Newspaper, 3 July 2018, www.economist.com/the-economist-explains/2018/07/03/how-the-eu-is-fighting-to-protect-the-rule-of-law-in-poland.

[6]  Santora, Marc, and Joanna Berendt. “Poland Ordered to Reverse Purge of Supreme Court.” The New York Times, The New York Times, 19 Oct. 2018, www.nytimes.com/2018/10/19/world/europe/poland-supreme-court-purge.html.

[7]  Morris, Chris. “Reality Check: What Is the European Court of Justice?” BBC News, BBC, 23 Aug. 2017, www.bbc.com/news/world-europe-40630322.

[8]  Santora, Marc, and Joanna Berendt. “Poland Ordered to Reverse Purge of Supreme Court.” The New York Times, The New York Times, 19 Oct. 2018, www.nytimes.com/2018/10/19/world/europe/poland-supreme-court-purge.html.

Photo Credit: Jakub Kaminski/EPA, via Shutterstock

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CreditCreditJakub Kaminski/EPA, via Shutterstock