Poland Rushes Supreme Court Nominations to Get a Jump on EU

(Bloomberg) -- Poland’s Judicial Council nominated a dozen candidates to the Supreme Court, defying challenges from the European Union over changes in the judiciary and intensifying a dispute that may bring penalties against the bloc’s biggest eastern member.

The council is racing to fill vacancies at the top court and replace its president, Malgorzata Gersdorf, after the ruling Law & Justice party passed a bill to force her and almost 30 other judges out by lowering the retirement age. The Supreme Court itself has denounced the legislation and called on the government to halt the process pending a ruling by the EU’s highest tribunal as to whether it is lawful. The EU says it breaches the bloc’s norms.

Poland’s Association of Judges and Prosecutors, joined by lawyers and civil society activists, wrote an open letter to President Andrzej Duda, who has the sole right of appointing judges from the council’s nominations. They criticized the politicization of the Judicial Council, which is stacked with ruling party loyalists, and a slapdash vetting of potential justices.

“It would be appropriate to wait for the judgment of the EU Court of Justice out of respect for the importance of the resolution of this matter,” they said. “Participation in these nominations will mark the start of Poland’s actual exit from the European Union.”

The confrontation epitomizes the struggle between populists across the EU who are challenging the bloc’s standards and traditional political forces raising alarm over the erosion of the rule of law. While the ruling party argues that courts need to be overhauled to give regular Poles a sense of justice, the European Commission sees the measures as undermining judicial independence and eliminating the checks and balances necessary for a properly functioning democracy.

Outracing the EU

In a meeting that was initially set to be held next month, the council on Thursday picked 12 nominees for the disciplinary chamber in the Supreme Court, whose candidacies will be now presented to Duda, according to Leszek Mazur, the panel’s head. The council will continue selecting other appointees on Friday. In a separate move, Chief Prosecutor Zbigniew Ziobro asked the Constitutional Tribunal to rule that a Supreme Court judgement suspending parts of the law forcing judges to retire be declared unconstitutional.

With the nominations, Poland is ramping up a go-it-alone strategy under which it has repeatedly outmaneuvered the EU. By forcing through more than a dozen sweeping measures, it has solidified changes before the bloc’s bureaucratic machinery can react. The council will name more nominees through next week.

“Poland’s ruling party is rushing to complete its judicial coup d’Etat,” Laurent Pech, a professor of European law at Middlesex University in London, said on Twitter.

Brussels has declared the legislation incompatible with the EU law and is threatening to sue the country of 38 million at the bloc’s highest court. It has given Poland, the biggest net beneficiary of the bloc’s budget, a September deadline to explain its actions, threatening unprecedented sanctions including possible cuts to development aid.

The nation’s largest association of judges, Iustitia, said Friday the president would break the law if he appointed judges within the next two weeks. Gersdorf, who repeatedly vowed she won’t resign till the end of her term in 2020, may relent when Duda selects one of the new appointees as interim President, Supreme Court spokesman Michal Laskowski said.

“I suppose this will be the moment when President Gersdorf will leave the court,” he told Radio TOK FM Friday. “I can’t imagine two centers of power within the Supreme Court, but let’s leave that decision with her.”

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