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Polish Court Reforms Get New Rebuke in EU Court Opinion

Polish Court Reforms Get New Rebuke in EU Court Opinion

(Bloomberg) -- Poland suffered another rebuke over its sweeping judicial reforms after an adviser to the European Union’s top court criticized one of the cornerstones of the overhaul for failing to keep judges at arms length from politicians.

The case is part of a string of challenges to have reached the top EU tribunal over Polish judicial independence since the government started its sweeping overhaul four years ago. The stand-off has put Poland at odds with its European allies and risks cuts in EU budget transfers to the bloc’s largest formerly communist nation.

Three Polish judges brought the challenges, questioning the independence of a new disciplinary body created as part of the country’s Supreme Court, that is appointed by a panel selected primarily by politicians. Poland’s ruling Law & Justice party has long rallied against what it calls a self-serving “caste” of judges who distort justice for ordinary citizens.

“The newly created disciplinary chamber of the Polish Supreme Court does not satisfy the requirements of judicial independence established by EU law,” Advocate General Evgeni Tanchev of the EU Court of Justice said in a non-binding opinion on Thursday. The tribunal follows such advice in a majority of cases.

Democratic Values

While Poland argues it can freely shape its judiciary without kowtowing to Brussels, the EU’s executive believes that independent courts are one of the founding values of the bloc’s democracies. So far, it has won a spate of legal challenges, piling pressure on Warsaw.

A binding ruling from the court, which is expected within months, could have consequences not just for the disciplinary chamber, but also for the National Council of the Judiciary, which appointed judges to the new body which helps police judges, said Laurent Pech, a professor of European law at Middlesex University in London. A number of disciplinary cases have been brought against judges who criticized the government’s judicial overhauls.

“The opinion is contradictory, goes against EU treaties and boils down to the defense of pathology in Polish judiciary,” Justice Minister Zbigniew Ziobro said in Warsaw about the latest opinion. “I rule out the possibility that the top court will share the opinion of the Advocate General in its ruling.”

Earlier this week, the EU top court ruled that another Polish measure, which lowered the retirement age of Supreme Court judges, violates EU law. Last week, an EU court adviser said in a non-binding opinion that Poland’s decision to lower the retirement age of ordinary judges and also distinguish between the retirement ages for men and women violated the bloc’s rules.

Another Brexit?

If confirmed in the final ruling, the Luxembourg-based tribunal will effectively strike down the backbone of Poland’s justice overhaul, according to Pech.

Ignoring the ruling, on the other hand, would heighten Poland’s stand-off with the EU and could rekindle suspicions that the government was effectively taking the country of 38 million out of the soon to be 27-nation bloc. Such concerns could hurt the ruling party before general elections expected in October.

“The whole disciplinary regime for judges, which one would only expect to find in an autocratic regime, will have to be disbanded unless of course Polish authorities are willing to ignore their legal obligations and enter into an open conflict with the European Court of Justice,” Pech said in an email to Bloomberg. “If so, discussions regarding an eventual Polexit are bound to resume.”

The cases are: C-585/18, C-624/18, C-625/18, Krajowa Rada Sądownictwa.

To contact the reporters on this story: Stephanie Bodoni in Luxembourg at sbodoni@bloomberg.net;Marek Strzelecki in Warsaw at mstrzelecki1@bloomberg.net

To contact the editors responsible for this story: Anthony Aarons at aaarons@bloomberg.net, ;Andrea Dudik at adudik@bloomberg.net, Wojciech Moskwa, Peter Chapman

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