Polish Judicial Overhaul Faces Biggest EU Court Test Yet

(Bloomberg) -- Poland’s sweeping judicial overhaul faces its toughest test yet as the European Union’s top court prepares to rule in the latest in a series of lawsuits challenging some of the populist government’s most controversial policies.

The EU Court of Justice will on Nov. 19 rule on the legality of a new disciplinary body of Poland’s Supreme Court, whose member judges are chosen by a panel dominated by political appointees. An adviser to the Luxembourg-based EU court in June said the system failed to protect judges from political interference.

A ruling against the disciplinary body may also have consequences for the National Council of the Judiciary. The recently overhauled council, partly elected by politicians, doesn’t just pick the judges allowed to sit in the disciplinary chamber, it also selected hundreds of judges for numerous courts across the country.

The legality of these nominations, as well as the rulings made by such justices, could be in question as a result of the EU verdict, according to experts including Laurent Pech, a professor of European law at Middlesex University in London.

Preparing the ground for a potential negative EU verdict, Prime Minister Mateusz Morawiecki set out conditions under which his government would respect the ruling: it must conform to the bloc’s treaties as well as to Poland’s constitution. While EU members are obliged to carry out the judgments of the top EU court, Poland asserts that the bloc doesn’t have the jurisdiction to vet its justice-system changes.

Polish Judicial Overhaul Faces Biggest EU Court Test Yet

Upholding Values

The case goes to the heart of Poland’s wide-ranging court overhauls, which have triggered numerous lawsuits by the EU’s executive regarding the government’s alleged failure to protect the rule of law and uphold the bloc’s values. Some EU countries, such as France and the Netherlands, have suggested making access to the bloc’s common budget conditional on fulfillment of democratic standards.

While Poland -- the biggest net beneficiary of the EU budget -- backtracked on some changes, a string of cases have reached the EU court, including one in which the tribunal chided the nationalist government over discriminatory rules on retirement ages for male and female judges.

If EU judges find that disciplinary chamber of the Polish Supreme Court “does not offer sufficient guarantees of independence as required under EU law, any decision issued by this chamber until or after the” EU court’s ruling “must be considered null and void,” said Pech.

It could also have “indirect consequences on every single judge nominated by the” Judicial Council to any court, “and every single ruling which has been issued by them,” according to the law professor.

Uncharted Territory

The EU is in uncharted territory regarding its standoff over democratic backsliding against Poland at a time when the bloc has to deal with priorities such as immigration, security and its post-Brexit future.

Three Polish judges brought the cases over the new authority, which was set up after the ruling Law & Justice party rallied against what it calls a self-serving “caste” of judges who distort justice for ordinary citizens. A number of disciplinary cases have been brought against judges who had criticized the government.

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.

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

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