Top Polish Court Reverses Judge ‘Purge’ as EU Fight Deepens

(Bloomberg) -- Poland’s Supreme Court seized on an order by the European Union’s top tribunal to stop what it calls the nationalist government’s drive to “purge” judges from its ranks.

The world’s largest trading bloc is suing its biggest ex-communist member for undermining judicial independence. The case, which has pitted Poland’s Supreme Court against its executive branch, serves as a litmus test for the European Commission as it struggles to contain populist forces from Rome to Budapest that are challenging its liberal values.

The EU’s highest tribunal -- the European Court of Justice -- ordered the government in Warsaw to immediately suspend a law lowering Supreme Court retirement ages that would oblige two fifths of its judges to step down. The ruling Law & Justice party vowed to fight the injunction in an appeal. But the Supreme Court, which has called the law illegal, asked judges who had been forced out to return to work Monday.

“For now at least, in some sense, we’ve won,” Supreme Court First President Malgorzata Gersdorf told reporters. Gersdorf, who was also targeted for retirement, has defied the government’s attempts to oust her and vowed to stay until her six-year term ends in 2020.

Election Warning

Law & Justice has transformed Poland from a poster child of east Europe’s successful embrace of democracy following the collapse of communism to one of the EU’s biggest headaches. The party’s conflict with the bloc resonated in local elections on Sunday when voters gave it a smaller-than-expected victory in a warning sign before general elections next year and a presidential ballot in 2020.

Law & Justice says it must revamp the courts so that other changes, ranging from the "re-Polonization" of foreign-owned companies back into state hands to a drive to return the country of 38 million to its traditional Catholic roots, can start working. It has denounced the current judiciary as a cadre of elites tied to past governments that denies justice to ordinary Poles.

Potential Toll

But its campaign may extract a toll. It’s facing unprecedented political sanctions as well as potential economic penalties with nations such as France seeking to link EU funding with respect for democratic values. From Poland’s accession in 2004 to the end of the current budget after 2020, the country is set to receive about 230 billion euros ($264 billion) from the bloc.

“The court supports the commission’s view that the new Polish law is incompatible with EU law, as it undermines the principles of judicial independence,” commission spokesman Margaritis Schinas told reporters in Brussels.

The government has repeatedly rejected the commission’s criticism and argues that the EU should have no say over its domestic legislation and how it arranges the judiciary. Deputy Justice Minister Michal Wojcik said the injunction was addressed to the government, not to the Supreme Court, and therefore shouldn’t result in any justices returning to work.

Law & Justice leader Jaroslaw Kaczynski, who wields the power behind Morawiecki’s government despite having no other position than member of parliament, said Friday that the administration would use all legal means to appeal the injunction. He added that the ruling was only “preliminary” and hadn’t taken Poland’s position into account.

But the return of the judges will make the government’s position more difficult, according to Marcin Matczak, a law professor at Warsaw University.

“This forces Poland to accept the return of justices to work and makes it more difficult to ignore the injunction,” he said.

©2018 Bloomberg L.P.