Poland Ordered to Reverse Purge of Supreme Court

WARSAW, Poland — The top court in Europe on Friday sided with critics who have accused Poland of undermining judicial independence, ordering the country’s leaders to suspend a law that cleared the way for a sweeping purge of the nation’s Supreme Court and demanding the reinstatement of more than two dozen judges.

The stinging rebuke from the Court of Justice of the European Union was the latest salvo in an escalating confrontation over the drive by Poland’s ruling party to take control of the country’s judiciary, one of many ongoing battles between Warsaw and Brussels.

Poland’s government had placed reshaping the courts at the center of its agenda and had vowed to defy any efforts by the European court to interfere. But Friday, the government took a measured approach in responding to ruling.

In issuing an interim judgment, the court sided with the European Commission, the bloc’s executive arm, which argued that the changes to the judicial system in Poland represented a fundamental threat to the rule of law. Although it has yet to issue a final ruling, the court said it was stepping in now to “avoid serious and irreparable damage to the interests of the EU”

The European Commission intervened after the Polish Parliament passed a law in April that lowered the mandatory retirement age of Supreme Court judges, a change that forced out 27 of the 72 Supreme Court judges, including the court’s president, Malgorzata Gersdorf.

Despite condemnation from the commission and protests that brought tens of thousands of people to the streets, the governing Law and Justice Party pressed ahead with the purge.

President Andrzej Duda named replacements for the judges, and leading members of the government said it would go ahead with the plan, no matter what the European court did. The European court “is not the court of final judgment,” Prime Minister Mateusz Morawiecki said in August.

Jaroslaw Gowin, deputy prime minister and minister of higher education, went even farther in an August interview with a conservative weekly, Do Rzeczy. A negative ruling by the court “would be the first step toward the destruction of the European Union,” he said, “taken not by the Polish government, but by the EU’s tribunal of justice.”

He said Polish lawmakers would have “no other choice than to set another precedent and ignore a ruling by the European tribunal as conflicting with the Lisbon Treaty,” a 2007 agreement that was intended to reign in the EU bureaucracy.

After the court’s ruling, days before national local elections, leading members of the Polish government were more cautious in their responses. Zbigniew Ziobro, the Minister of Justice, said that Poland would follow all the laws of the union, but first needed to evaluate the decision.

Marcin Matczak, a professor of constitutional law at Warsaw University said that “Polish citizens are pro-EU,” so it would be risky to be critical of the bloc before Sunday’s election. “I think this is not just a legal but a political blow,” he said.

Gersdorf told reporters that she was pleased by the decision but disappointed that the situation had reached this point. “I am just upset that the government of my motherland didn’t want to do the same thing earlier,” she said.

Adam Bodnar, Poland’s government ombudsman, called the European court ruling a “victory of civil society” that he hoped would lead to a restoration of judicial independence. “Apparently membership in the EU, being a community based on rule of law, matters.”

If Poland refuses to comply with the order, it could face sanctions, including economic penalties, although past threats of punishment by Brussels have failed to prove persuasive.

The fight over the courts stretches back three years, when the Law and Justice party swept into power, partly on the strength of a promise to overhaul the courts. Since then, step by step, the party has moved to exert more political influence over the judiciary.

In 2015, it took control of the Constitutional Tribunal, which is tasked with ensuring that laws do not violate the constitution. Next, it gave authority over the country’s prosecutors to the Ministry of Justice. And before moving on Supreme Court, it asserted new powers to select judges.

Even before the government passed the law targeting the Supreme Court, Poland became the first member nation to be threatened with losing its voting rights in the EU under Article 7 of the bloc’s treaty, after the European Commission determined that the country had failed to uphold the core values of the union.

The confrontation between Brussels and Warsaw has deepened in recent months, exposing the limited tools available to the union to curb the behavior of a wayward member state.

Tomasz Grzegorz Grosse, a professor of European Studies at Warsaw University, said there is an ongoing conflict between the European treaties and national constitutions that has never been fully resolved.

“The Polish Constitution does not say that the European court is superior to Poland’s Constitutional Tribunal,” he said. If they contradict each other, “we will have an open conflict.”

With the Tribunal now made up of judges appointed by the governing party, that could happen soon, and no one knows what would happen next.

“It has never happened,” Grosse said. “It’s a completely unknown territory.”