Marek Tatala & Patryk Wachowiec // 14 January 2019

On 21 November, public opinion in Poland and the EU was surprised by the ruling Law and Justice’s (PiS) proposal “backtracking on controversial reforms it made to lower the retirement age of Supreme Court judges”. The amendment was issued in the morning and it went through the whole legislative process in the lower house of parliament for less than 3.5 hours. President of Poland, Andrzej Duda, waited until 17 December and finally signed the new law which is the 7th amendment to the act on the Supreme Court since its enactment in late 2017.

The Supreme Court has not been the sole judicial institution under attack by the ruling majority. Since November 2015 the PiS has been increasing political control over other key bodies of the system, including the Constitutional Tribunal, the prosecution, the National Council of Judiciary, and ordinary courts. These amendments generated domestic protests and criticism by many foreign institutions as they blatantly aim to undermine the rule of law and the independence of the judiciary.

The law in question is interpreted as a success of the opponents of the previous legislation detrimental to rule of law and complying with the potential Court of Justice of the EU (CJEU) ruling. Nevertheless, the amendment to law on the Supreme Court was not needed since the interim measure, granted by the CJEU in mid-October, which halted the forced retirement of judges, does not require any bespoke domestic implementation – as the President of the CJEU and vast majority of Polish lawyers have been constantly claiming.

Despite rapid enactment of the new law, even if it was not necessary, Poland has not fully complied with the interim order – there are still nominating proceedings pending before the politically-dependent new National Council of the Judiciary which appoints judges. The interim measure required Poland to stop all such actions.

Moreover, it must be born in mind that there are still pending preliminary proceedings before the CJEU as a result of questions referred to by Polish courts, including the Supreme Court, which aim to challenge recent amendments regarding the Supreme Court itself, new disciplinary regimes and the composition of the politicised National Council of the Judiciary.

The results of the recent local elections in Poland and the upcoming European Parliament elections are sometimes associated with the surprising decision by PiS to at least partially succumb the pressure applied by local civil society,  parliamentary opposition and EU institutions. The ruling party won the elections to the regional assemblies, but the success was not as spectacular as expected.  The PiS’s candidates for mayors lost in almost all major Polish towns and cities, including Warsaw. However, the ruling majority is still strong in the countryside and smaller towns.

Therefore, the backtracking on radical policy to lower the retirement age of Supreme Court judges might be a way to improve an image among more moderate, pro-EU urban voters, more frequently participating in the European Parliament elections. While major opposition parties are accusing the PiS of pushing Poland into a “Polexit” path, the ruling party, through some minor policy changes and shifts in a communication strategy, attempts to prove its affection to the European Union.

Nevertheless, the credibility of this new image of the PiS is rather low as they have a long history of detrimental policies, harmful for Poland as well as violating the European Union principles of rule of law. For last 3 years, the foreign policy has been dominated by a very inefficient EU scepticism, useless bashing of selected EU institutions and officials and even voting against Donald Tusk, former Poland’s prime minister, for his second term as the President of the European Council.

The upcoming EU elections will be an important test for the opposition parties’ popularity and their electoral proficiency. If the major pro-EU opposition parties won, it would add a fresh impetus for the parliamentary elections in Poland in autumn 2019. Political changes in Poland seem to be the only way to reverse PiS’s policies dismantling the rule of law and weakening economic freedom in Poland.

Finally, it is important to remember that the amendment to the law on the Supreme Courts does not prevent the CJEU from ruling that Poland has breached EU principle of the rule of law by suddenly forcing active judges to retire. The judgment is expected to be held in March and the CJEU will assess the situation in Poland as of mid-September 2018 when the complaint was lodged by the European Commission, and when said purge was underway.

Marek Tatała, Vice President of Civil Development Forum (FOR)

Patryk Wachowiec, Legal Analyst at the Civil Development Forum (FOR)