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24th Sep 2021

EU commission steps up legal case against Poland

  • A protest in the Polish city Poznan in 2017 against the proposed judicial reform, which the EU commission now says is against EU law (Photo: Sakuto)

The European Commission moved closer on Tuesday (14 August) to a possible referral of Poland to the Court of Justice of the EU over Poland's new law on the country's Supreme Court.

The EU executive sent Poland a 'reasoned opinion' – the next step on the escalation ladder of the so-called infringement procedure, which the commission opened last month.

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  • Last month, Poland lowered the retirement age of Supreme Court judges from 70 to 65 (Photo: Darwinek)

It followed the commission's 'letter of formal notice' to Warsaw, sent on 2 July.

The commission said in Tuesday's press statement that Poland's reply, sent on 2 August, "does not alleviate the commission's legal concerns".

The infringement procedure is about Poland's new law, which lowers the retirement age of Supreme Court judges from 70 to 65, effectively forcing 27 of 74 sitting judges to retire.

The law has been criticised as a way for the ruling Law and Justice party to replace the retirees with loyalist judges – an allegation which the Polish government denies.

The commission said that the supreme court law is "incompatible with EU law as it undermines the principle of judicial independence, including the irremovability of judges".

The infringement procedure is the commission's main tool to force EU states to abide by EU law.

In July, Poland's EU affairs minister Konrad Szymanski downplayed the legal action as just one of "over 1,300" infringement cases.

The commission has given Warsaw a month to reply, following which the commission "may decide" to refer the case to the Court of Justice of the EU – however, there is no automatic mechanism to do so.

If the court finds Poland guilty of breaking EU law, it could force Warsaw to withdraw or amend the law on the supreme court.

Poland would only be slapped with a financial penalty if a breach of EU law continues after a court ruling and the commission subsequently refers Poland back to the court.

The infringement case is unfolding separately from a different procedure, the so-called Rule of Law dialogue.

This dialogue has been in place since January 2016, and could lead to a suspension of Poland's voting rights in the Council of the EU.

The commission stated on Tuesday that the infringement does not stop this dialogue, "which is still the commission's preferred channel for resolving the systemic threat to the rule of law in Poland".

To make things more complicated, another infringement case is still pending at the Luxembourg-based EU court.

That case is about Poland's Law on Ordinary Courts, about which the commission has similar concerns. A first hearing has not yet been scheduled.

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