It was widely predicted ahead of Monday's announcement that the European Commission would refer Poland to the European Court of Justice over a law that forces the early retirement of 27 of its 72 Supreme Court judges, including the chief judge. This is the latest in a long line of retrogressive measures aimed at bringing the courts under government control since the Law and Justice party came to power at the end of 2015.
No time to wait
Those following the situation may be aware that Poland is under scrutiny from other governments in the EU's Council under the Article 7 procedure. You can read more about what Article 7 entails here. To move the Article 7 procedure forward, at least 22 governments have to vote in favour of a decision that the situation in Poland risks being a serious threat to the rule of law. The Commission is uncertain that it has the numbers to do this, as some governments are afraid that if they press forward with Article 7 on Poland, they might be next. But the forced retirement of senior judges would do irreversible damage to the country's judicial system. So waiting for EU governments to get their act together wasn't really an option.
Instead of leaving it to EU governments to find their collective conscience, the Commission has referred this latest law to the Court of Justice so that the EU's judges can decide on its legality. Because cases can take years to resolve, the Commission has taken the further step of asking the Court of Justice for a provisional emergency order (an 'interim measure'), mandating the Polish government to put the law on hold until the Luxembourg court can make a final judgment.
The law in question came into effect on 3 April of this year and allows affected judges to request that their positions be extended for a further three years. But the power to grant this request rests with the president of Poland. The president may consult the National Council for the Judiciary on the decision. However, their views are not legally binding, and the judiciary council itself doesn't live up to European standards on judicial independence - for which it was suspended earlier this month from the European Network of Councils for the Judiciary. In practice, the president has complete discretion over which of the judges facing retirement could continue to serve.
Verdict could bring pressure
What's the connection between Article 7 and this court case?
The Commission triggered Article 7 at the end of last year,
because the Polish government refused to implement any of the
recommendations it was given during two years of negotiations under a
less formal procedure, the 'rule of law framework'. On 18 September, EU ministers held their second hearing on Poland under the
Article 7 procedure, and Warsaw showed little willingness to address the
concerns expressed by the Commission. This procedure will continue
alongside the court case, in an attempt to reverse the long list of
damaging changes made by the government.
The advantage of taking the case to the EU court, rather than waiting for governments to sort the issue out politically, is that it will be harder for the Polish government to sell a negative court judgment against it as a political conspiracy. And if the EU court does find that Poland is violating EU rules - and Poland then refuses to obey the judgment, which it has hinted at - then it puts further pressure on governments that are reluctant to vote on Article 7. The whole EU legal system governing trade, travel and other forms of cooperation between governments depends on all countries abiding by EU court rulings. Any government unwilling to support Article 7 in that situation would be undermining the legal order that allows the EU to function.