After coming into power in Poland in 2015, the Law and Justice party (PiS) has implemented a series of controversial judicial reforms that have led the EU institutions to question whether the Polish rule of law is being infringed.

This was highlighted in April this year when the PiS announced that, from 4 July 2018, the retirement age for Supreme Court judges would be lowered from 70 to 65. This has allowed the PiS to remove 27 of the 72 judges currently in office and has increased the number of judges to 120, making it easier for the PiS to influence the future composition of the Supreme Court. 

The European Commission fears that the changes will give the government excessive power over a court that has adjudicates on key issues such as the validity of parliamentary elections. This would have a detrimental impact on the rule of law in Poland, which would in turn affect the trust EU Member States have in Poland’s ability to implement and apply EU rulings. Indeed, in March 2018, an Irish judge halted the extradition of a Polish national due to fears that Poland was no longer a reliable EU partner (see judgment here). The case was referred to the European Court of Justice and the full decision can be found here.  

In December 2017, the Commission responded to the Polish reforms by activating Article 7 of the Treaty on European Union (TEU) for the first time. This commits Member States to respond to threats to the rule of law in the EU. Ultimately, this can result in the suspension of a Member State’s voting rights. The Commission thought that Poland might respond more positively to pressure from other Member States than from the Commission.

Under Article 7, Poland is offered time to explain its actions and respond to the concerns of other Member States before they decide if there has been a breach of the Union’s core values. If the Commission succeeds in convincing the Member States, and Poland does not allay their fears, they can make a determination that there is a denigration of the rule of law. In reality it requires an incredibly high threshold for the Member States to agree. The determination that a Member State has breached the core values requires 22 Member States to vote in favour. However, for Poland’s voting rights in the EU institution to be suspended, all Member States apart from Poland must be unanimous in their vote. There is little doubt that states such as Hungary would not vote in favour of these sanctions.

In July this year, the Commission decided to take separate legal action against Poland in the Court of Justice, on the basis that the proposed judicial reforms are incompatible with the EU treaty. As a result, on 2 July the Commission sent Poland a “letter of formal notice”, giving the State one month to respond. Importantly, the Commission has said it would prefer to resolve the dispute through continued dialogue rather than legal action (as it fears it may lose the case, since Poland’s actions do not violate any particular EU directive or regulation).

It remains to be seen whether Poland will be open to dialogue or whether the Commission will proceed with legal action.