Daniel Sarmiento, Professor of EU Law at the University Complutense of Madrid*

The October 19th decision by the Vice-President of the Court of Justice concerning Poland’s Judiciary Reform Act is groundbreaking. This decision, which orders Poland to halt the implementation of the Act and prevents the removal of judges due to the new retirement age, represents uncharted territory. It places the Court of Justice in the unprecedented position of compelling a sovereign member state to decide between adhering to European integration principles or embracing illiberalism. This order for interim measures, made without a hearing from Poland and just before a significant election, is a bold move by the Luxembourg court.

Despite its unconventional nature, the Court had limited alternatives given the high stakes. The Polish government’s actions and governance style have led to this impasse. Unlike other illiberal governments in the EU, such as Hungary, the Polish situation is particularly severe and uncompromising, compelling EU institutions to stand firm.

From a legal perspective, this decision is significant and establishes a new precedent. Interim measures are typically used to suspend the impact of EU laws, often in response to challenges from private entities contesting Commission decisions. The application of such measures against a member state is usually limited to infringement procedures initiated by the Commission or another member state under Article 258 TFEU. These instances are rare due to the Court’s reluctance to impose provisional actions on member states. This type of interim relief falls under Article 279 TFEU, which grants the Court flexibility but is rarely utilized in practice.

The Vice-President’s order doesn’t utilize the standard Article 279 TFEU interim relief but instead implements a highly urgent kind. Based on Article 160(7) of the Rules of Procedure, this allows for a ruling before hearing the defendant member state in exceptionally time-sensitive situations. Consequently, a further decision on the interim measures will follow after Poland presents its case in writing and potentially during an oral hearing.

Furthermore, the order is retroactive. Though the Judiciary Reform Act, which set a new retirement age for judges at 65, was suspended by the Supreme Court pending a referral to Luxembourg, it still impacted several sitting judges. Therefore, the order enforces a retroactive suspension, nullifying the Act’s effects from its inception.

This order ventures into an area historically handled cautiously by the Court but is now approached with a greater willingness to issue impactful rulings. In 2012, a similar case involving Hungary’s judicial reforms was framed around Directive 2000/78, focusing on age discrimination. This time, the Commission’s case against Poland hinges on Article 19 TEU, which underscores the independence of the EU judiciary, comprising both EU and national courts. While Poland may dispute the EU’s jurisdiction, the Commission seems prepared to address this challenge head-on.

Last week’s order represents a carefully considered decision from Luxembourg. In the landmark Portuguese judges case of early 2018, the Court used Article 19 TEU, including its emphasis on judicial independence, as a basis for reviewing national measures. In the Polish forest of Białowieża case, the Court ruled that breaching an interim measure could lead to penalties and sanctions imposed on a member state at the Commission’s request, based on a bold interpretation of Article 260 TFEU. Prior to the 2018 summer recess, the LM case saw the Court signal that judicial cooperation with Poland could be jeopardized if Article 7 TEU proceedings were initiated against it. This recent order appears to be another component of the complex situation presented by Poland.

The Polish government is aware of the high stakes. It’s no coincidence that the Polish Prosecutor’s Office recently contested the Supreme Court’s suspension of the Act in the Constitutional Court. If the Constitutional Court sides with the Prosecutor, which seems likely given its new composition, the argument could extend to Friday’s order, potentially leading Poland to claim the Luxembourg proceedings are invalid.

Such a scenario would lead to a showdown, forcing the Commission to request the order’s enforcement through Article 260 TFEU. Poland’s refusal to comply with resulting penalties based on the grounds of invalidity would necessitate a creative interpretation of the Financial Regulation. This would enable offsetting the penalties against future payments to Poland, a net beneficiary of the EU budget. At this juncture, the Polish government would need to justify the decline in EU funds to its citizens. While blaming external factors might suffice temporarily, eventually, the Polish populace would recognize the government’s actions as jeopardizing not only their benefits but also their EU membership.

The Court appears ready to assume a more assertive role, unhesitatingly taking a firm stance in this new phase of European integration. This shift, where “integration through law” has evolved into “integration through the rule of law,” marks a significant, albeit concerning, development for the future of the European project.

*Reblogged with permission from the Despite our Differences blog

Barnard & Peers: chapter 10

Photo credit: New York Times