Alicja Sikora, Chair EU Law, Jagiellonian University

As the playwright Eugene Ionesco once said, predictions are only possible after events have occurred.

Last Thursday, the Polish Supreme Court presented the European Court of Justice with a request for a preliminary ruling. This type of request, outlined in Article 267 of the Treaty on the Functioning of the European Union, is used to clarify questions regarding EU law. In doing so, the Polish court also paused the enforcement of a Polish law mandating early retirement for Supreme Court justices over 65. This includes the President of the Supreme Court, whose term is safeguarded by the Polish Constitution. This action challenges the Polish government’s judicial changes, arguing they undermine the rule of law.

Throughout EU legal history, there have been many instances of preliminary ruling requests, establishing precedents and shaping a ‘constitutional order of states’. This legal dialogue, facilitated by Article 267, is a cornerstone of the EU legal system.

However, Thursday’s request might be more than just a novel legal argument. The Polish Supreme Court is actively advocating for the rule of law, a concept that is not only a shared principle among member states but also a core value of the EU, as stated in Article 2 of the Treaty on European Union. Polish judges are seeking guidance from the Court of Justice, potentially drawing it into the legal and political struggle for judicial independence in Poland. This action symbolizes Europe’s significance and the vital importance of upholding shared values.

Recent cases heard by the Court of Justice have laid the groundwork for such an intervention. In these cases, Article 19 of the Treaty on European Union, which defines the Court of Justice’s role, was linked to upholding the rule of law. The Court has asserted that both national courts and the Court of Justice are responsible for ensuring EU law is fully applied in all member states and protecting individuals’ rights under EU law. This implies that each member state must guarantee that its judicial bodies, recognized as ‘courts or tribunals’ under EU law, meet the standards of effective legal protection, which includes independent and impartial courts.

The Polish Supreme Court’s request presents five questions primarily concerning the interpretation of judicial independence under EU law. Other questions focus on interpreting Directive 2000/78, which includes the principle of non-discrimination based on age. The Polish judges have also requested expedited processing of their case.

As anticipated, halting the national law’s application has drawn strong criticism from Poland’s highest authorities. Nevertheless, the Polish court’s action is entirely consistent with established case law on interim measures. This allows national courts to suspend national laws that potentially conflict with EU law until the Court of Justice clarifies the situation.

The crucial question is whether the Court of Justice will directly address Poland’s rule of law dispute through this preliminary ruling procedure or defer to the EU’s political bodies, which are currently considering warnings or sanctions against Poland. By taking this action, the Polish Supreme Court might be initiating a new phase in upholding EU law and its values.

Barnard & Peers: chapter 6, chapter 9

Photo credit: France 24