Daniel
Sarmiento, Professor of EU Law at the University Complutense of
Madrid*
The decision
of 19 October of the Vice-President of the Court of Justice, ordering the
Republic of Poland to suspend the effects of the Judiciary Reform Act and, in
particular, to ensure that no sitting judge is removed as a result of the new
retirement age, is revolutionary to say the least. The Court has entered
a terra incognita, a place
where no previous European court had ever entered into, forcing a sovereign
Member State to choose between its membership to the club of European
integration, or to walk away and follow the path of authoritarian illiberalism.
To do this in an Order of interim measures, without hearing the defendant
Member State, and two days before a crucial regional and local election in
Poland, is quite a gamble on the part of the Luxembourg court.
However, the stakes are so high
that the Court was left with hardly any other choices. Unfortunately the Polish
government has triggered a process and a style of governance that has
eventually cornered it into an untenable position, a no-prisoners approach in
which EU Institutions have now no other choice but to stand firm and keep calm.
In contrast with other illiberal governments within the Union, notably Hungary,
the Polish crisis is acutely visceral and radical.
Looking at the Order from a
strictly legal angle, the decision is quite an event and a ground-breaking
precedent. Interim measures are exceptional means to ensure the effectiveness
of a procedure, but they are mostly used to suspend the effects of EU acts.
Challenges before the Court will usually involve private applicants questioning
the legality of, for example, Commission decisions. The scenario in which a
Member State acts as a defendant to which an interim measure can be imposed, is
basically limited to infringement procedures brought by the Commission or by
another Member State on the grounds of Article 258 TFEU. These kinds of interim
measures are hardly ever requested, for the Commission is well aware of the
reluctance of the Court to order Member States to act or refrain from acting in
provisional terms. Such interim relief is granted on the grounds of Article 279
TFEU, a provision that gives the Court ample discretion to be creative about
the kind of interim measure that the case deserves, but in practice they are
scarcely requested and, as a result, hardly ever granted.
In Friday’s Order, the
Vice-President has not granted ordinary interim relief on the grounds of
Article 279 TFEU, but a particularly urgent kind of relief. The Order relies on
Article 160(7) of the Rules of Procedure, which allows the Court to rule prior
to hearing the defendant Member State. These interim measures are used when the
urgency is such, that the order must be granted immediately and therefore with
no time to hear the defendant party. Therefore, there will be another decision
on the interim measures soon, once Poland has been heard in writing and, most
probably, in the course of an oral hearing.
Furthermore, the Order is
retroactive. The Judiciary Reform Act introduced a new retirement age for
judges set at 65 years of age, and since its entry into force it has already
served as a legal cover for the retirement of several sitting judges. Despite
the fact that the Act had been suspended by the Supreme Court as a result of a
preliminary reference sent to Luxembourg this summer, some of its provisions
have already produced effects. Therefore, the Order imposes on Poland a
retroactive suspension of effects that deploys the rulings’ effects from the
moment of entry into force of the Act.
And finally, the Order steps into
a terrain which has traditionally been handled with the utmost care by the
Court, but which is now an arena in which the Court seems comfortable to rule
in far-reaching ways. When a similar action was brought by the Commission
against Hungary’s reform of the judiciary in 2012, the grounds of review were
linked to Directive 2000/78 and discrimination on the grounds of age. A rather
low-profile approach for a case that involved very special “workers”, as is the
case of national judges. However, this time around the Commission has brought
the case against Poland on the grounds of Article 19 TEU, which states that the
EU’s judiciary is composed of both EU and national courts, acting in conformity
with fundamental rights and in full independence. This independence is now
being questioned by the Polish reforms. There is hardly any other provision of
EU law at stake, but this has been deemed to be sufficient by the Commission to
bring such a case, and the Court appears willing to play ball. There are good
arguments about competence that could be used against the Commission, but it
seems that one thing is to reform a national judiciary, and quite another to
launch a full-blown attack on the independence of all the high courts of the
land. The Commission appears to be committed to fight the latter, but Poland
will certainly argue that the competence of the Union is shaky to say the
least.
Nevertheless, last week’s Order
has been slowly and carefully brewed in the Luxembourg futuristic anneau.
In the landmark case of the Portuguese
judges, rendered in early 2018, the Court set the tone for this new ground
of review, and stated that Article 19 TEU, including its reference to
independence, is a relevant parameter of review of national measures. Shortly
before, in the case of the Polish
forest of Białowieża, the Court ruled that in case of breach of an interim
measure addressed to a Member State, penalty payments and pecuniary sanctions
can be imposed by the Court at the request of the Commission, on a careful but
daring interpretation by analogy with Article 260 TFEU (which provides for the
Court to impose monetary penalties in certain circumstances). Before the 2018
summer holiday, in the LM
case, the Court sent yet another powerful message by stating that
judicial cooperation with Poland in the field of criminal law could come to an
end In Poland if the European Council finally triggers Article 7 TEU
proceedings against the Member State. Last week’s Order seems to be another
piece in this terribly complex jigsaw puzzle that the Polish challenge is
proving to be.
But the stakes are high and the
Polish government knows it. It is no coincidence that the Polish Prosecutor’s
Office has recently brought an action before the Constitutional Court arguing
that the suspension of effects enacted by the Supreme Court is
unconstitutional. If the Constitutional Court sides with the Prosecutor (and
the new composition of the Court inclines me to think that it will), the
argument could be well extended to Friday’s Order. With that ruling from the
Constitutional Court, the Polish argument will probably argue that proceedings
in Luxembourg are ultra vires and not applicable in Poland.
At that stage, the showdown will
be inevitable and the Commission will have no other choice but to request the
enforcement of the Order through Article 260 TFEU. Penalty payments will be
imposed and Poland will refuse to pay following the ultra vires rationale.
The Financial Regulation will have to be interpreted creatively so that the
amounts receivable are offset by forthcoming payments to Poland. After all,
Poland is a net beneficiary of the EU budget and it will not be difficult to
ensure that the penalty payments effectively end in the coffers of the EU
budget and not in the pockets of the Polish government. At that point, the
Polish government will have to explain to its citizens why the generous
contributions coming from Europe start to decline. The blame game might work
for a time, but at some point the Polish people will realize that their
government is not only risking their benefits, but even their European Union membership.
Whatever the result might be, the
Court seems committed to playing the role that it has been anticipating for
several months now. Nothing appears to be stopping the Court from playing
hardball in this new chapter of European integration, in which “integration
through law” has now turned, to the surprise and concern of us all, into
“integration through the rule of law”. A nice but worrying twist that puts
Europe on the eve of a new chapter, in its always bumpy road towards peace and
prosperity in the continent.
*Reblogged with permission from the Despite
our Differences blog
Barnard & Peers: chapter 10
Photo credit: New York Times
