Janek Skarzynski, AFP | Polish Supreme Court Justice Malgorzata Gersdorf attends a demonstration in front of the Supreme Court in Warsaw on July 3.

A controversial law that forces many of Poland's Supreme Court judges to retire came into force at midnight, prompting protests and defiance and placing the country's right-wing government on a collision course with Brussels.

Advertising Read more

The ruling Law and Justice (PiS) government lowered the mandatory retirement age of Supreme Court judges from 70 to 65, thereby forcing nearly 40 percent of them to retire in a move critics say is an attempt to pack the courts with judges more amenable to the party’s right-wing ideologies.

The chief justice of Poland's Supreme Court, Malgorzata Gersdorf, showed up for work in defiance of the new law, calling the measure a "purge of the Supreme Court conducted under the guise of retirement reform".

Twenty-seven of the court's 72 judges are affected by the measure, which allows judges to request a prolongation of their terms but gives President Andrzej Duda the right to deny them at will.

Gersdorf, 65, has refused to acquiesce, stating unequivocally that "the constitution gave me a six-year term". The reform requires her to step down immediately instead of serving out her tenure to 2020.

"My presence here is not about politics; I am here to defend the rule of law," she told reporters and others gathered outside the Supreme Court on Wednesday.

"I hope that legal order will return to Poland," she added.

Since taking power in 2015, the PiS has increasingly established control over Poland’s lesser courts. By forcibly reconfiguring the makeup of the Supreme Court it now extends its influence to the country’s top appeals body and the tribunal that authorizes election results.

The European Commission, which sees the reform as an attempt to undermine judicial independence, filed legal action Monday in the form of a formal "infringement procedure" that alleges Poland is in breach of its obligations under EU law. Poland has one month to respond to the Commission filing, which could force the issue to end up before the European Court of Justice, the bloc's highest court.

We have launched an infringement procedure to protect the independence of the Polish Supreme Court → https://t.co/8kgj71jD64 #RuleofLaw European Commission 🇪🇺 (@EU_Commission) July 2, 2018

“These measures undermine the principle of judicial independence, including the irremovability of judges, and thereby Poland fails to fulfil its obligations” under the EU treaty and its charter on fundamental rights, the Commission said in a statement on Tuesday, hours before the new law came into effect.

The PiS maintains the reforms are needed to tackle corruption and transform an inefficient judiciary that is still plagued by remnants of its communist past.

“We have carried out these reforms of the justice system because the Polish people expected us to,” government spokesman Joanna Kopcinska told reporters.

AFP reported that a nationwide Ariadna survey conducted in June found 44 percent of Poles believe the reforms will increase the government’s control over the courts versus just 14 percent who think it won't.

Thousands of protesters held vigil outside the Supreme Court in Warsaw late Tuesday chanting "Constitution!" and singing the national anthem. Protests also erupted in Krakow, Lodz, Wroclaw and other cities, with Poland’s former president and labour activist Lech Walesa speaking out against the reforms in Gdansk.

Protests erupt over Poland's judicial reforms

The trouble with Article 7

As Warsaw continued to tighten its grip on the judiciary, the EU in December initiated proceedings to trigger “Article 7”, a never-before-used EU mechanism under which Poland’s EU voting rights could be suspended.

But while Article 7 – known as “the nuclear option” – is often seen as the EU’s best recourse for dealing with intransigence, its usage can be problematic since it requires the unanimous approval of the other 27 member states. Hungary has already stated its intention to veto its use against Poland.

“Using [Article 7] might also be counter-productive and could in fact embolden the Polish government to press ahead with its conservative agenda and thus widen the divide between Warsaw and Brussels,” Dr Michael J. Geary, a Global Europe fellow at the Wilson Centre think tank, told FRANCE 24.

“Instead, political and public pressure could be placed on Poland by its EU partners to rein in the [worst] excesses of the government’s judicial reform plan,” Geary said.

He added that the EU Commission might instead consider taking “a carrot and stick approach” regarding EU funding, of which Poland is a major beneficiary.

>> Can the EU halt the Eastern slide toward authoritarianism?

Stefan Lehne, a visiting scholar at Carnegie Europe, agreed that the EU might have to abandon its Article 7 plans in favor of a more monetary approach.

The instruments at the EU’s disposal for addressing members’ shortcomings in safeguarding the rule of law – including Article 7 – are "insufficient”, he said. Moreover, “it is not clear whether enough member states are ready to support a decision in the [European] Council determining a violation of the values of the EU”.

“While quite a number of member states have criticized Poland's recent record in this area, there is also considerable reluctance in some capitals to address issues considered as internal matters,” Lehne said.

But he suggested the EU’s most recent move on Monday may offer a way out of the bureaucratic quagmire.

“The infringement procedures the European Commission has launched (including on the law regarding the constitutional court) appear more promising, as the European Court of Justice will certainly rule on these cases, though it will take some time.”

Lehne also expressed some optimism that the threat of lost funding might prove to be the EU’s most potent threat.

“[It] is also interesting that the Commission has proposed new legislation (in the context of the Multiannual Financial Framework) that would deny access to structural funds to countries which severely violate the rule of law,” he said in an email.

“Adopting the legislation will require a major battle, but it would have real teeth.”

On the defensive

Speaking at the European Parliament debate on the Future of Europe on Wednesday, European Commission Vice President Valdis Dombrovskis said the EU could not “simply turn a blind eye” to what was happening in Poland’s courts.

Polish citizens “chose the values and fundamental rights that define our Union” when they voted overwhelmingly to join the EU in a 2003 referendum, Dombrovskis said, adding: “And at the heart of that lies the respect for the rule of law.”

“This is why if there is a systemic threat to the rule of law we cannot simply turn a blind eye,” he continued. “We cannot simply say: ‘This is a purely national issue’. So where the separation of powers is weakened in one country or where the independence of the judiciary is challenged in another, it becomes a European issue which affects our whole community.”

Prime Minister Mateusz Morawiecki defended Warsaw’s policies on Wednesday while facing questions from MEPs, insisting that Polish citizens stood to benefit from the reforms. "Judges are more independent now than they were in the past," he said.

"We don't want to rock the European boat," Morawiecki said, striking a more conciliatory tone. "We firmly believe that the European Union has a future ahead; we only want our individual, national values to be respected."

Daily newsletterReceive essential international news every morning Subscribe