WARSAW — When faced with the overwhelming likelihood of defeat, it makes sense to retreat.

That’s what Poland’s ruling Law and Justice (PiS) party is doing in its ongoing battle with the EU over its controversial changes to the country’s Supreme Court.

But it’s unlikely to be enough to deter the Court of Justice of the European Union from what is expected to be a stinging rebuke of Poland’s judicial reforms due to be issued before the May 26 European election — a verdict that could have a negative impact on PiS’s hopes of a strong outcome over a coalition of opposition parties.

On Friday, the Polish parliament rushed through its ninth amendment to its law reforming the Supreme Court — legislation the government argues is needed to purge the institution of its communist past, while critics see it as an effort to bring the court under tighter political control.

The amendment strips the right of failed candidates for the Supreme Court to appeal. That creates some constitutional concerns, but the government did drop two more controversial provisions — one on how the court’s president is appointed and another that would have made it easier to strip judges of their immunity.

“I have no doubt that this change seeks to frighten defiant judges” — Krystian Markiewicz, head of Poland’s largest judges’ association

Critics had warned that, if adopted, the latter provision could have a chilling effect on judges.

“I have no doubt that this change seeks to frighten defiant judges,” said Krystian Markiewicz, the head of Poland’s largest judges’ association, speaking before the Friday vote. “If someone can really be imprisoned, it’s difficult for them not to take that into consideration.”

A looming battle

But the changes already made to the courts have set Warsaw on a collision course with the EU.

On April 3, the European Commission launched a new infringement procedure against Poland to protect judges from political control, warning that new rules undermine the independence and impartiality of the Supreme Court’s disciplinary chamber — the body that disciplines judges.

“The new disciplinary regime allows for judges to be subject to disciplinary proceedings for the content of their judicial decisions,” it noted, giving Poland two months to respond.

PiS’s decision to withdraw the provision on judges’ immunity last week reflects the credible threat of the European Court of Justice stepping in, as it did over previous provisions forcing Supreme Court judges aged 65 and over to retire. As an interim measure last October, the CJEU ordered Poland to suspend the changes. Left with little choice, PiS withdrew them.

The Court of Justice's final judgment is pending, but it is unlikely to present PiS in a favorable light.

“The court should rule that the provisions of Polish legislation relating to the lowering of the retirement age for supreme court judges are contrary to EU law,” Advocate General Evgeni Tanchev said in a statement published on April 11.

Although his opinion is not binding, the court is expected to echo it in its judgment.

Opposition politicians say the government is trying to fool Brussels into going easy on the changes already made to the courts.

“We are being compared to Nazi collaborators responsible for the death, the deportation of over 70,000 Jews” — Igor Tuleya, a judge at the District Court in Warsaw

“PiS are not even hiding that this is all they want. They are trying to stop the EU Court of Justice’s judgment because they know perfectly well what it could be like,” Borys Budka, an MP with Civic Platform, the biggest opposition party, told the Onet news site.

Feisty defense

While the government is showing signs of backtracking when it comes to legislation, its public arguments in favor of the changes are as strong as ever.

Speaking at New York University on April 17, Prime Minister Mateusz Morawiecki upheld his government’s overhaul of the courts, accusing judges of being corrupt vestiges of the communist era.

“For me, it’s a situation comparable to the French one, in post-Vichy France, [when] Charles de Gaulle completely revamped the system,” he said.

Judges protested his words, with judges’ association Iustitia calling them a “manipulation” that vilifies Poland’s institutions.

“We are being compared to Nazi collaborators responsible for the death, the deportation of over 70,000 Jews,” Igor Tuleya, a judge at the District Court in Warsaw, told Polish media.

The government is also defending its sovereign right to make changes to the courts without being overseen by EU institutions.

"Brussels also often betrays a lack of understanding for the domestic situation in countries in Central and Eastern Europe that have gone through the hell of World War II and communism," Morawiecki wrote in an opinion column for POLITICO. "Instead of being an honest broker, the institutions become judges in their own case."