Following a postponement decided on 19 September, just ahead of the informal summit in Salzburg, the Commission confirmed on Monday 24 September that it had decided to refer the Polish law on the country's Supreme Court to the European Court of Justice urgently.
The decision to refer the case to the Court of Justice had been discussed at length by the College of Commissioners on 19 September, at the request of Commission First Vice-President Frans Timmermans, and it had been acknowledged formally at that time although was only confirmed on 24 September. The Commission preferred to delay the official announcement of the referral as Commission President Jean-Claude Juncker was meeting Poland's Prime Minister Mateusz Morawiecki on 19 September.
On the substance, nothing has changed for the Commission. It does not believe the situation in Poland has improved, as Timmermans stated at the end of the EU General Affairs Council on 18 September – a General Affairs Council which was dedicated to rule-of-law situation in Poland (see EUROPE 12099).
The law on the Polish Supreme Court entered into force in Poland in early July and laid down measures for the retirement of judges – including that of the court's president, who has nevertheless remained in her job informally as a sign of protest. The Commission sent Warsaw an initial letter of formal notice on 3 July, then a reasoned opinion on 14 August, with the deadlines for replying each time set at one to two months.
On Monday 24 September, the Commission, which still does not consider it has received a satisfactory response to its concerns, thus announced it was asking the European Court of Justice to accelerate the procedure and take provisional measures to suspend this law until a judgment is handed down.
"With its referral, the Commission has also decided to ask the Court of Justice to order interim measures, restoring Poland's Supreme Court to its situation before 3 April 2018, when the contested new laws were adopted. Finally, the Commission has decided to request an expedited procedure at the Court of Justice, to obtain a final judgment as soon as possible", the Commission states in a press release. In particular, it asks for a halt to the process of appointing new judges to replace those at the age of retirement.
The new Polish legislation on its Supreme Court lowers the retirement age of Supreme Court judges from 70 to 65. On 29 July 2017, the Commission launched an infringement procedure on the Polish law on ordinary courts, also on the grounds of its retirement provisions and their impact on the independence of the judiciary. The Commission referred this case to the Court of Justice on 20 December 2017 and the case is pending. (Original version in French by Solenn Paulic)