Note on the Polish Supreme Court preliminary ruling request of 2 August 2018

Alicja Sikora,
Legal Service, Council of the European Union

As Eugene Ionesco put it, you can
only predict things after they have happened (Rhinoceros, 1959).

On Thursday the Polish Supreme
Court submitted
to the European Court of Justice a preliminary ruling request under Article 267
TFEU. While doing so it also suspended the application of a Polish law forcing
the early retirement of Supreme Court justices who are above 65 years old,
including the President of the Supreme Court whose mandate is guaranteed by the
Polish Constitution. This is a challenge to the Polish government’s changes to
the judiciary, on the grounds that it violates the rule of law.

There were many preliminary
ruling requests in the course of the history of EU law from van Gend den Loos, Costa/Enel, Nold, Francovich, Defrenne, Akerberg Fransson,
Melloni, Pringle, Gauweiler and
many others which shaped a ‘constitutional order of States’. Judicial dialogue
established under Article 267 TFEU has been a cornerstone for the development
of the EU legal order.

Thursday’s request might,
however, not constitute just a major doctrinal novelty. The Polish Supreme
Court stepped into the path of active claim for rule of law, which is not only
a common principle to Member States, but also expression of the axiology on
which EU is founded as expressed in Article 2 TEU. Polish judges seek advice
which will in a way sans precedent engage the Court of Justice in the legal and
political battle for independent justice in Poland. It is a symbolic proof of
how much Europe is needed and how crucial and fragile the enforcement of common
values turns to be.

The Court of Justice has already
prepared the foundations of such action in recent cases such as C-64/16, Associação Sindical dos Juízes Portugueses
(on the independence of Portuguese judges in the context of austerity, discussed
here) and C‑216/18 PPU, LM (on
the recognition of Polish European Arrest Warrants in light of rule of law concerns),
where Article
19 TEU
(which sets out the basics of the CJEU’s role) was linked to the
protection of the rule of law. Consequently, it is, according to the Court, for
the national courts and tribunals and the Court of Justice to ensure the full
application of EU law in all Member States and judicial protection of the
rights of individuals under that law. It follows that every Member State must
ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU
law, meet the requirements of effective judicial protection, which include, in
particular, the independence and impartiality of those courts.

In the present case, the Polish
Supreme Court referred to the Court of Justice five questions which relate
mostly to the interpretation of the principle of judicial independence in the
light of EU primary law (Articles 2, 4(3), 19 (1) TEU as well as Article 47 of
the Charter of Fundamental Rights). Other questions focus on the interpretation
of Directive
, which includes the principle of non-discrimination based on age.
The referring judges also applied for the application of the expedited treatment
of the case under Article 105 of the Rules of Procedure of the Court of

Unsurprisingly, it is the
suspension of the application of the national law which caused fierce criticism
of the highest Polish authorities. Yet, Polish Court acted in perfect
conformity with the classic case-law of the Court concerning interim measures (Factortame, Zukerfabrick, Atlanta)
whereby national courts suspend application of a national measure which
represents a risk of breach of EU law, pending the decision of the CJEU
clarifying whether there is a conflict between national law and EU law (or, in
some cases, on whether an EU law being challenged in the national courts is

The underlying question is
whether the CJEU is willing to address the rule of law dispute in Poland
directly, via use of the preliminary ruling procedure, or leave the issue to the
EU’s political authorities, which are considering warning or sanctioning Poland
under the process set out in Article 7 TEU. The Polish Supreme Court is
potentially opening a new chapter in the enforcement of EU law and values.

Photo credit: France 24

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