The Court of Justice of the European Union (CJEU) has not been shy in making decisions affecting highly sensitive national policies, when those policies intersect with EU provisions on the rule of law. The latest twist in the saga of the European Commission’s concerns about the Polish government’s packing of its Supreme Court with political appointees took place on Friday of last week with the latest CJEU decision. This has some relevance to us, because the CJEU may be asked to pass judgment in due course on aspects of the Brexit deal.

For those new to the Polish story, the Polish government recently passed a highly controversial law which empowers the Polish president to determine how its Supreme Court is constituted. The law has led to a large number of Supreme Court judges being dismissed following the retirement age being lowered from 70 to 65. The Law Society issued a statement in condemnation last June and the American Bar Association issued a similar statement last week.

At the beginning of this month, the European Commission brought proceedings against Poland before the CJEU. The commission considered that by: 

(1) lowering the retirement age and applying it to judges appointed to the Supreme Court before 3 April 2018, and

(2) granting the Polish president the discretion to extend the active judicial service of Supreme Court judges who might otherwise have to retire under the law

Poland had infringed EU law (specifically Article 19(1) TEU paragraph 2, and Article 47 of the Charter of Fundamental Rights of the European Union).

Given the urgency (over 20 Supreme Court judges, around one-third of the total, have been forced to retire over the summer after the law’s implementation, including the court president), the CJEU acted extraordinarily quickly, issuing an interim order at the commission’s request.

The commission asked for the following:

(1) suspension of the application of the national law’s provisions regarding the lowering of the retirement age;

(2) necessary measures to ensure that the judges concerned could continue to perform their duties without change to position, status, rights and working conditions;

(3) the government to refrain from adopting any new measure with regard to the appointment of Supreme Court judges or of its president;

(4) the government to inform the commission monthly of all measures adopted or to be adopted in order to comply fully with the order.

Traditionalists will be delighted to know that a Latin phrase played a vital role in the outcome – ‘fumus boni juris (likelihood of success on the merit of the case). I have often seen Latin being used as the legal language which binds European lawyers from north to south, east to west. We lose an ability to communicate across borders in Europe if we are no longer taught it.

The commission requested that an order for interim measures be granted before Poland had submitted its own observations, because of the immediate risk of serious and irreparable damage.

The interim order, issued by the Vice President of the CJEU, granted all the commission’s requests. In her reasoning, the vice president cited, among other things, the urgency of the facts: for instance, the increase of the number of Supreme Court judges from 93 to 120 authorised by the Polish president, the publication of more than 44 Supreme Court vacancies, including the post formerly occupied by its president, and the appointment by the Polish president of at least 27 new judges - all of which were likely to be extended by new appointments.

This case should be read in conjunction with the earlier decision concerning Poland and the European Arrest Warrant (Case C‑216/18 PPU), where the Grand Chamber of the CJEU decided in July 2018, specifically in response to the judicial crisis in Poland, that a national court must decide whether ‘systemic or generalised deficiencies so far as concerns the independence of the issuing Member State’s judiciary’ will put the surrendered person at risk when surrendered.

The next step is to find out whether Poland will obey the CJEU decision. Mixed signals came from Poland in the immediate aftermath. The CJEU has remedies for enforcement.

The lesson for us, as mentioned at the start, is in contemplation of the eventual role of the CJEU in the Brexit negotiations. I have said before that various cases are on their way to the court, and the withdrawal agreement and future trade agreement (if any) may give rise to more. Some UK citizens are bound to use the law to try to save their EU rights being removed against their will. The court has shown itself bold in defending provisions in the treaties and charter, and their application may yet cut a swathe through any fudge which finds its way into future deals.