The Cjeu In Addition To The Dominion Of Police Pull Inwards Poland: Banker's Complaint On The Smooth Supreme Courtroom Preliminary Ruling Asking Of Two August 2018

Alicja Sikora, Chair European Union Law, Jagiellonian University

As Eugene Ionesco position it, you lot tin solely predict things subsequently they convey happened (Rhinoceros, 1959).

On Th the Polish Supreme Court submitted to the European Court of Justice a preliminary ruling asking nether Article 267 TFEU. While doing together with then it besides suspended the application of a Polish police forcing the early on retirement of Supreme Court justices who are to a higher house 65 years old, including the President of the Supreme Court whose mandate is guaranteed past times the Polish Constitution. This is a challenge to the Polish government’s changes to the judiciary, on the grounds that it violates the dominion of law.

There were many preliminary ruling requests inward the class of the history of European Union police from van Gend den Loos, Costa/Enel, Nold, Francovich, Defrenne, Akerberg Fransson, Melloni, Pringle, Gauweiler together with many others which shaped a ‘constitutional social club of States’. Judicial dialogue established nether Article 267 TFEU has been a cornerstone for the evolution of the European Union legal order.

Thursday’s asking might, however, non constitute simply a major doctrinal novelty. The Polish Supreme Court stepped into the path of active claim for dominion of law, which is non solely a mutual regulation to Member States, but besides appear of the axiology on which European Union is founded equally expressed inward Article ii TEU. Polish judges try advice which volition inward a means sans precedent engage the Court of Justice inward the legal together with political battle for independent justice inward Poland. It is a symbolic proof of how much Europe is needed together with how crucial together with frail the enforcement of mutual values turns to be.

The Court of Justice has already prepared the foundations of such activity inward recent cases such equally C-64/16, Associação Sindical dos Juízes Portugueses (on the independence of Portuguese judges inward the context of austerity, discussed here) together with C‑216/18 PPU, LM (on the recognition of Polish European Arrest Warrants inward lite of dominion of police concerns), where Article nineteen TEU (which sets out the basics of the CJEU’s role) was linked to the protection of the dominion of law. Consequently, it is, according to the Court, for the national courts together with tribunals together with the Court of Justice to ensure the amount application of European Union police inward all Member U.S. of A. together with judicial protection of the rights of individuals nether that law. It follows that every Member State must ensure that the bodies which, equally ‘courts or tribunals’ inside the pregnant of European Union law, run into the requirements of effective judicial protection, which include, inward particular, the independence together with impartiality of those courts.

In the acquaint case, the Polish Supreme Court referred to the Court of Justice 5 questions which relate to a greater extent than oftentimes than non to the interpretation of the regulation of judicial independence inward the lite of European Union nous police (Articles 2, 4(3), nineteen (1) TEU equally good equally Article 47 of the Charter of Fundamental Rights). Other questions focus on the interpretation of Directive 2000/78, which includes the regulation of non-discrimination based on age. The referring judges besides applied for the application of the expedited handling of the instance nether Article 105 of the Rules of Procedure of the Court of Justice.

Unsurprisingly, it is the recess of the application of the national police which caused tearing criticism of the highest Polish authorities. Yet, Polish Court acted inward perfect conformity amongst the classic case-law of the Court concerning interim measures (Factortame, Zukerfabrick, Atlanta) whereby national courts suspend application of a national mensurate which represents a conduct chances of breach of European Union law, pending the determination of the CJEU clarifying whether at that topographic point is a conflict betwixt national police together with European Union police (or, inward unopen to cases, on whether an European Union police beingness challenged inward the national courts is invalid).

The underlying inquiry is whether the CJEU is willing to address the dominion of police dispute inward Poland directly, via job of the preliminary ruling procedure, or larn out the number to the EU’s political authorities, which are considering alert or sanctioning Poland nether the physical care for commence inward Article vii TEU. The Polish Supreme Court is potentially opening a novel chapter inward the enforcement of European Union police together with values.

Barnard & Peers: chapter 6, chapter 9

Photo credit: French Republic 24

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