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23 Hum. Rts. Brief 64 (2020)
Court of Justice of the European Union Rules against Polish Law on the Supreme Court

handle is hein.journals/huribri23 and id is 67 raw text is: SPECIAL COVERAGE: GLOBAL

Court of Justice of the European Union Rules

   Against Polish Law on the Supreme Court

                           by  Ben   Phillips

The Europe Union (EU) is embroiled in an internal
struggle over the rule of law and preserving its dem-
ocratic rights and values against creeping authoritari-
anism. The Polish legislature passed a law that lowered
the retirement age of Supreme Court judges to remove
current judges and pack the courts with judges that are
loyal to the Law and Justice Party. In Commission v.
Poland, case C619/18 (6/24/19), Court of Justice of the
European Union  (CJEU) ruled that the Polish Law on
the Supreme Court (Law on the Supreme Court) was
contrary to EU law. [1] The CJEU addressed Poland's
practice of packing courts with loyal political appoin-
tees and demonstrated how this subverts judiciary
independence. [2] This decision is a major develop-
ment in combating the trend of authoritarian regimes
using legal methods to undermine democratic checks
and balances.

The Law on the Supreme Court, passed on April 3,
2018, forced Supreme Court judges to retire at the age
of sixty-five, unless they are granted an extension by
the President. The CJEU struck down this law on June
24, 2019 for violating EU law on rule of law and inde-
pendent judiciaries. [3] The CJEU is the constitutional
supranational court of the EU, and they are often
trying to balance protecting the uniformity of EU law
and respecting the autonomy of the European member
states. Here, the Court held that the Polish law had no
legitimate government interest and violated the provi-
sions of the Treaty on European Union (TEU). [4] The
CJEU  specifically pointed to the principles of indepen-
dent judiciaries and the irremovability of judges. The
EU  is currently embroiled in what has been called the
rule of law crisis.[5] Prior to this case being decided
by the CJEU, the European Commission referred the
matter of the breakdown in the rule of law in Hungary,
Poland, and Romania to the Council of Europe. [6] The
two major regimes that have brought about this crisis
are the Law and Justice Party in Poland and Prime

Minister Victor Orban's Fidesz Party in Hungary.
These two authoritarian regimes denounce the Euro-
pean judiciary for undue interference with national
politics and espouse a form of unchecked nationalism.
[7] This CJEU case on Poland's attempted court pack-
ing is part of a larger narrative stemming from the
rule of law crisis and challenges to the principles of
democratic governance, rule of law, and human rights
law enshrined in the Treaty on the Functioning of the
European Union  and in the United Nations Declara-
tion of Human Rights.[8]

At first glance, the issue of court packing may not
stand out as a democratic or human rights issue.
Many  countries have packed courts without human
rights implications. However, Hungary and Poland are
packing their courts to undermine accountability and
judicial independence. [9] The right to effective remedy
and the right to a fair trial before independent national
judiciaries are specifically protected by Articles eight
and ten of the United Nations Declaration of Human
Rights.[10] The right to effective remedy and fair trial
are also protected under Article 47 of the Charter of
Fundamental  Rights of the European Union. [11] The
right to a fair trial and judicial independence are criti-
cal to protecting individual rights, and these rights are
also imperative for enforcing checks on other human
rights abuses as well.

These authoritarian regimes use legal methods to
undermine  their own institutions and advance their
illiberal law and policies. There are concerted efforts
in both Hungary and Poland to dismantle democratic
protections.[12] These regimes did not gain power
all at once. Instead, their leaders and political groups
have slowly and strategically subverted their coun-
try's democratic institutions and processes in order to
entrench themselves in power and destroy the checks
and balances within their systems.[13] These regimes


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