著者

小森田 秋夫

出版者

日本EU学会

雑誌

日本EU学会年報 (ISSN:18843123)

巻号頁・発行日

vol.2019, no.39, pp.44-75, 2019-06-20 (Released:2021-06-20)

---

In Poland, as a result of the victory of Law and Justice (PiS) party in the parliamentary election in October 2015, a single-party-government was established for the first time since 1989. PiS, enacting one after another statutes of questionable constitutionality, has transformed the Constitutional Tribunal, by replacing its judges, into an organ which is not to control the legislative and the executive from the view point of constitutionality of their acts, but only to legitimate them. Next, PiS moved to the judicial reforms in order to put the whole system of judiciary under the control of the political branches (the legislative and the executive). Such a motion of the ruling party, which undermines the principles of judicial independence and division of power as the bases of democratic state ruled by law, has brought about protests and oppositions of lawyers and citizens within the country. At the same time, this situation in a member state of the European Union puts a serious problem under its nose. Facing an almost unprecedented situation, the European Commission launched the procedure based on the article 7 of the Treaty of the European Union, aiming at resolution of the problem by the “dialog” with the Polish government. But the conflict between the Polish government and the Commission was not settled by the beginning of July 2018, a crucial moment when a group of judges of the Supreme Court (SC) were to be obliged to retire due to the new Act on the SC, lowering of the retirement age for SC judges. So the Commission at last decided to use the infringement procedure on the bases of the article 258 of the Treaty on the Functioning of the EU to protect the independence of the Polish SC. Some courts of the other member states began to seek preliminary ruling of the Court of Justice of EU (ECJ) in the context of execution of European arrest warrant issued by the Polish courts. Polish judges, including ones of the SC, also put preliminary questions as to compatibility of some provisions of the Act on the SC with the EU law. In such a situation, in which motions within Poland and those at the EU level, involving the other member states, are complicatedly intertwined, on 19 October the ECJ decided that Poland must immediately suspend the application of the Act on the SC relating to the lowering of the retirement age for SC judges. Now Poland is waiting for the final judgement of the ECJ.