Polish president to remove top Supreme Court judge

Warsaw’s move is bound to strain further relations with Brussels.

WARSAW — Polish President Andrzej Duda will use a new law to force the top judge on the country’s Supreme Court into early retirement, a senior presidential official said Monday, escalating a confrontation with the EU over the rule of law.

Duda will make immediate use of a controversial law on the retirement age of judges to cut the term of Małgorzata Gersdorf — the first president of the court. The law takes effect on July 3 and is a top concern of EU officials demanding changes to Poland’s judiciary.

News of Duda’s decision to force out the country’s top judge came as the European Commission officially notified Warsaw that it has launched fresh infringement proceedings intended to stop Poland from implementing the new law.

Anna Surówka-Pasek, an undersecretary of state in Duda’s office, said the only question around Gersdorf’s forced retirement is the date that it would take effect. “The deadline for Ms. President is July 3,” Surówka-Pasek said in an interview with Dziennik Gazeta Prawna. “Then a decision will be issued in which the date of the transition of Ms. First President into retirement will be indicated.”

Surówka-Pasek, who is responsible for legal affairs in the president’s office, also said that another 11 Supreme Court judges would be automatically dismissed before their terms expire on July 4, once the new law has retroactively lowered their retirement age to 65 from 70.

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An additional 16 judges who are older than 65 have applied to the president to extend their terms, and have presented the required doctor’s certificate showing that they are physically and mentally fit for the job. Surówka-Pasek said Duda would decide on these cases at a later stage.

Brussels reacts

Word of Duda’s intention to force out judges will likely add urgency to efforts by Brussels to force Warsaw to change course.

Announcing the new infringement process on Monday, the Commission said it has given Warsaw one month to reply. “The Commission is of the opinion that these measures undermine the principle of judicial independence, including the irremovability of judges,” the Commission said in a statement, adding that Poland is in violation of EU rules.

When it receives Warsaw’s response, the Commission will have to decide whether to refer the law to the European Court of Justice in Luxembourg — a virtual certainty absent any move by the Polish government to unwind the new law.

Commenting on the 11 judges who will be forced out, Surówka-Pasek said they are required under the law to ask Duda to allow them to stay on but had failed to do so in time.

Poland’s Supreme Court judges issued a unanimous resolution on Thursday that under the constitution, Gersdorf should be the president of the court until the end of her term.

In a separate resolution, the judges said forced retirement of a “big number” of judges was “in breach of the constitution.”

“This is an obvious violation by the legislative authority of one of the fundamental guarantees of independence of the judiciary and will soon significantly disrupt the normal functioning of the Supreme Court,” they added.

Waiting for the judge

Surówka-Pasek insisted in her interview that the law was constitutional unless the Constitutional Tribunal decided otherwise — an argument that echoed the one Warsaw used in a letter sent to Brussels ahead of a hearing last Tuesday at the meeting of the European General Affairs Council in Luxembourg.

After that hearing, Commission First Vice President Frans Timmermans, who has led the EU’s negotiations and enforcement effort against Poland, said he is still hopeful of a compromise but there has been no sign of any concessions from Warsaw.

Surówka-Pasek also suggested that if Gersdorf had appealed to Duda to extend her term, he would have reacted positively. “Until the last minute we were waiting for the statement of the First President,” she said. “On our part, we were ready to meet the expectations of the First President and allow her to complete her term of office.”

Surówka-Pasek also criticized the Commission for initiating the infringement procedure. “In Poland … there is no threat to the fundamental rights of citizens,” she said.

Maïa de la Baume contributed reporting.