Judges of Poland’s Supreme Court were expected to show up to work on July 3, the day on which a highly contested law forcing them to retire is taking effect.

The European Union will be watching the events unfold, having on July 2 opened an infringement procedure against Poland over the law, which threatens the independence of the Supreme Court, Brussels insists. At stake might be Poland’s voting rights in the EU and funding from the bloc’s next long-term budget.

The right-wing populist government of Law and Justice (PiS) is about to take over control of the Supreme Court by means of the controversial law forcing over a third of the top court’s 72 judges – including President Malgorzata Gersdorf – into retirement.

PiS plans to fill the vacancies with judges nominated by the National Judiciary Council, which the party took over with help from opposition party Kukiz 15, which often sides with the government.

The law says that the Supreme Court judges must retire at age 65 unless they ask the president to continue their work. The president can reject such requests, and his decision can neither be reviewed nor challenged.  

That is a blatant violation of Poland’s Constitution, which says judges cannot be removed from office and guarantees the Supreme Court President’s term, top constitutional lawyers say.

A spokeswoman for President Andrzej Duda said he would order Gersdorf, who turns 65 in November, into retirement on July 3 since she did not request the right to continue work. Gersdorf says requesting that would mean complying with an unconstitutional law.

Supreme Court judges said on June 28 that Gersdorf shall remain the legal president of the court until the end of her constitutional term on April 30, 2020.

The European Commission said on July 2 that the law on the Supreme Court violates the rule of law principle as written into the bloc’s founding treaty as well as the right to a fair trial from the EU Charter of Fundamental Rights.

The Commission has given Poland one month to respond to the launch of the infringement procedure, which reflects the urgency of the issue, the EU executive said.

The next steps in the process may be a formal request to Warsaw to comply with the EU laws and taking Poland to court.

Poland’s judiciary reforms also prompted Brussels to launch a concurrent process, known as Article 7, which in theory could end in stripping Warsaw of its voting rights in the EU and the suspension of funding from the next EU budget, which some member states want to be tied to respecting the rule of law.

EU funds have been one of the fundamental drivers of Poland’s development since the country joined the EU in May 2004. Overhauling of the judiciary could also pose problems to Poland’s credit ratings.

Poland’s ally Hungary, governed by populist Viktor Orban, who has inspired many PiS policies, has repeatedly vowed to block the use of Article 7. Warsaw and Budapest have long said that the EU wields too much power over its member states.

For its part, Poland appears unwilling to back down. The government argues that reforming the judiciary is necessary for the improvement of the effectiveness of the courts.

PiS also claims that too many current judges served under the communist regime – which collapsed in 1989 – and that there is no place for them in a democratic state.

Critics of the reforms point to dangers of political control over courts that may compromise the right to fair trial and serve to shield the government functionaries from having to answer to the law.