by Dominika Sitnicka

In response to an application by PM Mateusz Morawiecki, the Constitutional Tribunal held that the famous resolution of the three chambers of the Supreme Court of 23 January 2020 is incompatible with the Constitution of the Republic of Poland and the EU treaties.

The Tribunal, overseen by Julia Przyłębska, invoked all the arguments that politicians of the governing majority (Zjednoczona Prawica, United Right) had been repeating for months.

Former Law and Justice party (PiS) MP, and communist-era state prosecutor involved in sentencing anti-communist activists, Stanisław Piotrowicz, now a CT judge, was the rapporteur in the case (U 2/20).

Meaning and significance of the resolution of the Supreme Court of 23 January

On 23 January 2020 the Supreme Court decided that due to the manner in which it was appointed, the current National Council of the Judiciary (NCJ) does not ensure that a person appointed to the office of a judge by the President on its recommendation is lawfully appointed to adjudicate in court.

Therefore, the provisions of Article 439(1)(2) (improper composition of the court) and Article 379(4) of the Civil Procedure Code (conflict of the membership of the court with the provisions of law) can be applied to such people.

The Supreme Court ruled that benches of the Supreme Court that include justices appointed on the motion of the current NCJ are always defective.

Likewise, benches of common and military courts that include people appointed on the motion of the current NCJ may be subject to verification. In the case of these courts, it would be necessary to assess whether there has been a breach of the standard of independence and impartiality in the particular circumstances.

In order to avoid legal chaos, the Supreme Court resolved that only court rulings that are issued after the announcement of the resolution, i.e. after 23 January 2020, by benches consisting of judges elected by the new NCJ, will be reviewable.

Exceptions to this are judgments of the Disciplinary Chamber of the Supreme Court – those issued both before 23 and after 23 January are reviewable.

The resolution of the combined chambers of the Supreme Court constitutes a legal rule, which means that all benches of the Supreme Court are bound by it. For judges in common courts, this was an indication that they could initiate such a review both ex officio and at the request of the adjudicating benches of the courts of lower instances with respect to which the allegation of improper composition is being raised.

Read also:

• Professor Łętowska: A wise, far-sighted resolution of the Supreme Court
• Full text of the resolution (in English).

How the government reacted

PiS initially tried to block the Supreme Court from issuing its resolution through motions to the Constitutional Tribunal. First, on 21 January, the Disciplinary Chamber approached the Constitutional Tribunal with questions, and then Speaker of the Sejm, Elżbieta Witek, declared a “competence dispute” between the Sejm and the Supreme Court and asked the Constitutional Tribunal to resolve it. The Constitutional Tribunal President Julia Przyłębska announced the suspension of proceedings in the Supreme Court, a ruling the First President of the Supreme Court reversed.

The session of the Supreme Court was held as planned.

On the next day, 24 January, the Prime Minister Mateusz Morawiecki submitted a motion to the Constitutional Tribunal to review whether the provisions of the Civil Procedure Code, the Criminal Procedure Code and the Supreme Court Act allow for review of the membership or method of choosing the members of the NCJ and the procedure preceding the appointment of a judge by the President of the Republic of Poland.

A month later, Morawiecki filed a second, broader motion, adding EU provisions from the Charter of Fundamental Rights and the Treaty on European Union to this list. In the meantime, the Constitutional Tribunal also suspended the application of the resolution.

The Constitutional Tribunal’s judgment of 20 April

On Tuesday 20 April, the Constitutional Tribunal examined the case in its full bench. The president of the Constitutional Tribunal, Julia Przyłębska, chaired the session, while the rapporteur was the newly appointed judge and former Law and Justice party (PiS) MP, Stanisław Piotrowicz.

The judgment of the Constitutional Tribunal was in line with expectations. It ruled that the resolution of the combined chambers of the Supreme Court of 23 January is incompatible, among others, with

• Article 179 (appointment of judges by the president on the motion of the NCJ), Article 144(3)(17) (the President’s prerogative to appoint judges), Article 183(1) (supervision of the Supreme Court over common courts regarding judgments) of the Constitution of the Republic of Poland;
• Article 2 (the principal EU values, including the rule of law) and Article 4(3) (the principle of sincere cooperation) of the Treaty on European Union.

At the start of the presentation of the motives of the judgment, Stanisław Piotrowicz referred to what constitutes the basic controversy. Can the Constitutional Tribunal review resolutions of the Supreme Court at all?

According to Article 188(3) of the Polish Constitution, the Constitutional Tribunal rules on the compliance of legal acts issued by central state bodies with the Constitution, ratified international agreements and statutes.

As the Supreme Court pointed out, neither is the court itself a legislative body nor is the resolution of the combined chambers of the Supreme Court a source of general and abstract legal norms. The interpretation contained in the resolution was, in principal, legally binding on Supreme Court benches.

However, the Constitutional Tribunal ruled that the resolution is general and abstract and is an act of internal law, and, as such, it may be reviewed by the Tribunal.

The court overseen by Julia Przyłębska invoked all the arguments that the PiS politicians had been repeating for months.

According to the ruling coalition, the Supreme Court’s resolution constitutes inadmissible interference with the president’s prerogative to appoint judges. The Constitutional Tribunal also ruled that the resolution was issued by the Supreme Court while exceeding its statutory authorisation.

Judge Piotrowicz poses as a defender of principles of European law

Interestingly, more space in the justification was devoted to the argument that the Supreme Court’s resolution was also incompatible with European law than the alleged unconstitutionality of the resolution.

“The Tribunal is the court with the last word. It protects not only the constitution but also European law,” pointed out Piotrowicz.

The Constitutional Tribunal held that breaches of the right to a fair trial, the principle of a democratic state ruled by law, as well as the principle of sincere cooperation constitute the fundamental solution negating the authority of judges to hold office.

“Member States fulfil their tasks and refrain from any measures that could interfere with the achievement of the Union’s objectives,” Stanisław Piotrowicz used these words to explain the negation of the Supreme Court’s resolution, which constituted implementation of the judgment of the CJEU of 19 November 2019. According to the judges of the Constitutional Tribunal, the resolution also breached EU standards of judicial independence and impartiality.

The justification for the judgment did not once refer to what the content of the judgment of the CJEU of 19 November actually was, and did not discuss the discrepancies in the Supreme Court’s adjudications that followed after that judgment.

The Tribunal interferes with the judgments of the Supreme Court

Three Constitutional Tribunal judges – Leon Kieres, Piotr Pszczółkowski and Jarosław Wyrembak – submitted dissenting opinions to the ruling of 20 April.

“The proceedings in this case should be discontinued because of the inadmissibility of issuing a judgment. This is because the contested resolution is not a provision of the law in the meaning of Article 188(3) of the Constitution, or any other act of law that is subject to the jurisdiction of the Constitutional Tribunal,” argued judge Leon Kieres.

The lack of authority was emphasised even more strongly by judge Piotr Pszczółkowski: “The Tribunal has interfered with the judgments of the Supreme Court. The Constitutional Tribunal acted in breach of the constitutional principle of independence of adjudication.”

The judges explained that, although the Constitutional Tribunal has repeatedly examined various acts – instructions, guidelines, opinions, positions, resolutions – they were always acts of the executive and legislative authorities, which were presumed to be general and abstract norms.

“Explanatory resolutions of the Supreme Court as an instrument of judicial supervision serve the purpose of applying and not laying down the law. They are not final acts of the application of the law. They involve the interpretation of regulations in the context of specific facts,” argued judge Leon Kieres.

In the opinion of the judges, the essence of the case is precisely the dispute regarding the interpretation of the provisions of Article 439(1)(2) of the Criminal Procedure Code and Article 379(4) of the Civil Procedure Code in the context of the circumstances constituting the controversial status of the National Council of the Judiciary and the related pending court disputes.

“The motion of the Prime Minister is essentially a request to examine the application of the law, which pretends to be an application for the hierarchical control of norms,” pointed out Judge Kieres.

“The Constitutional Tribunal once again tries to frustrate the judgment of the CJEU”

It was also pointed out in the dissenting opinions that explanatory resolutions appear when discrepancies arise in court adjudication. And these discrepancies most frequently appear when something is defective as early as at the legislative stage.

“Appropriate actions by the lawmakers can therefore mean that Supreme Court resolutions are irrelevant. Therefore, the path of treating resolutions as a source of law, which the executive authority intends to derogate [repeal in full or in part – ed.] with the help of the Constitutional Tribunal, is incomprehensible, as it has legislative initiative at its disposal,” noted Leon Kieres.

The judges also pointed out that the Constitutional Tribunal should have limited itself to assessing compliance with the constitution. Only in this case is it the court of the last word. The judgment in the part regarding assessments of compliance of normative acts with EU and international law is not binding on international bodies.

The judges also disagreed with the negative assessment of the Supreme Court’s intentions and with the substantive assessment of the decision itself:

“In my opinion, in its resolution, the Supreme Court intended to guarantee everyone the right to a fair trial. I also disagree that, by adopting this resolution, it acted in conflict with the judgment of the CJEU of 19 November 2019,” assessed Leon Kieres.

Judge Piotr Pszczółkowski stated the case directly: “Once again, the Constitutional Tribunal has attempted to frustrate the implementation of the CJEU judgment of 19 November 2019.”

Translated by Roman Wojtasz