What happened? The hearing in case P 7/20 filed by Małgorzata Bednarek from the Disciplinary Chamber in the Supreme Court took place in the Constitutional Tribunal on 14 July from 10 a.m. to 4 p.m. The panel of the Constitutional Tribunal was presided over by Judge Stanisław Piotrowicz, formerly a PiS MP.

The case applied to whether the enforcement of interim orders of the Court of Justice of the European Union regarding the structure and jurisdiction of Polish courts in Poland is compliant with the Polish constitution.

Why did the Disciplinary Chamber file the motion with the Constitutional Tribunal? The Disciplinary Chamber’s motion was filed with the Constitutional Tribunal on 9 April 2020, the day after the Court of Justice of the EU issued an interim order ‘suspending’ the operation of the Disciplinary Chamber in disciplinary cases of judges on the basis of the European Commission’s complaint against the Polish government regarding the system of disciplining judges.

What happened during the Constitutional Tribunal’s proceedings? During the hearing, at 3 p.m., the Court of Justice of the European Union announced that, by order of CJEU Vice-President Judge Rosario Silva de Lapuerta, the Disciplinary Chamber of the Supreme Court cannot operate in cases of judges until the CJEU issues a ruling in the case regarding the European Commission’s complaint against the Polish government over the so-called ‘muzzle act’. The Commission filed the complaint at the end of March, together with a request for an interim measure to ‘suspend’ the activities of the Disciplinary Chamber.

At 4.30 p.m., the Constitutional Tribunal accepted the motion filed by Małgorzata Bednarek of the Disciplinary Chamber and ruled that the validity of such provisions of the CJEU in Poland is incompatible with the Polish Constitution.

At the hearing, this ruling was supported by representatives of other participants of the proceedings: the President, the Sejm, the Minister of Foreign Affairs and the Prosecutor General.

The position of the Minister of Foreign Affairs was presented, among others, by Piotr Wawrzyk, a former PiS candidate for the office of the Ombudsman. The Sejm’s position was represented by PiS MPs Arkadiusz Mularczyk and Marek Ast.

Only the Ombudsman objected to it.  The position of the Ombudsman at the hearing was presented by the Ombudsman, Dr Hab. Adam Bodnar, the Deputy Ombudsman, Dr Hab. Maciej Taborowski, and a specialist from the Ombudsman’s Office, Dr Paweł Filipek. Just like on the previous day, the lawyers from the Ombudsman’s Office were bravely defending Poland remaining in the EU legal order.

What does the CJEU ruling change? Under the CJEU’s 14 July ruling, the Disciplinary Chamber cannot operate not only in disciplinary cases of judges – which it could already not do under an earlier CJEU ruling of 9 April 2020 – but in all cases regarding judges, including immunity cases.

The authorities circumvented the CJEU’s ruling of April 2020 by handling criminal, rather than disciplinary proceedings against judges defending the rule of law in Poland. The Disciplinary Chamber settled the issues of immunity of Judge Beata Morawiec, Judge Igor Tuleya, and Supreme Court Judge Włodzimierz Wróbel.

What else happened recently? On Thursday 15 July the Court of Justice of the European Union announced the long-awaited judgment in the case filed by the European Commission regarding a complaint against the Polish government of October 2019 on the model of disciplinary liability of judges (which was in force before 14 February 2020, when the muzzle act, which was challenged by the EC in March 2021, entered into force), as amended by PiS. The CJEU ruled that this system, including the Disciplinary Chamber, is in conflict with EU law.

What the Constitutional Tribunal will decide next? On the 3rd of August, after an adjournment, the Constitutional Tribunal, presided over by President Julia Przyłębska, will decide on the case filed by Prime Minister Mateusz Morawiecki. It may announce that rulings of the Court of Justice of the EU on the independence of courts are not applicable in Poland.

Are we facing a legal PolExit? Ombudsman Adam Bodnar explained at the hearing that a judgment of the Constitutional Tribunal banning the application of CJEU rulings in Poland would strike at the very heart of EU law and could lead to the exclusion of Polish courts from the EU requirements of the independence of the courts, as well as the independence and impartiality of judges. In turn, this will lead to a breach of the EU principles of effective court protection and the rule of law. Which will be irreparable.

If we are distancing ourselves from the EU, where are we heading? Such a judgment by the Constitutional Tribunal would mean that Polish constitutionalism is developing in a direction that is similar to Putin’s Russia. A provision was written into the constitution there in 2020 that if the Russian constitutional court rules that a ruling of an international court is in conflict with the Russian constitution, it is not applicable in Russia.

What was the hearing on 14 July like? Similar to the atmosphere with which former PiS MP Piotrowicz was familiar in the Sejm. Namely, tense.

Other than Piotrowicz, the Constitutional Tribunal panel included Constitutional Tribunal Judge Bartłomiej Sochański (rapporteur), Constitutional Tribunal Judge Zbigniew Jędrzejewski, Constitutional Tribunal Judge Jakub Stelina and Constitutional Tribunal ‘stand in’ Justyn Piskorski.

Ombudsman Adam Bodnar unsuccessfully requested Piskorski’s removal from the bench. The ombudsman referred to the famous judgment of the European Court of Human Rights of 7 May 2021 in the case of Xero Flor v Poland. The ECtHR ruled that a panel of the Polish Constitutional Tribunal containing a person appointed to a place already properly filled (a so-called ‘stand-in’), does not meet the criteria of a court established by statute in the meaning of the European Convention on Human Rights.

Perhaps this conclusion was one of the reasons why Justyn Piskorski attacked Adam Bodnar, Deputy Ombudsman, Dr Hab. Maciej Taborowski, and the specialist from the Ombudsman’s Office, Dr Paweł Filipek, during the hearing. Stanisław Piotrowicz encouraged him to do so by his earlier behaviour, who, after a 1.5 hour session, irritated, interrupted the (excellent!) speech delivered by Dr Filipek and ordered a break. The excellent part of the hearing applied not to the merits of the case, but the attacks on lawyers from the Ombudsman’s Office, which were carried out one by one by the representatives of the parties. 

The recordings of the hearing in the Constitutional Tribunal can be viewed on the Video-KOD website: part 1, part 2, as well as the announcement of the sentence and the oral justification of the ruling.