The text was originally published in Polish on the Polish Presss Agency (PAP) website on 2nd March 2021 and adapted by Onet.pl. We publish the translation.

• The [Justice Minister’s] quote was about the procedure of appointing judges, which did not provide for their ability to appeal against the NCJ’s decision to accept or reject their candidacy
• The Supreme Administrative Court then issued a measure, namely a decision that theoretically completely blocked the possibility of appointing new Supreme Court judges until the case was settled by the Supreme Administrative Court. But President Duda ignored this decision
• The Supreme Administrative Court referred the question to the CJEU as to whether the procedure in which applicants in the recruitment are denied the right to appeal against a decision of the NCJ is a lawful procedure at all
• Other than the Minister of Justice, the CJEU’s ruling has been criticised by the deputy head of the Ministry of Justice. According to Sebstian Kaleta, Tuesday’s judgment ‘undoubtedly interferes with Poland’s sovereignty’.

In response to the questions from the Supreme Administrative Court, the CJEU ruled on Tuesday that ‘successive amendments to the Act on the NCJ, which led to the abolition of effective judicial control of the Council’s decisions to present proposals for the appointment of candidates for Supreme Court judges to the president, may be in breach of EU law.” According to the CJEU, if a national court acknowledges that these amendments breach EU law, it is obliged to withdraw from applying these provisions.

This is about successive amendments to the Act on the NCJ, which modify, among others, the ability to appeal against resolutions of the NCJ on the appointment of Supreme Court judges.

CJEU’s ruling. Ziobro comments: unacceptable

Minister Ziobro referred to this ruling during a press conference. The politician reiterated that the constitution is the highest law in Poland. ‘In the light of the judgment that was passed today, it should be acknowledged that this article is no longer valid. Similarly, the Polish constitution is no longer in force. And the constitution is no longer the supreme act of law and the law of the Republic of Poland, but an inferior law, and it can be said that it was repealed by European regulations to the extent to which the court in Luxembourg deems it appropriate,’ said Ziobro.

He added that no Polish politician can agree with such a position.

As we mentioned, Ziobro believes that Tuesday’s CJEU ruling ‘is unacceptable to us’. ‘If you ask me whether I recognise this ruling in this sense, referring to the justification, which orders us to ignore the legal order of the state and the constitutional law, then of course I will never recognise such a ruling or a decision of such a body, which functions around the EU,’ said Ziobro.

Kaleta: The CJEU is trying to usurp competences that no government has delegated to it

As we mentioned above, according to Kaleta, Tuesday’s ruling by the CJEU ‘undoubtedly interferes with Poland’s sovereignty’. ‘By placing EU law above the Polish constitution (…), the CJEU, with the support of the opposition politicians and part of the judiciary, which is singing from the same hymn sheet as the Polish opposition, is aiming to exacerbate the anarchy in the judiciary,’ the deputy minister said at the press conference.

He argued that the CJEU is trying to ‘usurp competences that no government of an EU member state has delegated to it’. The deputy minister cited the achievements of the Polish and German Constitutional Tribunals in this context. He cited, among others, a 2005 ruling of the Constitutional Tribunal regarding the Treaty of Accession. According to that ruling, ‘because of its special power, the Constitution remains the supreme law of the Republic of Poland with respect to all international agreements that are binding on the Republic of Poland’. Kaleta emphasised that judges Ewa Łętowska and Marek Safjan were members of the bench at that time.

As he pointed out, the Tribunal presented a similar position five years later, in 2010, ruling on the Lisbon Treaty. ‘The Tribunal stated once again: the highest act in Poland is the constitution, while the Constitutional Tribunal as the body which has the competence to adjudicate on disputes of a constitutional nature is the court of the last word,’ he said.

The deputy minister also reiterated that the German Federal Constitutional Tribunal ruled in May 2020 that the CJEU had overstepped its competences in one of its rulings on the activities of the European Central Bank. ‘The German Constitutional Tribunal ruled that this ruling was not binding on Germany,’ said Kaleta.

He added that, in Tuesday’s ruling, the CJEU ‘does not discuss the theses of the German Tribunal’s ruling,’ but instead ‘directly, without any reliable legal arguments … indicates that, in Poland’s case, EU law takes precedence over the Polish constitution.’ In his opinion, this is evidence of double standards and that the CJEU is overstepping its competences.