The Constitutional Tribunal headed by Julia Przyłębska ruled on 7 October in case K 3/21 that the interpretation of Articles 1 and 19 of the EU Treaty by the Court of Justice of the European Union in its rulings on the independence of the judiciary, is in conflict with the Constitution.

Prime Minister Mateusz Morawiecki filed the motion in the case on 29 March 2021.

Sessions of the Constitutional Tribunal have been postponed repeatedly. 5 hearings have been held between July and October. On 7 October, Julia Przyłębska read the sentence at 5:15 pm.

The Constitutional Tribunal ruled that:

The unlawful Constitutional Tribunal has just declared the fundamental provisions of EU Treaties unconstitutional. Here is the operative part of the decision. pic.twitter.com/RyJD0KbaD7

— Rule of Law in Poland (@RULEOFLAWpl) October 7, 2021

The Constitutional Tribunal decides to discontinue the proceedings to the remaining extent. The judgment was passed with a majority of votes. Judges Piotr Pszczółkowski and Jarosław Wyrębak submitted dissenting opinions.

Bartłomiej Sochański read out the oral justification of the judgment.

The written justification will be announced, as is customary for the Constitutional Tribunal, in several weeks or perhaps even months.

On 14 July, the Constitutional Tribunal led by former PiS MP, Stanisław Piotrowicz, ruled that CJEU decisions on the judiciary do not apply in Poland.

Why is this important?

The Tribunal, which is subordinated to the ruling party, ruled on the motion of the prime minister of an EU Member State that rulings of the EU’s most important judicial body are incompatible with the Constitution. Prime Minister Mateusz Morawiecki’s motion was supported by President Andrzej Duda, Prosecutor General Zbigniew Ziobro, Minister of Foreign Affairs Zbigniew Rau and the PiS parliamentary majority.

Ombudsman Marcin Wiącek argued in the proceedings before the Constitutional Tribunal – through his representatives, Mirosław Wróblewski, Maciej Taborowski and Paweł Filipek – that there is no conflict between the Constitution and the interpretation presented by the CJEU of Articles 1 and 19 of the EU Treaty. He appealed for the Constitutional Tribunal to submit a question to the CJEU for a preliminary ruling, as the German Federal Constitutional Tribunal did in cases of doubt. The Polish Constitutional Tribunal did not take advantage of this possibility.

What effect does this have in EU law?

From the point of view of EU law, Poland as an EU Member State, is still bound by CJEU rulings and if it does not comply with them, a party to the proceedings, such as the European Commission, may apply to the CJEU to impose fines. Just as it did in connection with Poland’s failure to comply with the CJEU’s ruling of 14 July and the ruling of 15 July regarding the Disciplinary Chamber. The Commission has requested a fine of up to 1 million euros per day. The CJEU has not yet made a decision on this matter.

What does this mean for the Polish government’s dispute with the EU over the rule of law?

The Polish government will use the Constitutional Tribunal’s ruling as a para-legal argument in discussions on the implementation of CJEU rulings and penalties for not implementing them, as well as in discussions about money from the reconstruction fund.

On 6 October, Commissioner for Economy Paoolo Gentiloni told MEPs that 22 of the 25 national recovery plans submitted had been approved. Bulgaria’s and the Netherlands’ plans have not yet been submitted, while Hungary’s, Poland’s and Sweden’s are awaiting the Commission’s approval.

Politico Europe reported that the Commission wants to approve Poland’s national recovery plan in November if Poland respects the CJEU’s rulings and the Commission’s recommendations on the rule of law. Experts on EU law from The Good Lobby Profs initiative believe the Commission and the Council will breach EU law if they approve the plan in the event that Poland does not apply the CJEU rulings or implement these recommendations.

What does the Constitutional Tribunal’s decision mean for judges in Poland?

It will be possible to discipline judges for failing to comply with the decision of the Polish Constitutional Tribunal if they apply CJEU rulings that include an interpretation of treaty provisions that the CT has declared unconstitutional.

The CJEU has significantly developed its case law on the independence of the judiciary since 2018 on the basis of complaints filed against EU governments and questions for preliminary rulings asked by courts from Portugal, Poland, Ireland, the Netherlands, Romania, and Malta.

Polish courts have invoked CJEU judgments to undermine key elements of changes in the courts being forced through by PiS and Solidarna Polska.

In accordance with the principle of the primacy of the application of EU law, when a judge in an EU Member State hearing a case sees a conflict between a norm of national law and a norm of EU law, he is obliged to disregard the norm of national law that is incompatible with EU law and apply a norm that is compatible with it.

The Supreme Administrative Court applied the CJEU judgment in March 2021 and, while ruling, ignored a provision of a statute amended by PiS, which deprived judges of the ability to appeal to the court against a resolution of the new National Council of the Judiciary. This is because, in response to a question asked by the Supreme Administrative Court, the CJEU ruled that the deprival of such a possibility for judges was in conflict with EU law. In another ruling, issued in the context of a case of judges from Romania, the CJEU ruled that EU countries must not lower their standards of protection of the independence of the judiciary.

In addition, judges are referring to the CJEU’s judgment of 15 July on the Disciplinary Chamber, in which the CJEU ruled that the reason for the conflict of the Chamber with EU law is that all the people in it were appointed in a defective procedure involving the new National Council of the Judiciary. The judges want to withdraw from adjudicating with people who were appointed judges or promoted in this defective procedure. They are citing the need to protect legal certainty and the right of individuals to an independent court that satisfies the standards of EU law.

Minister of Justice Zbigniew Ziobro removed Judge Adam Synakiewicz of the Częstochowa Regional Court and Judge Marta Pilśnik of the Warszawa-Śródmieście District Court from adjudicating for one month. They were both implementing the judgments of the CJEU and ECtHR of July 2021. Ombudsman Wiącek reminded the minister in writing that the Act on the Structure of Ordinary Courts does not allow the minister to temporarily remove judges from adjudication for their judgments.

The Constitutional Tribunal’s ruling is supposed to have a chilling effect on judges and ensure that they do not apply CJEU rulings to overturn the unconstitutional changes made in the judiciary since 2015, which are incompatible with EU law and the European Convention on Human Rights.

In an IPSOS poll for OKO.press and Gazeta Wyborcza, 55% of respondents stated that the CJEU has the right to ‘overturn’ changes in the courts if they are in conflict with EU law. Only PiS and Konfederacja voters are of a different opinion.

Why this is a ‘decision’ and not a judgment?

The bench of the Constitutional Tribunal has so-called ‘stand-ins’, namely people elected to the Tribunal to fill positions that have already been filled. In May, the European Court of Human Rights ruled in Xero Flor v Poland that, by ruling in a bench which has stand-ins, the Constitutional Tribunal is breaching the right of the complainants to a fair trial, which is protected by Article 6 of the European Convention on Human Rights. This argument may be raised by independent courts or other independent state bodies which may not recognize the decision of the Constitutional Tribunal in the case filed by the prime minister. In order to prevent the decisions of the Constitutional Tribunal issued by benches which contain stand-ins from being contested on the basis of the ruling in the Xero Flor case, Prosecutor General Zbigniew Ziobro filed a motion with the Constitutional Tribunal to examine whether the interpretation of Article 6 of the Convention, in which the Constitutional Tribunal is a court, is in line with the Constitution. The ombudsman requested the Constitutional Tribunal to first examine the case filed by the prosecutor general, and only later the motion filed by the prime minister. However, the Constitutional Tribunal has not yet started to examine Ziobro’s motion.

What happened at the hearing?

At the hearings to date in case K 3/21, the judges of the Constitutional Tribunal focused on questioning and criticising the representatives of the Ombudsman and the Ombudsman himself, Marcin Wiącek.

Today was no different, but the applicant’s representative was also examined. Judge Piotr Pszczółkowski asked Prime Minister Morawiecki’s representative, Professor Marek Szydło, about the structure of the motion, which formally applies to the interpretation of treaty provisions, but in fact applies to the examination of EU Court of Justice rulings. He also asked whether the prime minister’s motion is leading to the situation known from Putin’s Russia, where the constitutional court can rule on judgments of the European Court of Human Rights.

In his closing remarks, Professor Szydło argued that it is not the CJEU’s rulings that are being contested, but the ‘expansive’ interpretation of the provisions of EU treaties presented by the CJEU. He pointed out that the prime minister was not questioning the CJEU’s general competence. He also criticized the CJEU’s formulation that it arises from Article 19 that a court is independent as long as the method of appointment of a judge does not give rise to reasonable doubts for individuals as to the independence and impartiality of the court. Professor Szydło asked: ‘to which entities does this apply?’ (we explain: everyone who stands before a court in EU Member States).

The prime minister’s representative also said that the motion has the objective of improving effective judicial protection, because no one better than the Polish public authorities can assess what people in Poland need – certainly not the judges of the CJEU or the ECtHR. ‘We cannot abdicate. It is naive to say that some supranational authority will do this for Poland.’ He also said that the assessment of CJEU and ECHR judges that the changes made in PiS’s laws regarding the courts are unconstitutional is ‘a value judgement and not knowledge’.

The representative of the PiS parliamentary majority spoke in a similar vein.

Marek Ast, MP, said the prime minister’s motion applied to the matter of Polish sovereignty and referred to the CJEU rulings as a ‘law-making excess’.

He questioned whether the ‘old EU’ countries, Germany, France and Spain, agree with the direction of the CJEU rulings.

PiS MP Arkadiusz Mularczyk said the judges appointed by President Duda at the request of the NCJ are improving the right of the citizens to a trial, while the motions of the judges to exclude them from ruling are ‘anarchy’ and ‘attacks on the foundations of the rule of law in our country’. He asked whether the Ombudsman’s office cannot see this and spoke of the politicization of this office during Adam Bodnar’s ‘and unfortunately also Marcin Wiącek’s’ term of office.

The Ombudsman’s representatives, Mirosław Wróblewski, Dr Hab. Maciej Taborowski, and Dr Paweł Filipek, answered questions from Stand-In Judge Jarosław Wyrembak, Judge Stanisław Piotrowicz and Judge Krystyna Pawłowicz. The dialogue between Pawłowicz and Taborowski (both of whom are employees of the Faculty of Law and Administration at the University of Warsaw) could go down in the history of Polish constitutionalism:

Pawłowicz: In whose interest is the Ombudsman acting, since it is moving for ‘external regulations’ to take precedence over the Constitution?

Taborowski: These are not external regulations.

Pawłowicz: In whose interest is the Ombudsman acting?

Taborowski: The citizens’.

Pawłowicz: Which ones?

Taborowski: Polish ones.

The Ombudsman was also attacked by the representative of the minister of foreign affairs, Paweł Jabłoński. He asked in whose interest the Ombudsman was arguing and insinuated that perhaps he was acting on behalf of just a group of Polish citizens who, as judges, claim that they are able to make laws.

Deputy Ombudsman Taborowski spoke calmly about the confusion of cause and effect by the applicant’s representatives and other participants of the proceedings: ‘What is happening in the CJEU, the ECtHR, as well as before the Polish courts, the Supreme Court and the Supreme Administrative Court, is not the cause of the lack of security of citizens, but the effect of the actions of the representatives of the parliament and the government who implemented the “reforms” of the judiciary in breach of national and international standards. ‘Cause must not be confused with effect by saying that the fact that international courts are now passing judgments is causing anarchy. It is the citizens who are reaching out for and receiving protection.’

End of an epic, the start of PolExit?

In July, Professor Stanisław Biernat, a retired judge of the Constitutional Tribunal, told OKO.press: ‘If the Tribunal rules that these provisions are unconstitutional in the sense presented by the applicants, which is unfortunately very likely, this will result in the non-recognition of the CJEU’s rulings on the independence of the courts and the impartiality of judges.

This is essentially the termination of obedience with respect to EU law by a Member State, which will have to encounter a response from the EU institutions.’

Prime Minister Morawiecki was being urged to withdraw the motion from the Constitutional Tribunal by Commissioner for Justice Didier Reynders. On 29 June 2021, Didier Reynders made the assurance that, if the Polish Constitutional Tribunal issues a judgment undermining EU law, the Commission would immediately launch proceedings against the Polish government. Within these proceedings, it may take the government to the Court of Justice of the EU and request fines in its further steps.

This is what the European Commission did with Angela Merkel’s government because of a ruling by the German Federal Constitutional Court on CJEU rulings regarding the European Central Bank.

The Commission may also not approve the national recovery plan.

And the CJEU could rule on fines for the failure to comply with its rulings, as already requested by the European Commission on the basis of the ruling of 15 July.

Translated by Roman Wojtasz

Published in Polish at OKO.press website on 7 October 2021.