‘The motions of the prime minister and a group of MPs to the Constitutional Tribunal are an about-face for the generally accepted relations between EU law and the law of the Member States. 

They are an attempt to undermine the functioning in Poland of the fundamental norms of EU law that are binding on the Member States. This is a sign of disloyal behaviour of the authorities of a Member State, a breach of the principle of loyalty and solidarity,’ Professor Stanisław Biernat, a retired judge of the Constitutional Tribunal, tells us. 

Professor Biernat warns:

‘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.’ 

Professor Jerzy Kranz of the Koźmiński University adds, ‘The applicants would like it to be possible to breach EU law in Poland under the guise of legalism and to remain in and benefit from the EU. But not leave the EU. This is an interpretation of international law like that from imperial states, from Russia.’

Motions to the Constitutional Tribunal

Four motions have been submitted to the Constitutional Tribunal regarding the compatibility of EU treaties with the Polish Constitution. The applicants are Prosecutor General Zbigniew Ziobro, Prime Minister Mateusz Morawiecki, the Disciplinary Chamber of the Supreme Court and a group of PiS MPs, which submitted its motion last – on 17 June.

The Constitutional Tribunal headed by Julia Przyłębska was supposed to deliberate on the Disciplinary Chamber’s motion (case ref. P 7/20) in the first half of June, but the hearing was postponed at the last minute. Former PiS MP, judge Krystyna Pawłowicz withdrew from the panel considering the case, while former PiS MP Judge Stanisław Piotrowicz remained in the panel. The calendar in the Constitutional Tribunal’s website shows that the hearing is set for 14 July.

A hearing in the case regarding Prime Minister Morawiecki’s motion (case K 3/21) is to be held at the Constitutional Tribunal a day earlier, on 13 July.

Meanwhile, on 15 July, the Court of Justice of the European Union will issue its long-awaited judgment in the case arising from the European Commission’s complaint against the Polish government over the system of disciplinary liability of judges, which was filed in October 2019. Based on that case, the CJEU ruled in April 2020 that the Disciplinary Chamber cannot rule on disciplinary cases of judges.

This will be the third judgment of the CJEU on the European Commission’s complaint. Another complaint from the EC is pending – against the provisions of the muzzle act. In addition, the CJEU issued several judgments regarding the standards of independence of the judiciary in response to questions posed by courts from Poland, Malta, Romania, Germany and the Netherlands requesting preliminary rulings.

The CJEU’s judgments are a problem for the ruling party in Poland. They are a legal weapon for independent judges who, in accordance with the principle of the primacy of EU law, are obliged to disregard the provisions of national law in the event of a conflict between EU law and the provisions of statutes.

The CJEU judgments give Polish judges legal grounds to disregard the laws passed by the United Right. As the Supreme Administrative Court did in May, when applying a judgment of the CJEU of March and disregarding a provision that deprived judges running for office in the Supreme Court of the opportunity to appeal against the decision of the National Council of the Judiciary.

The four motions to the Constitutional Tribunal have the objective of undermining the principle of primacy of EU law and the application of EU Court of Justice rulings on the judiciary in Poland, which are inconvenient for the authorities. 

They are the culmination of a multiannual campaign by those in power in Poland since 2015 to discredit the CJEU, its judges and advocates general.

Judge Biernat: motions in bad faith and a false conflict

Professor Stanisław Biernat, retired judge of the Constitutional Tribunal, vice-president of the Constitutional Tribunal in 2010–2017, explains the nature and objective of the motions of the prime minister and a group of MPs, in which the applicants present a false conflict between the EU law and the Polish Constitution.

‘In the motions filed by the prime minister and a group of deputies of the ruling party, the applicants are demanding the verification of the compliance of the specified provisions of the Treaty on European Union and the Treaty on Functioning of the EU, i.e. primary EU law, with many provisions of the Polish constitution.

These applications are formally admissible because, in accordance with Article 188.1 of the Constitution, the Constitutional Tribunal rules among other things on the constitutionality of international agreements.

In the past, the ‘old’ Constitutional Tribunal ruled on the constitutionality of treaties and decisions of the European Council, which were included among the primary legislation of the EU. I am thinking here of the judgment on the Treaty of Accession, the Treaty of Lisbon and the judgment regarding the amendment of Article 136 of the Treaty on the Functioning of the European Union.

We are dealing with a new situation in the motions of the prime minister and the group of PiS MPs – fundamental provisions of EU constitutional law are being contested, but not in relation to treaty amendments, but in connection with the lack of approval by the Polish authorities as to how the law and the practice of applying the law in Poland are assessed by EU institutions and in particular by the Court of Justice of the EU.

This is a completely different motive for referring motions to the Constitutional Tribunal. The motions of the prime minister and a group of MPs are an about-face for the generally accepted relations between EU law and the law of the Member States. 

They are an attempt to undermine the functioning in Poland of the fundamental norms of EU law that are binding on the Member States. It is a sign of disloyal behaviour on the part of the authorities of a Member State, a breach of the principle of loyalty and solidarity.

The background to these conclusions is important.

Firstly, in one of the motions, the applicant is the prime minister of an EU Member State, a member of the European Council.

Secondly, the motions were submitted to the Constitutional Tribunal, which, both in Poland and abroad, unfortunately rightly, has the reputation of a Constitutional Tribunal which is fully subservient to the political authority.

Thirdly, the Constitutional Tribunal instantaneously set a date for a hearing for 13 July, when the positions of the participants in the proceedings had not even appeared. These positions were submitted at the last minute and it is doubtful whether anyone will have time to read them before the announced hearing. 

Fourthly, the Constitutional Tribunal is to rule in a five-member bench, even though the case is of a particularly complex nature and it looks as if the previous position of the Constitutional Tribunal on European issues will be abandoned. The Constitutional Tribunal should adjudicate in a full panel (Article 37.1.1(e) of the Act on the organisation and procedure of conduct before the Constitutional Tribunal).

How should this behaviour of the applicants be assessed? It can be concluded that it is adding fuel to the fire, especially in a situation where Poland is, one way or another, being accused of breaching the principles of the rule of law, especially including the principle of independence of the judiciary, as evidenced by various proceedings, both under Article 7 of the Treaty on European Union and before the Court of Justice of the EU. Furthermore, this is happening at a time when Poland is applying for billions of euros from the reconstruction fund and the government is emphasizing Poland’s great attachment to the European Union.

In both of these cases, the applicants – the prime minister and the group of MPs from the ruling party – are asking for so-called interpretative judgments. They are asking about the compatibility of the way of understanding the provisions of the EU treaties with the Polish Constitution. The understanding of the provisions of the EU Treaties proposed by the applicants is completely arbitrary. It is based neither on the practice of applying EU law nor on the case-law of the Court of Justice of the EU. It is based on disloyally distorted case law of the CJEU.

If the Constitutional Tribunal rules that these provisions are unconstitutional in the sense presented by the applicants, which is unfortunately very likely, this will obligate the Polish courts to not recognize the CJEU’s rulings on the independence of the courts and the impartiality of judges. The alternative would be to disregard the judgments of the Constitutional Tribunal.

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. It is enough to recall that, a few weeks ago, the European Commission initiated proceedings against Germany in connection with the German Federal Constitutional Court’s judgment of 5 May 2020.

The motions of the prime minister and of the group of PiS MPs to the Constitutional Tribunal were filed in bad faith: they are not about ensuring compliance with the Constitution, but about becoming free from the rigours of the CJEU ruling. 

In the case of the prime minister, it cannot be ruled out that it is also about defending himself against accusations from the extreme wing of the ruling camp that he is excessively submissive to the EU.

The justification for the conclusions was undoubtedly prepared by people who are familiar with EU law, both the literature and the case-law. Technically, it is clear that it was prepared by one of the experts on EU law. This is sad because the actual authors of these motions must have known that they were operating on the wrong side and breaching professional ethics.

To what do the contested provisions apply?

In his motion, the prime minister first proposes that Article 1 of the EU Treaty, namely the provision of EU law of fundamental significance, creating the European Union, should be regarded, in some arbitrary understanding adopted by the applicant, as being incompatible with the Polish Constitution.

The next allegation applies to various aspects of Article 19.1 of the Treaty on European Union in relation to other provisions of that treaty. This is about a provision that has become the basis for the EU’s vigilance over respect for the independence of the judiciary in Member States, including Poland, since the 2018 CJEU judgment on Portuguese judges.

In their motion, the PiS MPs allege that Article 279 of the Treaty on the Functioning of the EU, the provision that allows the CJEU to order provisional measures, is unconstitutional. As well as Article 260 of the Treaty on the Functioning of the EU, which addresses judgments issued by the CJEU in the event of a breach of treaty obligations by Member States. It also applies to Article 19 of the Treaty on European Union. 

The arguments of the applicants are interesting. They are very extensive; the conclusions are very broad and apply to the same issues discussed several times from different angles. Perhaps this was done to give the impression that the allegations were meticulously justified. The prime minister’s motion is on 128 pages and that of the group of MPs is on 52 pages.

According to the prime minister as the applicant, the CJEU interprets the Treaty on European Union in such a way that it infers from it the right or duty of the bodies applying the law to derogate from applying the Constitution, or to order the application of laws that are inconsistent with the Constitution. It is also supposed to apply to provisions that have become valid by the ruling of the Constitutional Tribunal. And also, according to the applicant, this applies to the provisions constituting the grounds for the appointment of judges by the President of the Republic of Poland. The most important allegation is that the case law of the CJEU requires unconstitutional action or derogation from the Constitution. Meanwhile, the provision that is most often cited, albeit without a thorough analysis of what is contained in the CJEU judgments, is Article 19 TEU. This article is presented in the motions in question in a caricature manner.

With regard to the motion of the PiS deputies, it is similar in many respects to the prime minister’s motion, although the emphasis is placed differently. Here, too, the overriding role of the Constitution is emphasized as being breached by CJEU case law. But the dominant argument is what is allegedly a breach of the Treaty principle of conferral. This is the norm of EU law in Article 5.1 of the Treaty on European Union that the EU only has competence in the areas that are delegated by the Member States.

It is repeatedly stated in these motions that the organization and operation of the courts has not been delegated to the EU and that they belong entirely to the Member States. Therefore, the applicants say that the CJEU does not have any competence in this area. This is an allegation of so-called ultra vires action. The PiS MPs also emphasize the alleged ultra vires action by the CJEU in the context of administering interim measures. 

The most important question that should be posed in this context is: how should the supremacy of the Polish Constitution be reconciled with the principle of the primacy of EU law? The starting point is the observation that the scope of the principle of primacy may be understood differently. There is a difference between how this principle is understood in EU law and how it is construed in the Polish Constitution. In the European Union, in the light of the case law of the CJEU, starting from the judgment in Internationale Handelsgesellschaft in 1970 up to the judgment of the Romanian judges in 2021, the primacy of EU law extends to the whole of the legal order of the Member States. In the event of a conflict between the norms of EU law and national law, it is the duty of the authorities of the Member States of the Union to withdraw from applying the norms of national law, even if they are constitutional norms.

However, in Poland, in accordance with Article 1 of the Constitution, the Constitution is the supreme law of the Republic of Poland. In turn, Articles 91.2 and 91.3 proclaim the primacy of EU law over statutes. After all, these provisions do not explicitly refer to EU law, but to international agreements and the law enacted by international organizations.

The ‘old’ Constitutional Tribunal confirmed in several judgments before 2015 that, in the conditions of Poland’s membership of the EU, the Constitution is the supreme law of the Republic of Poland and benefits from supremacy over EU law. It is sufficient to mention the judgment in K 18/04, (on the Treaty of Accession), K 32/09 (on the Treaty of Lisbon) and SK 45/09 (on an EU Decision).

How should this be handled? I propose the formulation of three theses:

My first thesis: These differences do not cause an obstruction as long as they remain at a highly general and are largely symbolic and prestigious in nature. Therefore, these differences are not an obstruction if and as long as no real conflicts arise in this respect. Poland is not the only EU country in which the constitution is guaranteed the highest rank. As long as this is an issue at an abstract level, it does not cause a problem for anyone. For example, for many years, the German Constitutional Tribunal has been emphasizing the supremacy of the German Basic Law over EU law, but it was only in 2020 that it refused to apply one of the CJEU judgments.

Secondly, there are proven ways of avoiding real conflicts. Article 9 of the Constitution states that ‘the Republic of Poland shall observe international law that is binding on it’. Typically, this provision is hardly mentioned at all in the motions filed by the prime minister and the group of MPs. Obviously, this provision is not cited by the applicants as a norm to be reviewed. 

What are the ways of avoiding real conflicts? 

The first way, which has already been tried in Poland, is to amend the Constitution. In 2006, Article 55 of the Constitution on the extradition of Polish citizens was amended, which made it possible to bring the Constitution into line with the framework decision on the European Arrest Warrant.

Another way is the pro-EU interpretation of the Constitution according to the principle of the Constitution being favourable to European integration. This principle was formulated in the case law of the ‘old’ Constitutional Tribunal even before Poland’s accession to the Union.

A characteristic example of avoiding conflicts between the Constitution and EU law in this way is the way in which Article 62 of the Constitution, stating that: ‘If, no later than on the day of voting, a Polish citizen has reached the age of 18 years, he shall have the right to participate in a referendum and the right to vote […]’, was handled. In turn, Article 22 of the Treaty on the Functioning of the EU, states that ‘Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State.’

So we have two seemingly irreconcilable provisions. However, in its judgment regarding the Treaty of Accession, the Constitutional Tribunal stated that if a given right was granted in the Constitution to Polish citizens, it does not mean that this right cannot be granted to citizens of other states. This is because not every extension of a right to others breaches the Constitution. The Constitutional Tribunal accepted that voting rights to bodies of local government may be extended by statute to people who are not Polish citizens. And this is what the Electoral Code has done by providing for electoral rights of EU citizens.

Thirdly and most importantly. In my opinion, there is no conflict between the case law of the CJEU and the Polish Constitution, as outlined in the motions of the prime minister and the group of MPs. This conflict has been artificially ‘created’ by the applicants, in order to release themselves from the restrictions arising from EU law by subordinating Polish courts to the political authority. 

Instead, Polish laws and the practice of their application conflict with EU law and the case law of the CJEU. In particular, this is about the Act on the National Council of the Judiciary, the Act on the Supreme Court, the Law on the Structure of Ordinary Courts and the so-called muzzle act, which makes the disciplinary liability of judges stricter. These Acts are incompatible with EU law. Furthermore, they are also incompatible with the Constitution. However, the tragedy is that there is currently no independent Constitutional Tribunal to confirm this. As already mentioned, the principle of primacy of EU law applies to statues (Articles 91.2 and 91.3. of the Constitution).

It is not true, as alleged by the applicants, the prime minister and the group of MPs, that treaties have been breached and a contradiction has arisen with the Polish Constitution as a result of the rulings of the CJEU and the interpretation by this Court of Article 19.1 of the EU Treaty. What the EU institutions are demanding of the Polish authorities is respect for judicial independence and impartiality.

The applicants are falsely creating an alleged conflict between EU law and the Constitution. Poland transferred some of its supreme authority through its accession to the Union, including an obligation to honour the judgments of the CJEU (Article 90 of the Constitution). Polish courts are EU courts. A breach of their independence and the impartiality of judges is in conflict with both EU law and the Constitution (Articles 10, 173, 178).  Paradoxically, therefore, in demanding that the Polish authorities ensure the independence of the courts and the impartiality of judges, the EU institutions are demanding not only the respect of EU law, but also the Polish Constitution.

The supremacy of the Constitution has recently started to be invoked by the Polish authorities as a unique incantation to release themselves from fulfilling obligations arising not only from EU law, but also from the European Convention on Human Rights. This is evidenced by announcements of the disregard of the judgments of the Court in Strasbourg. Such treatment of the Constitution, which has been repeatedly violated over the last six years, must be exposed.

Sovereignty as a passkey

The applicants are using the concept of sovereignty and the supremacy of the Polish constitution in the national legal order as a passkey.

Professor Jerzy Kranz of the Koźmiński University explains how the applicants are abusing these concepts: ‘Sovereignty of the State does not mean freedom from the law, but freedom within the law. The fact that a state binds itself with an international treaty is a matter of sovereignty in the sense that the state is free to decide whether or not to conclude the treaty. However, withdrawal from or non-compliance with a treaty is not subject to an arbitrary decision by the State. Sovereignty is not a reason for breaching or failing to comply with obligations arising from international law.

The applicants are also invoking the supremacy of the Polish Constitution to undermine the principle of the primacy of EU law. However, the primacy of EU law implies a different approach to understanding the relationship between international and domestic law than supremacy. The principle of supremacy means that, in the case of a conflict between a norm of international law and national law, the court is to disregard national law.’

Why all this play with concepts?

Professor Kranz assesses: ‘The applicants have one political objective: they want to bring about a situation in which the Polish Constitutional Tribunal, referring to the sovereignty and supremacy of the Constitution, will declare that certain norms of EU law are not applicable in Poland. In other words, the Polish Constitutional Tribunal should declare that EU law is not binding in Poland in certain politically sensitive areas.

The applicants would like it to be possible to breach EU law in Poland under the guise of legalism and to remain in and benefit from the EU. But not leave the EU.

This is an interpretation of international law like that from imperial states, from Russia. The law on the Constitutional Tribunal was amended in Russia in 2015 and the constitution in 2020. Now, if the Russian constitutional court rules that a resolution of an international organization or a judgment of an international tribunal is incompatible with the Russian constitution, then, under Russian law, it is not applicable.’

What the European Commission should do

If the ECJ rules in favour of the applicants, the European Commission can and, as guardian of the EU treaties, should immediately launch a procedure against breaches of EU law against the Polish government.

As it did against the German government with respect to the German Federal Constitutional Court ruling of 8 May 2020. It questioned whether the CJEU had properly assessed the proportionality of the European Central Bank’s powers. The Commission initiated the procedure against Angela Merkel’s government in June, just after the German FTK had effectively withdrawn its position. However, this step was meant to show that the Commission was serious about trying to undermine the role of EU law and the CJEU in all EU countries. It was meant to eliminate the argument often raised by governments in Poland and Hungary that the Commission is applying double standards to their actions and with respect to those of the founding governments of EU states.

On 29 June, EU Justice Commissioner Didier Reynders announced decided action by the European Commission against attempts to undermine the primacy of EU law in EU states in an interview for the Financial Times. 

“What is the risk if we don’t take care of this? It is that we will destroy the union itself,” Reynders said.

“When we have a problem in one member state, the risk is a spillover effect, that you will have in all the member states, or in some member states, a tendency to challenge the primacy of EU law and the exclusive competence of the Court of Justice,” Reynders concluded.

And announced that the Commission would not wait for weeks before taking steps in case the Polish Constitutional Tribunal decides to challenge the primacy of EU law in Poland.