• ‘The objective of the Prime Minister’s petition is for the Constitutional Tribunal to confirm that the Court of Justice of the EU’s judgments setting the European standard of independence and impartiality of judges cannot be applied in the Polish legal order,’ assesses Deputy Commissioner for Human Rights, Dr. Hab. Maciej Taborowski in an interview for OKO.press and ruleoflaw.pl.
• ‘The PM’s petition to the Constitutional Tribunal is yet another link in the chain, intended to legalize the lawlessness and arbitrariness of the appointment of judges. Alongside the operation of new chambers in the Supreme Court, the muzzle act and the abusive disciplinary and criminal proceedings against judges.’
• ‘The objective of the PM’s petition is for the Constitutional Tribunal to confirm that the CJEU’s judgments setting the European standard of independence and impartiality of judges cannot be applied in the Polish legal order.’
• ‘The case-law of the CJEU provides criteria on judicial impartiality and independence. Persons who were appointed as judges in the process in which a new, politically captured National Council of Judiciary was involved, do not meet these criteria. Consequently, they should not be considered judges according to European standards. In accordance with the principle of precedence, their judgments may be then disregarded. Hence the PM’s attempt to create ‘a defense shield’ with the help of the politically captured Constitutional Tribunal.’
• The German, Danish, Italian and Czech constitutional courts have stated in the past that the CJEU has overstepped its powers on an issue that is a minor part of the cooperation with the EU. However, they have not challenged the very basis of the functioning of the EU system, or the functioning of the German or Danish legal and judicial system within the EU legal system. Contrary to what PM Morawiecki is doing in his petition to the Constitutional Tribunal.
• The EU’s legal identity arises from the identity of its Member States. The Polish constitutional identity was supposed to fit into the European, EU identity. However, PM Morawiecki is placing it in opposition to the EU’s legal identity,’ comments Dr. Hab. Taborowski.

The Prime Minister’s explosive petition

Prime Minister Mateusz Morawiecki submitted a 129-page petition to the Constitutional Tribunal in case K 3/21 after the Court of Justice of the EU issued its judgment in case C‑824/18 on 2 March in response to the Polish Supreme Administrative Court’s request for a preliminary ruling.

Government spokesperson Piotr Müller announced the PM’s motion on 29 March 2021. The content of the petition with its extensive justification was made public on 16 April.

Prime Minister Morawiecki wants the Constitutional Tribunal to examine whether the provisions of the Treaty on the European Union are in line with the Constitution. Specifically:

1. the first and second subparagraphs of Article 1 in connection with Article 4(3) of the Treaty on European Union, understood as empowering or obliging the body applying the law to derogate from applying the Polish Constitution or ordering the application of provisions of the law in a manner which is inconsistent with the Polish Constitution;
2. the second subparagraph of Article 19(1) in connection with Article 4(3) TEU, understood as meaning that, in order to ensure effective legal protection, the body applying the law is authorized or obliged to apply provisions of the law in a manner which is inconsistent with the Constitution, including the application of a provision which has ceased to be applicable as being inconsistent with the Constitution by way of a decision of the Constitutional Tribunal;
3. the second subparagraph of Article 19(1) in connection with Article 2 TEU, understood as authorizing a court to review the impartiality of judges appointed by the President of the Republic of Poland and to review a resolution of the National Council of the Judiciary regarding the submission of a petition to the President of the Republic of Poland on the appointment of a judge.

OKO.press and ruleoflaw.pl asked Deputy Commissioner for Human Rights Dr. Hab. Maciej Taborowski about the significance of Prime Minister Morawiecki’s petition.

Anna Wójcik: ‘The norms constituting the subject of control of constitutionality were created as a result of the law-making activity of the CJEU and were not subject to the assessment of the Constitutional Tribunal, both during the assessment of the Accession Treaty and the Treaty of Lisbon’, while ‘Poland’s participation in the creation of the norms encompassed by this petition in connection with their adjudicating pedigree is negligible’. As a result, there is a need to submit the petition to the Constitutional Tribunal, justifies Prime Minister Morawiecki. What is the reasoning behind this?

Dr. Hab. Maciej Taborowski: Given the contested legal grounds, Prime Minister Morawiecki’s petition to the Constitutional Tribunal has the objective of legalizing the changes to the judiciary made by the United Right government. This wonderful ‘reform of the judiciary’, which has so far primarily brought citizens increasing delays in the handling of their cases.

The Prime Minister’s petition to the Constitutional Tribunal is yet another link in the chain, intended to legalize the lawlessness and arbitrariness of the appointment of judges, alongside

• the operation of new chambers in the Supreme Court,
• the muzzle act
• and the abusive disciplinary and criminal proceedings against judges.

The Prime Minister is enlisting the Constitutional Tribunal, which is subordinated to political authority, to help in this. So that politicians can later defend changes to the judiciary by invoking the primacy of the constitution over EU law.

What is the objective of the petition?

The objective of the petition is for the Constitutional Tribunal to confirm that the CJEU’s judgments setting the European standard of independence and impartiality of judges cannot be applied in the Polish legal order.

This directly applies to the CJEU’s judgment of 19 November 2019 (in the case of A.K.) as well as to the judgment issued on 2 March in case C-824/18 as a response to the request for a preliminary ruling submitted by the Supreme Administrative Court, regarding the court review of the process of the appointment of judges to the Supreme Court.

This is also a preparation for future CJEU judgments that would be unfavorable for the Polish government, for instance, judgments in the cases of Judges Waldemar Żurek and Monika Frąckowiak (C-487/19 and C-508/19). Recall that Advocate General of the CJEU Yevgeniy Tanchev has already issued an opinion in these case which is unfavorable for the Polish government and President Andrzej Duda. The Advocate General approved the position paper presented by the Ombudsman in this case.

The case-law of the CJEU provides criteria on judicial impartiality and independence. Persons who were appointed as judges in the process in which a new, politically captured National Council of Judiciary was involved, do not meet these criteria. Consequently, they should not be considered judges according to European standards. In accordance with the principle of precedence, their judgments may be then disregarded. Hence the PM’s attempt to create ‘a defense shield’ with the help of the politically captured Constitutional Tribunal.

There is also another motion regarding the CJEU decisions on the Constitutional Tribunal’s agenda.

On 28 April, there is a hearing in the Constitutional Tribunal in a case P 7/20. It regards the constitutionality of the state’s obligations arising from EU law with regard to the application of CJEU’s interim measures related to the shape of the system and the functioning of ‘the constitutional bodies of judicial authority’.

The Disciplinary Chamber in the Supreme Court, which, according to European requirements, is not a court, is asking the Constitutional Tribunal about this. This is an attempt to undermine the measure already issued by the CJEU, freezing disciplinary cases of judges before the Disciplinary Chamber in the Supreme Court.

Moreover, it is also a way to prepare for a new order of the CJEU, which will probably be issued shortly, completely freezing the Disciplinary Chamber of the Supreme Court in its adjudicating activity against judges, including in criminal matters.

The justification of the petition in case K 3/21 reads that ‘ruling on the constitutionality of the CJEU’s activities is widely regarded as permissible in the legal doctrine’, the CJEU is bound by the principle of attribution and can be accused of overstepping its powers ‘for instance by giving EU norms content that is incompatible with the Treaties on which the Union is based’. The Prime Minister refers to the judgments of the ‘old’, legal Constitutional Tribunal regarding the Treaty of Lisbon.

However, these limits are nothing new, even in the judgments of the Polish Constitutional Tribunal, which, since its first ruling on Poland’s accession to the EU, emphasized the supremacy of the Polish Constitution and set the relationship between national and EU law.

It set the limits of the EU’s activities ultra vires, namely overstepping its competence, after all, just as the German Constitutional Court did. It also set the limits of protection of the fundamental rights of Polish citizens, stating that this protection cannot be worse than in EU law. In this way, it examined whether the EU regulation on the recognition of civil judgments breaches the Polish constitution, for instance, in a constitutional complaint (judgment in case SK 45/09).

The Polish legal order had also already anticipated that Poland’s ‘constitutional identity’ can set the limits on EU law since the judgment of the Constitutional Tribunal on the Treaty of Lisbon. But now Prime Minister Morawiecki wants to use the concept of ‘constitutional identity’ instrumentally to legalize actions that are essentially in conflict with the Constitution and European standards.

It is argued in the justification of the petition that the principle of the primacy of EU law only applies to matters in which the EU has been granted competence, and that its application is therefore ‘piecemeal’.

In principle, yes, but the CJEU also has decades of case law saying that the exclusive competence of the state cannot be used to reduce the effectiveness of EU law. This case law was already in the CJEU’s acquis in 2004 and should come as no surprise.

EU law was extended in this way. For example, to the rules on the spelling of Polish forenames and surnames in Lithuania, the rules on direct taxation for EU citizens and many other areas where EU competence has not been transferred. CJEU judgments on the Polish ‘reform of the judiciary’ are based on precisely this line of judgments. Therefore, in this area, the principle of primacy applies in full and not piecemeal.

In the justification, the Prime Minister also argues that it is a part of the constitutional traditions of EU Member States arising from the rulings of their constitutional courts that they ‘ultimately decide on the legality and validity of the norms that are applicable in a given territory’. Therefore, ‘the possible failure to implement a CJEU judgment as being incompatible with the constitution of a Member State is by no means an adjudication excess, but an element and effect of the long-standing constitutional acquis of Member States’.  The Prime Minister cites examples from Germany, Italy, the Czech Republic, and Denmark.

Throughout the history of the EU, courts in EU countries have had doubts and have entered into disputes about the activities of EU institutions and EU law. It happens that constitutional courts and the CJEU clash and develop limits and interpretations.

But there is a fundamental difference between the examples cited in support of the prime minister’s proposal and his petition.

The German, Danish, Italian and Czech constitutional courts have stated that the CJEU has overstepped its powers on an issue that is a minor part of the cooperation with the EU. However, they have not challenged the very basis of the functioning of the EU system, or the functioning of the German or Danish legal and judicial system within the EU legal system. Contrary to what Prime Minister Morawiecki is doing in his petition.

Prime Minister Morawiecki’s petition is undermining the very essence of the EU supranational legal order, which is based on cooperation between national courts and the CJEU. A state cannot function in the EU community of law if it rejects the principle of cooperation based on independent courts according to EU standards. Because its foundation is that independent courts, which are independent in the meaning of EU law, cooperate with each other within a framework of mutual trust and cooperate with the CJEU, including by submitting requests for preliminary rulings.

However, Prime Minister Morawiecki’s petition undermines the landmark CJEU judgment of 19 November 2019, which set out the criteria of an independent, impartial court in the meaning of EU law in the Polish context. As well as the CJEU judgment of 2 March 2019 in response to the questions posed by the judges of the Supreme Administrative Court in case C-824/18.

If the CJEU rules in Prime Minister Morawiecki’s favour and the EU accepts it, this will mean that the EU will become a different organization than it has been to date.

Because if the EU decides that it is not necessary for a Member State to recognize the principle of mutual trust, relying on the presumption that the EU Member States have independent, impartial courts, in order for the EU to function, the EU will cease to be the supranational community of law that we have known to date.

In turn, a state that rejects European standards for judges makes it impossible to effectively apply the provisions of the treaties, directives, and regulations, and therefore ends its legal existence in the EU; it excludes itself from the system of EU legal protection. And the whole of the EU is based on a union of law. I cannot imagine the EU not taking action against breaches of EU law in such a situation, as it did in the case of the muzzle act.

The applicant pleads that is needs to preserve ‘constitutional identity’. What does the prime minister mean?

This is a manipulation of the concept of ‘constitutional identity’. According to the applicant, the only element of this identity is the prerogative that the Polish President appoints judges, which is indisputable.

It completely ignores the constitutional mechanism of selecting judges. The choice of judges is not limited to the act of appointment by the Polish President. It consists of a number of steps that are subject to judicial review. After all, even the new Constitutional Tribunal itself admitted this in its ruling on the NCJ (K 12/18). The petition ignores the key principles contained in the Constitution that jointly shape the status of a judge and should also be reflected in the process of appointing judges.

The Prime Minister argues that this ‘constitutional identity’ rules out the application of EU law, namely the judgments of the CJEU, in the assessment of the process of selecting judges. But the EU does not want to take away the power to nominate judges in Poland from President Duda and grant it to itself.

The Prime Minister is instrumentally manipulating the notion of constitutional identity to legalize unconstitutional activities. The EU’s legal identity arises from the identity of its Member States. The Polish constitutional identity was supposed to fit into the European, EU identity. And Prime Minister Morawiecki sets it in opposition to the legal identity of the EU.

The reduction of the selection of judges to the appointment by the Polish President and then making this the axis of Poland’s constitutional identity leads to absurdities. Since the essence of selecting judges is to be the appointment by the Polish President, does he make a judicial appointment, even if the given person does not meet criteria, such as age or legal education? Can the Polish President effectively and unquestionably appoint a minor as a judge? If we rule out all other elements of the judicial selection process as being irrelevant and base everything on the will of the Polish President, then yes. 

This is about deliberately excluding the process of appointing judges from judicial review.

The muzzle act, which has been in force since the middle of February 2020, prohibits questioning the authority of the courts and examining whether a person is a judge or not. How does the Prime Minister’s petition relate to this?

Prime Minister Morawiecki is challenging the CJEU because the petition questions the provisions of EU law to which the CJEU refers in its key judgments on the independence of the courts.

He is also questioning what the CJEU did in its judgments of 19 November 2019 and 2 March 2020, namely if a national court finds that the provisions of national law and their secondary regulations are incompatible with EU law, it is to apply the national regulations, which were applicable earlier.

In his petition to the Constitutional Tribunal, Prime Minister Morawiecki is instrumentally using the concept of constitutional identity to legalize people appointed to judicial positions by the Polish President as judges, even if their appointment was made in breach of national and EU law.

The ruling majority created a conveyor belt for making judicial appointments without control – this consists of a National Council of the Judiciary, which was taken over by them, a president from the ruling camp. and the exclusion of judicial examination of the judicial selection process, which they actually wanted to achieve through the muzzle act and legally seal it with a ruling of the Constitutional Tribunal that is favorable for the government.

This is about closing the system of appointing judges and legalizing it at the national level. Whereas Poland is simultaneously being taken out of the legal system of the EU because the axis of the supranational system of EU law and the foundation of cooperation within the EU are being attacked.

Translated by Roman Wojtasz

The article was posted in Polish at OKO.press on 19 April 2021.