By Magdalena Gałczyńska

The text was originally published in Polish at Onet.pl, April 20.

The Constitutional Tribunal addressed the matter of constitutionality of the resolution of the three Chambers of the Supreme Court of 23 January 2020 on the motion of Prime Minister Mateusz Morawiecki.

• The Constitutional Tribunal held that the resolution is incompatible with numerous articles of the Polish constitution, as well as the Treaty on European Union and the European Convention on Human Rights.
• Judges Leon Kieres, Piotr Pszczółkowski and Jarosław Wyrembak submitted dissenting opinions. They stated that the Constitutional Tribunal did not have the authority to review resolutions of the Supreme Court.
• In an interview with Onet, a judge of the Court of Justice of the European Union professor Marek Safjan pointed out that the decision of the Constitutional Tribunal does not have any legal effects on the Supreme Court’s resolution .
• In his opinion, the Constitutional Tribunal placed itself in the role of a “super court,” which it had no right to do. “The Constitutional Tribunal’s decision is hugely surprising and arouses great anxiety, because it shows that attempts can be made to block CJEU judgments. And that would threaten Poland’s place in the Union,” says the former President of the Constitutional Tribunal, today a judge of the CJEU.

The Constitutional Tribunal considered the case with its full bench, but in exceptional circumstances. Neither the public nor the media were allowed into the courtroom, the judges sat at the prescribed distances from each other, and they were wearing masks and gloves. The President of the Constitutional Tribunal removed her mask during her speech and spoke without it. In this case, the rapporteur was a new member of the Constitutional Tribunal –former PiS MP Stanisław Piotrowicz.

The prime minister’s representatives argued that in the resolution of the three chambers, the Supreme Court exceeded its authority: it created a new legal norm and new provisions, which the Supreme Court is not authorised to do.  The Supreme Court held in January that judges appointed by the new NCJ did not satisfy the standard of independence and impartiality of the executive authority, so they should not continue to adjudicate. This resolution has the force of a legal principle and is applicable to all courts in Poland. But the Constitutional Tribunal has tried to deprive it of that force, ruling the findings of the Supreme Court judges as being incompatible with the constitution and international law.

Professor Safjan: the Constitutional Tribunal’s decision has no legal effects on the validity of the Supreme Court’s resolution

“I find a judgment of the Constitutional Tribunal of this type and of such content incredible,” Marek Safjan, Judge of the CJEU and former President of the Constitutional Tribunal, said to Onet.

“The Tribunal does not have the competence to examine compliance of judgments of common courts or the Supreme Court with the constitution. The resolution by the Supreme Court did not create any legal norm that could be examined by the Constitutional Tribunal, whereas the Constitutional Tribunal only examines norms and not their application. The resolution of the three chambers from January this year was precisely the application of the criteria that were also formulated by the EU Court of Justice in its notorious judgment of 19 November 2019,” he emphasises.

“The Supreme Court relied on the criteria specified by the CJEU when assessing whether judges from the Disciplinary Chamber and others also recommended by the new National Council of the Judiciary guarantee independence and impartiality of adjudication,” explains Safjan.

He points out that the Constitutional Tribunal’s decision has no legal effects on the Supreme Court’s resolution. “This resolution is a fully proper act. Furthermore, it is precisely the decisions and rulings of the Supreme Court that previously applied these criteria that are referred to by the EU Court of Justice in its decision of 8 April. Almost two weeks ago, the CJEU pointed out that the Disciplinary Chamber of the Supreme Court does not guarantee independence and its activities should be suspended.

“A huge surprise and great anxiety about Poland’s place in the EU”

Professor Safjan points out that no national court in any EU Member State has the power to review judgments of the EU Court of Justice.

“The Constitutional Tribunal ignored the principle established a long time ago in the CJEU case-law that judgments of the Court of Justice of the EU are universally binding and must be implemented. This is the duty of every court. And no court, including a constitutional court, can prohibit the application of the criteria specified in Luxembourg,” he emphasises.

“The Constitutional Tribunal cannot examine compliance with EU law and this is precisely what it was trying to do. This is a form of censorship of the judgment of the CJEU, which the Supreme Court is correctly and fully implementing in the above resolution of the three chambers. Such attempts by a national court to examine decisions of the CJEU can lead to complete anarchy. Such an approach would be the end of the legal order of the EU and would have to cause its disintegration,” emphasises Prof. Safjan.

“I consider the judgment of the Constitutional Tribunal hugely surprising, and it gives rise to great anxiety. Such an approach indicates that attempts may be made to block the implementation of CJEU’s decision of 8 April 2020,” he says.

“And this decision arises from the same premises as the resolution of the three chambers of the Supreme Court. Perhaps, as a consequence, a very dangerous collision may arise between the Polish legal system and EU law. This, in turn, could threaten Poland’s place in the EU legal system,” he adds.

Professor Safjan reiterates that it was precisely he who presided over the panel of judges in the Constitutional Tribunal which held in 2005 that the Polish constitution did not constitute an obstacle to Poland joining the European Community.

“This meant that Polish law does not prevent the application of the Treaties and EU law. It led to the acceptance of both the mechanism of requests for preliminary rulings and the primacy of EU law over national law,” he explains.

”Meanwhile, after the recent decision by the Constitutional Tribunal, the question arises as to whether Poland is going to renegotiate the accession treaty because of such an approach by this body to the norms set by the EU Court of Justice? Or maybe change the constitution? An extreme scenario, although unfortunately one that also comes to mind is Poland’s exit from the EU. That is why I repeat that I find the judgment by the Constitutional Tribunal to be deeply disturbing,” concludes Safjan.

Translated by Roman Wojtasz