The European Commission is filing a complaint with the Court of Justice of the European Union against Poland. The complaint applies to the membership and operation of the Constitutional Tribunal, while the allegation applies to a breach of EU law.

This is the Commission’s fifth complaint against Poland regarding changes in the judicial system being forced through by the United Right group. In the previous three, the CJEU agreed with the Commission; the fourth case is pending.

The complaint regarding the Constitutional Tribunal is a result of two rulings of the Constitutional Tribunal issued under Stanisław Piotrowicz and Julia Przyłębska in 2021. In its rulings of 14 July 2021 and 7 October 2021, the Constitutional Tribunal held that the provisions of the EU treaties are incompatible with the Polish Constitution, explicitly questioning the primacy of EU law.

The European Commission is arguing that:

• by its rulings, the Constitutional Tribunal breached the general principles of autonomy, primacy, effectiveness and uniform application of EU law, as well as the binding force of the decisions of the Court of Justice of the European Union.

• the rulings also breach Article 19(1) TEU, which guarantees the right to effective judicial protection, by giving it an unduly restrictive interpretation. It similarly deprives individuals appearing before Polish courts of the full guarantees specified in that provision.

• the Constitutional Tribunal no longer satisfies the requirements of an independent and impartial court established by law. This arises from the irregularities in the procedures of appointing three judges in December 2015 and in the election of its president in December 2016.

What will happen now?

• until the CJEU rules on the case, the complaint does not affect the status of the Constitutional Tribunal – above and beyond the ruling of the European Court of Human Rights on the Constitutional Tribunal in 2021;

• the Constitutional Tribunal has a number of cases that will affect Poland’s relations with the EU, including the matter from President Duda’s motion to examine the constitutionality of the latest amendment to the Act on the Supreme Court, which the government argues was supposed to ‘unblock’ the funds for the NRRP; 

• Not only the European Commission, but also some people in the Constitutional Tribunal have doubts about Julia Przyłębska’s status as President of the Constitutional Tribunal; the situation in the Constitutional Tribunal will become even more tense;

• the Constitutional Tribunal might not assemble a bench that recognizes Julia Przyłębska as being the President of the Constitutional Tribunal so as to be able to pass judgment on the Act on the Supreme Court;

• there are no milestones in the NRRP that explicitly apply to the Constitutional Tribunal; Poland has undertaken in the NRRP to make reforms of the disciplinary system for judges, to liquidate the Disciplinary Chamber of the Supreme Court and to create appeal proceedings for the judges to whom the decisions of that Chamber apply, in order to strengthen certain aspects of judicial independence.

• after the Constitutional Tribunal issues its – for the time being hypothetical – ruling on the Act on the Supreme Court declaring it constitutional, followed by the signature of the Act by President Duda, the European Commission will still have an argument to stall the acceptance of the fulfilment of the milestones, so that the prospect of the disbursement of the funds from the NRRP may be delayed. However, it is also possible that the Commission may want to separate the case of the NRRP and the Constitutional Tribunal, and give the green light for EU funds;

• an application to the Constitutional Tribunal to examine the constitutionality of the regulations on the interpretation of EU law specified by the European Commission in its complaint to the CJEU can be expected; for example, an application filed by Prosecutor General Zbigniew Ziobro, a group of PiS MPs, Prime Minister Morawiecki, or perhaps President Andrzej Duda.

How does the Commission’s complaint affect the Constitutional Tribunal?

Many important cases are pending in the Constitutional Tribunal – including those of great importance to citizens’ rights and freedoms, such as the case filed 5 years ago about the repressive law reducing the level of pensions.

The Tribunal also has cases in which the decision will affect relations between Poland and the European Union.

The most famous is the case filed by President Andrzej Duda to check the constitutionality of the latest amendment to the Act on the Supreme Court passed by the United Right group, after it rejected the Senate’s amendments. As the government argued, the Act is intended to help unblock funds for the National Recovery and Resilience Plan.

Additionally, a case filed by Prosecutor General Zbigniew Ziobro regarding the examination of the constitutionality of periodic fines imposed by the CJEU on Poland is pending in the Constitutional Tribunal. The Constitutional Tribunal has been deferring hearings in this case for many months.

Until the CJEU issues its ruling – which may or may not happen this year – from a legal point of view, the complaint does not affect the status of the Constitutional Tribunal.

Ruling of the European Court of Human Rights on the Constitutional Tribunal

However, the status of the Constitutional Tribunal has already been prejudged under European law.

In May 2021, the European Court of Human Rights – a body of the Council of Europe whose case law is an organic part of the legal order of EU Member States – ruled in the case of Xero Flor v Poland that a Constitutional Tribunal with ‘stand-ins’, namely people appointed to the Constitutional Tribunal in places that had already been filled, within its bench does not satisfy the requirements of an independent court in the meaning of the European Convention on Human Rights.

The Commission refers to this judgment of the ECtHR in its allegations. The CJEU will not ignore that judgment.

It will repeat the findings of the ECtHR or perhaps go further – but obviously, to the limit of the complaint filed by the Commission, by which the Court is bound.

The rulings issued by the ECtHR are formally binding on judges in Poland and they can be held liable on disciplinary grounds for not complying with them. The ECtHR judgment in the Xero Flor case already gives the legal grounds for challenging the rulings of incorrect benches of the Constitutional Tribunal. A hypothetical judgment of the CJEU finding that the staffing of the whole of the Constitutional Tribunal and the status of Julia Przyłębska as President of the Constitutional Tribunal (from 2016, not from 2023) are non-compliant will also be such a legal basis.

The red rag of the 2021 Constitutional Tribunal ‘rulings’

The ECtHR ruled in the Xero Flor case before the Constitutional Tribunal issued its judgments:

• of 14 July 2021, which was issued under Stanisław Piotrowicz, declaring the CJEU’s decisions on interim measures regarding the main bodies of the judicial system in Poland (case P 7/20) to be incompatible with the Polish Constitution; 

• of 7 October 2021, which was issued under Julia Przyłębska, challenging the primacy of EU law and de facto stating that some of the judgments of the Court of Justice of the EU are in conflict with the Polish Constitution (Case K 3/21).

It was these rulings, which were passed in cases filed by the Disciplinary Chamber and the Prime Minister of the Polish government that Brussels considered to be the last straw.

They led to the Commission adding milestones to the Polish NRRP about the judiciary (albeit not explicitly the Constitutional Tribunal) and initiating proceedings regarding the staffing and operation of the Constitutional Tribunal, which have now progressed to the stage of a complaint being filed with the CJEU.

Why? A body that is subordinated to the politicians, but is formally still the Constitutional Tribunal of one of the largest EU countries, has contested CJEU rulings on the fundamental issue of protecting judicial independence.

This sets a very dangerous precedent for the legal order of the EU.

After a decade of Viktor Orbán’s and seven years of PiS’s governments, as well as attacks on judges in Romania, the EU knows that the problem can spill over and that governments of Member States that deliberately breach EU values, including the rule of law, can take advantage of sham constitutional courts to reject parts of European Union law that the ruling party does not like in order to remove the checks and balances for their governments.

The Orbáns and Kaczynskis dream of overcoming impossibilisms, namely authority that is unconstrained by checks and balances. They have removed most of the checks and balances in their countries. The Kaczyński/Morawiecki government has gone further than Orbán in undermining and even rejecting EU checks and balances and standards of law, with the help of an obedient Tribunal.

The European Commission is working towards preventing an avalanche of similar, destabilizing relations between the Member States and Brussels and Luxembourg in the future.

The EU has also initiated an Article 258 procedure against the German Federal Constitutional Court, which it ended without filing a complaint with the CJEU – an understanding has been reached.

However, despite what the politicians of the ruling coalition are trying to tell us, the nature of the dispute between the German constitutional court and the CJEU completely differed from the anti-EU, antagonistic rulings of the Constitutional Tribunal under Stanisław Piotrowicz and Julia Przyłębska.

Next stage of the procedure

The European Commission has moved on to the next stage of the procedure to protect EU law, which it is handling under Article 258 of the Treaty on the Functioning of the European Union.

First, the Commission notified Poland about its objections. After receiving a written response from the Polish government, it was not satisfied and presented a reasoned opinion in July 2022. The government also addressed this. After that response – and the lack of action to remedy the situation – the Commission took advantage of its right to take the Polish government to the EU Court.

The Constitutional Tribunal has also been subject to the ‘political dialogue’ procedure since 2018 with regard to the breaches of the values of the rule of law in Poland, conducted under Article 7 of the EU Treaty.  However, this procedure has been ineffective, in the face of the rule of law crisis in both Poland and Hungary, because unanimity of governments is required to make decisions on any sanctions with respect to the countries that are subject to it. Over the years, the – now dubious – Polish-Hungarian alliance has taken the bite out of the procedure. Hearings of Poland and Hungary are planned in the coming months under the current Swedish Presidency of the Council.

The European Commission assessed that the Polish Constitutional Tribunal was lacking independence as early as in 2017, when requesting the initiation of the Article 7 procedure. However, it delayed taking legal action for a long time.

It first addressed the Supreme Court, the ordinary courts and the system of disciplining judges.

In 2018, the Commission, then under the leadership of Jean-Claude Juncker, broke under pressure from Polish civic society, and initiated the first two such procedures in connection with the Acts on the Supreme Court and the ordinary courts, which reduced the retirement age for judges and, in fact, were supposed to allow judges to be replaced by those chosen by the National Council of the Judiciary elected under the principles that were changed by the PiS government. The CJEU issued its first two landmark judgments in 2019, when it held that Poland had breached EU law. The PiS government withdrew from the changes even before these judgments were issued.

The next complaint, which was filed in 2019, now by the Commission managed by Ursula von der Leyen, applied to the disciplinary system for judges that was changed by PiS from what was in place before the so-called Muzzle Act, which had been in force for three years, to one that was even stricter. The complaint applied, among other things, to the Disciplinary Chamber in the Supreme Court. On 15 July 2021, the CJEU ruled that Poland had breached EU law.

The case regarding the Commission’s fourth complaint against Poland is pending. It applies to the disciplinary system for judges, which was made stricter by the Muzzle Act on 14 February 2020. In the light of these proceedings, the CJEU ordered an interim measure with regard to the Disciplinary Chamber on 14 July 2021. 

The judgments of the Constitutional Tribunal of 14 July and 7 October 2021 undermine these judgments of the CJEU.

Translated by Roman Wojtasz

The article was published in Polish in OKO.press, February 15, 2023.