The European Commission is taking Poland to the CJEU for the Constitutional Tribunal. Our explainer

Share

Co-founder and editor of Rule of Law in Poland and The Wiktor Osiatyński Archive, a rule of law monitoring project,…

More

The European Commission is accusing Poland that the Constitutional Tribunal is breaching the legal order of the European Union and the rights of EU citizens with its rulings. The Commission is also contesting the choice of the ‘stand-ins’ and Julia Przyłębska as President of the Constitutional Tribunal. That is why it is referring the case to the EU Court of Justice. What happens next? Our explainer.



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; 
  • 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.



Author


Co-founder and editor of Rule of Law in Poland and The Wiktor Osiatyński Archive, a rule of law monitoring project,…


More

Published

February 20, 2023

Tags

Supreme CourtConstitutional TribunalDisciplinary ChamberPolandjudgesdisciplinary proceedingsrule of lawZbigniew ZiobroNational Council of the JudiciaryCourt of Justice of the EUjudicial independenceEuropean CommissionEuropean UnionAndrzej DudaMałgorzata ManowskaCourt of JusticeEuropean Court of Human RightsMinister of JusticeIgor Tuleyadisciplinary systemAdam Bodnarmuzzle lawJarosław KaczyńskiNational Recovery PlanCJEUMateusz MorawieckiCommissioner for Human Rightsneo-judgesCourt of Justice of the European UniondemocracyPrzemysław RadzikWaldemar ŻurekNational Council for Judiciarypresidential electionselectionselections 2023disciplinary commissionercriminal lawJulia PrzyłębskaPiotr SchabKamil Zaradkiewiczmedia freedomharassmentpreliminary rulingsHungarySupreme Administrative Courtelections 2020K 3/21Dagmara Pawełczyk-WoickajudiciaryFirst President of the Supreme CourtŁukasz PiebiakprosecutorsPresidentRecovery FundBeata MorawiecPaweł JuszczyszynProsecutor GeneralMichał Lasotafreedom of expressionMaciej NawackiEuropean Arrest WarrantSejmprosecutionCOVID-19Regional Court in KrakówCriminal ChamberNational ProsecutorConstitutionPrime MinisterMinistry of JusticecourtsMałgorzata GersdorfMarek SafjanEU budgetdisciplinary liability for judgesMaciej FerekOSCEWojciech HermelińskiExtraordinary Control and Public Affairs ChamberIustitiacriminal proceedingsWłodzimierz WróbelVenice Commissionconditionality mechanismAleksander StepkowskiTHEMISLabour and Social Security ChamberStanisław BiernatPiScommission on Russian influenceStanisław PiotrowiczPresident of the Republic of PolandNCJimmunityconditionalityAnna DalkowskaJustice FundcorruptionLaw and JusticeNational Public ProsecutorCouncil of Europefreedom of assemblyKrystian MarkiewiczreformsReczkowicz and Others v. PolandKrzysztof Parchimowiczacting first president of the Supreme Court2017policeSenateAndrzej Zollmedia independenceSLAPPdefamationStrategic Lawsuits Against Public ParticipationLGBTJustice Defence Committee – KOSEwa ŁętowskaDidier ReyndersFreedom HouseAmsterdam District CourtMay 10 2020 electionsXero Flor w Polsce Sp. z o.o. v. PolandOrdo IurisPresident of PolandAndrzej StępkaBroda and Bojara v PolandSylwia Gregorczyk-AbramPiotr GąciarekJarosław WyrembakPM Mateusz MorawieckiArticle 7Next Generation EUConstitutional Tribunal PresidentUrsula von der LeyenLex DudaTVPmediaLex Super OmniaProfessional Liability ChamberreformJarosław DudziczK 7/21National Reconstruction PlansuspensionparliamentChamber of Professional LiabilityEAWArticle 6 ECHRP 7/20Supreme Court PresidentLech GarlickiMichał WawrykiewiczabortionPiotr PrusinowskiNational Electoral Commissionelectoral codeJanusz NiemcewiczTeresa Dębowska-RomanowskaStanisław RymarMałgorzata Pyziak- SzafnickaKazimierz DziałochaBogdan ŚwięczkowskiNetherlandsAndrzej MączyńskiMarek MazurkiewiczvetoStefan JaworskiMirosław GranatOLAFBiruta Lewaszkiewicz-PetrykowskaViktor OrbanJózef IwulskiMaciej MiteraSLAPPsjudcial independenceWojciech ŁączkowskiAdam JamrózPATFoxFerdynand RymarzKonrad WytrykowskiRafał Puchalskismear campaignmilestonesKrakówMarzanna Piekarska-Drążekstate of emergencyUkraineelectoral processBelaruscourt presidentsAdam SynakiewiczXero Flor v. PolandAstradsson v Icelandright to fair trialEdyta BarańskaJoanna Hetnarowicz-SikoraCentral Anti-Corruption BureauJakub IwaniecsurveillancePegasusDariusz DrajewiczJoanna Misztal-KoneckaCivil ChamberK 6/21Wojciech MaczugaSzymon Szynkowski vel SękDariusz ZawistowskiOKO.presselections integrityelections fairnessMarek ZubikBohdan ZdziennickiMirosław WyrzykowskiSławomira Wronkowska-JaśkiewiczPiotr TulejaJerzy StępieńAndrzej RzeplińskitransparencyMariusz KamińskiMaciej Taborowskiinsulting religious feelingsPaweł Filipekpublic mediaMariusz MuszyńskiKrystyna PawłowiczlexTuskcourt changesMarek PietruszyńskiMichał LaskowskiSupreme Audit Officeabuse of state resourcesLaw on the NCJEuropean ParliamentJarosław GowincoronavirusRussiaZuzanna Rudzińska-BluszczFree Courts11 January March in WarsawCCBEPiebiak gatehuman rightsrecommendationC-791/19Human Rights CommissionerMarcin WarchołLGBT ideology free zonesreportEuropean Association of JudgesPiotr Pszczółkowskiretirement agedecommunizationGeneral Assembly of the Supreme Court Judgesintimidation of dissentersdemocratic backslidingpublic opinion pollZiobroEU law primacyMarian BanaśThe Council of Bars and Law Societies of Europecriminal codeBelgiumlex NGOEwa Wrzosekcivil societytransferAdam Tomczyńskimedia pluralismBohdan Bieniek#RecoveryFilesFrans TimmermansLIBE Committeerepairing the rule of lawUS Department of StateMarcin KrajewskiKarolina Miklaszewska2018NGOFull-Scale Election Observation MissionODIHRNations in TransitStanisław ZabłockiPetros TovmasyanJerzy KwaśniewskiPiotr MazurekGrzegorz PudaNational Recovery Plan Monitoring CommitteeWiesław KozielewiczChamber of Extraordinary Control and Public AffairsMałgorzata Dobiecka-WoźniakCouncil of the EURafał LisakMichał DworczykWojciech Sadurskidefamatory statementsRome StatuteInternational Criminal CourtC-619/18Rights and Values Programmejudgepress releaseAntykastalex WoślegislationCourt of Appeal in KrakówPutinismKaczyńskiPaulina AslanowiczJarosław MatrasMałgorzata Wąsek-Wiaderekct on the Protection of the PopulatioWorld Justice Project awardStanisław ZdunIrena BochniakKrystyna Morawa-FryźlewiczŁukasz BilińskiIvan MischenkoJoanna Kołodziej-MichałowiczMonika FrąckowiakArkadiusz CichockiEmilia SzmydtTomasz SzmydtE-mail scandalAndrzej SkowronKasta/AntykastaKatarzyna Chmuraadvocate generalGrzegorz FurmankiewiczMarek JaskulskiEwa ŁąpińskaZbigniew ŁupinaPaweł StyrnaSwieczkowskiDworczyk leaksMałgorzata FroncHater ScandalAleksandra RutkowskaGeneral Court of the EUArkadiusz RadwanLech WałęsaWałęsa v. Polandright to an independent and impartial tribunal established by lawpilot-judgmentDonald Tusk governmentRafał WojciechowskiDobrochna Bach-Goleckalex RaczkowskiPiotr Raczkowskithe Spy ActdisinformationCT Presidentfundamental rightsNational Broadcasting Councilelection fairnessequal treatmentcivil lawMarcin MatczakDariusz KornelukNational School of Judiciary and Public Prosecution (KSSiP)codification commissiondelegationsWatchdog PolskaDariusz BarskiLasotapopulismState TribunalRadosław BaszukAction PlanJustice MinistryVěra JourováDonald Tuskjustice system reformAnti-SLAPP Directiveinsultgag lawsuitsstrategic investmentinvestmentlustrationJakub KwiecińskidiscriminationAct on the Supreme Courtelectoral commissionsEuropean Court of HuKrzysztof RączkaPoznańTomasz Koszewskitest of independenceSebastian MazurekElżbieta Jabłońska-MalikJoanna Scheuring-WielgusoppositionThe National Centre for Research and DevelopmentAdam Gendźwiłłtransitional justiceDariusz DończykKoan LenaertsKarol WeitzZbigniew KapińskiAnna GłowackaCourt of Appeal in WarsawOsiatyński'a ArchiveEUUS State DepartmentAssessment Actenvironmentextraordinary commissionWhite PaperKaspryszyn v PolandNCR&DNCBiREuropean Anti-Fraud Office OLAFJustyna WydrzyńskaAgnieszka Brygidyr-DoroszJoanna KnobelCrimes of espionageJędrzej Dessoulavy-ŚliwińskiMarek Piertuszyńskihate speechhate crimesmedia taxadvertising taxmediabezwyboruJacek KurskiKESMAIndex.huGrzęda v PolandŻurek v PolandPrzemysław CzarnekJacek CzaputowiczMarcin RomanowskiElżbieta KarskaPrzemysła Radzikmedia lawRafał TrzaskowskiSobczyńska and Others v PolandTelex.huJelenForum shoppingFirst President of the Suprme CourtEuropean Economic and Social CommitteeSebastian KaletaOrganization of Security and Co-operation in EuropeC-156/21C-157/21foreign agents lawArticle 2Rome IIJózsef SzájerChamber of Extraordinary VerificationKlubrádióequalityGazeta WyborczaLGBT free zonesPollitykaBrussels Ilegislative practiceENAZbigniew BoniekAK judgmentautocratizationMultiannual Financial FrameworkOpenbaar MinisterieRegional Court in Amsterdamabortion rulingArticle 10 ECHRprotestsinterim measuresLeszek MazurIrena MajcherAmsterdamLMmutual trustthe Regional Court in Warsawpublic broadcasterUnited NationsForum Współpracy Sędziówthe NetherlandsDenmarkact on misdemeanoursCivil Service ActParliamentary Assembly of the Council of EuropeNorwegian Ministry of Foreign AffairsNorwegian fundsNorwayKraśnikOmbudsmanKarlsruheAusl 301 AR 104/19SwedenFinlandMariusz KrasońC-487/19GermanyCelmerC354/20 PPUC412/20 PPUIrelandMarek AstLSOright to protestSławomir JęksaWiktor JoachimkowskiRoman Giertychtrans-Atlantic valuesMichał WośMinistry of FinancelawyersMirosław Wróblewskirepressive actborderprimacyEU treatiesAgnieszka Niklas-BibikSłupsk Regional CourtMaciej RutkiewiczAct of 20 December 2019Amnesty InternationalJacek SasinEvgeni TanchevKochenovPechPaulina Kieszkowska-KnapikMaria Ejchart-DuboisAgreement for the Rule of LawPorozumienie dla PraworządnościAct sanitising the judiciaryFreedom in the WorldECJErnest BejdaThe First President of the Supreme CourtMaciej CzajkaMariusz JałoszewskiŁukasz RadkepolexitFrackowiakDolińska-Ficek and Ozimek v PolandRzeszówKoen LenaertsharrassmentOlimpia Barańska-Małuszeinfringment actionHudocPKWKonrad SzymańskiPiotr BogdanowiczPiotr BurasLeon KieresIpsosEU valuesNational Prosecutor’s OfficeBogdan ŚwiączkowskiDisicplinary ChamberTribunal of StateOlsztyn courtPrzemysła CzarnekEducation MinisterENCJauthoritarian equilibriumArticle 258postal voteTVNjournalistslexTVNEwa MaciejewskaGerard BirgfellerPolish mediaAlina CzubieniakSimpson judgmentpostal vote billclientelismoligarchic systemEuropean Public Prosecutor's Officeresolution of 23 January 2020Polish National FoundationLux VeritatisMałgorzata BednarekPiotr WawrzykIsrael