Published in Polish by tokfm.pl / PAP   on 29 March 2021.

At the beginning of March, the government’s press officer announced that the prime minister would file a petition with the Constitutional Tribunal for the comprehensive settlement of the matter of the conflict of laws between European law and the Constitution and for a confirmation of the line of judgments to date on this. As he explained then, it was a case of the Court of Justice of the European Union overstepping its competence by declaring the superiority of European law over the Polish Constitution.

‘Prime Minister Mateusz Morawiecki recently announced that he would submit a petition to the Constitutional Tribunal about the superiority of Polish constitutional law over EU law. This complaint was filed today with the Constitutional Tribunal, so this is the fulfilment of this announcement that we spoke about some time ago; this complaint was submitted today,’ Müller said at a press briefing on Monday.

The petition to the Constitutional Tribunal was announced after the CJEU ruled in response to the questions from the Supreme Administrative Court at the beginning of March that ‘successive amendments to the Act on the National Council of the Judiciary, which led to the abolition of effective judicial control of the Council’s decisions to present proposals for the appointment of candidates for Supreme Court judges to the president, may be in breach of EU law.’

According to the CJEU, if a national court acknowledges that these amendments breach EU law, it is obliged to withdraw from applying these provisions. This is about successive amendments to the Act on the NCJ, which modify, among others, the ability to appeal against resolutions of the NCJ on the appointment of Supreme Court judges.

The CJEU’s judgment applies to the requests for preliminary rulings, which the Supreme Administrative Court submitted in November 2018. At that time, the Supreme Administrative Court was considering the appeals of judges who had applied for judicial positions in the Supreme Court but had not been recommended by the NCJ in the selection procedure. Consequently, the Supreme Administrative Court suspended its proceedings and put two questions to the CJEU about the appeals of the five judges.

The Polish court then asked the CJEU whether constitutional principles are breached in the situation where, de facto, it is not possible to consider appeals against resolutions of the NCJ selecting candidates for the Supreme Court if that they are not challenged by all participants in the selection procedure.