What happened? On Tuesday, 13 July 2021, the Constitutional Tribunal, headed by President Julia Przyłębska, heard a case filed by Prime Minister Mateusz Morawiecki – the matter applies to the compliance of the interpretation of EU treaties with the Polish Constitution.

Prime Minister Morawiecki claims that the interpretation of Articles 1 and 19 of the Treaty on European Union is unconstitutional. Similarly, he wants to deprive Polish courts of the ability to apply the rulings of the Court of Justice of the EU on the independence of courts and the independence and impartiality of judges in Poland.

The Prime Minister’s motion was supported by other participants of the proceedings before the Constitutional Tribunal – the President, the Sejm and the Prosecutor General. Their positions were presented at the hearing.

A dissenting position was presented by Ombudsman Adam Bodnar.

The session on Tuesday lasted from 11 a.m. to 4.15 p.m. President Przyłębska ordered an adjournment until Thursday 15 July at 1 p.m. Ombudsman Adam Bodnar’s term of office ends on that day.

During the hearing before the Constitutional Tribunal, PiS MP Arkadiusz Mularczyk, who represented the position of the Sejm, criticized the position presented by the ombudsman and expressed the hope that the new ombudsman will fit better into the dialogue held by the constitutional courts of the EU Member States with the European Court of Justice.

Professor Marcin Wiącek will become the new ombudsman if his election by the Sejm is accepted by the Senate.

In addition to Julia Przyłębska, the panel of the Constitutional Tribunal of just five members includes Constitutional Tribunal Judges Bartłomiej Sochański (rapporteur), Leon Kieres (the only one in the Constitutional Tribunal not elected at the time of the PiS government), Jakub Stelina and Michał Warciński, although matters of such importance should be considered by the full membership of the Constitutional Tribunal.

What were the Ombudsman’s arguments against the Prime Minister’s motion? The Ombudsman’s position was presented by the Ombudsman himself, Dr hab. Adam Bodnar and the main specialist in the Ombudsman’s Office, Dr. Paweł Filipek.

Bodnar explained before the Constitutional Tribunal that ‘the proceedings in this case are not necessary and essential; the case should be discontinued’. And if the Tribunal has doubts about the interpretation of EU law, it should ask a question of the Court of Justice of the EU.

Bodnar warned that if the Court rules as the applicant and the other participants of the proceedings – the President, the Sejm and the Prosecutor General – would like, this will constitute grounds for not applying the judgments of the Court of Justice of the EU in Poland.

This is because the Polish constitutional order interpreted by the Constitutional Tribunal as being incompatible with EU values would be an obstacle to this. This would be a blow to the heart of the legal order of the European Union. The Ombudsman asked whether the Prime Minister’s motion was about ruling out the Polish judiciary from the requirement of independence. He was demonstrating that the real problem is the application of Polish law, which is bringing about political control of court decisions.

After listing the principles of judicial independence and their independence from politicians, Dr Filipek, on behalf of the Ombudsman, asked the Constitutional Tribunal whether it was these principles to which the Polish authorities do not want to subscribe.

Full interventions of Mr. Bodnar and Mr. Filipek are here in Polish.

Is the Constitutional Tribunal resolving a real legal conflict? No. EU law arises from the constitutional traditions of the Member States. As Professor Stanisław Biernat, a retired judge of the Constitutional Tribunal, explained to OKO.press, there is no conflict between the case law of the Court of Justice and the Polish constitution, which also protects the independence of the courts. This conflict has been artificially ‘created’ by the applicant in order to become free of the restrictions arising from EU law and to completely subordinate the Polish courts to the political authority.

The real conflict is between the law adopted by the government and the Polish Constitution, but there is no independent Constitutional Tribunal to confirm this. That is why the rulings of the CJEU, which assessed that elements of the changes in the courts since 2015 are in conflict with EU law, are so important.

What will happen if the CJEU rules in Prime Minister Morawiecki’s favour? The Constitutional Tribunal has been subordinated to the political authority since 2016; it is not independent. Furthermore, since 2015, it has been improperly staffed – it has included so-called stand-ins. But the panel deciding on Prime Minister Morawiecki’s motion does not actually have any stand-ins. It will therefore be more difficult to argue that the decision of the Constitutional Tribunal is not a binding judgment in Poland.

Judgments of the Constitutional Tribunal are binding on all state bodies, including judges.

Judges in Poland face a decision: they can either disregard the Constitutional Tribunal’s decision, or they can recognize it as a judgment and apply it.

Article 107, para. 1 and 3 of the Law on the Structure of Ordinary Courts stipulate that judges may be held liable on disciplinary charges for not respecting a judgment. Judges may be held liable for the ‘obvious and gross breach of the provisions of the law’ or for ‘actions questioning the existence of a judge’s official standing, the effectiveness of a judge’s appointment, or the legitimacy of a constitutional body of the Republic of Poland.’

If judges respect the expected judgment of the Constitutional Tribunal, they will not be able to invoke the provisions of EU law, as interpreted in the CJEU rulings on the independence of the judiciary, in order not to apply provisions of Polish laws which are in conflict with EU law.

The judgments of the Court of Justice of the EU are a problem for the ruling party in Poland. They are a legal weapon for independent judges who, in accordance with the principle of the primacy of EU law, are obliged to disregard the provisions of national law in the event of a conflict between EU law and the provisions of statutes (to apply EU law before national law).

How will the judgment affect the PiS government’s conflict with the European Commission? It will add fuel to an already raging fire. It will essentially be the termination of obedience with respect to EU law by a Member State.

Prime Minister Morawiecki referred his motion to the Constitutional Tribunal in the light of the ‘political dialogue’ procedure being held against Poland since December 2017 in view of the threat to the implementation of the EU rule of law principle in Poland. And just before the Court of Justice of the EU issues its judgment on 15 July in a very high-profile case from the European Commission’s complaint in October 2019 against the Polish government over the United Right’s stricter model of disciplinary liability of judges.

On 29 June 2021, European Commissioner for Justice Didier Reynders made the assurance that, if the Polish Constitutional Tribunal issues a judgment undermining EU law, the Commission would immediately launch proceedings against the Polish government. Within these proceedings, it may take the government to the Court of Justice of the EU, and request fines in its further steps.

Are we facing a legal PolExit? Ombudsman Adam Bodnar explained at the hearing that a judgment of the Constitutional Tribunal banning the application of CJEU rulings in Poland would strike at the very heart of EU law and could lead to the exclusion of Polish courts from the EU requirements of the independence of the courts, as well as the independence and impartiality of judges. In turn, this will lead to a breach of the EU principles of effective court protection and the rule of law. And this will be irreparable.

The Conference of Ambassadors of the Republic of Poland, which associates former representatives of the Republic of Poland abroad, warned that the consequence of a judgment of the Constitutional Tribunal in favour of the prime minister, president, prosecutor general and the Sejm would be to take Poland out of the European Union: ‘Poland’s membership of the European Union is at stake! The motions filed by Prime Minister Morawiecki and a group of PIS MPs question the principles underlying the country’s membership of the EU. These are essentially motions intended to exclude Poland from EU membership,’ the diplomats wrote.

Professor Jerzy Kranz of the Koźmiński University assessed that the probable judgment of the Constitutional Tribunal would be in line with the development of constitutionalism in Russia: ‘The law on the constitutional court was amended in Russia in 2015 and the constitution in 2020. Now, if the Russian constitutional court rules that a resolution of an international organization or a judgment of an international tribunal is incompatible with the Russian constitution, then, under Russian law, it is not applicable.’

Translated by Roman Wojtasz

The article was posted in Polish at OKO.press on 13 July 2021.

A recording of the hearing at the Constitutional Tribunal can be seen on the Video-KOD website.