How did the decision arise?

The Court of Justice of the European Union (CJEU) has issued a series of judgments determining that changes to the Polish judicial system implemented by the current Polish government are incompatible with EU law. Following another reversal before the CJEU on 2 March 2021 (case C-824/18), the government decided to take matters into its own hands and on 29 March 2021 filed an application signed by Prime Minister Mateusz Morawiecki with the Constitutional Tribunal requesting that the Tribunal declare certain actions of the CJEU incompatible with Poland’s Constitution.

The Prime Minister defined three narrow questions, seeking to ensure that they would have the greatest political impact. Thus, the Tribunal was asked to determine whether the Treaty on European Union (TEU):

1. authorizes or requires a court not to apply the Polish Constitution, or requires that the law be applied in a manner inconsistent with the Constitution;
2. authorizes or requires a court to apply provisions of law in a manner inconsistent with the Constitution, including applying provisions that the Tribunal has held to be unconstitutional and therefore invalid;
3. authorizes a court to assess the independence of judges appointed by the President of Poland and to assess resolutions adopted by the National Judiciary Council regarding nominations submitted to the President of the Republic of Poland for the appointment of judges.

Framing the questions in this manner, the “right” answers, politically and ideologically, for the government, were obvious — that the TEU:

1. cannot require, or even authorize, the law to be applied in a manner inconsistent with the Constitution;
2. cannot require that a law be applied, if such law has been held to be invalid by the Tribunal;
3. cannot authorize a court to question the appointment of a judge who has been sworn into office by the President.

The filing of the pleadings with the Tribunal showed how institutions have been captured by the current government. Briefs in support of the Prime Minister’s application were filed by:

• the President of the Republic of Poland
• the Marshal of the Sejm (lower house of Parliament)
• the Public Prosecutor-General
• the Minister for Justice.

A pleading in opposition was filed by the Commissioner for Human Rights, signed by the then-Commissioner Adam Bodnar.

The Tribunal consistently delayed in issuing its decision until the CJEU announced that it would issue another judgment on 6 October (in Case 487/19, a challenge to the independence and impartiality of a judge who had ruled on the validity of the transfer of another judge without such judge’s consent). The Tribunal then scheduled the issuance of its decision on the following day, 7 October. As with prior decisions, the CJEU ruled against the government on 6 October. Therefore, the next day the Tribunal issued its decision in favor of the government, justifying it on the grounds that it was required to preserve Polish sovereignty and democracy.

As the Tribunal’s decision rubber stamps the government’s position, to understand the extremely high stakes involved, it is necessary to review the arguments of the government and those of the Commissioner for Human Rights.

The arguments presented by the Polish government in the Prime Minister’s brief

In his 129-page brief, the Prime Minister asserted:

• The Tribunal’s jurisdiction arises directly from the Constitution, which states that the Tribunal shall adjudicate regarding the conformity of statutes and international agreements to the Constitution (art.188.1).
• The jurisprudence that has been created by the CJEU that EU law — rather than the Polish Constitution – should be applied by Polish courts, creates fundamental constitutional concerns. However, the principle of “sincere cooperation” added by the Treaty of Lisbon (TUE article 4.3) means that the priority of EU law is not absolute, and also justifies the right of the Tribunal to examine the questions presented by the government.
• The CJEU has abrogated to itself additional competence to determine compliance with the rule of law under TUE article 2. Thus, the CJEU is willing to entertain a preliminary question from the Supreme Court of Poland regarding the independence of judges even though no procedure for such a determination by the Supreme Court exists under Polish law.
• Constitutional review of EU law and its interpretation unquestionably may occur with respect to whether actions are ultra vires, protect fundamental rights, and threaten constitutional identity.  A refusal to implement a CJEU judgment on the grounds that it is inconsistent with domestic law is not excessive domestic judicial activism, but rather an element and effect of the long-standing development of domestic constitutional legal principles.
• The Constitutional Tribunal is the final protector of domestic constitutional order and of the sovereignty of the Member State.
• The courts of Germany, Italy, Czech Republic and Denmark have all questioned the primacy of EU law over a Member State’s constitution.
• Fundamental principles for constitutional interpretation are: that Poland is a democratic state; legal certainty; organs of public authority shall function on the basis of, and within the limits of, the law; the Constitution is the supreme law of Poland; core constitutional identity cannot be delegated; the President has fundamental duties that cannot be questioned on the basis of a law of lesser degree than the Constitution – his actions when so undertaken are final; a judge must deem a law to be constitutional unless the Constitutional Tribunal has ruled it to be unconstitutional and, if there are any doubts in this regard, the judge must direct the question to the Tribunal for a ruling; no constitutional basis exists for a review of the independence of the National Judiciary Council; and decisions of the Constitutional Tribunal are final and cannot be appealed or ignored. 
• Poland has acceded to the EU and must abide by its law. But interpreting the law in accordance with EU law is not without boundaries – such interpretation cannot be contrary to dispositive constitutional norms and always must be reconciled with the minimal functions guaranteed by the Constitution.
• Considering the activism shown in the rulings of the CJEU, the existing jurisprudence of the Constitutional Tribunal is inadequate to ensure the actual primacy of the Constitution over EU law, because the judgments of the CJEU grant courts competencies to adjudicate notwithstanding the Constitution or the conflict of such judgments with the Constitution.
• The CJEU has no right to “make law”, meaning that it has no right to interpret the provisions of the Treaties in a manner that enlarges the competencies granted to the EU by Member States and to modify established constitutional competencies of the authorities of Member States. The CJEU is not reading EU law, but rather is systematically developing it, going beyond interpretation to grant itself new competencies and interfere with the principle of respect for state sovereignty in the process of European integration.

The arguments made by the Commissioner for Human Rights in his brief

The Commissioner responded to the Prime Minister’s arguments in a succinct 32-page brief:

• The obvious context of the Prime Minister’s application is the CJEU judgment of 2 March 2021 (Case C-824/18), which critically rejected the actions of Polish authorities in the procedure of appointing justices to the Supreme Court in 2018. Implementing this CJEU judgment, the Supreme Administrative Court has already repealed (6 May 2021) the resolution of the National Judiciary Council as to the nominations to the Civil Chamber of the Supreme Court. In effect, this judgment of the Supreme Administrative Court challenges all nominations of justices made to the Supreme Court in the same manner, as being incompatible with EU law. Thus, the government is faced with a political problem it needs to resolve, using the Tribunal as the expedient.
• The issue is not that the provisions of EU law contradict the Polish Constitution. The real issue is that the government wishes to eliminate judicial independence. As EU law requires that an independent judiciary apply EU law, this “incompatibility” has been manufactured by the government.
• The government is therefore seeking the exclusion of basic EU legal principles with the aid of the Constitution – the government’s goal is not protection of the Constitution, it is protection of the government’s actions that violate the Constitution.
• The Constitution is the basic law (article 8.1), but its supremacy is limited by respect for binding international law (article 9).
• The Constitution must be interpreted in a manner that it is the supreme law of the land in a domestic context, but it does not take precedence over international law in an external context – in this way articles 8 and 9 of the Constitution are reconciled. 
• By rejecting this reconciliation, the Polish government is expounding a radical revision of international law. Noncompliance with a treaty cannot be justified on the basis of domestic law (Vienna Convention on the Law of Treaties article 27).
• It is impossible not to accept the principle of the primacy of international law – a single state may not unilaterally modify its obligations towards other international legal entities. Adoption of the primacy of domestic law would paralyze and put an end to international law.
• Crucially, the Treaties and EU law go beyond the general principles of international law, by specifying rules for the application of EU law in Member States, including the specific features and the autonomy of EU law, in order to avoid the differing application of EU law in different Member States, which would jeopardize its consistency, uniformity and full effectiveness. Through its accession to the EU, Poland freely accepted these principles.
• Priority cannot be confused with superiority. Priority is expressed through the chronology of the application of regulations – first EU, then domestic, while superiority is associated with the hierarchical superiority of some legal norms over others and derogation of the latter if they are inconsistent with the legal norms of a higher order. If a domestic law is incompatible with EU law, then EU law does not invalidate or abolish the domestic law; rather, it is held to be ineffective in relation to EU law.
• The Polish Constitution (article 90) provides a specific procedure for ratification of treaties that delegate to an international organization or international institution the competence of organs of State authority in relation to certain matters. This procedure – which requires higher parliamentary majorities than in the case of an amendment to the Constitution itself (!) — is precisely the procedure that was followed for Poland’s accession to the EU.
• Any contradictions should be eliminated with application of an interpretation respecting the relative autonomy of European law and domestic law.
• A ruling accepting the government’s position will lead to discrepancies in the meaning of EU regulations between Polish constitutional jurisprudence and jurisprudence of the CJEU. The proper action in accordance with the principle of loyalty is for the Constitutional Tribunal to submit a question to the CJEU for a preliminary ruling.
• Irrespective of the Tribunal’s decision, Polish authorities must still apply EU law. The Tribunal’s decision cannot change the Treaties.
• The Tribunal has already ruled on the constitutionality of the Treaties following Poland’s accession to the EU and the ratification of the Treaty of Lisbon.
• The government repeatedly misinterprets the judgments of the CJEU as attempting to dictate the organization of the Polish judicial system. The government presents the arguments in absolute terms, stating that any CJEU judgment regarding the organization of the courts is impermissible interference. But it is the implementation, rather than the organization, that has been questioned by the CJEU. On what basis? Because national courts apply and interpret EU law, so that they must provide the institutional guarantees laid down by the EU principle of effective judicial protection. These guarantees constitute an integral part of the judicial protection of individual legal rights that are fundamental to EU citizenship.
• It is not the government’s re-organization of the courts that resulted in the CJEU’s judgments, but rather the government’s arbitrary removal of judges from office, the use of any means to extend or reduce terms of office, the appointment of other judges to judicial positions already properly filled, or appointment in a manner violating the basic rules of the appointment process, that resulted in the CJEU judgments of a system lacking independent and impartial adjudication.
• The CJEU is not nominating Polish judges, nor stating how judges should be nominated.  Rather, it is addressing shortcomings in the system the current government has implemented.
• The refusal to recognize the competence of the CJEU, to implement its instructions, and to deny their validity by national authorities is unprecedented in the history of European integration. This case concerns a central question of EU law. The government’s demands as to national law violate the very heart of EU law, deprive it of its autonomy, threaten the uniformity and coherence of EU law, and deconstruct the self-healing mechanism of the EU legal system. The government’s interpretation of the Constitution comes down to the exclusion of the Polish judiciary from the EU’s requirements regarding the establishment, independence and impartiality of courts and judges.
• The government’s application allegedly is presented to enforce the Constitution. However, this premise is mistaken because only by rejecting the government’s application can full compliance with the Constitution be achieved. The series of decisions made by the Tribunal that infringe the Constitution show that there is no real control anymore of the constitutionality of the law. Thus, the decisions of one illegitimate organ (the Tribunal) have been used to legitimate the decisions of another illegitimate organ (the National Judiciary Council). The judgments of the CJEU serve to protect the principles of legal certainty and citizens’ trust in the state against the arbitrary, unjustified, and unconstitutional acts of the government.
• With respect to the government’s arguments that the CJEU’s judgments require that laws that have been declared unconstitutional by the Tribunal still be implemented, this statement is correct. This is an absolutely exceptional situation, justified by the circumstances in which the government has deliberately committed flagrant breaches of the Constitution and EU law, in order to defend the amendments to the law enacted by them in violation of law. Thus, where a newly enacted law granted jurisdiction to hear a dispute to a court that fails to meet the requirements of independence or impartiality, the CJEU ruled that the provisions of such a law should not be followed; instead, it held that the dispute should be heard by a court meeting these requirements. In the case (C-824/18, decided 2 March 2021) that led to the Prime Minister’s application, the CJEU held that, where a new law forbade judicial review of decisions of the National Judiciary Council, such judicial review should be conducted by the court previously empowered to review such decisions on appeal. 
• With respect to the government’s claims that the CJEU is challenging the decisions of the President on the appointment of judges, no such challenge has been made. Rather, as there is no appeal from the President’s judicial appointments, in order to ensure that judges are independent and impartial, the right of appeal is required at the level of the decision by the National Judiciary Council to nominate judicial candidates to the President for appointment.  When the government enacted a law that forbade such appeal, the CJEU held that it conflicted with EU law. The judgments of the CJEU limit the right of judges improperly nominated by this Council to adjudicate in matters of EU law, which in turn the Constitutional Tribunal cannot forbid. Nevertheless, the appointed judge can still adjudicate in matters relating purely to domestic law.
• The government’s application is a sham designed to legitimize its actions that are in fact unconstitutional. The Polish and EU legal systems belong to the same legal heritage of European states, are based on this common axiology and on values defining the principles of freedom, democracy, the rule of law, and protection fundamental rights (TEU article 2). In the field of individual rights, they are united by the European Union Convention on Human Rights and constitutional traditions common to Member States (TEU article 6.3). Therefore, although a conflict between EU law and the Constitution might arise, it can only appear exceptionally. It is the failure of the recent changes to the Polish judicial system that has resulted in this crisis, whereas the Polish government is trying to present Poland as the victim of the EU exceeding the limits of its competences and allegedly acting ultra vires, thus creating the sham conflict between the two legal systems.
• The Constitutional Tribunal is not an effective constitutional court capable of adjudicating the issues presented in the government’s application because of: (1) the unlawful replacement of some judges of the Constitutional Tribunal and the introduction of replacement judges (co-called double judges) to the Tribunal while the existing judges were still sitting; (2) effective control over the functioning of the Constitutional Tribunal was taken by a person appointed to the office of the President of the Constitutional Tribunal in violation of the statutory procedure for appointment to this office; (3) arbitrary selection of judges for panels in cases of governmental interest, while disregarding the proper statutory criterion for appointments to panels; and (4) discretionary replacements made by the person acting as the President of the Constitutional Tribunal of panel members during the course of a proceeding, without justification and contrary to law.  This conclusion is shared by both the European Commission and the European Parliament.

Conclusions

The Tribunal ruled that the CJEU has taken upon itself new competencies that are incompatible with the functioning of Poland as a democratic and sovereign state. This ruling, the justification presented by the government that led to it, and the rejection of the arguments presented by the Commissioner for Human Rights lead to the following conclusions regarding the threat to the rule of law in Poland: 

• The government’s arguments, which are the basis of the Tribunal’s decision, amount to a direct attack on the fundamental principles of application of the rule of law in the European Union.
• The current government has captured numerous State institutions by ignoring the law, enacting laws eliminating any right of review of decisions taken by such institutions, and ensuring that an institution such as the Constitutional Tribunal does not function as an independent tribunal.
• The CJEU and the Constitutional Tribunal are now competing courts, furthering the government’s years’ long efforts of sowing confusion, upsetting legal certainty, and denigrating the rule of law.
• The current government seeks to free itself from the constraints of EU law while formally remaining a Member State. Going forward, when the CJEU issues a judgment that the government does not like, it will suffice for the government to apply for non-recognition of such judgment on the grounds that it is incompatible with Polish democracy and sovereignty. 

Citations

The decision of the Constitutional Tribunal (matter K 3/21) was officially published on 12 October 2021 and is available at: https://dziennikustaw.gov.pl/D2021000185201.pdf 

The application of the Prime Minister and the Response of the Commissioner for Human Rights that are summarized above (with certain passages translated verbatim) are available at the website of the Constitutional Tribunal: https://trybunal.gov.pl/postepowanie-i-orzeczenia/wokanda/art/11651-ocena-zgodnosci-z-konstytucja-rp-wybranych-przepisow-traktatu-o-unii-europejskiej. The other documents filed in the matter are also available there.

A helpful commentary on the oral proceedings before the Tribunal and its decision is available on the website of the Commissioner for Human Rights (currently, Marcin Wiącek): https://bip.brpo.gov.pl/index.php/pl/content/tk-stwierdzil-niekonstytucyjnosc-traktatow-europejskich 

Another useful brief commentary recently was published by Judge Piotr Mgłosiek, Czas próby dla siędzów (A Time of Trial for Judges), Gazeta Wyborcza, 9 October 2021, available at: https://wyborcza.pl/7,162657,27664371,kazdy-sedzia-musi-zdawac-sobie-sprawe-ze-nadszedl-najwazniejszy.html