Defiance of EU Law by the Polish Constitutional Tribunal

Anna Wojcik

Max Planck Institute for Comparative Public Law and International Law.

The first and most critical element of democratic backsliding in post-2015 Poland was the capture of the Constitutional Tribunal, which was first neutralized before being taken over. Since 2016, the Constitutional Tribunal has ceased to fulfill its constitutional role as an independent centralized reviewer of the law's constitutionality. Instead, its rulings have become a reflection of the desires and policies of the ruling majority.

In May 2021, the European Court of Human Rights (ECtHR), in Xero Flor v Poland, ruled that the Constitutional Tribunal panels, which include persons appointed by President Andrzej Duda to seats already lawfully filled, are not a court established by law within the meaning of Article 6 of the European Convention on Human Rights.

The Helsinki Foundation for Human Rights report lists the Constitutional Tribunal’s judgments in irregular panels between 2017 and 2022. One of them is the P 7/20 ruling of 14 July 2021. The Constitutional Tribunal ruled in this landmark case that the provisions of the Treaty on the EU (TEU), in conjunction with the Treaty on the Functioning of the EU (TFEU), are incompatible with the Polish Constitution to the extent that the Court of Justice of the European Union (CJEU) has issued ultra vires interim measures concerning the judiciary.

This was a landmark decision in the history of Polish and European constitutionalism. For the first time, the Constitutional Tribunal in an EU member state ruled that basic principles and mechanisms of EU law are incompatible with the Constitution of a member state. This was a complete departure from the settled jurisprudence of the Constitutional Tribunal before 2015 regarding Poland’s relations with the EU.

By the time it delivered that ruling, the captured Constitutional Tribunal had already ruled multiple times in favor of the Law and Justice (PiS) government in cases related to the rule of law crisis in Poland. It routinely confirmed the constitutionality of PiS policies; for example, the election of Judges to the National Council of the Judiciary (NCJ) by Parliament instead of by the judiciary (as had occurred before). On top of that, the Constitutional Tribunal has been used domestically to delegitimize state institutions that are independent from the ruling party. For example, it has ruled that a resolution on the NCJ issued by the independent Supreme Court is invalid (case U 2/20).

In the early years of Poland’s rule of law crisis, the PiS government respected the CJEU's rulings. This changed when, in November 2019, the CJEU issued a landmark judgment in the AK case (C-585/18) confirming that panels of Judges are not independent under EU law if appointed or promoted in the procedure involving the NCJ. The PiS government responded by launching a series of attacks. First, it attacked the brave Polish Judges who wanted to apply the CJEU judgment and faced disciplinary reprisals for doing so. The ruling majority passed the so-called muzzle law, that further tightened the disciplinary system for Judges, which is abused to harass and silence them. Second, a Judge in the Disciplinary Chamber in the Supreme Court issued a motion for the case P 7/20, and later Prime Minister Mateusz Morawiecki issued a motion for the case K 3/21 concerning the constitutionality of the CJEU's interpretation of judicial independence.

Case P 7/20 concerned the obligation of an EU member state to implement interim measures about the organizational structure and functioning of constitutional authorities within the judicial branch of government of that member state. The referring Court issued this motion after the CJEU ordered interim measures in case C-791/19 R and requested that the Disciplinary Chamber (that is, the referring Court) not adjudicate in disciplinary cases regarding judges. The referring Court argued that the CJEU’s interim measure violated the Polish Constitution’s supremacy. It also claimed that Poland cannot entrust an international organization with the competence to decide on the system and jurisdiction of courts and the procedure before courts without losing the attribute of a sovereign state.

The Constitutional Tribunal ruled that Article 4(3) of the TEU (regarding the principle of sincere cooperation and mutual trust between member states in carrying out tasks which flow from the Treaties), in conjunction with Article 279 of the TFEU (the CJEU’s competence to prescribe interim measures, if necessary), is inconsistent with the Polish Constitution, in that it prescribes interim measures about the organizational structure and functioning of Polish courts and to the mode of proceedings before those courts. The Constitutional Tribunal argued that such prescriptions violate Article 2 (the Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice), Article 7 (the organs of public authority shall function based on and within the limits of, the law), Article 8(1) (the Constitution shall be the supreme law of the Republic of Poland), and Article 90(1) (the Republic of Poland may, under international agreements, delegate to an international organization or international institution the competence of organs of State authority concerning some issues) in conjunction with Article 4(1) (supreme power in the Republic of Poland shall be vested in the Nation) of the Polish Constitution. According to the Constitutional Tribunal, these Articles preclude the direct application of ratified international agreements, such as the EU treaties.

In the P 7/20 judgment’s reasons, the Constitutional Tribunal emphasized that EU bodies and institutions should respect the principle of legality. It argued that EU law's direct effect and primacy were limited to the common market and competencies indisputably transferred to the EU. The Constitutional Tribunal criticized CJEU judgments (the AK judgment of 19 November 2019, in case C-585/18 and the Asociaţia “Forumul Judecătorilor din România” judgment in case C-83/19). Furthermore, the Tribunal argued that the CJEU’s interim measures must fall within the limits of the competence delegated by the member state and must respect the member state’s constitutional identity, in respect of which the Tribunal argued that the state could not transfer all competencies to the EU. The Tribunal emphasized that the transfer of competencies shall not result in the “progressive abandonment of the sovereignty of the member state” and opposed the CJEU’s interim orders related to the judiciary, arguing they are an example of the CJEU acting ultra vires. The Tribunal argued that the CJEU had recognized itself as having the power to suspend national courts and national judges and reproached the CJEU for creating alleged legal uncertainty in Poland.

Naturally, the reasoning presented by the Constitutional Tribunal in P 7/20 is incompatible with the CJEU’s settled jurisprudence on judicial independence. For instance, the landmark CJEU judgment in the Portuguese judges' case (C‑64/16 in 2018) clarified that the organization of the judiciary, while remaining a member state competence, must meet EU law standards inferred from Article 19(1) TEU and Article 47 of the EU Charter on Fundamental Rights. Furthermore, in its reasoning, the Constitutional Tribunal demonstrates a lack of understanding of or, worse, attempts to manipulate the CJEU’s interim order. In the interim order, the CJEU has not granted itself the power to suspend Polish Judges; it only requires suspension of the application of specific domestic law provisions until the case's final ruling is presented. The argument that the CJEU overstepped competencies is false, as the CJEU may order the necessary interim measures in every case it considers. In fact, 25 retired Judges of the Constitutional Tribunal considered the decision in P 7/20 an unjustified departure from the settled jurisprudence of the Court.

The Constitutional Tribunal in P 7/20 was manipulated to create para-legal arguments about why the government does not and will not implement future interim measures ordered by the CJEU. The judgment in the P 7/20 case was announced an hour before the CJEU Vice President issued another interim order against Poland, in case C‑204/21 R, concerning a broader system of disciplinary responsibility for Judges created by the PiS government. Starting from the judgment in P 7/20, the Constitutional Tribunal became a tool for the PiS government’s domestic rule of law policy and its policy towards the EU and the European Convention on Human Rights. However, these actions did not go unanswered. The Constitutional Tribunal’s P 7/20 judgment on interim measures and later judgment in K 3/21 concerning CJEU judgments on judicial independence triggered the European Commission to initiate EU law infringement proceedings against Poland, which eventually resulted in a complaint to the CJEU regarding the Constitutional Tribunal (case C-448/23, pending).

Following the 15 October 2023 parliamentary elections, the PiS party has lost power. The new coalition government, which has pledged to restore the rule of law, has a difficult task ahead to restore the independence and social legitimacy of the Constitutional Tribunal. Projects for repairing the Constitutional Tribunal, put forward by expert circles, are the subject of public debate and soon, probably, parliamentary debate. However, the entry into force of any laws passed in Parliament may be hampered by PiS-aligned President Duda's veto. From a political perspective, Poland is back on a pro-EU course. However, restoring its institutional and legal system to European legal standards will require much determination and effort. The CJEU demanded compliance with these standards in interim measures and judgments, which the previous government sought to undermine by manipulating a compliant Constitutional Tribunal.

Anna Wójcik is a Humboldt Foundation Fellow at the Max Planck Institute for Comparative Public Law and International Law.

Suggested citation: Anna Wójcik, ‘Defiance of EU law by the Polish Constitutional Tribunal’ IACL-AIDC Blog (28 November 2023) Defiance of EU Law by the Polish Constitutional Tribunal — IACL-IADC Blog (blog-iacl-aidc.org)