Dispute between Poland and the EU over the courts escalates with new Constitutional Tribunal decision

After all of the infringement procedures initiated by the EU in response to Polish legislation involving its courts, after the long and still-unresolved dispute between the EU and Poland over the Disciplinary Chamber of its Supreme Court, after the extraordinary decision in July by Poland’s Constitutional Tribunal that the Court of Justice of the EU (CJEU, more commonly ECJ) could not impose interim measures pertaining to its judicial system, and after the ECJ’s decision the next day that “the disciplinary regime for judges in Poland is not compatible with EU law,” and “does not provide all the guarantees of impartiality and independence, and in particular, is not protected from the direct or indirect influence of the Polish legislature and executive,” it was hard to imagine the relationship between Poland and the EU could get much worse. But it did last Thursday, when the Constitutional Tribunal, in response to a petition from Prime Minister Mateusz Morawiecki, ruled that several Articles of the Treaty on European Union are inconsistent with several Articles of the Polish Constitution.

In the 2015 Polish election, Law and Justice (PiS), the conservative and nationalist party headed by Jarosław Kaczyński, won 38 percent of the vote and a bare majority in the Sejm, the lower house of the parliament. Soon thereafter, the new government embarked on a number of institutional changes involving the media, the universities, and the courts designed to enhance its political control over those institutions. One of them, a law that took effect in early 2018, involved the Supreme Court. Soon thereafter, the EU Commission launched an infringement procedure in regard to provisions in the law pertaining to the retirement of judges and the impact of those provisions on the independence of the Court. Later that year, it referred the case to the ECJ and in December 2018, the ECJ issued an order imposing interim measures to stop implementation of the law.

In April 2019, the Commission launched another infringement procedure on the grounds that the disciplinary regime for judges described in the law undermined their judicial independence by not protecting them from political control. In particular, it said the new regime didn’t guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court, which reviews decisions taken in disciplinary proceedings against judges. The Chamber was composed entirely of judges selected by the National Council for the Judiciary, whose members are appointed by the Sejm. In October 2019, PiS won reelection, and accompanied by two small right-wing parties, formed a United Right government. In the same month, the Commission referred the Supreme Court case to the ECJ, and in January 2020, it asked the ECJ to impose interim measures suspending the functioning of the Court’s Disciplinary Chamber. In April 2020, the ECJ ruled that Poland must immediately suspend application of the provisions in the law pertaining to the powers of the Chamber in disciplinary cases concerning judges until the ECJ had rendered its final judgment in the case.

Poland refused to comply with the ECJ ruling and last December the Commission sent Poland an additional letter of formal notice that added a new grievance to the case, taking issue with the continued functioning of the Chamber. After concluding that Poland’s response wasn’t satisfactory, in March it informed the ECJ that Poland “violates EU law by allowing the Disciplinary Chamber of the Supreme Court—the independence of which is not guaranteed—to take decisions that have a direct impact on judges and the way they exercise their function” and asked the ECJ to order interim measures to “prevent the aggravation of serious and irreparable harm inflicted to judicial independence and the EU legal order.” Specifically, it asked the ECJ to suspend the provisions empowering the Disciplinary Chamber to decide on requests for lifting judicial immunity as well as on matters of employment, social security and retirement of judges, to suspend the effects of decisions already taken by the Chamber, and to suspend the provisions preventing Polish judges from directly applying provisions of EU law protecting judicial independence and from putting references for preliminary rulings to the ECJ.

On July 14, in response to an inquiry from the Disciplinary Chamber of the Supreme Court whether the ECJ could in fact order suspension of the provisions in the law empowering the Chamber to decide on matters involving the immunity and employment of judges, the Constitutional Tribunal ruled that the Chamber does not have to comply with the interim measures ordered by the ECJ. By coincidence, the next day the ECJ issued its judgment tin regard to the Chamber. It said, “the disciplinary regime for judges in Poland is not compatible with EU law.” Continuing, it said, “taken together, the particular context and objective circumstances in which the Disciplinary Chamber was created, the characteristics of that Chamber, and the way in which its members were appointed are such as to give rise to reasonable doubts in the minds of individuals as to the imperviousness of that body to external factors, in particular the direct or indirect influence of the Polish legislature and executive, and its neutrality with respect to the interests before it and, thus, are likely to lead to that body’s not being seen to be independent or impartial, which is likely to prejudice the trust which justice in a democratic society governed by the rule of law must inspire in those individuals.” It concluded that “by failing to guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court,…by allowing the content of judicial decisions to be classified as a disciplinary offence involving judges of the ordinary courts,…by conferring on the President of the Disciplinary Chamber of the Supreme Court the discretionary power to designate the disciplinary tribunal with jurisdiction at first instance in cases concerning judges of the ordinary courts…and, therefore, by failing to guarantee that disciplinary cases are examined by a tribunal ‘established by law’, and by failing to guarantee that disciplinary cases against judges of the ordinary courts are examined within a reasonable time…and by failing to guarantee respect for the rights of defence of accused judges of the ordinary courts, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1), Treaty on European Union.” The second subparagraph of Article 19(1) states that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.” In addition, the ECJ ruled that “by allowing the right of courts and tribunals to submit requests for a preliminary ruling to the Court of Justice to be restricted by the possibility of triggering disciplinary proceedings, the Republic of Poland has failed to fulfil its obligations under the second and third paragraphs of Article 267, Treaty on the Functioning of the EU.” Article 267 states that the Court has jurisdiction to give preliminary rulings concerning the interpretation of the Treaties and the validity and interpretation of acts of the institutions, bodies, offices and agencies of the EU.

While all that was going on, the Constitutional Tribunal was also considering another potentially explosive issue. In early March, the ECJ had ruled, in response to a request from Poland’s Supreme Administrative Court for a preliminary ruling, that successive amendments to Poland’s Act on the National Council of the Judiciary that led to the abolition of effective judicial control of the Council’s decisions in regard to the nomination of candidates for the Supreme Court could be in breach of EU law and that if a national court acknowledged that such amendments breached EU law, it could not apply them. That prompted Morawiecki to submit  a 129-page petition to the Constitutional Tribunal on March 29 requesting a comprehensive resolution of the potential conflict between EU law—specifically, provisions in the Treaty on European Union—and the Polish Constitution.

Last Thursday, the Tribunal responded to Morawiecki’s petition. In a 12-2 decision read by Tribunal President Julia Przyłębska, it ruled that, “The attempt by the European Court of Justice to involve itself with Polish legal mechanisms violates…the rules that give priority to the Constitution and rules that respect sovereignty amid the process of European integration.” Specifically, the Tribunal ruled that the first and second subparagraphs of Article 1 of the Treaty on European Union (TEU), in conjunction with Article 4(3) of the TEU, insofar as the EU, “whose integration on the basis of Union law and through its interpretation made by the Court of Justice marks a new stage in which 1) the Union’s institutions act beyond the limits of competences transferred by the Republic of Poland in the Treaties; 2) the Constitution is not the supreme law of the Republic of Poland and does not have precedence as of its binding force and application; 3) the Republic of Poland cannot function as a democratic and sovereign state, are inconsistent” with Articles 2, 8, and 90(1) of the Polish Constitution. And it ruled that the second subparagraph of Article 19(1) of the TEU, “insofar as, in order to ensure effective legal protection in the fields covered by Union law, confers on the national courts…the power to 1) disapply, within the exercise of their functions, the provisions of the Constitution…2) rule on the basis of provisions not in force: repealed by the Sejm or declared unconstitutional by the Constitutional Tribunal,” is inconsistent with Articles 2, 7, 8(1), 90(1), 178(1) and 190(1) of the Polish Constitution.

Article 1 of the TEU speaks of the member states conferring competences on the Union in order to attain objectives they have in common and a “new stage in the process of creating an ever closer union…in which decisions are taken as openly as possible and as closely as possible to the citizen.” Article 4(3) of the TEU states that the EU and the member states “shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties…and shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.” The second subparagraph of Article 19(1) of the TEU states, “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”

Article 2 of the Polish Constitution states “The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice.” Article 7 states, “The organs of public authority shall function on the basis of, and within the limits of, the law.” Article 8 states, “1. The Constitution shall be the supreme law of the Republic of Poland. 2. The provisions of the Constitution shall apply directly unless the constitution provides otherwise.” Article 90(1) states, “The Republic of Poland may, by virtue of international agreements, delegate to an international organization or international institution the competence of organs of State authority in relation to certain matters.” Article 178(1) states, “Judges, within the exercise of their office, shall be independent and subject only to the Constitution and statutes.” And Article 190(1) states, “Judgments of the Constitutional Tribunal shall be of universally binding application and shall be final.”

The Commission immediately expressed its serious concern about the Tribunal’s ruling. In a statement issued hours later, it said, “Today’s oral presentation of the ruling by the Polish Constitutional Tribunal raises serious concerns in relation to the primacy of EU law and the authority of the Court of Justice of the European Union.” It underscored the primacy of EU law over national law, including constitutional provisions, and the fact that all rulings of the ECJ are binding on all member state authorities, including national courts. It said it will analyze the Tribunal’s ruling in detail and decide on the next steps, and “will not hesitate to make use of its powers under the Treaties to safeguard the uniform application and integrity of Union law.”

How this standoff between the EU and Poland will be resolved is not at all clear at this point. Public opinion surveys make it clear that substantial majorities in Poland support the country’s membership in the EU and, as the demonstrations in Warsaw and more than 100 other cities yesterday illustrated, there is little public support for “Polexit.” Kaczyński and Morawiecki and others in the PiS-dominated United Right government have made it clear the government does not wish to leave the EU and has no intention of doing so. But it’s too late for Morawiecki to withdraw his motion, it’s highly unlikely the Tribunal will amend the ruling in any significant way before publishing it, the Polish government can’t treat a Tribunal ruling as simply an advisory opinion, and Poland clearly can’t remain in the EU—and enjoy the financial benefits of membership—without accepting the primacy of EU law. It goes without saying that Poland’s request for €23.9 billion in grants and €12.1 billion in loans from the EU’s Recovery and Resilience Facility will remain, as it has been for several months, on hold in the Commission pending an acceptable resolution of the issue, and the Commission has suggested that other budget funds may either be blocked as well or accompanied by conditions pertaining to adherence to the rule of law and Poland’s acceptance of the primacy of EU law. Eventually, and however it does it, Poland will have to either accept the primacy of EU law, including the authority of the ECJ, or leave the EU.

David R. Cameron is a professor emeritus of political science and the former director of the MacMillan Center’s Program in European Union Studies.