III. THE
POLISH CONSTITUTIONAL COURT AND THE EUROPEAN UNION
Mr Andràs Jakab,
Professor of constitutional and administrative law at the university of
Salzburg
After the collapse of the communist bloc, Eastern European countries imported the formal legal rules of Western European constitutional institutions. The underlying legal culture, however, has remained the same. By legal culture I mean “beliefs and attitudes towards the law”, which are the informal elements of legal institutions. Up until the accession to the European Union, Eastern European countries were under effective pressure to adhere to the principles of democracy and the rule of law (“Copenhagen Criteria”). Since the accession, however, we are witnessing a slow erosion of the quality of the rule of law in most of these post-socialist countries. The main reason for this erosion is the underlying legal culture which gained traction again, once the effective external pressure disappeared: the mask is off. The gradual deterioration of the rule of law and democracy is characteristic not only in Poland and Hungary, but to a lesser degree in most Eastern European member states of the European Union. The immune system of these countries is very weak, they are prone to backsliding, and in two countries (Hungary and Poland) this backsliding proved to be dramatic. I have written about these issues in my article “Informal Institutional Elements as Both Preconditions and Consequences of Effective Formal Legal Rules”558(*).
As more specifically to Poland, Wojciech Sadurski explained in detail in his seminal book (Poland's Constitutional Breakdown, OUP 2019) how the various constitutional institutions (especially judicial independence) have been undermined. The independence of ordinary courts has been violated by various statutes (such as the muzzle law and the law on the disciplinary chamber). This violation has been established by the European Court of Justice (C-204/21 and C-791/19), the European Court of Human Rights559(*) and the Venice Commission (Opinion 904/2017). As to the Polish Constitutional Tribunal (PCT), it is basically a “puppet court” or a captured institution, we can even doubt whether it is a court at all, as some of its judges were illegally appointed560(*). In practice, the PCT is nowadays more of an agent of (and not a check on) the Polish Government561(*).
The latest decision of the PCT (K 3/21, 7 October 2021) also fits into this line. The motion by the Polish prime-minister was 129 pages long. It argues that the PCT has the competence to review the founding treaties of the EU on their constitutionality, based on Article 188 of the Polish Constitution. The main arguments of the motion refer to “constitutional identity” and “constitutional pluralism”. The motion also mentions the PSPP decision of the German Federal Constitutional Court. It, however, does not mention Articles 8 and 9 of the Polish Constitution (which are about international cooperation and the requirement of conformity with public international law). The motion is also silent the former EU law friendly case-law of the PCL (such as K 18/04). As expected, the PCT practically accepted the entire argumentation of the prime-minister's motion. This means a rejection of the primacy/supremacy of EU law. Purpose was to create arguments in the Polish Government's struggle against EU organs about the independence of the ordinary courts (justifying why the ECJ decision about the disciplinary chamber is not implemented).
In the decision K 3/21, the PCZ declared that Art 1 (in connection with Art 4(3)), Art 2, Art 19(1) second sub-para of the Treaty on the European Union are incompatible with Art 2, Art 7, Art 8, Art 90(1), Art 178(1), Art 178(1), Art 179 (in connection with Art 144(3)(17)), Art 186(1) of the Polish Constitution. The PCT explicitly rejected the possibility of preliminary reference, emphasised its own independence (in a defiant manner even stated that Polish Constitution guarantees a higher level of judicial independence than EU law). The PCT then explicitly denied the legal nature of Article 2 of the Treaty on the European Union (and attributed to it a purely axiological nature). And finally, after long passages about sovereignty and the primacy of the Polish Constitution, it also threatened for the future that ECJ decisions might be reviewed.
The decision of the PCT was met with harsh criticism by Polish constitutional scholars. The Committee on Legal Sciences of the Polish Academy of Sciences562(*) stated that “The Constitutional Tribunal went beyond its powers, declaring the provisions of the Treaty on European Union (TEU) unconstitutional. It did not exclude that in the future it would assess the conformity of the CJEU judgments with the Constitution of the Republic of Poland, “including their removal from the Polish legal system”. This is beyond the legal scope of the Constitutional Tribunal's competence.” A joint statement of retired judges of the PCT was also published (in Polish in 10 October 2021 Rzeczpospolita, and then in English on Verfassungsblog) with the following text:
“It is not true that the judgment of the Constitutional Tribunal of 7 October 2021 was issued in order to guarantee the supremacy of the Constitution over EU law, since such a position of the Constitution has been sufficiently established in the previous case law of the Tribunal (in cases K 18/04, K 32/09, SK 45/09);
It is not true that the judgment of the Constitutional Tribunal of 7 October 2021 itself falls within the competence of the Tribunal and is consistent with the Constitution;
It is not true that EU law and the previous case law of the CJEU question or violate the supremacy of the Constitution in the Polish legal order;
It is not true that the CJEU requires Polish courts to desist from observing and applying the Constitution as the supreme law of the Republic;
It is not true that the application of EU law by Polish courts cannot be reconciled with their application of the Constitution;
It is not true that the questioning by EU institutions of the breach by Polish statutes and practice of their application of the principles of independence of Polish judges, who also adjudicate in the fields covered by Union law, goes beyond the competence conferred on the European Union by Article 90(1) of the Constitution;
It is not true that the Constitutional Tribunal has the authority to review the constitutionality of CJEU rulings and to decide whether Poland, as a Member State, should selectively respect CJEU case law“
So, what now? A compromise seems unlikely at this moment. The most likely next step is an EU infringement procedure against Poland. Besides this, decentralised reactions by other member state courts can also be expected (we have already seen Irish and Dutch examples). The financial pressure on Poland is probably also going to grow (daily penalties, Covid recovery funds, rule of law budget conditionality). At the same time, we can still see that the political will in some EU institutions and in some Western European capitals is missing. Sometimes we can still hear the empty slogan about the “necessity of more dialogue” which is a just cheap excuse for inaction. A solution is only possible, however, if there is a clear political will; the legal tools for the EU are all already there.
* 558 The Failure of Constitutional Institution-Building in Hungary” in the American Journal of Comparative Law (2020/4. pp. 760-800).
* 559 Broda and Bojara v. Poland 29.09.2021, Reczkowicz v. Poland 22.07.2021.
* 560 Cf. Art 6(1) ECHR: court established by law“, ECtHR Xero Flor v Poland 7 May 2021.
* 561 See e.g. 15 April 2021: K 20/20 Decision on the Mandate of the Ombudsman.
* 562 Resolution No. 04/2021: of the Committee of Legal Sciences of the Polish Academy of Sciences of October 12, 2021 in regard to the ruling of the Constitutional Tribunal of October 7, 2021 Verfassungsblog 15 October 2021.