Poland's Constitutional Court to Rule on Legal Battle with the EU
On 13 May, the Polish Constitutional Tribunal, chaired by a former MP from the national-conservative ruling Law and Justice (PiS) party, will hear a case on whether the Disciplinary Chamber of Poland's Supreme Court can continue to operate despite an interim order from the European Court of Justice (ECJ). The Polish government argues that the ECJ's interim orders violate the Polish constitution. According to some media, the ruling could lead to the government ignoring the ECJ's decisions in judicial matters in the future. In addition, both the presidency of the Constitutional Tribunal and the Disciplinary Chamber are controversial.
It is not the first time there has been a conflict between the PiS government and the EU over modifications to Poland's judicial system. After taking office in 2015, PiS had significantly restructured the Polish judiciary and undermined the independence of Polish courts. As a result of its judicial reform, the rules for appointing judges were redefined: The National Council of Judges (KRS), which nominates candidates for judgeships, is no longer elected by the judiciary, but by the parliamentary majority. This gives PiS the opportunity to nominate people close to the party for the KRS and thus to influence the selection of judges.
Dispute Over the Disciplinary Chamber
A disciplinary chamber at the Supreme Court was created as part of the judicial reform, which can punish or dismiss judges or prosecutors. In February 2020, the law on disciplining judges, which opponents of the government call the "Muzzle Law", caused a stir. Under the law, judges who are critical of previous judicial reforms face fines, demotion or even dismissal. The law also prevents Polish judges from referring certain legal issues to the ECJ.
Last year, for example, the Disciplinary Chamber lifted the immunity of Igor Tuleya, a judge critical of the government who has since become a symbolic figure of protests against state intervention in the judiciary. In April, however, the Disciplinary Chamber surprisingly decided not to arrest the Warsaw judge for lack of evidence. Tuleya, however, is convinced that this decision does not mean the end of his case and stresses that it does not change the fact that the Disciplinary Chamber is not an independent body.
According to the EU Commission, the Polish Disciplinary Board is also unlawful. The ECJ's ruling is still pending. Recently, the ECJ Advocate General, Evgeni Tanchev, stated in a new expert opinion that it is clear that the establishment of a disciplinary chamber violates EU law and the independence of the judiciary. In a temporary injunction, the ECJ suspended the activities of the disciplinary chamber as early as April 2020. However, the Polish government ignored this order on the grounds that the ECJ does not have the right to rule on the conformity of the Disciplinary Board's measures under EU law. At the end of March, the EU Commission therefore filed a new complaint and a request for further interim measures with the ECJ in the dispute over the Polish judicial reforms.
Shortly after the European announcement, the Disciplinary Chamber submitted a legal question to the Constitutional Tribunal on the compatibility of the ECJ's order with the Polish Constitution. The hearing, originally scheduled to take place on 28 April, was adjourned to 13 May. The ruling, which could further fuel the conflict between Poland and the EU, is now eagerly awaited. According to some observers, the outcome of the case could indicate how Poland intends to deal with ECJ rulings on judicial reform in the future.
The Constitutional Tribunal, which is now ruling on the question of the compatibility of the ECJ's interim orders with the Polish constitution, is seen as illegitimate by government critics. It is accused of being under the influence of the ruling PiS. Due to the restructuring of the judiciary, the majority of judges were appointed by the government in a legally and politically controversial procedure. The EU Commission sees the takeover of the judiciary by the PiS party as a violation of the rule of law and the separation of powers.
Critics of the government are now particularly concerned that the members of the panel deciding on the constitutionality of the interim orders include former PiS MPs Krystyna Pawłowicz (chair of the panel) and Stanisław Piotrowicz, who as MPs in the Polish Sejm, actively shaped the legislation introducing unconstitutional amendments (including the establishment of the Disciplinary Chamber). They point out that this is a clear violation of all rules of impartial jurisdiction.
On the question of the legitimacy of the Polish Constitutional Tribunal, the European Court of Human Rights (ECtHR) also expressed its opinion last week. In its ruling, the ECtHR found that the Polish Constitutional Tribunal was not a "legally established tribunal" and that a judge unlawfully appointed under the PiS judicial reform was not competent to rule. It is the first time that a European court has denied legitimacy to the Polish Constitutional Court.
Some legal experts see this as a landmark decision and suspect that the ruling will have wide practical application. However, the President of the Constitutional Tribunal, Julia Przyłębska, claims that the ruling is without legal basis and will have no impact on the Polish legal system.
Where Do We Go From Here?
PiS has long argued that national law takes precedence over EU law. After the ECJ ruled in early March that Polish rules on judicial appointments violated Community law in a preliminary ruling procedure, the Polish Prime Minister even referred the question of the hierarchy of norms between Union law and Polish constitutional law to the Constitutional Tribunal. The decision has not yet been taken, but according to the PiS government, Poland, as a sovereign state, cannot accept this ruling. However, the EU treaties clearly state that ECJ decisions are binding.
Therefore, should the Polish Constitutional Tribunal decide on Thursday that interim orders of the ECJ are not in line with the Polish constitution, this would mean a substantial undermining of the functioning of the EU legal system. Some commentators even talk in this context about a further step towards a PolExit, the country's withdrawal from the EU. It is clear that a ruling could have serious consequences for Poland and would further exacerbate the conflict between Poland and the EU. By joining the EU, each member state undertakes to be bound by the legal provisions applicable in the Union - including the principles of rule of law. And this also applies to Poland.
Natálie Maráková is a project manager at the Friedrich Naumann Foundation for Freedom's Central Europe and Baltic States Office in Prague.
Editorial note: After the editorial deadline of the article it has been announced that the Constitutional Tribunal had postponed the hearing scheduled for May 13 to deal with the ECJ's interim measure to suspend the work of the Supreme Court's Disciplinary Chamber until June 15.