—Tomasz Tadeusz Koncewicz, University of Gdansk
The tempo of the attack against democracy in Poland is relentless. On 22 July 2016 the Polish Parliament passed the Law on the Polish Constitutional Court and confirmed that the parliamentary majority lead by Law and Justice party (PiS) is not holding back. The PiS is determined to make sure that the Court is tamed and incapacitated.
By way of a statute, 1997 Constitution has been picked apart and its provisions have been short-circuited at every turn. The Law re-introduces the provisions that were already either disqualified as clearly unconstitutional by the Court (judgment of 3 December 2015 ((case K 34/15)), 9 December 2015 ((case K 35/15)) and most recently of 9 March 2016 ((case K 47/15))) or criticized in the Opinion of the Venice Commission of 11 March 2016 (no. 833/2015).
The persistent refusal by the government to publish these judgments under the pretense of procedural irregularities completes the picture of constitutional defiance that shows no signs of abating. The solution to the PiS-induced constitutional crisis should be for the President immediately to follow the constitutional commands as interpreted by the Court and swear in the three judges selected constitutionally by the old Sejm, and for the government to publish all of the judgments of the Court, rather than engaging in elaborate statutory revision(s) of the Constitution. Instead, as a result of the constitutional defiance, one gets a situation in which dual legal systems interact at the same time in Poland: one constitutional and under attack, the other unconstitutional and shielded by the political power.
Migration and Borrowing of Unconstitutional Tactics
This constitutional defiance brings to mind how Hungarian Prime Minister V. Orbán tamed the EU and followed through with his own plan to pack the Hungarian Constitutional Court. V. Orbán has introduced some changes in response to external criticism and later claimed that the problem has been fixed and everything was back to normal. He entrenched the old system, while giving up on one or two of the most outrageous elements that he didn’t really need anyway. This strategy would stop the external criticism long enough for the EU to get the translation, study it and realize that it had been fooled again – but in the meantime, this would give more time for Orbán to consolidate his power. And then it would all start again. After many rounds of this back-and-forth, the external critics whittled away a few small elements of the system, but in exchange Orbán managed to keep his illiberal and autocratic constitutional reform. All in all, nothing really happened as a result of outside criticism. And then in the end, critics gave up and pretended that everything had been addressed.
Orbán’s “wait – see – act” strategy find its perfect application in the case of Poland. The New Law on the Polish Constitutional Court is persistent in reproducing unconstitutionality in the hope that in the end the external outcry will subside and critics will tend to more pressing issues (BREXIT?). Disemboweling the Court and crippling judicial review reminds one of stealth authoritarianism whereby the law and legal mechanisms are used for anti-democratic purposes. The Law is enacted under the guise of cynical assurances of good intentions and sincere concerns allegedly to put things right and bring the self-induced constitutional crisis to an end. The most questionable and clearly unconstitutional provisions (e.g. requirement of a voting by two-thirds majority at the Court) were dropped at the very last minute. The argument now goes that this dispels all constitutional doubts and that the Law is a result of the good will of the ruling party and a reasonable compromise. This in turn will shift the blame towards the opposition. It will be pictured as a destructive and anarchistic force, while the ruling party will be portrayed as playing the role of a noble knight in a shining armor. In the end of this constitutional foul play, public opinion will be left with the conviction that it is indeed so, and that there is nothing to worry about.
European Resistance. Is something finally happening?
Despite this somber conclusion, the December 2015 and March 2016 judgments of the Court still have a role to play. They not only continue to stand as a proud reminder of Polish rule of law and judicial independence. The assault on the Court and the persistent refusal to publish its judgments are at the heart of the Commission’s unprecedented decision to open an investigation into the observance by Poland of the rule of law and democracy and possibly making Poland the first member state to be sanctioned under art. 7 of the EU Treaty.
In March 2014, the EU Commission adopted a three-step mechanism for addressing systemic threats to the rule of law in the EU member states. The Commission will initiate a dialogue with the Member State concerned, by sending its Rule of Law Opinion and pointing out its concerns. Phase I is to function as a warning and put the Member State concerned on notice. If the concerns are not addressed satisfactorily, the Commission will issue a Rule of Law Recommendation addressed to the Member State. The Commission would identify the problems and recommend that the Member State solves them within a fixed time limit, and inform the Commission of the steps taken to that effect (phase II). Finally, in phase III the Commission will monitor the follow-up given by the Member State to the Recommendation. Only completion of this mechanism can trigger formal resort to art. 7 EU Treaty procedure.
Even though the application of art. 7 with regard to Poland is a long shot right now, the institution of the pre-warning mechanism by the EU Commission must not be taken too lightly. Not only it is the first time that the Commission has used it, but events of last two months show that the Commission takes it seriously and will not let Poland off the hook easily.
On 13 January 2016 the College of Commissioners held a first meeting on the observance of the rule of law in Poland which was followed by the extensive exchanges in writing between the Commission and the Polish authorities. With constitutional defiance on the rise and no clear progress in finding a compromise, the Commission decided to move forward and on 1 June 2016 adopted Rule of Law opinion on the situation in Poland. The Commission’s opinion points out three major concerns:
1. The appointment of judges to the Court and the implementation of the judgments of December 2015;
2. The law of 22 December 2015 amending the Law on the Constitutional Court and the implementation of the judgment of 9 March 2016 that declared this law unconstitutional, as well as the respect of the judgments rendered since 9 March 2016;
3. The effectiveness of the constitutional review of new legislation which has been adopted and enacted in 2016. The Rule of Law opinion fell on deaf ears and the Polish government has been continuing to play “constitutional catch – me – if – you – can” with the Commission in line with V. Orban’s tactics of buying precious time to push through the most important elements of the strategy, while cynically pretending that the problems have been taken care of in line with the EU’s critique.
Therefore, with the new Law now in force and entrenching the “constitutional – unconstitutional” duality even more strongly, the Commission had no choice but to press ahead to the second stage of its pre-article 7 procedure and on 27 July 2016 issued strongly – worded Recommendation on the Rule of Law. This decision was a no-brainer as the new Law openly defies the Commission’s Recommendation on all fronts.
Firstly, it deliberately glosses over the December 2015 and March 2016 judgments of the Court. Most critically, the New Law opens up a possibility that the three judges nominated by the new PiS dominated legislature without a valid legal basis will take up the post of a judge after all. The New Law is aimed specifically to make this happen and complete the court-packing plan.
Secondly, the new Law not only fails to provide for the publication of the Court’s judgments, but changes for the future the way the Court’s judgments will be published by giving the executive the prerogative to evaluate these judgments that will be “fit” for publication. In its Recommendation the Commission stressed that the publication of future judgments must be automatic and will not depend on any decision of the executive or legislative powers. This should be already straightforward in light of art. 190 of the Polish Constitution that makes obligatory the publication of all the judgments of the Court. However for PiS, constitutional straight-forwardness has been taking on a new dimension for some time now.
Thirdly, the new Law reproduces most of the provisions that the Court has already declared unconstitutional and the Venice Commission has criticized in its opinion in March 2016. This unconstitutionality via the “back door” is at odds with Commission’s Recommendation of “ensuring that any reform of the Law on the Constitutional Tribunal respects the judgments of the Constitutional Tribunal, including the judgments of 3 and 9 of December 2015 and the judgment of 9 March 2016, and takes the opinion of the Venice Commission fully into account and ensuring the effectiveness of the Constitutional Tribunal as a guarantor of the Constitution is not undermined.”
In short, the Polish legislator did everything to make sure that the Court will be ineffective and toothless. With the new Law now signed by the President, the third stage of the pre-article 7 procedure consisting of monitoring the Member State’s follow-up to the Recommendation seems like all but a formality. It is difficult to see how adopting the new Law of 22 July 2016 on the Constitutional Court could possibly qualify as a “satisfactory follow-up” to the Commission’s Recommendation. Rather, it is an open rebuke to everything the Recommendation stands for.
All of this makes a strong case for arguing that art. 7 of the EU Treaty will be resorted to in the end. Moreover, the suspension of EU funding has been already hinted as another way of pressuring the recalcitrant Member State(s) into obedience, and has even been suggested with regard to Poland. One way or another, there is a strong probability that with its openly-defiant and determined government, Poland will make history for all the wrong reasons. So yes, something is finally happening in Europe and as a result the Polish constitutional drama remains to be continued …
On 11 August 2016 the Court ruled on the constitutional challenges to the Law of 22 July 2016 (case K 39/16). For the second time in a span of 5 months, the Court defended the integrity of the constitutional document and its own place in the system of Polish governance. Importantly the Court felt strong enough to dispose of this most recent court-packing effort by way of a reasoned order and built on its previous unpublished (case K 47/15) and unimplemented (cases K 34/15 and K 35/15) judgments. The Court declared unconstitutional the provisions of the new Law that aimed at the marginalization of judicial review in Poland and at making the Court subservient to the majority of the day. It criticized in the strongest possible terms the government’s refusal publish the judgments of the Court. The refusal to publish was characterized as striking at the heart of the rule of law and as alien to the legal culture to which Republic of Poland belongs.
To believe, though, that this ruling will change anything would be to underestimate the resolve and determination of the ruling party in its quest to annihilate the Court. It even looks that in the aftermath of this ruling, the majority will harden its position even more. The leader of the ruling party–J. Kaczynski–has not only ruled out the publication of this decision (making it now 23 rulings that await publication), but he also promised to go back to the old and more radical version of the court-packing plan that had been already declared unconstitutional in March 2016. This is as strong as constitutional defiance gets. Therefore, nothing changes and we are back to where we were before this most recent act of judicial self- defense. The Polish constitutional drama and European resistance continues …
Suggested Citation: Tomasz Tadeusz Koncewicz, Of Constitutional Defiance, Migration and Borrowing of Unconstitutional Tactics and European Resistance, Int’l J. Const. L. Blog, Aug. 17, 2016, at: http://www.iconnectblog.com/2016/08/of-constitutional-defiance-migration-and-borrowing-of-unconstitutional-tactics-and-european-resistance
 Term coined by O.O. Varol, Stealth Authoritarianism, (2015) 100 Iowa Law Review 1673.
 See also Editorial Comments, Safeguarding EU Values in the Member States – is something finally happening, (2015) 52 Common Market Law Review 619.
 The relevant parts of article 7 of the Treaty on the EU read:
- On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.
The Council shall regularly verify that the grounds on which such a determination was made continue to apply.
- The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.
- Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.
The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.
 In its Recommendation of 27 July 2016 the Commission clearly recognizes this. See “Next Steps” part of the Recommendation.
 For linking of persistent and systemic non-compliance with the suspension of EU funding and on the respective roles of the ECJ and the Commission, see in-depth analysis by K. Lane Scheppele, Enforcing the Basic Principles of EU Law Through Systemic Infringements, in C. Closa, D. Kochenov, (eds.), Reinforcing rule of law oversight in the European Union, (Cambridge University Press, Forthcoming), pp. 127-131.
 J.-W. Müller, The Problem with Poland available at http://www.nybooks.com/daily/2016/02/11/kaczynski-eu-problem-with-poland/?printapage=true who puts it matter-of-factly: “One has to see what the PiS government will do with European money, but in any event the case for cutting EU funds does not have to be based on evidence of outright theft. The Union is founded on principles of mutual trust and, as Treaties put it “the duty of loyal cooperation”. Informal negotiations about the next big budget for the Union have already begun. Why pay people who undermine the Union to keep themselves in power? Why buy broccoli for those who say they don’t like it anyway?” (my emphasis).