—Agnieszka Bień-Kacała, Nicolaus Copernicus University
The COVID-19 crisis changed the dynamics of the deterioration of Polish constitutionalism; it has relocated and refocused legal arguments to an extent that could lead us to Polexit. The argument based on the sovereignty of Poland is no longer considered as a mere electoral campaign tool, but has now become a legal ground for Constitutional Tribunal (CT) decisions.
At the beginning of the Andrzej Duda presidential election campaign in February 2020, I predicted that the sovereignty of Poland would be its guiding theme. Election capital could then be built on the emphasis of this sovereignty, pitted against EU competences and values. The CJEU decision on judicial independence (striking down changes to the Supreme Court’s disciplinary chamber), its implementation resolution by the Supreme Court (SC), and its disregard by the Sejm in the Muzzle Act, which further weakened Polish judicial independence, provided context for this expectation. It was expected that symbolic legislation and reliance on the sovereignty argument, which was utilized in the case involving the lowering of judicial retirement ages, would also be pulled from the political toolbox. Just as a brief reminder: in the retirement case, the legislature in the end backed off and implemented the interim measure of the CJEU.
However, the COVID-19 pandemic has shifted the focus of the electoral campaign. The effectiveness of the state applying ordinary constitutional measures during an extraordinary situation was emphasized. Further, the need for presidential elections during the pandemic has been stressed. The latter argument, however, is actually about consolidating power by the ruling party, not about holding free and fair elections. This intention was clearly expressed by Jarosław Kaczynski.
In the current epidemiological situation, legislation on “European issues” could potentially contribute to the decline in popularity of Andrzej Duda. The political branch of government has perhaps wanted to seem to be focused on fighting the effects of the epidemic and not on pushing unrelated issues. Therefore, another body has been activated to push the sovereignty argument and to reconsider the relationship between Poland and the European Union.
In a sense, it was obvious that this body would be the CT, which has long been used to justify and implement the political will of the ruling party. The Tribunal’s role in this case would be to justify the subordination of the judiciary to partisan will. It did the job: it supported the legislature against the CJEU, and used arguments sounding in national sovereignty to do so. The first ruling of 20 April 2020 was related to the SC resolution of 23 January 2020, which implemented the CJEU’s November judgement. The Constitutional Tribunal created its competence to review the SC resolution by making it a normative act. That in turn allowed it to settle the dispute between the Sejm and the SC, as well as between the President and the SC in its second ruling of 21 April 2020. The Constitutional Tribunal said that the SC, when describing the circumstances under which a court could be deemed non-independent, infringed the legislative competences of the Sejm and the President’s prerogative to appoint judges. Additionally, the CT stressed that SC abused its competence to implement the CJEU judgment of 19 November 2019. The Tribunal held that the SC had emphasized a primary duty of loyalty to EU law and rulings of the CJEU, thus disregarding the Polish Constitution. Further, the CT held that the SC had abused the preliminary rulings procedure. Finally, according to the opinion of the CT, the SC wrongly assumed the absolute binding nature of CJEU judgments on issues that were not transferred by the Member State to the European Union. This logic led the CT to assess the CJEU judgment and consider it to be non-binding.
The rulings of the CT could, therefore, be taken as a turning point in the relationship between Poland and the European Union. While the narrative presented by the Tribunal had previously been visible in politics; for example, in the form of the Muzzle Act and political speeches, it has now been converted into legal decisions that will alter Poland’s legal and constitutional system. The judgments concern the foundations of the functioning of a Member State in the EU, namely the supremacy of European law and EU law-friendly interpretation, the recognition of CJEU competences, and the preliminary rulings procedure. Without recognition of these foundations, it is not possible to operate within the EU legal sphere. That sphere is built not only on the direct application of European law in domestic legal orders, but also on respect for binding international law. Stressing that the Constitution is the supreme law, the Tribunal disregarded international obligations and took a confrontational stance instead of a conciliatory one. In my opinion, the most important consequence is in launching a “quiet” or backdoor Polexit. The sovereignty of Poland and the supremacy of the Constitution have become a wall against European law and EU institutions.
Obviously, a formal Polexit, triggered by launching art. 50, is unrealistic. It seems likely that there will be no further EU actions either as the EU may understood that it is not possible to force a Member State against its will to be a part of the European community. After all, Poland has already departed in many ways from this community and its values. The future of the Polish-EU relationship seems bleak.
Unfortunately, this situation provokes further questions about the shape of the current Polish constitutional system. If we assume that constitutionalism means that the rulers feel bound by law, in liberal constitutionalism by a constitution and in illiberal constitutionalism by at least EU law, then it may be that Poland is no longer a constitutional state. We will have a final answer after the upcoming presidential elections, scheduled for May 10. The issue is, however, not about the outcome of the elections as it seems to be in favour of Andrzej Duda but about the procedure for holding them as the rules are still not certain and set. It may be that we wake up on 11 May in a completely different systemic reality, in which the change of the ruling majority will be impossible for years.
Suggested citation: Agnieszka Bień-Kacała, Polexit is Coming or is it Already Here? Comments on the Judicial Independence Decisions of the Polish Constitutional Tribunal, Int’l J. Const. L. Blog, Apr. 28, 2020, at: http://www.iconnectblog.com/2020/04/polexit-is-coming-or-is-it-already-here-comments-on-the-judicial-independence-decisions-of-the-polish-constitutional-tribunal
 Judgement of the CJEU of 19 November 2019 (Joined Cases C-585/18, C-624/18 and C-625/18). The CJEU has provided a ramification for the SC to assess whether the Disciplinary Chamber is independent and impartial or not due to the direct or indirect influence of the legislature and the executive on the appointment of judges to this Chamber.
 The resolution of three Chambers of the Supreme Court of 23 January 2020 (BSA I 4110 1/20).
 Ustawa z dnia 20 grudnia 2019 r. o zmianie ustawy – Prawo o ustroju sądów powszechnych, ustawy o Sądzie Najwyższym oraz niektórych innych ustaw [Act of 20 December 2019 amending the Act – Law on the structure of common courts, the Act on the Supreme Court and some other acts], Dz. U. 2020, poz. 190.
 A. Bień-Kacała, Illiberal democracy in action: Polish kind of symbolic legislation, EUROPEAN STUDIES The Review of European Law, Economics and Politics 6/2019, p. 268-278.
 A. Bień-Kacała, Illiberal judicialisation of politics in Poland, Comparative Law Review 25/2019, p. 198-213.
 Illiberal constitutionalism is a particular phase in the process of democratic decay or the backsliding from liberal constitutionalism towards an authoritarian regime where the law-making and adjudication are still bound by European Union law, principles, and case law which flows into the legal system through EU clauses or constitutional provisions, T. Drinóczi, A. Bień-Kacała, Illiberal constitutionalism: the case of Hungary and Poland, German Law Journal 8/2019, p. 1140-1166.