[Editor’s Note: I-CONnect is pleased to feature a five-part symposium on the recent decision by the Polish Constitutional Tribunal on the primacy of EU law. This is the second entry of the symposium, which was kindly organized by Antonia Baraggia and Giada Ragone. Their introduction is available here].
—Agnieszka Bień-Kacała, Nicolaus Copernicus University, Toruń (Poland)
More than thirty years ago, in 1989, when Poles decided to start the democratic transition, a nationwide wish emerged to make friends with Western European countries. The wish was based not only on economic grounds, but also on a longing for being part of a community of values such as democracy, the rule of law and protection of human rights. The wish first materialized itself in 1991 as membership of the Council of Europe. Then, in 1994, Poland sent a request to the EU to become a friend of countries sharing the same values. On the basis of the 1997 Constitution, with a democratic state ruled by law clause and human rights protection, Poland showed honest intentions. The request was accepted in 2004.
Since then, the friendship had flourished. The Constitutional Tribunal (CT, Tribunal), up until 2021, decided on the EU and domestic law related cases just a couple of times. Still, in each of them, it established and upheld that friendship. The EU ‘friendly interpretation’ was recognized by the CT in 2005 in the case of the accession Treaty (K 18/04) and applied the same year in the case of EAW (P 1/05). Poland chose to amend its Constitution when the outcome of the EU friendly interpretation led to the conclusion that the EAW as a legal institution was not conformed with the Polish Constitution. Another example of friendliness is connected with the EU citizenship. Again in 2005, norms of the Constitution on active electoral rights were enriched by allocation of the rights to the EU citizens based on the EU law (K 15/04). As a result of the CT decision, that applied the EU friendly interpretation, amendments to the Constitution were not necessary. In 2010, applying the constitutional pacta sunt servanda rule and noticing the particular procedure of the Lisbon Treaty ratification in a referendum, the CT recognized the unique position of the Treaty, based on the highest standard of presumption of conformity with the Constitution (K 32/09). According to the CT, those questioning the Treaty’s conformity with the Constitution should justify a motion with close attention. As long as the motion is not justified, the CT decides that the Treaty conforms with the Constitution and it is thus safeguarded by the presumption. Finally, in 2011, the CT found its competence to check whether secondary EU law is in conformity with the Constitution within constitutional complaint procedure and established the rules for dealing with the non-conformity situation to safeguard? the Constitution and the EU law (SK 45/09). Almost everybody thought that the EU-Polish friendship would never be threatened.
And then came the 2015 presidential and parliamentary elections. Those who were skeptical towards the EU and its values won and started to emphasize sovereignty against the EU membership, majoritarianism instead of inclusive democracy, political will prevalence over the rule of law considerations, and ultimately subordinated the judiciary, including the CT that could be easily turned against opposing views. Illiberal remodeling has been launched and caused the deterioration of democracy, misuse of human rights and abuse of the rule of law.
From the very beginning, the changes occurring in Poland provoked a massive reaction of the international institutions and the European Union. The reservations concerned the ruthless treatment of the constitutional institution, i.e. the CT, the National Council for Judiciary (NCJ) and the judiciary. The ruling majority captured the first two institutions and turned them into bodies unconstitutionally stuffed with loyalists.
The EU Parliament resolutions, launching art. 7 procedure, and the CJEU decisions have clearly expressed the European institutions’ intentions. Firstly, Polish authorities pretended to observe the CJEU judgments. In the cases of Białowieża Forrest, they complied with the CJEU decision after unlawful actions had already been accomplished, and in the case on the retirement age of the Supreme Court judges, when reinstalled retired judges, Polish authorities acted on the basis of a statute and not on the CJEU interim measures. After a while, however, everyone realized that the dialogue is not an effective way to deal with threats and infringements caused by illiberal and populist rulers. The actors speak different languages. The European institutions estimate the dialogue conducted in an impartial, evidence-based and cooperative manner. But dealing with the illiberal and populist politicians in a dialogical way cannot be successful by its nature. This follows from the fact that the consensus and compromise, which should result from a dialogue, do not exist in the populist agenda.
Therefore, after a gradual reaction of the EU institutions with regard to the changes in the judiciary, the captured – and turned into illiberal constitutional court – CT was activated abusively by the newly and doubtfully established Disciplinary Chamber of the Supreme Court (SC), and then by the Prime Minister, in order to provide justification in favour of the ruling majority decisions and against the EU values. The response of the CT to the EU actions has been gradual either.
The most attacked EU institution by the Polish illiberal institutions is the CJEU, which means that it is recognized as the most powerful legal and not political instrument of safeguarding the EU and its values. Thus, state sovereignty as the very essence of illiberal values has been invoked and played against the CJEU. For the first time, the CT used the sovereignty argument in April 2020. The CT delivered two rulings related to the CJEU’s November 2019 judgment on the independence of the judiciary in Poland and the implementation of this judgment by the independent Chambers of the SC. 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 wrongly assumed the absolute binding nature of CJEU judgments on issues that the Member State have not transferred to the European Union. This logic led the CT to assess the CJEU judgment and consider it to be non-binding.
After establishing such a pathway of adjudication, the CT confirmed it in the July 2021 decision in a case initiated by the Disciplinary Chamber of the SC. The Tribunal made a general statement that the Court of Justice of the European Union imposes ultra vires obligations on the Republic of Poland as a Member State of the European Union by issuing interim measures relating to the system Polish judiciary and the procedure before Polish courts. Such actions of the CJEU are not in conformity with the Polish Constitution and constitutional rules of primacy and direct application of European law. Even if the CT decision was generally formulated, it related to the specific issue of interim measures of the CJEU and system of the judiciary. As such it was not yet targeting the fundaments of European integration and of the European community of values.
The very fundaments of the EU have however been threatened in the decision of the CT of 7 October 2021. According to the Tribunal, European integration based on the EU law and its interpretation by the Court of Justice of the European Union cannot lead to granting new competences to the EU institutions, where the Member States have not transferred such competences. The integration cannot degrade the Constitution that is the supreme law of the Republic of Poland, and cannot undermine the sovereign and democratic character of the State. Further, the CT stated that the Treaty on European Union could not demand from courts to disregard the Constitution and adjudicate on the basis of non-binding provisions repealed by the Sejm or declared unconstitutional by the Constitutional Tribunal. Last but not least, the Tribunal specified that the Treaty cannot be interpreted in such a way that it allows national courts to review the legality of the procedure for the appointment of a judge, including the examination of the act of the President and a resolution of the National Council of the Judiciary. National courts are not entitled to refuse a recognition as a judge of a person appointed to the office based on the Polish Constitution.
If we took out the context the October 2021 judgment, we could even agree with statements that the EU acts based on transferred competences only, that the EU should respect national identity, which encompasses the national Constitution and the sovereignty of Member States. But if we add the context in which CJEU assesses the doubtful changes within the Polish judiciary, the politicization of the NCJ and disciplinary procedure that threatens and diminishes judicial independence, we will have a right picture and a proper reading of the CT judgement. The Polish authorities are telling the EU: we do not want you anymore, we do not like you and your values, we want to do what we want in our state… It is a clear message: let’s not be friends anymore.
Thus, the latest decision of the CT shows that there is no community of values between the EU and Poland on which the previous friendship was based. This way, the CT unfollowed the EU and its values. The next step is to unfriend. The question is who will do it first – Poland by invoking art. 50 of the Treaty, or the EU by the suspension of membership rights.
Suggested citation: Agnieszka Bień-Kacała, Symposium — Part I: How to unfriend the EU in Poland, Int’l J. Const. L. Blog, Oct. 16, 2021, at: www.iconnectblog.com/2021/10/symposium–part-i–how-to-unfriend-the-eu-in-poland/