[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 fifth entry of the symposium, which was kindly organized by Antonia Baraggia and Giada Ragone. Their introduction is available here].
—Maciej Krogel, European University Institute
The decision of the captured Polish Constitutional Tribunal (the CT) of 7 October 2021 concerning the interpretation of the EU Treaty law abounds in instant reactions by experts in the field, many of whom speak of the actual or incoming ‘legal Polexit.’ Instead of analysing in detail the circumstances, content and possible outcome of the case, this contribution aims at a self-reflective critique of the academic invoking, or in fact evoking, of the ‘exit option’. In this regard, I shall criticize scholarly reading of the recent decision as an element of the ‘legal Polexit’, as well as scholarly reinforcements of the idea of Polexit in the public discourse.
I argue that a threefold academic ambivalence accompanies not only the recent decision, but also more broadly the Polish ‘rule of law backsliding’ and the potential Polexit. First, we can identify contradiction and indecision at the level of the scholarly interpretation of constitutional law. Second, ambivalence also concerns our vision of legal expertise and its impact. The third and most general level of ambivalence comprises the responsibility of jurists for the survival of the European Union in the context of its actual aims. I will discuss these three levels after a brief summary of the decision’s sentence (while the decision’s written motives remain unpublished to date), which has so far sparked a lot of misinterpretations.
What the captured Constitutional Tribunal has actually announced
The decision of the captured Polish Constitutional Tribunal contains a bunch of statements relating to the EU primary law. For the clarity of our understanding of the situation, these statements should be divided into two groups. First of all, in short, the CT ruled that the Treaty on European Union cannot be interpreted as: authorizing the EU to act outside the conferred powers, precluding the constitution of Poland from being the supreme law of the Republic, as well as precluding Poland from functioning ‘as a sovereign and democratic state.’ If interpreted this way, said the CT, the Treaty must be considered inconsistent with the Polish constitution.
Against this background, let us trace again the simple constitutional EU-friendly pathway existing since the Polish Constitution entered into force in 1997. Article 8(1) of the Constitution stipulates that the Constitution is Poland’s supreme law. Further, Article 90(1) permits to transfer part of the competences held by Polish authorities to an international organisation or institution through an international treaty. Article 9 then stipulates that the Republic of Poland observes international law that binds upon it. Finally, Article 91(2) grants the direct applicability to the law established by an international organisation, as well as prioritizes that law over the national statutory law in case of their conflict. To this extent the decision of the captured CT in fact does not bring much more than a reformulation of what obviously stems from the Polish Constitution. True: the ill-motivated, irresponsible, aggressive in its tone and context, yet substantively toothless reformulation.
Second, the ruling in fact aimed to strike the interpretation of Article 19(1) TEU, as developed in recent years by the Court of Justice of the European Union. The captured CT namely stated that it is inconsistent with the Polish Constitution to interpret Article 19 as entailing that the national courts can, in order to protect the EU judicial order: ‘bypass the provisions of the Constitution in the course of adjudication’, ‘adjudicate on the basis of provisions which are not binding, having been revoked by the Sejm and/or ruled by the Constitutional Tribunal to be inconsistent with the Constitution’, review the legality of judicial appointments, review resolutions by the National Council of the Judiciary, determine the judicial appointments defective.
To put these statements in the realist terms, the captured CT rejected the CJEU’s judgments and orders in which the latter has declared that the effective legal protection in the fields covered by EU law demands the involvement of national courts, who for this purpose sometimes can and should disapply national provisions. In this way the captured CT has been used as a judicial tube for the earlier statements by the Polish government. Even Piotr Pszczółkowski, one of the CT’s judges (elected by PiS), in his dissenting opinion has argued that the decision is inadmissible, since the true reason for a Prime Minister’s application was to undermine the effects of the particular CJEU’s rulings, and not of the EU Treaty itself. In any event, the decision of the captured CT belongs to a consolidated type of ‘interpretative rulings’, ‘in which a decision on the constitutionality of law is taken not in absolute terms but in relation to a particular interpretation of the provision at issue.’ The decision therefore does not aim to revoke the Treaty provisions per se, but to reject their particular interpretations.
The worrisome and harmful legal effect of the decision for the whole Union is that the growing national resistance towards the effectiveness of the EU legal order has now been disguised in the authority of, at least nominally, a constitutional court. This may likely contribute to the constitutional turmoil in the EU and serve as a pretext for other national apex courts willing to cherry-pick the EU Treaty’s norms and their interpretations.
The ambivalence of interpretation
As I mentioned above, more than in the verdict itself, I am interested in accompanying reactions and opinions by jurists. Claims about the forthcoming Polexit have recently been appearing in legal literature, and still even more often in legal blogosphere and on social media. Indeed, such claims have even preceded the recent decision by the captured CT. Some authors go as far as to suggest that Poland (and Hungary too) is already on its way out legally speaking. For this purpose they argue that the consistent practice of a backsliding Member State equals its notice of withdrawal as required by Article 50(2) TEU. In other words, with no need for a formal launch of the exit process, we should consider Poland effectively withdrawing from the EU by its constant actions which seriously violate common values. Some other scholars in turn describe the situation of the rule of law in Poland as de facto an ‘informal’ or ‘juridical’ Polexit. They either predict Poland formally withdrawing, or they diagnose the political and legal situation somewhat metaphorically as parallel to withdrawal. Still other scholars draft legal ways to effectively exclude the Member States such as Poland and Hungary from the EU, bypassing the lack of the sanction of expulsion and the ineffectiveness of the procedure of Article 7 TEU. There are also academics who keep reminding that a persistently disobedient Member State should decide to leave the EU, while they do not much engage with the issue of fate and will of the actual majority of the citizens of such a Member State. Finally, there are scholars who openly welcome political suggestions that the EU perhaps should walk its path further without Poland and Hungary.
While as diverse as they can be, most of these opinions actually disclose an internal tension or even contradiction. The first level of the juristic ambivalence pertains to legal interpretation. It is namely unfounded on the one hand to argue that the actions of the Polish authorities are doubtlessly illegal, unconstitutional and illegitimate, and on the other hand to interpret them as legally resulting in the actual or forthcoming Polexit in the current state of EU law.
It is incoherent to argue that Poland is on its way out from the EU, and at the same time to regard the composition and actions of the captured CT unconstitutional and illegitimate. Article 50(1) TEU makes it clear that a ‘Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.’ In the Polish case we lack precisely the accord with the national constitution’s requirements. Lawyers should choose either to have or to eat a cake: either we argue that Poland is actually withdrawing from the EU, or we argue the Polish authorities and the captured CT are breaking the Polish Constitution. Tertium non datur. There are compelling premises to argue the latter. The Constitutional Court of Poland is partly composed of unconstitutionally elected judges, as acknowledged by the supranational institutions. The current CT moreover functions illegitimately, as results from its violations of law and serious public doubts as to its independence and autonomy from political actors. Finally, the aforementioned provisions of the Polish Constitution stipulate the duty to obey international law and law established by organisations such as the EU. But jurists’ ambivalence exceeds beyond reactions to the recent decision of the CT. Indeed, it happens that jurists first willingly speak of not only ‘packed’, but also ‘fake’, ‘illegitimate’ and ‘bogus’ independent institutions in Poland, to suggest the vision of factual Polexit just a minute later. Such arguments nevertheless clearly contradict Article 50(1) TEU.
The ambivalence of impact
Certainly, one may argue that Poland is now on its way out. One can do it for instance by using empirical methods, measuring the people’s support for remaining in or leaving the Union. One can analyse the evolution of media discourse, analyse sentiments or with all reservations compare them to that of, say, the British people in years preceding the Brexit voting. Such an analysis would certainly demand an analytical rigor and high awareness of the method applied. One can, on the other hand, claim that Polexit is already ongoing, if one does it within a political public discourse. It is the job of politicians and activists to draw visions that speak directly to emotions and capture reality on its many levels at once, often at the cost of oversimplification. To be sure, it is not a disgraceful job. It is just the job of theirs, and not of jurists. Legal analysis actually is not equal to the abovementioned tasks, unless it integrates a rigorous social science or, otherwise, overtly transforms into activism.
Indeed, we lawyers sometimes find ourselves uneasily trapped between the desire to impact public opinion and decisions of institutions on the one hand, and the wish to retain our own originality of expertise on the other hand. It is laudable to enrich legal analysis with a socio-political sensitivity. It is equally laudable to raise public awareness of legal problems and popularize the juristic point of view. The relation between these aims can however be tensed, if jurists use their original authority to address public questions in the mode either of social engineers or of activists.
The second level of ambivalence becomes fully visible at this point. Either we argue that what we do is just diagnosing and interpreting law that exists out there (but then we face the problems with interpretation described above), or we admit that we also aim to lobby, to impact institutional and political decisions. The ambivalence of impact means that we jurists fail to reflect on whether the effect of our work is only that of interpreting and alarming, or whether our work does also result in co-creating the course of events. If the latter, we are on a very thin ice insofar as we promote the claims about the ‘legal Polexit.’ Do we want to put the removal options on the table of supranational institutions? Can jurists take responsibility for cementing the idea that some Member States are actually now leaving the EU, or that their leave is becoming inevitable? These questions finally redirects us to approach the last level of the juristic ambivalence.
The ambivalence of aims
Let us then zoom out and reflect a bit more on the responsibility of jurists. It is not an often recalled fact that according to Article 3(1) TEU, the aims of the EU, besides promoting its values, also include promoting peace and the well-being of its people. There is no convincing legal reason why concerns about peace should draw less attention of constitutional scholars than concerns about the state of values. Indeed, apart from the crisis of constitutional values, what we currently face is the most serious threat to peace within the European community after the Cold War.
Those welcoming the possibility of exit by Hungary or Poland should be mindful that European disintegration risks the return of the Iron Curtain, even though perhaps in its softer or less visible version than thirty years ago. Exaggeration? Think of the cruel game Lukashenka is playing at the Polish-Belarussian border, with partial cynicism and partial incompetence on the side of the Polish authorities. Think of Russian hybrid wars and interferences in foreign elections. Think of acclaim that the anti-EU policies of Warsaw and Budapest find among radical nationalist groups across Europe.
True, the violations of values put the European peace at risk, too. It is very probable that the constitutional offensive against the EU legal order has contributed to the increase of nationalist sentiments and Euroscepticism also outside Hungary and Poland. Disregard for the rule of law is likely to spread virally across constitutional systems. It is however beyond the competence of jurists to balance EU values and peace or to engineer the de facto great-scale political solutions that might bring a serious threat to peace. Furthermore, if we are consolidating the protection of values in our constitutional-academic discourse, there is no legitimate argument against consolidating the protection of peace.
Let us not evoke the ghosts of European disintegration by invoking the legal -exit as a welcome solution. Otherwise one day we may be awaken by something from the outside of our academic lives, the lives obviously full of ‘concerns’, ‘worries’ and ‘predictions’ about the state of the rule of law. That awakening ‘something’ may in turn brutally overstep our scholarly juristic imagination.
Suggested citation: Maciej Krogel, Symposium — Part IV — After the decision of the captured Polish Constitutional Tribunal: jurists trying to have and eat their cake , Int’l J. Const. L. Blog, Oct. 17, 2021, at: http://www.iconnectblog.com/2021/10/symposium–part-iv–after-the-decision-of-the-captured-polish-constitutional-tribunal-jurists-trying-to-have-and-eat-their-cake/
 L Garlicki, Constitutional courts versus supreme courts, International Journal of Constitutional Law, Volume 5, Issue 1, January 2007 54.
 Perhaps the first author to claim so was Christophe Hillion in his contribution for Verfassungsblog: https://verfassungsblog.de/poland-and-hungary-are-withdrawing-from-the-eu/.
 See e.g. European Commission, Reasoned Proposal in Accordance with Article 7(1) if the Treaty on European Union Regarding the Rule of Law in Poland, Brussels, 20.12.2017; the ruling of the ECtHR in Xero Flor w Polsce sp. z o.o. v. Poland.