European Parliament declares Polish Constitutional Tribunal illegitimate in the face of threat to the primacy of EU law

In a resolution adopted on 21 October, the European Parliament (EP) declared the Constitutional Tribunal of Poland as not only “lacking legal validity and independence” but also “unqualified to interpret the Constitution of Poland”. This scathing denunciation comes as an answer to the 7 October decision of the Constitutional Tribunal that found the provisions of the Treaty on European Union (TEU) incompatible with the Polish Constitution on multiple grounds, thus posing a direct challenge to the established principle of the primacy of EU law.

The contested decision of the Constitutional Tribunal is the final verdict in the proceedings initiated by Mateusz Morawiecki, the Prime Minister of Poland, in response to the Court of Justice of the European Union (CJEU) ruling earlier this year that amendments to the Polish law concerning the appointment of judges to the Polish Supreme Court were likely to be in breach of EU law. The amendments in question made it possible for the Polish Parliament – where Morawiecki’s Law and Justice (PiS) party has a ruling majority – to handpick the members of the National Council of the Judiciary – the body responsible for the nomination of judges to be appointed to the Supreme Court – who were formerly directly elected by the judiciary. Thus politicized, the independence of the National Council’s nominations – particularly with regard to the newly established disciplinary chamber of the Supreme Court, where former prosecutors were appointed to rule over disciplinary and criminal cases against judges – was called into question by the Supreme Court itself, which took the position that the disciplinary body could not be considered a court, as it was not nominated by an independent body, then applied to the CJEU for a preliminary ruling on the issues concerning the loss of independence of the National Council.

This preliminary ruling – in which the CJEU found that national provisions like the amendments in question, which have the effect of removing effective judicial review of the decisions of the National Council, are liable to infringe EU law and emphasized that “the effects of the principle of primacy of EU law were binding on all bodies of a Member State” was followed up by the European Commission bringing an action for failure to fulfil obligations before the CJEU against Poland on 1 April 2021. Pending the final judgment of the Court in the case, the Commission asked the Court to adopt the necessary interim measures to avoid further “serious and irreparable harm to the legal order of the European Union and, consequently, to the rights which individuals derive from EU law and the values 8 on which that Union is founded, in particular that of the rule of law”. The CJEU complied with this request and in its judgment issued on 14 July 2021, ordered Poland to immediately suspend the provisions allowing the disciplinary chamber of the Supreme Court to decide on requests for the lifting of judicial immunity, suspend the effects of decisions already taken by the disciplinary chamber on the lifting of judicial immunity and suspend the provisions preventing Polish judges from directly applying EU law protecting judicial independence, and from applying for preliminary ruling on such questions to the CJEU. Poland did not comply with these interim orders.

It is against this legal backdrop that Morawiecki submitted a 129-page petition to the Constitutional Tribunal of Poland concerning the resolution of a potential conflict between EU law and the Polish Constitution. In a decision published on 7 October, the Constitutional Tribunal challenged the jurisdiction of the CJEU, the principle of the primacy of EU law and the constitutionality of the EU Treaties, arguing that several provisions of the TEU – specifically, the first and second subparagraphs of Article 1 in conjunction with Article 4(3) and the second subparagraph of Article 19(1) – are inconsistent with the Polish Constitution. The Tribunal expressed particular concern about the second subparagraph of Article 1 which describes the TEU as marking “a new stage in the process of creating an ever closer union among the peoples of Europe” and which, in the view of the Tribunal, represents the threat of EU institutions – and the CJEU in particular – acting beyond the competences willingly transferred by Poland under Article 90 of its Constitution.

On the one hand, this Polish case is far from being the first time that the constitutional court of a Member State has challenged the principle of primacy and its potential to trigger ‘ultra vires’ acts by the EU institutions: the Federal Constitutional Court of Germany has famously scrutinized the limits of the principle with reference to the Grundgesetz in a long line of cases starting from the Solange judgments, through the Maastricht and Lisbon decisions, up to its most recent judgment – adopted last year – on disapplying the European Central Bank’s decision on the EU’s Public Sector Purchase Programme; nor is it without precedent in the practice of the Constitutional Tribunal of Poland, which, as commentators have pointed out, has never explicitly recognized the primacy of EU law over the Polish Constitution. On the other hand, this verdict goes a step further than the previous cases in that it does not only call the principle of primacy into question, but launches a broader attack on the EU Treaties, claiming the incompatibility with the Polish Constitution of the interpretation by the CJEU of several key TEU provisions (including Articles 1, 2 and 19).

Considering the directness of this attack, it should come as no surprise that the heated plenary debate with Morawiecki and European Commission President Ursula von der Leyen, taking place during the 18-21 October session of the European Parliament, culminated in the adoption of the harshly-worded resolution, in which MEPs expressed their concerns over the Polish Constitutional Tribunal having been transformed “into a tool for legalising the illegal activities of the authorities”, and as such, “lacking legal validity and independence” and “unqualified to interpret the Constitution of Poland”; expressing that the EP “deeply deplores” the decision of 7 October “as an attack on the European community of values and laws as a whole”. The EP has also expressed its full support for “Polish judges who still apply the primacy of EU law and refer cases to the CJEU for preliminary ruling (…) despite the risk to their careers, including disciplinary removal from adjudication, dismissal or forced resignation” and for the “tens of thousands of Polish citizens who took to the streets in peaceful mass protests, fighting for their rights and freedoms as European citizens”.

These strong words, however, are not the only negative consequence Poland has found itself facing. On 27 October, the CJEU ruled that the continued refusal of Poland to comply with its interim orders on the suspension of the national legislation on the jurisdiction of the disciplinary chamber of the Supreme Court represents serious and irreparable harm to the legal order of the European Union, and as such, Poland is to pay the Commission a penalty of €1 million per day until it complies with the obligations arising from the interim orders or, if it fails to do so, until the date of delivery of the final judgment.

Further reading:

Press release of the CJEU on the judgment of 2 March
Press release of the CJEU on the judgment of 27 October