National Law Over EU Law? Legal Dispute Between Poland and EU Drags On

Pierre Subleyras: Justice // Public domain

The Polish Constitutional Tribunal has postponed at short notice the hearing scheduled for today on whether the Disciplinary Chamber of Poland’s Supreme Court can continue to operate despite an interim order from the European Court of Justice (ECJ). The hearing was originally scheduled for April, but was postponed several times due to the initiative of the Polish Ombudsman’s Office.

According to Polish media, Polish Ombudsman Adam Bodnar’s objections to the composition of the panel that should now rule on the constitutionality of the interim measures were also the reason why the hearing was cancelled at short notice yesterday.

In the current legal dispute, the Polish government takes the position that the ECJ’s interim orders violate the Polish constitution. It is not the first time there has been a conflict between the PiS government and the EU over modifications to Poland’s judicial system. After taking office in 2015, PiS had significantly restructured the Polish judiciary and undermined the independence of Polish courts. A

s a result of its judicial reform, the rules for appointing judges were redefined. This has given PiS the opportunity to nominate people close to the party for the National Council of the Judiciary (KRS), which nominates candidates for judgeships, and thus to influence the selection of judges.

Dispute Over the Disciplinary Chamber

A disciplinary chamber at the Supreme Court was created as part of the judicial reform, which can punish or dismiss judges or prosecutors. In February 2020, the law on disciplining judges, which opponents of the government call the “Muzzle Law”, caused a stir. Under the law, judges who are critical of previous judicial reforms face fines, demotion or even dismissal. The law also prevents Polish judges from referring certain legal issues to the ECJ.

According to the EU Commission, the Polish Disciplinary Board is unlawful. The ECJ’s ruling is still pending. However, recently the ECJ Advocate General, Evgeni Tanchev, stated in a new expert opinion that it is clear that the establishment of a disciplinary chamber violates EU law and the independence of the judiciary. Due to the interim measure, the ECJ suspended the activities of the disciplinary chamber as early as April 2020.

However, the Polish government ignored this order on the grounds that the ECJ does not have the right to rule on the conformity of the Disciplinary Board’s measures under EU law. Despite the interim measure, two judicial disciplinary hearings have recently appeared on the Supreme Court’s calendar of proceedings, both to be decided in mid-September. At the end of March, the EU Commission therefore filed a new complaint and a request for further interim measures with the ECJ in the dispute over the Polish judicial reforms.

Shortly after the European announcement, the Disciplinary Chamber submitted a legal question to the Constitutional Tribunal on the compatibility of the ECJ’s order with the Polish Constitution. The ruling is now eagerly awaited. According to some observers, the outcome of the case could indicate how Poland intends to deal with ECJ rulings on judicial reform in the future.

(In-)Dependent Ruling?

The Constitutional Tribunal, which is now ruling on the question of the compatibility of the ECJ’s interim orders with the Polish constitution, is seen as illegitimate by government critics. It is accused of being under the influence of the ruling PiS. Due to the restructuring of the judiciary, the majority of judges were appointed by the government in a legally and politically controversial procedure. The EU Commission sees the takeover of the judiciary by the PiS party as a violation of the rule of law and the separation of powers.

Critics of the government are now particularly concerned that the members of the panel deciding on the constitutionality of the interim orders include former PiS MPs Krystyna Pawłowicz (chair of the panel) and Stanisław Piotrowicz, who as MPs in the Polish Sejm, actively shaped the legislation introducing unconstitutional amendments (including the establishment of the Disciplinary Chamber). They point out that this is a clear violation of all rules of impartial jurisdiction.

In addition to Pawłowicz and Piotrowicz, the five-member court panel also includes Justyn Piskorski, one of the so-called “doubler judges”, who, after the PiS took power, were elected to positions at the Constitutional Tribunal, which had already been filled previously. However, this is precisely what the ombudsman Adam Bodnar sees critically.

After the European Court of Human Rights (ECHR) ruled at the beginning of May that decisions of the “doubler judges” at the Polish Constitutional Tribunal were unlawful, Bodnar was to file a motion to exclude Piskorski from the proceedings. Subsequently, the hearing was postponed from May 13 to June 15.

According to Polish media, Bodnar’s objections to the panel’s composition were also the reason why yesterday’s hearing was cancelled on short notice. Last week, in fact, the Ombudsman requested Chairwoman Pawłowicz to be excluded from the proceedings because of her anti-EU statements.

Following the ECJ’s order in May to suspend mining operations at Poland’s Turów mine, Pawłowicz has spoken publicly about “aggression” against Poland and “brazen gangster of the EU judiciary.” According to Bodnar, the principles of impartiality and objectivity would not be guaranteed with Pawłowicz presiding the panel.

Bodnar is considered one of the sharpest and best-known government critics, who also enjoys a high reputation abroad. Therefore, for the PiS leadership, he represents more of a stooge of the opposition. In fact, his term already ended in September 2020, but based on Polish law, he should remain in office until the election of the new ombudsperson.

However, the politicized Constitutional Tribunal ruled in April this year that the legal provisions that allowed Bodnar to hold office during the transition period were unconstitutional and that Bodnar must resign from his post in three months. A successor has still not been found, but just today Polish MPs are voting again on who should fill the post.

Where Do We Go From Here?

PiS has long argued that national law takes precedence over EU law. After the ECJ ruled in early March that Polish rules on judicial appointments violated Community law in a preliminary ruling procedure, the Polish Prime Minister even referred the question of the hierarchy of norms between Union law and Polish constitutional law to the Constitutional Tribunal.

At the beginning of June, EU Justice Commissioner Didier Reynders wrote a letter to Polish Minister for European Affairs Konrad Szymański asking him to withdraw the application, but Morawiecki resolutely refused. However, the EU treaties clearly state that decisions of the ECJ are binding.

Should the Polish Constitutional Tribunal decide that interim orders of the ECJ are not in line with the Polish Constitution, this would mean a substantial undermining of the functioning of the EU legal system. Some commentators talk in this context about a further step towards a de jure PolExit. It is clear that a ruling could have serious consequences for Poland and would further exacerbate the conflict between Poland and the EU.

By joining the EU, each member state undertakes to be bound by the legal provisions applicable in the Union – including the principles of rule of law. And this also applies to Poland.

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Natalie Marakova
Friedrich Naumann Foundation for Freedom