It was hard to imagine the long-running dispute between the EU and Poland over the rule of law could get much worse than it already was, what with the Article 7 Rule of Law procedure the EU triggered four years ago and the repeated infringement procedures initiated by the Commission since then. But it did get worse—a lot worse—on December 22 when the EU Commission charged Poland’s Constitutional Tribunal with violating EU law in two key decisions last year. The first, issued in July, was in response to an inquiry from the Disciplinary Chamber of Poland’s Supreme Court whether it had to comply with interim measures ordered by the Court of Justice of the European Union [CJEU or ECJ]. The second, issued in October, was in response to a petition from Prime Minister Mateusz Morawiecki requesting a resolution of the potential conflict between EU law and the Polish Constitution. The Commission said that in those rulings the Tribunal “considered the provisions of the EU treaties incompatible with the Polish Constitution, expressly challenging the primacy of EU law.”
In the 2015 Polish election, Law and Justice (PiS), the conservative and nationalist party headed by Jarosław Kaczyński, won 38 percent of the vote and a bare majority in the Sejm, the lower house of the parliament. Soon thereafter, the new government embarked on a number of institutional changes involving the media, the universities, and the courts designed to enhance its political control over those institutions. One of them, enacted in early 2018, involved creation of a disciplinary chamber for judges within the Supreme Court. In April 2019, the Commission launched an infringement procedure on the grounds that the disciplinary regime undermined the judicial independence of judges by not protecting them from political control. In particular, it said the new regime didn’t guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court, which reviews decisions taken in disciplinary proceedings against judges. The Chamber was composed entirely of judges selected by the National Council for the Judiciary, whose members are appointed by the Sejm. In October 2019, the Commission referred the matter to the ECJ and in January 2020, it asked the ECJ to impose interim measures suspending the functioning of the Disciplinary Chamber. In April 2020, the ECJ ruled that Poland must immediately suspend application of the provisions in the law pertaining to the powers of the Chamber in disciplinary cases concerning judges until the ECJ had rendered its final judgment in the case.
Poland refused to comply with the ECJ ruling and in December 2020 the Commission sent Poland a letter of formal notice adding a new grievance to the case and asking Poland for a response. After concluding that Poland’s response wasn’t satisfactory, in March it informed the ECJ that Poland “violates EU law by allowing the Disciplinary Chamber of the Supreme Court—the independence of which is not guaranteed—to take decisions that have a direct impact on judges and the way they exercise their function” and asked the ECJ to order interim measures to “prevent the aggravation of serious and irreparable harm inflicted to judicial independence and the EU legal order.” Specifically, it asked the ECJ to suspend the provisions empowering the Disciplinary Chamber to decide on requests for lifting judicial immunity as well as on matters of employment, social security and retirement of judges, to suspend the effects of decisions already taken by the Chamber, and to suspend the provisions preventing Polish judges from directly applying provisions of EU law protecting judicial independence and from putting references for preliminary rulings to the ECJ.
On July 14, in response to an inquiry from the Disciplinary Chamber of the Supreme Court whether the ECJ could in fact order suspension of the provisions in the law empowering the Chamber to decide on matters involving the immunity and employment of judges, the Constitutional Tribunal ruled that the Chamber does not have to comply with the interim measures ordered by the ECJ. It’s not the only constitutional court in the EU that has objected to the content of a ruling of the ECJ—the German Constitutional Court did that in 2020 in regard to the European Central Bank’s Public Sector Purchase Programme. But it’s the only one that has rejected the right of the ECJ to rule in a matter.
Shortly before that ruling was announced, the deputy head of the ECJ, aware that the ECJ would be announcing a ruling in regard to the Disciplinary Chamber the next day, again ordered Poland to immediately suspend all activities of the Chamber. In that ruling, the ECJ stated simply and unambiguously, “the disciplinary regime for judges in Poland is not compatible with EU law.” It said that, “taken together, the particular context and objective circumstances in which the Disciplinary Chamber was created, the characteristics of that Chamber, and the way in which its members were appointed are such as to give rise to reasonable doubts in the minds of individuals as to the imperviousness of that body to external factors, in particular the direct or indirect influence of the Polish legislature and executive, and its neutrality with respect to the interests before it and, thus, are likely to lead to that body’s not being seen to be independent or impartial, which is likely to prejudice the trust which justice in a democratic society governed by the rule of law must inspire in those individuals.” It concluded that “by failing to guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court,…by allowing the content of judicial decisions to be classified as a disciplinary offence involving judges of the ordinary courts,…by conferring on the President of the Disciplinary Chamber of the Supreme Court the discretionary power to designate the disciplinary tribunal with jurisdiction at first instance in cases concerning judges of the ordinary courts…and, therefore, by failing to guarantee that disciplinary cases are examined by a tribunal ‘established by law’, and by failing to guarantee that disciplinary cases against judges of the ordinary courts are examined within a reasonable time…and by failing to guarantee respect for the rights of defence of accused judges of the ordinary courts, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1), Treaty on European Union.” The second subparagraph of Article 19(1) states that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.” In addition, the ECJ ruled that “by allowing the right of courts and tribunals to submit requests for a preliminary ruling to the Court of Justice to be restricted by the possibility of triggering disciplinary proceedings, the Republic of Poland has failed to fulfil its obligations under the second and third paragraphs of Article 267, Treaty on the Functioning of the EU.” Article 267 states that the Court has jurisdiction to give preliminary rulings concerning the interpretation of the Treaties and the validity and interpretation of acts of the institutions, bodies, offices and agencies of the EU.
In early September, after studying Poland’s response and concluding it was not persuaded that Poland would comply with the ECJ’s July 14 order and July 15 judgment, the Commission decided to request the ECJ to impose a financial penalty on Poland in the form of substantial daily payments in order to persuade it to comply with the July 14 order. In regard to the July 15 judgment, it said that, while Poland had said it intended to dismantle the Disciplinary Chamber in its current form, it had not provided any further details, and if it subsequently concludes that Poland’s reply is not satisfactory as a next step, it may bring the case once more to the ECJ, which could result in an additional penalty. On October 6 the ECJ dismissed Poland’s motion to revoke the interim measures it had ordered on July 14, and on October 27 the ECJ announced that, because Poland had not suspended the application of the provisions of national legislation relating, in particular, to the areas of jurisdiction of the Disciplinary Chamber, it would have to pay the Commission a daily penalty of €1 million until it complies with the obligations arising from the ECJ’s order of July 14 or, failing that, until the date of delivery of the final judgment.
In addition to the issue involving the Disciplinary Chamber of the Supreme Court, the Constitutional Tribunal was considering another potentially explosive issue. In early March, the ECJ had ruled, in response to a request from Poland’s Supreme Administrative Court for a preliminary ruling, that successive amendments to Poland’s Act on the National Council of the Judiciary that led to the abolition of effective judicial control of the Council’s decisions in regard to the nomination of candidates for the Supreme Court could be in breach of EU law and that if a national court acknowledged that such amendments breached EU law, it could not apply them. That prompted Morawiecki to submit a lengthy petition to the Constitutional Tribunal in March requesting a comprehensive resolution of the potential conflict between EU law—specifically, provisions in the Treaty on European Union—and the Polish Constitution.
On October 7, the Tribunal responded to Morawiecki’s petition. In a 12-2 decision, it ruled that, “The attempt by the European Court of Justice to involve itself with Polish legal mechanisms violates…the rules that give priority to the Constitution and rules that respect sovereignty amid the process of European integration.” Specifically, the Tribunal ruled that the first and second subparagraphs of Article 1 of the TEU, in conjunction with Article 4(3) of the TEU, insofar as the EU, “whose integration on the basis of Union law and through its interpretation made by the Court of Justice marks a new stage in which 1) the Union’s institutions act beyond the limits of competences transferred by the Republic of Poland in the Treaties; 2) the Constitution is not the supreme law of the Republic of Poland and does not have precedence as of its binding force and application; 3) the Republic of Poland cannot function as a democratic and sovereign state, are inconsistent” with Articles 2, 8, and 90(1) of the Polish Constitution. And it ruled that the second subparagraph of Article 19(1) of the TEU, “insofar as, in order to ensure effective legal protection in the fields covered by Union law, confers on the national courts…the power to 1) disapply, within the exercise of their functions, the provisions of the Constitution…2) rule on the basis of provisions not in force: repealed by the Sejm or declared unconstitutional by the Constitutional Tribunal,” is inconsistent with Articles 2, 7, 8(1), 90(1), 178(1) and 190(1) of the Polish Constitution.
Article 1 of the TEU refers to the member states conferring competences on the Union in order to attain objectives they have in common and a “new stage in the process of creating an ever closer union…in which decisions are taken as openly as possible and as closely as possible to the citizen.” Article 4(3) of the TEU states that the EU and the member states “shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties…and shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.” The second subparagraph of Article 19(1) of the TEU states, “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”
Article 2 of the Polish Constitution states “The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice.” Article 7 states, “The organs of public authority shall function on the basis of, and within the limits of, the law.” Article 8 states, “1. The Constitution shall be the supreme law of the Republic of Poland. 2. The provisions of the Constitution shall apply directly unless the constitution provides otherwise.” Article 90(1) states, “The Republic of Poland may, by virtue of international agreements, delegate to an international organization or international institution the competence of organs of State authority in relation to certain matters.” Article 178(1) states, “Judges, within the exercise of their office, shall be independent and subject only to the Constitution and statutes.” And Article 190(1) states, “Judgments of the Constitutional Tribunal shall be of universally binding application and shall be final.”
The Commission immediately expressed its serious concern about the Tribunal’s ruling. In a statement issued hours later, it said, “Today’s oral presentation of the ruling by the Polish Constitutional tribunal raises serious concerns in relation to the primacy of EU law and the authority of the Court of Justice of the European Union.” It underscored the primacy of EU law over national law, including constitutional provisions, and the fact that all rulings of the ECJ are binding on all member state authorities, including national courts. It said it would analyze the Tribunal’s ruling in detail and decide on the next steps, and “will not hesitate to make use of its powers under the Treaties to safeguard the uniform application and integrity of Union law.”
In launching last Wednesday’s infringement procedure for violations of EU law by the Constitutional Tribunal, the Commission stated that it believes the July 14 and October 7 rulings “are in breach of the general principles of autonomy, primacy, effectiveness and uniform application of Union law and the binding effect of rulings of the Court of Justice of the European Union.” [Bold fonts here and below are in the Commission’s statement.] It stated, in particular, that in its July ruling, the Tribunal “denied the binding effect of any interim measures orders of the Court of Justice issued under Article 279 TFEU to guarantee the effective judicial review by an independent and impartial tribunal established by law.” And it stated that in its October ruling, the Tribunal “disregarded its obligations under EU law by considering unconstitutional—and thus not having effects in the Polish legal order—the Court of Justice’s interpretation of Article 19(1) TEU according to which a national court may be called upon to review the legality of the procedure for appointing a judge and pronouncing itself on any irregularity in the appointment process to verify whether that judge, or the court in which the judge adjudicates, meets the requirements of Article 19(1) TEU.” Furthermore, the Commission said it “considers that these rulings are in breach of Article 19(1) TEU, which guarantees the right to effective judicial protection, by giving it an unduly restrictive interpretation. Thereby, it deprives individuals before Polish courts from the full guarantees set out in that provision.”
Finally, the Commission said it “has serious doubts on the independence and impartiality of the Constitutional Tribunal and considers that it no longer meets the requirements of a tribunal previously established by law, as required by Article 19(1) TEU.” It stated, as it had in the Article 7 case, “the process of appointment to the Constitutional Tribunal of three judges in December 2015 occurred in breach of fundamental rules forming an integral part of the establishment and functioning of the system of constitutional review in Poland. The gravity of this breach gives rise to a reasonable doubt in the minds of individuals as to the independence and the impartiality of the judges concerned. This is also shown by other irregularities and deficiencies such as the election of the President and Vice-President of the Constitutional Tribunal, which raised serious concerns as to the impartiality of judges of the Constitutional Tribunal when handling individual cases.” Concluding, it stated, “Whereas the Constitutional Tribunal is called upon to rule on questions relating to the application or interpretation of EU law, the Commission considers that it can therefore no longer ensure effective judicial protection by an independent and impartial tribunal previously established by law, as required by Article 19(1) TEU, in the fields covered by EU law.” The EU has given Poland two months to reply to the letter of formal notice of the infringement procedure.
How this standoff between the EU and Poland will be resolved is not at all clear. Public opinion surveys indicate that substantial majorities in Poland support the country’s membership in the EU, and Kaczyński and Morawiecki and others in the PiS-dominated United Right government have made it clear the government doesn’t want to leave the EU and has no intention of doing so. The Tribunal is Poland’s constitutional court and the government can’t treat its rulings as simply advisory opinions. But Poland clearly can’t remain in the EU and continue to enjoy the economic and financial benefits of membership without accepting the primacy of EU law. Eventually, and however it does it, Poland will have to either accept the primacy of EU law, including the authority of the ECJ, or leave the EU. It won’t do the latter, so the question is how, notwithstanding the authority and rulings of its Constitutional Tribunal, will Poland accept the primacy of EU law, including the authority of the ECJ? There’s no evidence the government has an answer to that question.
David R. Cameron is a professor emeritus and lecturer in political science and the former director of the MacMillan Center’s Program in European Union Studies.