Judgment day for the Constitutional Tribunal. The CJEU will assess whether it is an independent court

The Court of Justice of the EU will rule on Thursday whether the Constitutional Tribunal is an independent court and whether it violated EU law by issuing judgments questioning its primacy. Earlier, the Advocate General of the CJEU considered the actions of the Constitutional Tribunal to be an “unprecedented rebellion” and the manner in which it was appointed as fraught with irregularities.

The CJEU will consider the complaint against Poland sent by the European Commission in 2023. The EC decided to take this step after the Constitutional Tribunal issued two judgments striking at the primacy of EU law over national law in the Community. Belgium and the Netherlands joined the Commission's complaint.

In the complaint The EC also demands a declaration that the Constitutional Tribunal does not meet the requirements of an independent and impartial court previously established under the Act.in connection with irregularities in the procedures for appointing three judges in December 2015 and in the procedure for appointing Julia Przyłębska as president of the Constitutional Tribunal in December 2016.

The Polish tribunal issued judgments questioning the primacy of EU law on July 14 and October 7, 2021. This was a consequence of changes in the Polish judiciary, adopted by the then Law and Justice government and questioned by the EC and later the CJEU.

Judgment of July 14, 2021 referred to the application of interim measures by the CJEU regarding the Polish judiciary. The Constitutional Tribunal found unconstitutional the provision in the EU treaty on the basis of which the CJEU ordered, as a safeguard, to suspend the operation of the Disciplinary Chamber of the Supreme Court until the final judgment is issued by the tribunal in Luxembourg. The CJEU later imposed daily fines on Poland for failing to comply with this order.

Judgment of October 7, 2021 he answered a question from the then Prime Minister Mateusz Morawiecki, who wanted a comprehensive resolution of the issue of the conflict of European law norms with the Polish constitution. The Constitutional Tribunal stated that European provisions authorizing national courts to disregard constitutional provisions or to adjudicate on the basis of repealed norms are inconsistent with the Constitution of the Republic of Poland. “EU treaties – as acts of international law – have priority over national law of a statutory nature, but they cannot precede the constitution,” the Constitutional Tribunal stated.

In its ruling, the CJEU may take into account the opinion of Advocate General Dean Spielmann issued in March. The CJEU spokesman called both judgments of the Constitutional Tribunal “an unprecedented rebellion”, which infringes the primacy, autonomy and effectiveness of EU law. In his opinion, the Constitutional Tribunal frontally attacked the basic principles of the EU legal order and the authority of the CJEU judgments, and this cannot be justified by the provisions of national law, including the constitution.

Spielmann therefore proposed that the CJEU find that Poland has failed to fulfill its obligations under European Union law.

Moreover, the Advocate General of the CJEU found that The Constitutional Tribunal no longer guarantees independence, impartiality and establishment by statute due to the irregularities that occurred in the appointment of the Constitutional Tribunal judges in December 2015 and the election of its president in December 2016.

This concerns the election of Henryk Cioch, Lech Morawski and Mariusz Muszyński as Constitutional Tribunal judges, which the Sejm made in December 2015. Earlier, it had adopted resolutions stating that the election of Constitutional Tribunal judges elected by the Sejm of the previous term had no legal force. Cioch, Morawski, Muszyński were the successors of judges whose terms expired in November. They were sworn in by President Andrzej Duda. Julia Przyłębska was elected president of the Constitutional Tribunal.

The CJEU judgment will probably be observed by constitutional courts in other member states, including Germany. The Federal Constitutional Court in Karlsruhe has become known as an opponent of the broad interpretation of the EU treaties by the CJEU. In May 2020, it issued a judgment bypassing the earlier CJEU ruling regarding Eurobonds, to which the EC also responded by filing a complaint to the CJEU. The German tribunal lost the battle in Luxembourg. (PAP)

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