Poland – Tensions between Brussels and Warsaw over the independence of the Polish judiciary have been ongoing since the end of 2015. They began immediately after the parliamentary elections won by the Law and Justice Party (PiS) in October 2015. In December 2017, the European Commission launched the famous sanction procedure under Article 7 of the Treaty on European Union. In other words, the Commission asked the member States within the Council to “determine that there is a clear risk of a serious breach by a Member State [Poland] of the values referred to in Article 2.”[1] In the present case, the Commission considers that the reform of the Polish Constitutional Court in 2016 and the judicial reforms adopted in early December 2017 threaten the rule of law in Poland. Since respect for the rule of law is one of the values recognised by the European Union in Article 2 of the Treaty on European Union,[2] the European Commission, as guardian of the Treaties, considers itself competent to intervene in what should have remained an internal conflict in Poland. This is, in any case, what some Member States, particularly in Central Europe, think. To date, the four-fifths majority of the states represented in the EU Council, which is necessary to initiate Article 7 proceedings against Poland, has not been reached. This is why the European Commission has sought, from September 2018, to circumvent this obstacle resulting from the conditions laid down in Article 7 by bringing the reforms of the Polish judicial system directly before the Court of Justice of the European Union (CJEU).
At the same time, judges of the Polish Supreme Court (Court of Cassation) have also referred their country’s judicial reform to the CJEU. Although they won their case in Luxembourg, the Polish Constitutional Court ultimately ruled against them. Now it is the Constitutional Court that will have to reaffirm the superiority of the Polish legal order or submit to the European legal order.
The battle initiated by the European Commission against the reform of the Polish judiciary
As part of its strategy to judicialize its conflict with the government and the parliamentary majority in Poland, the European Commission brought an action before the CJEU in October 2019 against the reform of the Polish Supreme Court creating the Disciplinary Chamber.[3] This disciplinary chamber of last instance was created by the Supreme Court Act of December 8, 2017 to put an end to the impunity that characterised the Polish judicial system, which had never been truly reformed since the Communist era. This reform was an important point in the PiS’s 2015 programme and therefore enjoyed even greater democratic legitimacy as Polish voters returned the PiS’s absolute majority to the Diet in October 2019.
The Commission considers that this Disciplinary Chamber does not provide the necessary guarantees of independence and impartiality, and that Poland is therefore failing to fulfil its obligations under the Treaty on European Union, according to which “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”[4] It was in the context of this procedure that the CJEU ruled on April 8, 2020 that “Poland must immediately suspend the application of the national provisions on the powers of the Disciplinary Chamber of the Supreme Court with regard to disciplinary cases concerning judges.”[5] This is pending a judgment on the merits of the European Commission’s appeal.
Reacting to this provisional order of the CJEU, the Disciplinary Chamber of the Polish Supreme Court immediately referred the matter to the Constitutional Tribunal. In its referral, it argued that the CJUE was asking Poland to apply interim measures concerning the organisation and functioning of the bodies of the national judicial system “even though those powers had not been transferred to the European Union and its institutions by virtue of an international treaty.” At the same time, the Polish Prime Minister Mateusz Morawiecki announced his intention to refer the question of this interim order of the CJEU to the Constitutional Tribunal, arguing that “in accordance with the Constitution, the Constitutional Tribunal is the one which decides in the last instance on the question of the conformity of legal acts.” As for the Polish Deputy Minister of Justice Marcin Romanowski, he considered that this order was a “flagrant violation of the treaties” and that it would be up to the Polish Constitutional Court to decide what prevails: “the opinion of a group of judges of the CJEU or the Polish constitution and the reading of the treaties in the light of the Polish fundamental law.”
For Polish Deputy Minister of Justice Sebastian Kaleta, the CJEU’s ruling of April 8, is an unprecedented decision because: “for the first time the European Union is attributing competence over the constitutional bodies of a Member State. Worse, it does not do so by examining a case on its merits. In the context of an interim order, without deciding on the merits, it dictates to a Member State how it is to be governed”, whereas “it is the Constitutional Tribunal that is the court of last instance on Polish territory for such essential cases, and it is there that this case will have its sequel.” Indeed, Mr Kaleta believes that if Poland were to give in, the next step would probably be to impose on Poland and all EU Member States “the legalisation of same-sex unions, adoption of children by same-sex couples and a whole range of other ideological demands with which Polish society does not agree.”[6]
The Polish Constitutional Court will therefore have to decide, in this case, whether it or the CJEU should have the last word on the organisation of Polish justice.
How did it come to this?
In 2017, the Polish parliament adopted three major reforms of the judiciary in accordance with its electoral programme for 2015: those of the ordinary courts, the National Judicial Council (KRS) and the Supreme Court (Court of Cassation). According to the Polish constitution, the KRS has 25 members, including 15 judges, the method of appointment of whom must be defined by parliament by means of a law. Until the reform, the 15 judges of the KRS were appointed by their peers. Since then, they have been chosen by Parliament. As for the reform of the Supreme Court, it has, among other things, led to the creation of two new chambers: the Chamber of Extraordinary Control and Public Affairs and the Disciplinary Chamber. Since one of the functions of the KRS is to propose to the President of the Republic candidates for the posts of judges, it was the reformed KRS that proposed the candidates for the current members of these two new chambers. Thus, the PiS considers that it has re-established democratic control over the judiciary through parliamentary appointments to the KRS. However, it does not consider that the independence of the judges has been undermined, as the members of the chambers of the Supreme Court are appointed for a fixed term of six years and cannot be dismissed by the executive power during their term of office. On the other hand, for the European Commission, as for a significant part of the Polish opposition, these reforms have indeed undermined the independence of the judiciary. This is why the Commission turned to the Council by initiating the Article 7 procedure in December 2017 and, after the failure of this procedure, to the CJEU in September 2018.
The preliminary ruling mechanism misused by some Polish judges
In addition to the hostility to these reforms on the part of the Polish parliamentary opposition and the European Commission, Mateusz Morawiecki’s government and its parliamentary majority also face opposition from some of the judges. One of the mechanisms used by these judges to question these reforms is to request the intervention of Brussels. Thus, in August 2018, the Chamber of Labour and Social Insurance of the Polish Supreme Court referred questions for preliminary rulings[7] to the CJEU. These questions, which are not directly related to the case under consideration, concern the conformity of the reforms with European law and the validity of the appointments of judges made by the President of the Republic of Poland after the reform of the KRS. In its judgment of November 19, 2019,[8] the CJEU ruled on these questions, affirming the primacy of European law over national law and declaring the referring court competent to rule on the conformity of the new Disciplinary Chamber and the appointment of judges on the basis of the applications submitted by the reformed KRS, as assessed in the light of the principle of independence and impartiality laid down in the European Treaties. This judgment runs counter to the Polish constitutional tradition that only the Constitutional Court can invalidate the effects of laws passed by parliament, in light of the Polish Constitution.
Conflict within the Polish Supreme Court itself
On January 23, 2020, three of the five chambers of the Polish Supreme Court met to vote on a resolution proposed by the first president of the Court, Judge Małgorzata Gersdorf. The latter had never made secret her hostility to the reforms in question. She had even taken part in demonstrations organised by the opposition, despite the constitutional ban on Polish judges to “perform public activities incompatible with the principles of independence of the courts and judges.”[9] Ms. Gersdorf had not called for this vote the judges of the two new chambers set up by these reforms: the Disciplinary Chamber and the Chamber of Extraordinary Control and Public Affairs. By the resolution of January 23, 2020, these judges of the other three chambers of the Supreme Court claimed to prohibit those appointed after the reform of the KRS, including those of the Disciplinary Chamber, from delivering judgements. They relied on the CJEU ruling of November 19, 2019. In this way, the judges of the Supreme Court summoned by the First President Małgorzata Gersdorf used the power granted to them by the CJEU to declare that the judges appointed after the reform of the KRS did not meet the criteria of European law and therefore could not deliver judgements.
The intervention of the Polish Constitutional Court
However, on April 20, 2020, the Constitutional Court, which had been asked by Prime Minister Mateusz Morawiecki to settle this conflict of competences between Parliament and the Supreme Court, ruled by 11 votes to 3 that the resolution of January 23, 2020 violates the Polish Constitution and the Treaty on European Union.[10] In so doing, the Polish Constitutional Court reaffirmed before the Supreme Court and the CJEU its exclusive jurisdiction in Poland to invalidate laws passed by the Polish Parliament.
The case could have ended there, especially as the term of office of Judge Małgorzata Gersdorf as head of the Polish Supreme Court came to an end on April 30, 2020. With President Andrzej Duda’s appointment of Judge Małgorzata Manowska as head of the Polish Supreme Court, the Polish opposition and Brussels have lost an important ally in the Polish judicial system. The new first president promises to “build a thick wall separating the Supreme Court from politics.” And this is undoubtedly good news for Polish parliamentary democracy in the face of those who would like to establish a government of judges under the direct supervision of the European Union.
This time, Warsaw can hardly back down
When in September 2018 the European Commission first referred the issue of judicial reforms in Poland to the European Court of Justice, the dispute concerned the lowering of the retirement age for Supreme Court judges, including those in office, to 65 years old. On this issue, Poland moved backwards by amending its new Supreme Court Act in December 2018 to allow serving judges over the age of 65 to remain in office until the end of their term of office. On the other hand, on the question of the legitimacy of judges appointed based on the nominations submitted by the reformed KRS, backing down would be much more complicated for the parliamentary majority and the Polish Government. It would amount to accepting that all judges appointed since 2018 can no longer deliver judgements and that their past judgements are not valid, which would sow anarchy in the judicial system. It would also mean recognising the right of the European institutions to bypass the national constitutional court and to invalidate laws on the organisation and functioning of the national judicial system. However, this competence is not explicitly attributed to the European Union in the existing treaties. According to Article 5 of the Treaty on European Union, “Competences not conferred upon the Union in the Treaties remain with the Member States.”[11]
Implications for the 27 of the conflict between Brussels and Warsaw
In this conflict, the European Commission, guardian of the Treaties, interprets the phrase “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”[12] as conferring on the EU institutions power over the organisation and functioning of national judicial institutions. This power would be superior to that of national constitutional courts. Similarly, the mention of the rule of law among the values referred to in Article 2 of the Treaty on European Union is invoked by the Commission in support of its claim to exercise direct control over respect for the rule of law. This is particularly true with regard to Poland and Hungary since these countries are led by conservatives whose ideas do not always correspond to those prevailing in Brussels. And since Article 7 makes it difficult to sanction a Member State that does not respect the European Commission’s interpretation of the values listed in Article 2, the European Commission is trying to get the CJEU to extend its jurisdiction to monitor respect for the rule of law in the Member States. However, as this is not enough to make Warsaw (and also Budapest) bend, the European Commission, with the support of the European Parliament, has for the past two years also been seeking to introduce in the next multiannual financial framework of the Union – and now also in the recovery plan negotiated to deal with the economic consequences of the COVID-19 pandemic – a mechanism making the payment of European funds conditional on the European Commission’s assessment of each Member State’s respect for the rule of law and the values referred to in Article 2 of the Treaty on European Union. This would be another way of circumventing the strict conditions laid down for sanctioning a country under Article 7. Without waiting for such a mechanism to be instituted, the European Commission is already effectively blackmailing EU funds against Polish local authorities that oppose the LGBT ideology, which is a good example of what the conditioning of EU funds to respect the “rule of law” could be used for.
This is why the conflict between Brussels and Warsaw today is in fact a conflict that concerns all Europeans.
This article was originally published by the European Centre for Law and Justice.
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[1] Treaty on European Union, Article 7, paragraph 1.
[2] Treaty on the European Union, Article 2 : “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”
[3] European Commission v Republic of Poland, Case C-791/19, Action brought on 25 October 2019.
[4] Treaty on European Union, Article 19, Paragraph 1, Subparagraph 2.
[5] Commission v Poland, Case C-791/19 R, Order of the Court.
[6] For example, in the name of the principles of “non-discrimination” and “the rights of persons belonging to minorities” referred to in Article 2 of the Treaty on European Union.
[7] Treaty on the Functioning of the European Union, article 267: “The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.”
[8] Judgment of the Court, Grand Chamber, in Joined Cases C‑585/18, C‑624/18 and C‑625/18, 19 November 2019.
[9] 1997 Polish Constitution, Article 178, Paragraph 3.
[10] Judgment in the name of the Republic of Poland, Case U 2/20, 20 April 2020.
[11] Treaty on European Union, Article 5, Paragraph 2.
[12] Treaty on European Union, Article 19.
