For the second time in a short while, a decision of the European Court of Justice (ECJ) has led to a referral to the Polish Constitutional Tribunal, which will be asked to define the limits of national sovereignty.
Poland – The Polish Prime Minister announced on Wednesday that he would refer the matter to the Polish constitutional judges after a new and unprecedented encroachment of European justice on national prerogatives. For Mateusz Morawiecki and his government, past decisions of the constitutional court leave no doubt that the national constitution is above European law, and Poland cannot therefore recognize a ruling of the judges in Luxembourg that calls into question the Polish constitutional order.
On Tuesday the ECJ for a second time encouraged Polish judges to rebel against laws passed by parliament. In the light of the Polish constitution, however, such laws can only be invalidated by the Constitutional Tribunal. But the ECJ is of a different opinion.
Indeed, regarding the procedure for the appointment by the President of the Republic of Poland of judges proposed by the National Judicial Council (KRS), European judges decided on Tuesday that it is up to the referring Polish court to consider whether this appointment procedure is in conformity with European law and, if it decides that it is not, not to recognize as valid the law regulating this appointment procedure. This would, of course, imply non-recognition of the validity of appointments made under the new law, and thus of judicial decisions made by judges appointed under that law.
For Justice Minister Zbigniew Ziobro, “no political leader can accept this judgment” because to accept it would be tantamount to asserting that “Poland ceases to be a sovereign state and loses all the attributes of an independent state free to make its own decisions.” That is why the minister, who is also the attorney general, said on Tuesday: “In view of its reasons disregarding the national legal order, the laws of the country and even its constitution, I obviously do not recognize this judgment and I will never recognize it.”
The ECJ was answering questions put to it by the Polish Supreme Administrative Court (NSA) in November 2018 and July 2019 about its ability to consider appeals by unsuccessful candidates in a procedure to appoint judges of the Supreme Court (the Polish cassation court). Under current Polish law, in force since the reforms introduced by PiS, and in particular after an amendment introduced in 2019, there is no possibility of appeal against a decision of the KRS not to recommend a candidate for the Supreme Court to the President of the Republic.
This is in line with the Polish Constitution, which simply states in its Article 179: “Judges are appointed by the President of the Republic at the request of the National Judicial Council for an indefinite period.”
But the ECJ considers that the absence of a possibility of appeal is a violation of Article 19(1) of the Treaty on European Union, which states that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”
How is the judicial protection of unsuccessful applicants at issue here, and why did the ECJ consider this to be an area covered by Union law, when the organization of the judicial system is a national competence? Reading the ECJ’s press release does not tell us anything new about the conflict which has been unfolding between Brussels and Warsaw since the victory of the coalition led by the Law and Justice Party (PiS) in the 2015 elections. In essence, the reasoning in Brussels is as follows: since “effective legal protection in the fields covered by Union law” requires impartial and independent justice, the European Commission must be able to dictate the way in which national judicial systems are organized and the ECJ must be able to rule as a last resort on these matters.
Once again, Article 4 of the EU Treaty has been overlooked by the judges in Luxembourg, who are always quick to interpret the European treaties in a way that leads to a more federal European Union. Article 4 tells us, however, that “any competences not conferred upon the Union in the Treaties remain with the Member States.”
Of course, what is applied today only to Poland and Hungary can be applied to other member states in the future once this case law has been consolidated.
More importantly, the ECJ, by giving the Polish NSA the right to decide for itself whether or not to apply the laws on justice passed by the PiS-dominated parliament – a right it does not have under the Polish constitution – clearly seeks to sow anarchy in Polish law by inciting activist judges who use and abuse the mechanism of the preliminary question (a question referred to the ECJ by a national court to get a preliminary ruling on how to interpret European law) to ask the European judiciary to rule on national laws they do not like.
Similarly, in a judgment delivered in November 2019, the ECJ stated that it was for the referring court (the one that had sent preliminary questions), in this case the Chamber of Labor and Social Insurance at the Polish Supreme Court, “to ascertain whether or not the KRS offers sufficient guarantees of independence from the legislative and executive powers.” In the ordinary courts, a few politically committed Polish judges had used this judgment to refuse to recognize the validity of judgments handed down by judges appointed after the 2017 reform of the KRS. This had forced parliament in January 2020 to pass a new law reforming the disciplinary system for judges in order to make it possible to punish such outlawed behaviors more severely. This was of course sufficient reason for the European Commission to… again bring an action against Poland before the ECJ.