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On April 28, Poland’s Constitutional Court might decide that interim measures ordered by the CJEU to prevent the ruling camp from further undermining the country’s judicial independence stand in violation of the Polish Constitution. The judgment may be issued in a case initiated by Małgorzata Bednarek, a member of the Supreme Court’s Disciplinary Chamber. She is a former prosecutor considered to be one of Zbigniew Ziobro’s most faithful "soldiers". After being appointed to the Supreme Court, Ms. Bednarek submitted legal questions to the Constitutional Court aimed at securing the positions of the contested judges appointed by the ruling camp.

The latest of such questions concerns compliance with interim measures ordered by the Court of Justice of the European Union. Ms. Bednarek issued them a year ago when the CJEU temporarily suspended the works of the contested Disciplinary Chamber of Poland’s Supreme Court.

The hearing, scheduled for the end of April, appeared on the Constitutional Court’s agenda last week. At the same time, the European Commission had just requested that the CJEU order another set of interim measures against Poland.

- The fact that the hearing is taking place at this very moment is probably no coincidence- says Mirosław Wróblewski, the Director of the Constitutional, International and European Law Department in the office of the Commissioner for Human Rights of Poland 

Poland violates EU law

Announced on Wednesday, the Commission’s referral is meant to neutralize the harm Poland’s right-wing government inflicted on the country’s judicial independence by introducing a set of “reforms” into its justice system. The European Commission has requested the suspension of provisions of the so-called “muzzle law”. It has also requested a further suspension of the Disciplinary Chamber, packed entirely with the help of the politicized National Council of the Judiciary.

Following last year's CJEU ruling, the chamber stopped hearing disciplinary cases of judges but continues its efforts to revoke their immunity. -The Commission considers 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- reads the text of the Commission’s referral.

The Commission asked the CJEU to prevent the chamber from hearing any cases potentially affecting the judges. Decisions to lift their immunities are to be suspended, so judges such as Igor Tuleya and Beata Morawiec could resume their work.

The EU Court may decide on implementing the interim measures in the coming weeks. Such measures would be binding for Polish authorities and institutions until the Commission's complaint against Poland is resolved. However, the hearing scheduled to take place in the politicized Constitutional Court towards the end of April indicates that there is a risk that the Polish government will not comply with the CJEU's orders.

- The Commission’s referral to the CJEU has no legal or factual justification- government spokesperson Piotr Müller has already announced.

Challenging EU treaties

- Does the Polish constitution allow to enforce a CJEU decision that interferes with the Polish justice system? - reads the question Ms. Bednarek asked the Constitutional Court.

The former prosecutor asked the question in a case concerning revoking the immunity of a judge who has been stopped for drunk driving. Depending on the answer, she will either comply with last year's CJEU decision or settle the case. "If the CJEU decides that the challenged norm is unconstitutional, the court will not be bound by the commitment to implement interim measures" - she wrote.

Ms. Bednarek’s appeal to the Constitutional Court challenges the provisions of the EU’s founding treaties. The treaties oblige member states to fulfill their duties arising from, among others, judgments issued by the CJEU. They also give the CJEU a right to order interim measures.

She claims that implementing the measure would “stand in a conflict with the Polish constitutional order". -Such matters are not to be decided by the European Union. They fall entirely within the remit of sovereign member states - she says.

The Polish government has repeatedly argued before the CJEU that the EU cannot interfere in the judicial system because it is Poland's exclusive competence. Yet, the CJEU clearly states that "in exercising their competences, states are still obliged to comply with their duties under EU law".

Each state must therefore ensure the independence of judges, who are also European judges and decide on cases that also include elements of EU law.

Zbigniew Ziobro: the last word belongs to the Polish Constitutional Court

Zbigniew Ziobro, Poland’s Attorney General and Minister of Justice, supported Ms. Bednarek’s line of argument before the Constitutional Court. “In this case, the violation of the Polish Constitution takes place on multiple levels”- he acknowledged.

In his opinion, the "arbitrary actions of the CJEU" make it necessary for the Constitutional Court to make use of its competence of the "court of the last word" and the primacy of Poland’s Constitution over EU law. In case of a conflict, EU law takes precedence over domestic laws, but not over the Constitution- according to a number of rulings issued by the CJEU.

There is no precedent of a Constitutional Court ruling stating that EU treaty provisions stand in conflict with the Constitution.

- Such a verdict can be used as a justification for not complying with the CJEU in matters concerning the judiciary. But it will also be a violation of treaty obligations - says Mr. Wróblewski. - The EU will probably not accept this. The EU Commission may initiate further proceedings against Poland, followed by possible penalties- he adds.

-The question issued by the Disciplinary Chamber is an example of instrumentalizing the law- said the Commissioner for Human Rights Adam Bodnar, addressing the Constitutional Tribunal.

In his opinion, the proceedings must be discontinued because the questions were asked by the Disciplinary Chamber, which does not meet the legal standards of a court.

Questioning the core of European Integration

Article 4(3) of the Treaty on European Union, which Ms. Bednarek decided to challenge, sets forth the so-called principle of “sincere cooperation” between the Member States and the institutions of the EU. The functioning of the entire EU is based upon it.

"There are no grounds to declare the provision unconstitutional in its entirety, as it is the basis of the EU legal order" - the Polish Foreign Ministry wrote in a letter to the Constitutional Court. "Nevertheless, the issuance of interim measures by the CJEU raises fundamental objections"- the ministry added.

- The contested provision is the core of European integration- said Mirosław Wróblewski. He also pointed out that the Constitutional Court had already assessed this provision in a ruling on the Treaty of Accession and had no reservations.

The verdict issued in 2005 was been passed by a full panel of judges. In order to change the line of jurisprudence adopted at that time, another full verdict is needed. However, Ms. Bednarek's questions will now be answered by a five-member panel. - A judgment contrary to the line of jurisprudence would be in violation of the Act on the Constitutional Court- says Mr. Wróblewski.

The question will be answered by a panel composed exclusively of judges appointed by the ruling Law and Justice party. These include former Law and Justice deputy Stanisław Piotrowicz and former Law and Justice councilor from Szczecin Bartłomiej Sochański, who will prepare a draft judgment. Krystyna Pawłowicz, former Law and Justice party MP, was appointed chairman.

What if the Constitutional Court challenges the primacy of the EU law? In that case, hypothetically, there are three possibilities: one can change the constitution, seek to change EU law, or decide to leave the Union.

Constitutional courts of various countries have in the past found EU law to be unconstitutional. - The EU reacted to these rulings with restraint, and the Polish Constitutional Court is probably aware of this fact- Mr. Wróblewski said. - But these rulings usually concerned laws made by EU institutions and specific problems, not the treaties themselves, and thus the level of potential confrontation was not as high.

- Such a judgment may have far-reaching consequences. Each such decision of the Constitutional Court will cause gradual erosion and disintegration of the European project and undermine Poland’s membership in the EU- he concludes.

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