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- Provisions of the EU treaties are unconstitutional to the extent in which they oblige Poland to implement interim measures affecting the judiciary- the Polish Constitutional Tribunal ruled on Wednesday.

It is the first time the country’s top court has challenged the primacy of EU law. The verdict has been delivered by a five-member panel chaired by former Law and Justice MP Stanisław Piotrowicz. It was composed exclusively of people hand-picked by the ruling party. The verdict was passed by a majority vote, meaning that one member of the panel opposed it.

The ruling came just hours after the CJEU emergency order

The Constitutional Tribunal’s judgment refers to interim measures issued by the CJEU in cases relating to the controversial judicial "reforms" introduced by the Law and Justice government. The measures are meant to ensure the integrity of the EU’s legal order and protect Polish judges from arbitrary harassment.

Last year, the CJEU suspended the activity of the Disciplinary Chamber of the Polish Supreme Court staffed entirely by people appointed by the politicized National Council of the Judiciary. The EU Court has questioned the Chamber’s independence.

On Wednesday, the CJEU issued another interim measure of this kind. It has ordered the Disciplinary Chamber to stop holding hearings, including those relating to the removal of judges’ immunity. The effects of its previous resolutions allowing judges to be held criminally liable, such as in the case of Judge Igor Tuleya, are to be suspended. In addition, the CJEU ordered the suspension of provisions of the so-called "muzzle law", which allows judges to be prosecuted for examining whether Polish courts meet independence requirements. The ruling camp has introduced a law banning such procedures.

- Poland is required to immediately suspend the application of national provisions relating, in particular, to the powers of the Disciplinary Chamber of the Supreme Court – the CJEU Vice President Rosario Silva de Lapuerta ruled. She granted in full the European Commission's request for an interim measure until its latest complaint against Poland is resolved.

The Law and Justice party government is unlikely to comply with the ruling. On the same day, just hours after the CJEU issued its emergency order, the compromised Constitutional Tribunal has ruled the primacy of EU law to be invalid. - Polish laws and Polish courts cannot be suspended- Bartłomiej Sochański, the rapporteur and former Law and Justice party councilor, justified the Tribunal’s ruling.

The ECJ won’t tell us how to organize our country

In its judgment, the Constitutional Tribunal answered a legal question posed by the Disciplinary Chamber concerning the CJEU's interim measure from last year. The question was submitted by former prosecutor Małgorzata Bednarek, regarded as one of Zbigniew Ziobro's most loyal "footmen". Today, she sits at the bench of the Disciplinary Chamber.

- Is it constitutionally possible to enforce the decision of the CJEU, which interferes with the Polish judicial system? – reads the question posed by the Chamber. The Tribunal’s answer was negative, and it considered the CJEU's decisions on proceedings before Polish courts as "ultra vires" - issued outside the scope of its competence.

At the initiative of Ms Bednarek, the Constitutional Tribunal questioned two fundamental provisions of the EU treaties. They oblige member states to comply with obligations arising from, among others, CJEU judgments and give the Court of Justice the power to order interim measures. These include Art. 4(3) of the Treaty on European Union. The provision defines the principle of loyal cooperation between the Member States and the EU institutions. The functioning of the entire Union depends on it.

According to the Constitutional Tribunal, Poland's obligation to implement the CJEU's decisions affecting its courts violates several articles of the Polish Constitution, including the provisions on delegating powers to international organizations.

Earlier, the Polish government repeatedly argued before the CJEU that decisions regarding the shape of the judicial system are the exclusive competence of member states. The CJEU never questioned this. However, it acknowledged that: "in exercising their powers, states are bound to respect their obligations under EU law". Each state must therefore ensure the independence of judges, who are also European judges, and decide cases with elements of European law.

- The EU is not trying to shape the Polish judiciary system. It does not order us to establish district courts or regional courts- said Deputy Human Rights Commissioner Maciej Taborowski. - But the EU can say, and has the authority to say that: in areas covered by EU law, effective judicial protection must be ensured in accordance with EU standards.

- The judiciary system is a sovereign competency of a member state- Mr Sochański said justifying the Tribunal’s decision. - The CJEU is not authorized to exercise power over national courts - he said. - Polish courts and judges act on the basis of the Polish constitution and on behalf of the Republic of Poland, not on behalf of the EU - he added. According to the Constitutional Tribunal, the CJEU cannot "impose rules on how Poland should organize its own state".

What are the Polish courts going to do now? 

Legal experts from the Polish Human Rights Commissioner’s Office believe that the Polish-EU dispute has been created on purpose to "give the appearance of legality" to the act of non-compliance with the CJEU’s orders. In this way, the ruling party is trying to defend the fake judges appointed with the help of the politicized National Council of the Judiciary and its controversial judiciary "reforms".

- While the ruling cannot directly question the validity of a provision of EU law, it excludes the application of this provision by national authorities - Mr Sochański said in his conclusion.

Thus, it is clear what the government and the Disciplinary Chamber will do with respect to the CJEU decision. It is still not certain, however, what the Polish courts, which are also bound by the CJEU ruling, will do in this situation. The latest ruling restores their ability to control the independence of courts staffed with the help of the politicized National Council of the Judiciary. On the other hand, there is the Constitutional Tribunal ruling.

- From the perspective of EU law, the courts should refuse to acknowledge a judgment that is invalidating the primacy of EU law. I believe the Tribunal’s ruling will cause legal chaos, because some judges will decide to comply with it, and others will not- Mr Taborowski told Wyborcza. - There will be disciplinary and criminal proceedings against the judges, and proceedings regarding Poland’s violation of EU law in Brussels- he added.

A straight path to a legal Polexit

What if Poland refuses to apply the EU measures? "This will be a drastic act of violation of our obligations and another step towards leading our country out of the Union," - the 25 retired judges of the Constitutional Tribunal wrote in a joint statement.

According to the Constitutional Tribunal’s rulings, in the event of a conflict between EU law and the Polish constitution, Poland has three options: amend the constitution, seek to amend EU law, or withdraw from the Union. The government would probably prefer not to choose the third option, but the EU, on the other hand, won’t leave Poland’s refusal to apply the CJEU interim measures without a reaction. The European Commission could initiate further proceedings against Poland, as well as seek to impose severe financial penalties.

- The Constitutional Tribunal took a firm stance regarding the protection of the Polish constitutional order against unlawful interference, usurpation, and legal aggression on the part of European Union institutions, which arbitrarily attempted to suspend constitutional organs of the Polish state- Justice Minister Zbigniew Ziobro commented on the Tribunal’s ruling.

- We are on a straight path to a legal Polexit- said the Commissioner for Human Rights Adam Bodnar.

- I would like to remind everyone about the EU "rule of law" principle. In this case, the best-case scenario when it comes to punishment measures could be the suspension of the PLN 770 billion that we now see advertised on billboards all over Poland- Krystian Markiewicz, president of the Polish Judges Association "Iustitia", said in an interview with TOK FM. - In the worst-case scenario, it will mean Poland's exit from the European Union- he added.

"PiS is jeopardizing our membership in the EU not for the sake of defending sovereignty, but rather for its own, narrowly-defined political interest - ensuring that members of the ruling camp remain in power. PiS is cynically sacrificing the public good on the altar of private political interest" – constitutional law expert Professor Marcin Matczak commented.

"A former PiS MP dressed up in a toga has allowed a dozen PiS beneficiaries from the Disciplinary Chamber masquerading as judges to keep their posts, risking the interest of millions of Poles who are waiting to receive the money from the EU Recovery Fund" - he concluded.


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