The Law and Justice-controlled Constitutional Tribunal ruled Thursday that provisions of the EU treaty are incompatible with the Polish Basic Law. The ruling is meant to protect PiS's judicial "reforms."
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The Constitutional Court heard the case as a full court, which requires the presence of at least 11 judges. There were 12 in attendance for the ruling - all of whom were appointed with the backing of Law and Justice votes. The partisan tribunal agreed with the Prime Minister Mateusz Morawiecki and ruled that the EU treaty provisions are unconstitutional.

The Constitutional Court stated that Poland can not function as a sovereign and democratic state if the Constitution is not the highest law of the Republic of Poland, and the EU bodies exceed the competences delegated to the EU by Poland by interfering with the Polish judiciary. These competence were to be exceeded by the EU Court of Justice, assessing the "reforms" of the Polish judiciary in terms of EU standards.

In the verdict, the Court referred to the content of the Treaty on European Union, known also as the Maastricht Treaty, which brought about the establishment of the EU and announced a "new stage" of European integration.

- If this new stage does not consist of depriving the Constitution of its supremacy, Poland will retain its function as a sovereign and democratic state," said the rapporteur, Bartłomiej Sochański.

- But if this new phase reaches such a state as to make the Polish Constitution secondary, then its result would be a loss of Poland’s sovereignty, which would render the Treaty on EU unconstitutional - he added.

Yesterday’s ruling came in response to a request from Polish PM Mateusz Morawiecki. The prime minister challenged the Treaty on European Union in a specific sense - as interpreted by the EU Court of Justice in its judgments on the Polish judiciary.

- The literal wording of the treaties does not raise any doubts, but the CJEU's jurisprudence has led to giving them unacceptable content, the Prime Minister's representative Prof. Marek Szydło argued in front of the Constitutional Tribunal on Thursday.

The CJEU interprets the EU treaties, which are binding for Poland. In its judgments, it sets EU standards for an independent judiciary, which also apply to Polish courts.

Just this Wednesday, the CJEU ruled that if a judge had been appointed in a gross violation of the EU law, his or her rulings should be considered null and void. At issue were new Polish Supreme Court judges appointed at the request of the politicized National Council of the Judiciary, which was filled by the Sejm in 2018. It was through the recomposition of the NCJ that the ruling camp gained near-complete control over judicial appointments

PiS has been gradually reducing the independence of Polish courts in recent years. With his motion, Morawiecki wanted to cement the changes and make it impossible to assess them against EU standards.

According to the prime minister, the CJEU in its rulings unacceptably interferes in the Polish judiciary, going beyond the competences delegated to the EU by Poland. - Among the powers transferred to the EU there is no organization of the judiciary," Sochański said.  The CJEU, however, does not attempt to enforce its own vision of how to organize the Polish judiciary, but only examines whether the existing rules comply with the EU standards of judicial independence. 

Constitutional Tribunal: Law and Justice-appointed judges cannot be subject to judicial scrutiny

In Thursday's ruling, the Constitutional Tribunal questioned article 19 of the TEU. The provision requires states to ensure effective judicial protection in areas covered by EU law. Such protection can only be guaranteed by independent judges. 

The Court ruled that Polish courts may not use Article 19 to review the legality of the appointment process: presidential acts of appointment and resolutions of the new NCJ. It is also inadmissible to state that the procedure was flawed and thus invalid, therefore questioning whether an appointee is indeed a judge.

Thursday's ruling is expected to prevent Polish courts from examining whether judges hand-picked by the ruling camp meet EU independence standards.

- One thousand judges were appointed by the president after competitions conducted by the current NCJ. These judges have issued thousands of rulings, and today their status is being questioned. This leads to anarchization of the legal system and chaos - Arkadiusz Mularczyk, Law and Justice MP who represented the Sejm, said at the hearing.

- This is a result of the government's actions, which carried out 'reforms' in violation of international standards that bind us. And for this reason, citizens appeal to Polish and international courts, and these courts agree with them - answered Deputy Ombudsman Maciej Taborowski.

Priority of EU law not for Polish courts

In its ruling, the Constitutional Tribunal also questioned the principle of primacy of EU law.

According to this principle, courts may disregard provisions of Polish laws and judgments of the Constitutional Tribunal if they lead to a violation of EU law. Following the CJEU verdict, the Supreme Administrative Court disregards the ruling of the Polish Constitutional Tribunal and controls the competitions for the Supreme Court conducted by the new NCJ. The Tribunal in 2019 deprived it of this possibility, and PiS reassigned control over the contests to the Supreme Court.

Today, the Tribunal ruled that EU law is unconstitutional if it allows courts to rule on the basis of laws removed by the the highest Polish constitutional court (or repealed by the Sejm) or to omit provisions of the constitution (as interpreted by the Tribunal itself).

- If the EU and its bodies create legal norms outside their competences and give them precedence over the constitution, this means a loss of sovereignty, Sochański said. - The Constitutional Tribunal categorically states that no organ of the Republic of Poland may allow such a state of affairs - he added.

Polish Constitutional Tribunal issues a threat to CJEU

Under the Polish constitution, Poland must abide by international law binding on it. The Polish Constitutional Tribunal stated however that only laws "created by EU bodies within the framework of the powers delegated to it and within the limits of respect for the constitutional identity of the state" may be respected.

- Laws created outside these bounds are not binding for Poland," Sochański said and directed a threat at the EU court that the Polish Constitutional Tribunal may begin to examine not only the provisions of the treaties, but also the constitutionality of the CJEU's rulings (despite the fact that under the Polish constitution, it has no authority to do so).

If the practice of the CJEU's activism, which consists of encroaching upon the competences of Polish authorities, undermining the position of the Constitutional Tribunal, and questioning the status of judges, is not abandoned, the Constitutional Tribunal may decide to review the constitutionality of CJEU rulings, including removing them from the Polish legal order.

- he announced.

What will the courts directly affected by yesterday’s ruling do now?

On the one hand, Polish judges will have the judgment of the Constitutional Tribunal, and on the other, they will have the judgments of the CJEU. EU law allows them to disregard a Constitutional Tribunal judgment that would lead to a result contrary to EU regulations.

- I foresee great chaos, because some judges will decide to do so, and some will not. There will be national disciplinary and criminal proceedings against the judges who opt to stay loyal to the EU legal order, and proceedings in Brussels for violation of EU law by Poland," Taborowski predicted.

"We, the judges of the Republic of Poland who are all by the treaties also EU judges, declare that we will respect the rulings of the EU courts and uphold European values," - reads the position statement issued today by the Iustitia, an association of judges opposing the politicization of Polish courts by the ruling camp. 


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