On Wednesday, the European Commission announced it will refer Poland to the Court of Justice of the European Union. Reason? Poland's politically compromised Constitutional Tribunal and its rulings challenging the EU legal order.
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- Something like this has never happened before. The fact that we even allowed this historic complaint to find its way to the CJEU should be a great source of shame for the Polish state and all Polish citizens – says Dr. Maciej Taborowski, an expert on EU law and professor at the Institute of Legal Sciences of the Polish Academy of Sciences.

On Wednesday, the European Commission announced it will refer Poland to the Court of Justice of the European Union. The reason is the violation of EU law by the politically compromised Constitutional Tribunal and its rulings.

Brussels decided that Poland’s Constitutional Tribunal, staffed with judges appointed illegally by the ruling camp, "no longer meets the requirements of an independent and impartial court". Another reason is the Tribunal’s rulings questioning the compatibility of EU law with the Polish Constitution. The Commission believes that they undermine the very foundations of the Union’s legal order and deprive Polish citizens of their rights.

- We were the canary in the coal mine when we tried to explain the consequences of rulings challenging the primacy of EU law - Mr. Taborowski says. In 2021, as Deputy Commissioner for Human Rights, he represented his superior in cases involving two rulings of the Constitutional Tribunal declaring EU law unconstitutional. The Human Rights Commissioner warned that the rulings would lead to violations of Poland's international obligations and threaten the country's position in the EU.

PiS remains unconvinced

In a July 2021 ruling, the Tribunal declared CJEU’s interim measures regarding the Polish judiciary incompatible with the Polish Constitution. In an October 2021 verdict, it exempted Polish courts from following EU guarantees on judicial independence. Challenging the primacy of EU law was meant to ensure that the ruling party’s judicial overhaul remains intact and immune to unfavorable rulings by the CJEU.

- It was obvious that such far-reaching interference with the principle of the primacy and effectiveness of EU law would not go unchallenged- Mr. Taborowski says. - No other constitutional court has ever issued a judgment so hostile to the EU itself. From the perspective of the EU legal order, this reaction is understandable- he adds.

The Commission's decision to sue Poland with the CJEU "does not come as a surprise" to the ruling Law and Justice party either. - It will allow us to present our arguments in the course of further proceedings before the CJEU- Szymon Szynkowski vel Sęk, Poland’s Minister for EU Affairs, told the Polish Press Agency. – We are familiar with the arguments raised by the Commission and do not share them. Poland remains convinced that constitutional jurisprudence is the exclusive domain of member states - he added.

Rule of law dispute hits Polish taxpayers

The Polish government used the 2021 rulings as an excuse not to comply with the CJEU decisions. This resulted in the imposition of a fine that is still accruing today (€469 million and counting), as well as the freezing of money from Poland’s National Recovery and Resilience Plan.

Poland might face additional penalties for failing to comply with a possible CJEU ruling following the Commission’s most recent complaint. What if the CJEU concludes that Poland has indeed violated EU law? Such a verdict could result in necessary changes regarding the contested Constitutional Tribunal. - The CJEU could rule that any judgment concerning the EU law handed down by a PiS-appointed judge is defective. The state would have to do something about it. That's why we said that the so-called "stand-in" judges should refrain from adjudicating because it could lead to real losses for Polish taxpayers- the lawyer says.


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