Gazing into the Abyss
The K 3/21 decision of the Polish Constitutional Tribunal
On Thursday 7th October 2021 the Polish Constitutional Tribunal issued its decision in the case K 3/21, setting off a legal and political bomb that sent the entire EU reeling and has media as far as Quebec and South Korea rushing to report on Poland’s rule of law crisis, the EU’s role in it and the potential fallout of last week’s events. Politically, this situation is likely a crucial point in the Polish rule of law saga. Legally, it is a decision taken by a not independent court that ignored both domestic provisions and EU law towards arriving at a politically motivated outcome tailored towards the interests of the ruling party.
A politically controlled Court
Before an analysis of the judgment and its consequences are possible, two prefacing caveats regarding the Polish Constitutional Tribunal must be made. First, the Tribunal, tasked with judicial review of laws in Poland, is no longer an independent body. Since 2015, it has fallen under the political control of the ruling party, and the Tribunal’s leadership is entirely subservient to the whims of the de facto leader of Poland – PiS chairman Jarosław Kaczyński. His close friendship with the Tribunal’s head, judge Julia Przyłębska, has been recently described as a bond far closer than the one Przyłębska enjoys with most of the judges of her court. The behaviour of the Tribunal on multiple occasions in recent years, such as its actions in the abortion case or its multiple postponements of passing out the judgment in the case on the length of the term of the ombudsman, combined with journalistic investigations into ties between the Tribunal’s leadership and the ruling party, paint a clear picture – the Tribunal is a puppet body, a “kangaroo court” (as eloquently elaborated by prof. Laurent Pech), at a beck and call of politicians.
Second, of equal importance, but more from the legal side of issues with the Tribunal, is the fact of unlawfully appointed individuals sitting on its bench. For long, experts have pointed out that the appointment of three of the Tribunal’s members, and the subsequent appointment of replacements for two of those members who passed away, in a manner that effectively overwrote appointments made by the previous parliament, was unlawful. This was confirmed by the European Court of Human Rights in its landmark judgment in the case Xero Flor v Poland, where it found the Tribunal’s vice-president, Mariusz Muszyński, to be appointed in violation of Polish law. Muszyński and two other judges largely sharing his unenvious status all presided over last Thursday’s judgment.
A politically ordered decision
The case K 3/21 arose from an application by the Prime Minister of Poland, Mateusz Morawiecki, who sought for the Tribunal to examine the compliance of elements of the Treaty on the European Union with the Polish Constitution. Review of international treaties for their conformity with the Polish Constitution, the supreme law in Poland, is one of the Tribunal’s intended tasks. The 129-page application from the Prime Minister amounted to a treatise on constitutional identity and pluralism, with a misleading bevvy of selective quotes from Polish and foreign academics writing on various aspects of separation between EU law and domestic legal orders of EU Member States. One important strand of the Prime Minister’s argumentation were the multiple references to laws and constitutional court judgments coming from the other EU Member States, with the German FCC’s 2020 PSPP judgment being most prominent. A brief summary of problems with equating the PSPP case with K 3/21 and the fundamental differences between the judgement of BVerfG and the Polish Tribunal can be found here.
The Constitutional Tribunal (unsurprisingly) fully sided with the applicant and issued a decision finding the provisions of TEU incompatible with the Polish Constitution on multiple counts. The verdict was passed by a majority vote among the bench with two judges, Piotr Pszczółkowski and Jarosław Wyrembak (coincidentally, Wyrembak is also a likely unlawful appointee) dissenting. At this point, legal scholars would normally hold off from commenting on the judgment until the full text of the Tribunal’s opinion is available, as the brief oral opinion and short dissents are hardly enough to make an informed dogmatic analysis of the ruling itself.
But is such scientific care necessary when we are faced with what is in fact a political hit job dressed up as a court case? Both the Prime Minister’s application and the decision of the Tribunal – setting aside the legality of it, given previously discussed issues – were not genuine and sincere in addition to betraying a lack of understanding (deliberate or otherwise) of both Polish constitutional law and EU law. The Prime Minister did not seek for the Tribunal to examine an actual conflict between TEU and the Polish Constitution. He asked the Tribunal to provide him with some legal veneer to enable his government to flout CJEU judgments and orders at will – and in particular the rulings concerning the independence of the judiciary based on Article 19(1) TEU. Hence the scope of the Prime Minister’s request, which ostensibly wanted the Tribunal to review whether the TEU was consistent with the Polish Constitution. But practically, the Prime Minister did not seek to review the treaty itself, but rather the case law of CJEU that is based on it. The wording of the application was designed to hide a manifest violation of the actual content of Article 188 of the Polish Constitution, which empowers the Constitutional Tribunal to review international treaties for their conformity with the Constitution but does not give it the competence to review the jurisprudence of international courts.
A feat of legal acrobatics
The Constitutional Tribunal, too, ignored Article 188 of the Constitution and proceeded to examine the Prime Minister’s application as if indeed there was a clash between the TEU and Polish basic law. In doing so, the Tribunal has performed even more acts of legal acrobatics, skipping over two major hurdles. One is the fact that the Prime Minister’s application, and then the Tribunal itself, apparently completely ignored the existence of Article 9 of the Polish Constitution, which states that Poland shall respect binding international law, and which coexists with Article 8 and jointly shapes the relationship between Polish constitution and international law, including EU treaties. Furthermore, it discarded the actual content of established case law on resolving conflicts between the Polish constitution and EU law, most importantly judgment K 18/04 concerning the conformity of the 2004 Accession Treaty with the Polish Constitution. In that judgment the (then independent) Tribunal established that in a case of a clash between EU law and the Polish constitution there are three options to choose from: Poland can either bring about a change in EU law or amend its own Constitution or, as a last resort, leave the EU. This precedent was overlooked, and the (now captured) Tribunal proceeded to side with the Prime Minister fully, finding it as it did.
The sentence of the Tribunal’s ”Polexit judgment” consists of three parts. The first part is downright bizarre, amounting to something more akin to a political declaration and less to a judgment of a court. The Polish Tribunal apparently felt empowered to proclaim that some major seismic shift has happened within the European Union and that it is no longer what it was before and that Article 1, first and second paragraphs, in conjunction with Article 4(3) of the Treaty on European Union are thus no longer compatible with the Polish Constitution. This paragraph is so baffling that it defies any attempts at legal examination. In essence, it appears to be an attempt to look into the way TEU presents the concept of the European Union itself (Article 1) through the lens of the duty of sincere cooperation (Article 4(3)). Perhaps political scientists and historians will find more luck trying to extract any value out of it, as it reads more like a statement from a political body and less like a judicial decision.
The second and third parts of the judgment are much more precise legally. They effectively speak to shutting off the application by Polish judges of all EU requirements relating to judicial independence based on Article 19 (1) of TEU. It does so in the name of the Polish Constitution which protects and demands compliance with those same requirements when it comes to judicial independence. The Tribunal’s decision refers to EU law which confers the duty (erroneously described in the judgement as ”granting the competence”) on domestic courts to review the legality of the procedure for appointing a judge, including the duty to not appoint a person to a judicial office after an unlawful procedure and in doing so requires them to apply the principle of primacy of EU law and to discard domestic laws that are incompatible with EU law. In its decision, the Tribunal elaborates about “bypassing the provisions of the Constitution” but what it in fact speaks to is the process of discarding lower-level laws – statutes and decrees – which laid out the recent “reforms” of the Polish judiciary.
A deeply inaccurate interpretation of EU law
The real gist of the applicant’s argument, with which the Tribunal has sided, is that the EU has no competence on grounds of Art. 19(1) TEU with regards to how the Polish judiciary is to be organised. According to the Tribunal, CJEU case law based on Art. 19(1) TEU should therefore not be understood as allowing Polish courts to overrule domestic laws that the CJEU considers incompatible with Art. 19(1) TEU. Such an interpretation is deeply mistaken because, while EU law does not dictate how the Member States are to organise their judiciaries, it does require that domestic courts which rule based on EU law to be independent and free from undue influence. In fact, there’s no collision between such norms and the Polish Constitution, which itself provides in Article 45 that all courts in Poland must be independent and impartial. As judge Pszczółkowski noted in his oral dissent, the Prime Minister’s application was a legal sham, a pretence for the real goals of the applicant, goals that the Tribunal’s majority helped further. The real aim of the applicant was to have the Tribunal provide him with legal cover for ignoring EU requirements regarding the independence of the judiciary.
A look into a black hole?
The “Polexit judgment” will fulfil the role the Prime Minister intended it to have – it will provide a constitutional cover justifying the continuing harassment and punishment of Polish judges who apply EU law regarding judicial independence. Naturally, no EU body nor any other Member State is legally bound to respect such blatant attack on EU law, and the reaction of EU institutions, in particular the Commission and CJEU, will play a critical role in the coming weeks. One major danger of Polish authorities choosing the path of structurally disregarding the EU rule of law standards is that it may well force the CJEU to take drastic steps to protect the EU’s interconnected common legal order. It’s worth reiterating here that, as reiterated on multiple occasions by CJEU, EU law is based on the fundamental premise that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU. That premise implies and justifies the existence of mutual trust between the Member States that those values will be recognised, and therefore that the law of the EU that implements them will be respected.
Such steps to protect the legal order of the EU could include declaring that the Polish judiciary as a whole has become, to put it briefly, a legal “black hole” that can no longer be trusted when it comes to instruments of judicial cooperation. In practice, this may mean suspending the application of the European Arrest Warrant procedure as far as Poland is concerned. This step would also be relatively easy for the CJEU to take, as multiple referrals from EU Member State courts on the execution of European Arrest Warrants are pending against Poland. The Commission is someone you can negotiate with, intimidate or bully, but the CJEU is beyond such means and, given its history of drastic legal measures to protect EU law, will not shy away from whatever it takes if it finds that EU law is under a dire threat. Repairing such damage could take far longer than just changing the government in Poland.
Not applying European Arrest Warrants from Poland is only in the interest of people suspected of crimes, not a category we usually want to give general benefits. Aren’t there more interesting ways of ‘disobedience’ to Polish demands? (Like financial measures enabled by Regulation 2020/2092)
Of course, the rule of law conditionality regulation could be useful, but there are some questions to be answered here. One critical Q was put forth by CJEU president Koen Laenerts to Commission/Council during the hearings of the POL/HUN challenge against that regulation yesterday: “If a Member State refuses to implement an ECJ judgment, would it be immediately “in trouble” under the RoL Reg, given that compliance with binding rulings is an essential element of complying with the RoL?” (thanks to prof John Morijn for transcribing this)
Essentially, will the RoL conditionality be a “wide” tool (any major general breach of rule of law such as failure to respect CJEU) or a “narrow” one (just very specific situations related to handling EU money). We’re yet to see.
With this manoeuvre, the Polish government is trying to divert attention from the issue of the independence of the courts and judiciary.
Although we lawyers understand the need for the primacy of EU law, it is difficult to explain to ordinary citizens why “their” constitution should not prevail.
It is easier to understand that judges who do what they are told by government will not defend citizens’ rights and freedoms.
I hope the EU institutions will not allow themselves to be provoked into focusing on primacy, but will instead focus on Polish citizens’ right to have independent courts and judges; a subject on which Strasbourg, Luxembourg and Karlsruhe are as one.