15 Oktober 2021

Resolution No. 04/2021

of the Committee of Legal Sciences of the Polish Academy of Sciences of October 12, 2021 in regard to the ruling of the Constitutional Tribunal of October 7, 2021

The Committee on Legal Sciences of the Polish Academy of Sciences, being a democratic representative of scientists conducting research in the field of legal science, declares that the ruling  of the Constitutional Tribunal in case K 3/21 of October 7, 2021:

– is defective due to the faulty appointment of judges;

– accepts as the basis for its reasoning a number of statements that are not provided for in the normative regulations (both Polish and European) or the jurisprudence concerning them;

– aims to legalize unconstitutional changes introduced in the administration of justice after 2015 which are inconsistent with EU law and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR); to put pressure on Polish judges to ignore the binding judgments of the Court of Justice of the European Union (CJEU); and to refrain – under  the threat of disciplinary liability – from examining the status of judges appointed by the politicized National Council of the Judiciary.

The ruling of the Constitutional Tribunal in case K 3/21 was issued by the adjudication panel with the participation of persons who had been elected to seats already lawfully filled. Therefore, for both formal and legal reasons it cannot be perceived as the judgment of the Constitutional Tribunal. The Committee on Legal Sciences of the Polish Academy of Sciences reminds that in the judgment of 7 May 2021 in the case of Xero Flor v. Poland (application  no. 4907/18), the European Court of Human Rights found that the decision of the Constitutional Tribunal, issued with the participation of a person elected for a place already filled, violates Art. 6 ( 1) of the ECHR. Such a Tribunal does not fulfill the requirement of a „court established by law“.

There are no legal grounds for the view of the Constitutional Tribunal that EU law and the case law of the CJEU has called into question the supremacy of the Constitution in the Polish legal order, thus entitling national courts to ignore the provisions of the Constitution of the Republic of Poland or to review the legality of the appointment of a judge by the President of the Republic of Poland. The practice so far does not confirm the reasoning adopted by the Constitutional Tribunal that EU bodies operated beyond the competence conferred on them by Poland in the EU treaties.

The Constitutional Tribunal went beyond its powers, declaring the provisions of the Treaty on European Union (TEU) unconstitutional. It did not exclude that in the future it would assess the conformity of the CJEU judgments with the Constitution of the Republic of Poland, „including their removal from the Polish legal system“. This is beyond the legal scope of the Constitutional Tribunal’s competence. According to the principle of the division of competences between the EU and the Member States, the interpretation of the TEU falls within the exclusive competence of the CJEU.

The claims made in order to justify the ruling of the Constitutional Tribunal are misplaced and manifestly ignore the real legal problem – the changes in the Polish judiciary carried out in violation of the Constitution of the Republic of Poland, EU treaties, and the ECHR. The Tribunal’s claims intended to legitimize these changes, primarily by undermining the legal effects of CJEU judgments. The ruling of the Constitutional Tribunal threatens the foundations of the entire EU, interferes with the authority of the CJEU, and limits the competences of Polish courts to apply EU law directly. As a result, this places Poland outside the European legal space. It also dangerously restricts the right of individuals to an effective remedy and to have their cases heard by a court established by law, independent of any other authority, and impartial – which is the foundation of the rule of law.

The Committee on Legal Sciences emphasizes that care for the common good is the responsibility of all citizens, especially those entrusted with the exercise of power. No generation, let alone any political group in power at any given time, has the right to treat the State as its sole property. The Committee emphasizes that the Introduction to the Constitution of the Republic of Poland clearly underscores the need  for “cooperation with all countries for the good of the Human Family.“ Poland’s effective participation in the EU contributes to peaceful cooperation between nations, the reliability and efficiency of public institutions in our country, and above all it serves to ensure respect for the freedoms and rights of the citizens of the Republic of Poland.


SUGGESTED CITATION  The Committee on Legal Sciences of the Polish Academy of Sciences, : Resolution No. 04/2021: of the Committee of Legal Sciences of the Polish Academy of Sciences of October 12, 2021 in regard to the ruling of the Constitutional Tribunal of October 7, 2021, VerfBlog, 2021/10/15, https://verfassungsblog.de/resolution-no-04-2021/, DOI: 10.17176/20211015-165135-0.

One Comment

  1. Piotr Szafranski So 17 Okt 2021 at 23:20 - Reply

    The above declaration of the recognized representation of the top Polish legal scholarship (The Committee on Legal Sciences of the Polish Academy of Sciences) illustrates a pattern seen across Poland in the last 6 years.

    The Polish meritocratic elites, in pretty much any field, has been separated from any influence on legislating and governing of Poland. Today’s governing (and law writing) in Poland is full of obvious errors, the actions and the means are in conflict with the declared goals of the rulers. This is not „a different policy“, this is either deception or incompetence. And it is waste of time to discuss „deception or incompetence?“, as the results of both are the same.

    It should be noted however, that cutting the link between the judgement of meritocratic elites, and the state policies, was an explicit goal and rallying cry of the currently ruling PiS party. It was stated and promoted, by this party, a long time before them winning the 2015 parliamentary elections. So it is (tragically) legitimate to say that the Poles have freely chosen to effectively get rid of own meritocratic elites, at least as far as governing is concerned.

    This is a horror, as it was precisely the goal, during World War 2, of both the occupying Poland Soviet Union and Nazi Germany, to remove the influence of the Polish meritocratic elites in the Polish society. In those times, such „remove the influence“ meant murder, as in the ominous „Katyń Forest Massacre“ or „Inteligenzaktion“ names.

    It is customary to see and remember those WW2 atrocities mainly as mass murders. Which is what they were, but they were also something else – cutting off the link between those who are qualified to guide/make society decisions, and those society decisions. Turns out, for the latter murder is not an indispensable tool.

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