Though this be Madness, yet there’s Method in’t: Pitting the Polish Constitutional Tribunal against the Luxembourg Court

At the beginning of October 2018, Poland’s Prosecutor General submitted a request to the Constitutional Tribunal to examine the compliance of Article 267 TFEU with the Polish Constitution, so far as it allows the referral of preliminary questions regarding the organization of the national judiciary. Despite the relatively easy identification of motives underlying the application, there is need for analysis and evaluation of the contents of the application as well as the argumentation used as justification for this task, not least because there is a lot at stake.

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Choosing between two Evils: the Polish Ombudsman’s Dilemma

The Polish legislator has adopted several controversial anti-terror and surveillance laws recently. Ombudsman Adam Bodnar had had applied for constitutional review before the Constitutional Tribunal – but the cases were assigned to panels that included unconstitutionally elected "anti-judges". Therefore, he decided to withdraw the application. But that is not the end of the story.

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The Court is dead, long live the courts? On judicial review in Poland in 2017 and „judicial space” beyond

How should Polish judges respond, now that the Constitutional Court is being used in the day-to-day politics, and keeps delivering goods for its political masters? We have to be unequivocal here. Any future decisions taken by the „fake Court” with the “fake” judges sitting on the cases will be marred by invalidity. The ordinary judges will have a valid claim not to follow these rulings. Should they decide to follow decisions made with the participation of, or made by, “fake” judges, their own proceedings will be vitiated by invalidity.

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Reviewing the Holocaust Bill: The Polish President and the Constitutional Tribunal

President Duda decided to sign off the controversial law allowing to punish those who publicly accuse the Polish nation and the Polish state of taking part in the Holocaust and in any war crimes. The law will now come into force – a circumstance which is unlikely to calm the international discussion it has generated. Having decided to sign the law, the President announced that he will file a motion to the Polish Constitutional Tribunal to check its constitutionality. If the president is aware that the law may be unconstitutional and has at his disposal legal tools to check it yet allows it to come into force, he can be accused of constitutional recklessness.

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Judicial "Reform" in Poland: The President’s Bills are as Unconstitutional as the Ones he Vetoed

Five months ago, the Polish President Duda vetoed the PiS laws on the judiciary as unconstitutional. Currently, the President and the PiS are negotiating about a solution to this conflict. But make no mistake: The Presidential vetoes have not triggered any new proposals which would be qualitatively better in terms of consistency with the Constitution than the initial PiS bills that he vetoed. Both the PiS and the President’s proposals are glaringly unconstitutional, though in different ways.

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One Law, Two Justices

Poland’s rule of law crisis stems from the conviction that respect for institutions and the requirement to observe procedures are for the weak. The greatest risk arising from the crisis is that the recent disregard for both institutions and procedures will become a norm for future governments, whatever their political orientation.

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Defenceless Formalists: on Abuse of Law and the Weakness of the Polish Judiciary

Poland’s constitutional crisis is caused by the power of those who attack the rule of law, but also by the weakness of those who defend it. This weakness derives from courts taking a traditional formalist approach, excluding purposive and functional argumentation and leaving themselves prone to attack by the abuse of power through the other branches of government.

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Is Poland’s President Duda on the Road to Damascus?

Does President Duda’s recent vetoes signal a more permanent change in his fidelities to his political stable and to the Constitution? An opportunity to witness the depth of his conversion arises soon. The untimely death of Professor Morawski, one of the anti-judges appointed to the Constitutional Tribunal (CT) by Duda in December 2015, has created a vacancy in the CT which must be filled soon. The big question is with whom.

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How to Demolish an Independent Judiciary with the Help of a Constitutional Court

On 20 June, the Polish Constitutional Tribunal, with three anti-judges among its members, decided that certain provisions of the Act on the National Council of the Judiciary of Poland were unconstitutional. By doing so, the Tribunal unanimously conceded to the motion of the Minister of Justice, who had questioned those provisions in the course of work on reform of the National Council of the Judiciary. The reason why the current Polish Government unexpectedly suspended the process of usurping control of the national judicial system in order to enlist the help of the constitutional court can be understood with the help of a metaphor.

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