The Lighthouse of EU Law Shines on the Polish Constitutional Tribunal

Last week, legal scholars from all over the world met in Freiburg at the ConTrans conference. The ambitious aim of this meeting was to develop a playbook for reinstating the rule of law. Most presentations revolved around the Polish transition process and tried to identify ways for dealing with the likely opposition by the captured Constitutional Tribunal. On the one end of the spectrum, scholars like Woijcech Sadurski advocated for a revolutionary approach, simply dismantling the current Tribunal and re-building it from scratch – even if this leads to a plain disregard of the Polish constitution. On the other end stands Adam Bodnar, who is charged with making the transition happen – a Hercules task that nobody envies him for. Bodnar stressed the importance of legality in the transition process. Disregarding the law would not only set a dangerous precedent for future governments with an illiberal agenda, but also betray the very promise of breaking with the lawlessness under the PiS-led government.

Many applauded him for this commitment. However, the subsequent panels struggled to come up with convincing proposals for how to deal with the Tribunal’s opposition within the current legal framework. In my view, EU law shines a possible way ahead. It allows to neutralise and substitute the Constitutional Tribunal by legal means. In a first step, EU law can justify disregarding the Tribunal’s decisions. However, the lack of constitutional checks on government in times of deep transformation does not come without risks. In response, I am suggesting that EU law can go further and empower ordinary courts to assume the Tribunal’s jurisdiction. Eventually, this would lead to a decentralised constitutional review.

The Constitutional Tribunal’s opposition and entrenchment

The Polish Constitutional Tribunal is no court established by law under Article 6 ECHR. That much we know since Xero Flor. This deficiency concerns especially those panels that include so-called “double judges”, which have been appointed in disregard of the Polish Constitution. But the doubts regarding the Tribunal’s independence go far beyond this issue. Institutionally, the process of nominating the body’s president Julia Przyłębska took place in violation of the foreseen procedures. Further, PiS managed to fill all positions at the tribunal with their sympathisers. And this is reflected – substantively – in the Tribunal’s practice. In this sense, many argue that the Tribunal’s decisional practice has become politically tainted.

This might pose a central obstacle to the transition process. Following Bodnar’s approach, the new Polish Government wants to achieve a transition in full legality. The adoption of the necessary legislation requires the signature of the Polish president, who already announced to veto important parts of the reform. But even if the Government would manage to overcome these vetoes (say after the next presidential elections), PiS will most likely bring procedures before the Tribunal, which can – and most likely will – declare these reforms unconstitutional.

There are several options how to potentially overcome this opposition (see in detail here). The first, constitutional option is to restructure the court by re-building it from scratch. However, the Tribunal’s composition and its members’ appointment and terms of office are enshrined in the Constitution. Lacking a constitution-amending majority, this option is out of reach. Then, there are legislative options that aim at removing the “double judges”, annulling their rulings and repeating the respective procedures (see e.g. this draft). Yet again, it is highly unlikely that such a piece of legislation would ever pass the sitting President Andrzej Duda. And then, there is a third option: waiting it out. By the end of 2026, one half of the PiS nominated judges will have completed their term of office. Yet, until then the Tribunal could still do much damage. So, are we at a dead end?

A “lighthouse”: EU law’s role in transition processes

This is where EU law might come in. As Adam Bodnar emphasised, EU law and especially the values enshrined in Article 2 TEU can be understood as a lighthouse guiding the transition process. These values exert a twofold impact. To start with, they constrain the transition process. One essential sub-principle of the rule of law is legality, which requires the observance of the national legal framework as an obligation under Article 2 TEU. Certainly, neither the Union’s law nor its institutions can police the observance of national law to its full extent. Still, it seems plausible that the value of the rule of law in Article 2 TEU requires Member States to abstain from systematically violating their own constitution. This also explains why the Commission took into consideration – when ascertaining rule of law deficiencies in Poland – that the overhaul of the judiciary violated the Polish Constitution. For the new Polish Government this means that the restoration of the democratic rule of law must take place in compliance with national law. This seems to leave the current Government in the grip of PiS. At the same time, EU law can support the new Government in re-establishing compliance with the Union’s values. As I will now demonstrate, it can help neutralising and eventually substituting the Constitutional Tribunal.

Neutralising the Constitutional Tribunal

EU law might help overcome the Tribunal’s opposition in two ways concentrating either – institutionally – on the composition of this body or – substantively – on the content of its decisions. On the one hand, the current Polish Government could rely on the judgments in RS and Euro Box Promotion. In this case, the Court of Justice had to ascertain whether the provisions of a Member State, pursuant to which decisions of a constitutional court are binding, are compatible with EU law. The Court of Justice replied that neither Article 2 TEU nor Article 19(1)(2) TEU “preclude national rules or a national practice under which the decisions of the constitutional court are binding on the ordinary courts”. However, this comes with a crucial caveat. It applies only

“provided that national law guarantees the independence of that constitutional court … if national law does not guarantee such independence, those provisions of EU law preclude such national rules or such a national practice, since such a constitutional court is not in a position to ensure the effective judicial protection required by the second subparagraph of Article 19(1) TEU” (RS, para. 44 and Euro Box Promotion, para. 230).

Certainly, this decision is addressed first and foremost to national courts. After all, these decisions were rendered in preliminary rulings. Yet, a long line of jurisprudence establishes that the primacy of EU law requires not only national courts but all Member State authorities to give full effect to EU rules (see e.g. Garda Síochána). As such, the Government could simply set aside decisions by the Constitutional Tribunal that stand in the way of the democratic transition, adopt a parliamentary resolution that declares this intention and refuse to publish such judgments in the official journal. Additional legitimacy for this path will come from the infringement procedure currently pending before the Court of Justice.

Still, this approach has its limits: it applies only as far as the Constitutional Tribunal does not meet the requirements of judicial independence. Without a doubt, this includes panels featuring “double judges”. But what about equally problematic decisions taken by other panels? One could argue that as long as the Tribunal’s president is appointed in a deficient manner, the entire institution is tainted due to the broad powers attached to this position. But Przyłębska’s term as president will soon end. So, what happens thereafter? Could we really establish that the decisions taken by the Constitutional Tribunal are, due to its politicisation by PiS, not independent? Since Wilson, the Court of Justice has consistently held that independence requires impartiality, meaning “objectivity … and the absence of any interest in the outcome of the proceedings” (para. 52). While it does not seem far-fetched that many judges at the tribunal lack such an objectivity, it will be hard to substantiate this in practice.

On the other hand, the Government can – beyond reasons of judicial independence – disregard decisions by the Constitutional Tribunal based on their content, namely if they violate EU law. The primacy of EU law also applies to constitutional provisions of a Member State (see only Internationale Handelsgesellschaft). A fortiori, this must apply to decisions by a constitutional court which openly disregard EU law. If the Constitutional Tribunal invalidates legislation that intends to re-establish compliance with EU requirements, such as Article 2 and 19(1)(2) TEU, this could not only violate the respective provisions of EU law but also the principle of sincere cooperation in Article 4(3) TEU. This is the message of the YP, in which the Court specifically stated that Article 19(1) TEU and its primacy justify disapplying any contrary national case-law (para. 90). Certainly, disregarding the Tribunal’s decisions sits uneasily with the principles of legal certainty, the separation of powers and res judicata, all of which are important components of the rule of law. To increase legitimacy, the Government could take an unprecedented step and invite the Commission to initiate infringement proceedings against the respective decision of the Tribunal. The subsequent decision by the Court of Justice would provide additional support and legitimacy from the European level.

Substituting the Constitutional Tribunal – towards decentralised constitutional review

Neutralising the Constitutional Tribunal deepens a problematic void, which already emerged due to its capture. This void results from the choice for a system of centralised constitutional review. According to Article 188 of the Polish Constitution, constitutional review of statutes falls within the remit of the Constitutional Tribunal. Its decisions are final, of universal application and have an erga omnes effect (Article 190). If an ordinary court has doubts regarding the constitutionality of a statute relevant in a procedure before it, it can refer a question to the Tribunal (Article 193). In consequence, decentralised constitutional review by ordinary courts is generally barred.

The emerging lack of any constitutional review seems especially problematic during democratic transitions. In these times, governments perform large-scale overhauls, which might affect the lives of many individuals – suffice to think of the many judges that might be subject to a vetting procedure in the future. This does not mean that such measures are illegitimate. It merely underlines the need for constitutional checks: they guarantee that individual rights will be safeguarded during these processes and provide an additional layer of legitimacy. These risks have already been identified by several Polish courts. A recent study shows that some lower courts already started to assess the constitutionality of statues and thus assumed the role of the Constitutional Tribunal. Such decisions find support in the writings of scholars like Lech Garlicki or Marek Safjan and seem to largely rely on consequential arguments of necessity.

In my view, they also find support in EU law and can thus acquire a much stronger basis. According to a growing line of judgments from Luxembourg, national courts can assume the jurisdiction of another court that does not meet the EU requirements of judicial independence. This development started with A.K. and Others, which emerged from a complex procedural context. The overhaul of the Polish judiciary led to a lowering of retirement ages of Supreme Court judges. Jurisdiction to hear appeals against these retirements was transferred from the Supreme Court’s labour law chamber to the new disciplinary chamber. Still, several Supreme Court judges challenged their retirement before the labour law chamber. These applicants argued that the disciplinary chamber does not meet the EU standards for judicial independence under Articles 2 and 19(1)(2) TEU. The Court responded that

“where it appears that a provision of national law reserves jurisdiction to hear cases… to a court which does not meet the requirements of independence or impartiality under EU law, … another court before which such a case is brought has the obligation … to disapply that provision of national law, so that that case may be determined by a court which meets those requirements and which, were it not for that provision, would have jurisdiction in the relevant field” (para. 166)

This remarkable statement was later confirmed in A.B. and Others. Some scholars, such as Mathieu Leloup, have already pointed to the potentially far-reaching effects of this decision. In plain words: an independent court can assume jurisdiction in case the court with jurisdiction over the proceedings lacks the necessary independence. It should be noted that in the aforementioned cases, it was the court that previously had jurisdiction over the respective case, which assumed jurisdiction under EU law. However, this approach could be generalised and applied to the present case: were it not for Article 188 of the Polish Constitution, the supremacy of the constitution would command Polish courts to assess the constitutionality of statues. Ordinary Polish courts could thus assume the Constitutional Tribunal’s jurisdiction to perform a constitutional review of legislation.

For sure, this leads to many follow-up questions. Could any ordinary court assume this power? Or should this be reserved to apex courts? And does assuming jurisdiction come with all the powers of the respective court, including the annulment of legislation and the erga omnes effects of its decisions? These questions need to be answered by scholars with a much better knowledge of the Polish legal system. What this brief exploration sought to show is that EU law can be interpreted in such a way so as to justify the development of a decentralised constitutional review in Polish courts. Ordinary courts can fill the void until a more balanced, independent Constitutional Tribunal emerges, which deserves this name and whose decisions merit observance.

Conclusion

The new Polish Government faces a momentous task. The promise to swiftly restore constitutional democracy by fully remaining within the confines of the Polish legal order will be hard to keep. As such, we should acknowledge that there is no perfect way forward. Still, the conflict around the Polish Constitutional Tribunal is no dead end. EU law can support the new Government in neutralising that body once it starts obstructing the restoration of constitutional democracy. In particular, it can disregard the Tribunal’s decisions, especially if taken in a deficient composition. This finds a strong basis in EU law and thus fulfils the promise of legality. Further, EU law can also justify the Tribunal’s substitution. To maintain constitutional checks on the new Government during the transition process, it is suggested that ordinary courts should assume – on the basis of EU law – the Tribunal’s jurisdiction of constitutional review. This would lead to the development of a dispersed constitutional review until the Constitutional Tribunal is ready to take up its work in manner faithful to its mandate.