Legal weaknesses in the EU attacks against Poland

Essays - November 8, 2022

In a study requested by the JURI committee, the European Parliament Directorate-General for Internal Policies joins the European Commission in its attacks against Poland.  The authors of the text, Prof. Dr. ZOLL, Dr. POŁUDNIAK-GIERZ and Mgr BAŃCZYK, all of them from the Jagiellonian University, accuse the Polish government of destroying an independent judiciary system.

The thesis defended by the three scholars is that the Polish Constitutional Tribunal has changed its jurisprudential line after Poland’s accession to the European Union, thus accommodating to the direction imposed by the current national executive.

However, such thesis entails significant weaknesses that will be outlined as follows.

For instance, the judgment of 11 May 2005, ref. no. K18/04, still deemed to belong to a time when the Polish court would support a mutually friendly interpretation and cooperative co-application of EU law in Poland, already assumed that the Polish Constitution is the superior legal act, prevailing over the whole legal order applicable in Poland.

Therefore, the principle of primacy of EU law is contested from the very beginning of constitutional jurisprudence after Poland’s accession to the EU, contrary to what ZOLL, POŁUDNIAK-GIERZ and BAŃCZYK argue as an underlying explanation of their point.

True, the Polish Constitutional Tribunal was using a European-friendly interpretation; but such methodology clearly stated constitutional provisions as a borderline.  Therefore, the Constitution was recognised from the start as an act having priority over European law if there is a contradiction between both.

Eight years later, still in the first period of pre-PiS influence according to the study authors, the judgment of 26 June 2013, ref. no. K33/12 confirmed that a European-friendly interpretation of the Polish Constitution is limited by the provisions and minimum guarantees determined by the same Constitution.

Furthermore, it proclaimed that it is for the Polish Constitutional Tribunal to verify whether a transfer of competences to the Union is in accordance with the national legal order or else infringes the Constitution of Poland.

This second proclamation by the Polish court is key to understanding the position of the Eastern Member State with regards to EU law even when PiS was in the opposition, as opposed to the thesis defended by the European Parliament study.

ZOLL, POŁUDNIAK-GIERZ and BAŃCZYK recognise that the Constitutional Tribunal, even during this first period, already sees Poland’s magna carta as the highest source of Polish law, prevailing over European law.  They nuance this consideration by saying that such prevalence was only “formal”.  However, there is no legal support for the nuance.  A constitutional proclamation that the Polish Constitution prevails over European law and that the Constitutional Tribunal rules on the correct transfer of competences to the European Union has material as well as formal consequences, in both cases of a sweeping force.

The second period in the Constitutional Tribunal evolution, according to the study, corresponds to a transition, where the PiS majority allegedly elected some constitutional magistrates in an illegal manner.

But once more there is a failure to explain this accusation of illegality.  As a source of authority the Court of Justice of the European Union is referred to; but without any further discourse.  On the contrary, Article 4(2) of the Treaty on the European Union establishes that the Union shall respect the Member States’ national identities, inherent in their fundamental structures, political and constitutional, as well as their essential State functions.

Therefore, determining the structure of the Polish judiciary does constitute an exclusive domain of the Polish institutions rather than an illegal step in a so-called transition period of rebellion against the Union.

Insisting upon the stigma of illegality from a European perspective, the study criticises the appointment of the Tribunal’s current President, Mrs. Julia Przyłębska.  No elaboration whatsoever is made on the alleged procedural appointment problems.  ZOLL, POŁUDNIAK-GIERZ and BAŃCZYK recall that European Court of Human Rights has gone as far as resolving that a ruling by the Polish Constitutional Court would not fulfil the standard of the due process of law – simply because the Court is presided over by Mrs. Przyłębska.

However, that consideration would render all rulings by the Polish Constitutional Court null and void, according to the European Court of Human Rights – a consequence a jurist could hardly support.  We should rather consider said rulings on the merits.

In line with the European Court of Human Rights, the three Polish scholars state that the Constitutional Tribunal’s judgments are “not formally binding” and not a part of the Polish legal order, at least not formally.  But ZOLL POŁUDNIAK-GIERZ and BAŃCZYK should be reminded that it is the European Court of Human Rights’ rulings that are not binding in nature.

As a consequence, one cannot rationally pretend, on the basis of a non-binding resolution by its own nature, that it is another institution’s rulings which are actually not binding, as nemo dat quod non habet.

On the other hand, again, the distinction of “formally binding” and “formal part of the Polish legal order”, dear to the European Parliament’s mandataries, results ambiguous and superfluous.  It is quite an evidence that the judgments issued by the Constitutional Tribunal of Poland are both materially as well as formally binding, and therefore a formal and a material part of the Polish legal order.

But let us proceed with the third part of the story, as related by the Parliament’s study.

From 2020 onwards, a period of “artificial conflicts” or “non-existing conflicts” would have started.  The reader will albeit see how the decisions by the Polish constitutional court do not vary substantially with those of the first period.

The judgment of 20 April 2020, ref. no. U 2/20 brings back the principle of friendly cooperation, with no depart from the judgment of 26 June 2013, ref. no. K33/12 (see above).

The judgment of 14 July 2021, ref. no. P 7/20 rules indeed on a very serious conflict, that created by the Court of Justice of the European Union when it ordered the disbanding of Poland’s Supreme Court Disciplinary Chamber.

Here, the Constitutional Court resolves, in line with the previous jurisprudence as per judgments of 11 May 2005, ref. no. K18/04, and of 26 June 2013, ref. no. K33/12, that the Polish Constitution has primacy over Articles 4 III second sentence of the Treaty on the European Union, and 279 of the Treaty on the Functioning of the European Union.

The judgment of 7 October 2021, ref. no. K 3/21 is called “the most radical” by ZOLL POŁUDNIAK-GIERZ and BAŃCZYK.  But we see nothing radical, in view of all the mentioned jurisprudence dating back from 2005, in proclaiming that the Polish Constitution has primacy over Article 19 I of the Treaty of the European Union.  It might not please European federalists, but the allegation of primacy on behalf of the Polish constitutional law is not new, but instead dates back from Poland’s very accession to the Union.

Finally, for the second time we have to warn against a surprising conclusion drawn by legal scholars:  In the final words of the study, “all Polish authorities and in particular courts are obliged to ignore judgments even of the Polish highest courts”.

This presumed obligation, coming from a 29-pages brief endorsed by a European Parliament internal department, will surely provoke a smile in the same Polish authorities and courts to which it is addressed.  We cannot but share the same smile.

Source of the picture:  ECLJ