Constitutional Court. Deliberations on Zbigniew Ziobro’s motion to challenge EU regulations

The deliberations began at 11 a.m. An application to the Constitutional Tribunal in this matter was submitted in November 2021 by the Minister of Justice, the Prosecutor General Zbigniew Ziobro, which demands that the regulations of EU law relating to these issues be declared unconstitutional. The application was submitted after being ordered by CJEU two financial penalties for Poland – regarding Turów mine and the then Disciplinary Chamber of the Supreme Court.

As a TVN24 reporter reported, journalists can only watch the tribunal’s proceedings via the Internet. Journalists cannot go inside.

In his application to the Constitutional Tribunal, Ziobro asked for an examination of the constitutionality of Art. 279 of the Treaty on the Functioning of the European Union to the extent that “the CJEU assumes that this provision allows the imposition of financial penalties for failure to comply with the interim measure imposed.” He also challenged Art. 39 of the Statute of the CJEU, which authorizes the President of the CJEU or a judge of this tribunal to impose on a member state interim measures relating to the shape of the system and the functioning of the constitutional bodies of the Republic of Poland.

Ziobro wrote that this case is about ensuring that the EU, in the activities of its bodies, complies with the provisions underlying its establishment and respects the principle of the rule of law common to all EU member states.

Consideration of this application by the Constitutional Tribunal began on October 19 last year. Representatives of the participants in the proceedings: the Prosecutor General, the Sejm and the President of the Republic of Poland presented their positions before the Tribunal. Then – after less than an hour of the hearing – the Constitutional Tribunal adjourned the continuation of the case. President of the Constitutional Tribunal Julia Przyłębska it then set a deadline for submitting the necessary written positions.

The hearing in this case was postponed many times in the Constitutional Tribunal. There has been a dispute at the Tribunal for many months over the term of office of Julia Przyłębska as the president of the Tribunal, which makes it difficult for the Tribunal to meet as a full bench of at least 11 judges. According to some lawyers, including some current judges of the Constitutional Tribunal, Przyłębska’s term of office expired after six years, i.e. on December 20, 2022, and at the same time she is not able to apply for this function again. According to Przyłębska herself, most judges of the Constitutional Tribunal, and the Prime Minister Mateusz Morawiecki and some experts, her term of office expires in December 2024 – together with the end of Przyłębska’s term as a Constitutional Tribunal judge.

As a result, Prime Minister Morawiecki submitted an application to the Constitutional Tribunal in which he questioned the constitutionality of the provision establishing the full composition of the Constitutional Tribunal to be at least 11 out of 15 judges. However, in this case the hearing dates are also postponed.

At the end of October 2021, the CJEU obliged Poland to pay a fine of EUR 1 million per day to the European Commission for not suspending the application of the provisions relating to the powers of the then Disciplinary Chamber of the Supreme Court towards judges. In April 2023, the fine imposed on Poland was reduced to PLN 500,000. euro per day. The CJEU announced in June this year judgment found that the reform of the Polish justice system of December 2019 violated EU law and thus upheld the EC’s complaint. Until the judgment in this case was issued, over EUR 500 million in penalties had been imposed on Poland.

Earlier – in September 2021 – the CJEU decided that Poland should pay the EC PLN 500,000. euro per day for not implementing interim measures and not stopping lignite mining in the Turów mine. The imposition of fines was suspended after the Polish-Czech agreement on this matter.