On Wednesday, the Constitutional Tribunal is to continue examining the Prime Minister’s application regarding the principle of the supremacy of EU law over national law enshrined in the treaties. On August 31, the hearing of the full Constitutional Tribunal began. Then, after half an hour, a break was announced.
The reason for the break until September 22, 11 a.m. was the motion of the Ombudsman, Marcin Wiącek, to exclude judge Stanisław Piotrowicz. The Commissioner for Human Rights pointed out, inter alia, that this judge – still as a deputy and representative of the PiS parliamentary club – was “one of the key politicians who introduced changes to the judiciary”.
“The application for the exclusion of a judge in terms of procedures was submitted in accordance with the applicable regulations, does not contain formal defects, therefore it will be subject to examination” – said judge Julia Przyłębska, President of the Constitutional Tribunal. As she added, “in this state of affairs, unfortunately, the Constitutional Tribunal must order a break, because it must recognize this application.”
Prime Minister’s application to the Constitutional Tribunal
Prime Minister Mateusz Morawiecki referred the case to the Constitutional Tribunal after the judgment of the Court of Justice of the European Union in early March regarding the possibility for courts to control the correctness of the process of appointing a judge. As argued at the time by the Chancellery of the Prime Minister, the application concerns a comprehensive settlement of the issue of the conflict between the norms of European law and the Constitution and the confirmation of the previous jurisprudence in this respect.
The Prime Minister asked the Constitutional Tribunal to examine the constitutionality of three provisions of the EU Treaty. to the question of the constitutionality of the principle of primacy of EU law and the principle of sincere cooperation between the Union and the Member States.
The provisions that the prime minister wants to control, in the challenged meaning, inter alia, entitle or oblige the national authority to withdraw from the application of the Polish constitution or order to apply legal provisions in a manner inconsistent with it. As emphasized in the application, such understanding of the provision raises “far-reaching and justified constitutional doubts, finding no confirmation in the text of the treaties subject to the Constitutional Tribunal’s control”. The prime minister also appealed against, inter alia, a standard of the Treaty within the meaning of which it authorizes or obliges the authority to apply a provision which has lost its binding force under a judgment of the Constitutional Tribunal.
Important constitutional reservations of the Prime Minister are also raised by the provision of EU law within the meaning of which the court is entitled to control the independence of judges appointed by the president and the resolutions of the National Council of the Judiciary on the appointment of judges.
The submission of the application was announced after the CJEU, in response to questions from the Supreme Administrative Court in March, ruled that “subsequent amendments to the Act on the National Council of the Judiciary, which led to the abolition of effective judicial review of the Council’s decisions on presenting to the president applications for the appointment of candidates for Supreme Court judges, may violate EU law “. According to the CJEU, if a national court finds that these changes infringe EU law, it is obliged to refrain from applying these provisions.
In June, EU Justice Commissioner Didier Reynders sent a letter to Zbigniew Ziobro, Minister of Justice and Konrad Szymański, Minister for European Affairs, asking him to withdraw his application from the Constitutional Tribunal. In the opinion of the European Commission, the application to the Constitutional Tribunal undermines the fundamental principles of EU law.
– Of course I’m not going to withdraw this question – said Morawiecki.
Decisions of the Court of Justice of the European Union
On 15 July, the CJEU ruled that the system of disciplinary liability of judges in Poland is not consistent with EU law. The day before, the CJEU obliged Poland to suspend the application of provisions concerning, in particular, the powers of the Disciplinary Chamber of the Supreme Court, also in matters such as the lifting of judicial immunities.
On July 14, the Constitutional Tribunal, after examining a question from the Disciplinary Chamber of the Supreme Court, ruled that the provision of the EU Treaty, based on which the CJEU obliges member states to apply interim measures in the case of the judiciary, is inconsistent with the Polish Constitution.
In mid-August, in response to the Polish government’s response to the European Commission regarding the Disciplinary Chamber, it was written that Poland would continue reforms of the judiciary, also in the areas of judges’ responsibility. The Council of Ministers also informed the European Commission about the plans to liquidate this Chamber in its present form.
In early September, the European Commission informed that it had decided to ask the CJEU to impose financial penalties on Poland for failure to comply with the decision on interim measures of 14 July.
The date of the hearing is postponed
Originally, Prime Minister Morawiecki’s application was dealt with by a panel of five judges of the Tribunal. In addition to president Przyłębska and judge Bartłomiej Sochański, who is the rapporteur, the composition also included judges: Jakub Stelina, Michał Warciński and Leon Kieres, who had already finished his term in the Constitutional Tribunal.
The Tribunal already dealt with this matter on July 13. The positions were presented by the participants of the proceedings. Representatives of the President of the Republic of Poland, the Sejm and the Public Prosecutor General supported the prime minister’s position on the superiority of the Polish constitution over EU law. The then Ombudsman, Adam Bodnar, disagreed with this opinion.
However, in mid-July it was also announced that the request of Prime Minister Morawiecki will recognize the full composition of the Constitutional Tribunal under the leadership of Julia Przyłębska. On August 31, when the case was dealt with by the full composition, the Constitutional Tribunal did not proceed to its substantive examination in connection with the Ombudsman’s request. The Defender wants the Constitutional Tribunal to hear this case from the beginning, and the parties presented their positions again.
Andrzej Zoll on the Prime Minister’s application to the Constitutional Tribunal
In the Tuesday edition of “Fakty po Faktach”, the former president of the Constitutional Tribunal, Professor Andrzej Zoll, asked what it would mean if the Constitutional Tribunal said on Wednesday that Polish law was more important than European law, replied that “the consequence would be practically the removal of Poland from the European Union”. – A state that decides to become a member must obey these rules, principles that are contained in the treaties – he emphasized.
– There is no question that European Union law could be excluded due to one or another regulation in Polish legislation – he added.
He mentioned that the Constitutional Tribunal had dealt with this problem twice before 2015 and stated that “there is no contradiction between the solutions adopted in the European Union and the Polish constitution”. – There was a moment when such an incompatibility took place, when it was about the extradition of Polish citizens. We had to change the constitution then, noted the former president of the Constitutional Tribunal.
He stressed that “if there is any incompatibility of a regulation in the Polish constitution with EU law, we have two options – either to change the Polish constitution or try to change this regulation in European Union law”. – The third option is to leave the EU – he added.
He assessed that the Prime Minister’s application was a “misunderstanding”.
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