On Thursday, the Constitutional Tribunal is considering the application of Prime Minister Mateusz Morawiecki regarding the principle of the supremacy of EU law over national law enshrined in the treaties. Earlier, the Constitutional Tribunal adjourned or interrupted the hearing several times, the last time it happened on September 30. During the Thursday hearing, the President of the Tribunal, Julia Przyłębska, announced that the ruling in this case would be announced at 5.15 p.m.
Constitutional Court President Julia Przyłębska continued the hearing on Thursday, initiated by Prime Minister Mateusz Morawiecki’s motion from the end of March, regarding the constitutionality of some of the provisions of the Treaty on European Union. The allegations contained in the application of the prime minister, which is nearly 130 pages long, include the question of the compliance with the Polish constitution of the principle of primacy of European Union law and the principle of sincere cooperation between the Union and its member states.
Questions from judges and discussion in the Constitutional Tribunal
Recently, TK dealt with Prime Minister’s motion on this issue on September 30. At that time, participants in the proceedings were answering the judges’ questions for several hours. They presented their positions during the earlier dates, and they also referred to each other’s submissions.
After Thursday’s resumption of the hearing, the judges of the Constitutional Tribunal continued asking questions. They were led, inter alia, by judge Piotr Pszczółkowski. The representative of Prime Minister Marek Szydło pointed out that ultimately it is the national Constitutional Tribunal that decides whether the interpretation adopted by the CJEU is binding in a member state of the community. As he added, this interpretation of the CJEU, adopted in the judgments questioned by the prime minister, violates certain structural principles of the Polish constitution and cannot survive in such a shape within the Polish supreme authority. – And this can only be adjudicated by the Constitutional Tribunal – added Szydło. In his opinion, the verdict of the Constitutional Tribunal, for which the Prime Minister is requesting, would play an important complementary and developing role.
Deputy Minister of Foreign Affairs Paweł Jabłoński was asked whether the judgment of the Constitutional Tribunal would not be perceived as a partial denunciation of the Treaty on European Union if the arguments contained in the Prime Minister’s application were to be shared. – It will be a kind of redefinition, but in the opinion of the Ministry of Foreign Affairs, if a verdict were passed in line with the proposal, this redefinition would mainly be limited to confirming the existing line of jurisprudence common to the Polish Constitutional Tribunal and to many constitutional courts of many Member States – he replied.
According to the deputy head of the Ministry of Foreign Affairs, certain judgments of the CJEU lead to a situation in which the applicability of the Polish constitution is questioned. When asked about the possibility of Poland leaving the Community, Jabłoński pointed out that courts in other countries “directly refused” to apply certain judgments of the CJEU, and at the same time “they do not leave the European Union and do not intend to do so”.
Deputy Commissioner: there is a treaty provision that we have agreed to
Deputy Human Rights Defender Maciej Taborowski emphasized, in turn, that the consequence of the Prime Minister’s request would be a reduction in the protection of Polish citizens in relation to the EU standard. – We joined an international organization (…) There is a treaty provision that we agreed to. And the Member State has to adapt to this provision – he said. He also noted that the main problem with the application is that “it is not known what is to be checked”.
Representatives of the Office of the Human Rights Defender were asked by judge Stanisław Piotrowicz of the Constitutional Tribunal about their allegations regarding the defective method of appointing judges and about what provision of the constitution violates the fact that members of the National Council of the Judiciary were appointed by the parliament. – The entire procedure leading to this nomination is decisive – explained Taborowski. Dr. Paweł Filipek, another representative of the Bureau, added that it was a violation of the constitutional order, which includes not only the literal norms of the constitution, but also, for example, the jurisprudence of the Constitutional Tribunal. – I understand that you are not able to indicate the specific rule that has been broken – answered Piotrowicz.
– The fact that the National Council of the Judiciary is shaped as it is, from the perspective of the EU criterion, could even function if there was a judicial control later. But political influence has been increased and judicial control has been removed – these are the factors that together give rise to doubts about the abstract independence of the NCJ. Attaching to one provision of the constitution makes no sense (…), there are many more factors that are taken into account – said Taborowski.
After the discussion, the participants of the proceedings in the Constitutional Tribunal presented their final conclusions. After 3 p.m., the President of the Constitutional Tribunal, Julia Przyłębska, informed that the announcement of the ruling would take place on Thursday at 5.15 p.m.
Prime Minister’s request
The Prime Minister formulated his application to the Constitutional Tribunal after the judgment of the Court of Justice of the European Union in early March on the possibility for courts to control the correctness of the process of appointing a judge. The head of government questioned the provisions which, in the meaning of the challenged understanding, entitle or oblige the authority to withdraw from the application of the Polish constitution or require the application of legal provisions in a manner inconsistent with it.
The prime minister also appealed against the norm of the Treaty within the meaning of which it authorizes or obliges the body to apply a provision which has lost its binding force pursuant to a judgment of the Constitutional Tribunal. The prime minister’s constitutional reservations are also raised by the provision of EU law he has challenged, within the meaning which entitles the court to review the independence of judges appointed by the president and the resolutions of the National Council of the Judiciary on the appointment of judges.
Hearings of the Constitutional Tribunal postponed and interrupted several times
The Tribunal dealt with the Prime Minister’s application for the first time on July 13 composed 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 participants of the proceedings presented their positions at that time. 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.
At that time, the part of the hearing before the Court ended, in which individual participants commented on the positions of the other parties, after which the president Przyłębska ordered a break until July 15th. But on July 14, the date for the continuation of the hearing has remained postponed to August 3. On July 15, the Constitutional Tribunal decided that will consider the case in full court.
On July 22, the date of the hearing was postponed again – on August 31. When the case was already dealt with by the full panel, the Tribunal did not proceed to its substantive examination in connection with the applications submitted by the representative of the Human Rights Defender, and President Przyłębska announced a break until September 22. The spokesman filed a motion to exclude judge Stanisław Piotrowicz – the Commissioner for Human Rights indicated, inter alia, that this judge, still as a member of the PiS parliamentary club, was “one of the key politicians who introduced changes to the judiciary”. He also wanted the Constitutional Tribunal to hear the case from the beginning, and the parties presented their positions again.
On September 22, the president TK Julia Przyłębska has announced a break at the hearing before the stage of questions from judges to the participants of these proceedings – as she said – in order, inter alia, to prepare “insightful questions” to the parties by the judges. On 30 September, the Court continued the hearing and put questions to the parties to the proceedings. In the afternoon of the same day, Przyłębska announced a break until October 7.
Exchange of views between Judge Pawłowicz and the deputy Commissioner for Human Rights
During last week’s hearing, there was an exchange of views between judge of the Constitutional Tribunal, Krystyna Pawłowicz, and Maciej Taborowski, the deputy ombudsman. Pawłowicz interrupted Taborowski many times, preventing him from answering the questions he asked.
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