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Judgment of the Constitutional Tribunal on the superiority of EU law over domestic law. Dissenting opinion of judge Piotr Pszczółkowski

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Two dissenting opinions were submitted to the judgment of the Constitutional Tribunal on the superiority of EU law over domestic law. One of them was reported by judge of the Constitutional Tribunal, Piotr Pszczółkowski. – In fact, the applicant intended to undermine the legal effects of specific judgments of the Court of Justice of the European Union in the Polish legal system – he assessed. He assessed the prime minister’s motion in this matter as “apparent”. According to him, “the problem of violating the principle of conferred powers did not arise at all”.

The Constitutional Tribunal has finished examining the application of Prime Minister Mateusz Morawiecki regarding the principle of the supremacy of EU law over national law, enshrined in the treaties. Before that, he had adjourned or interrupted a hearing several times. Now the Court has found that the provisions of European Union law that the head of government asked about are inconsistent with the constitution.

The decision was made by a majority of votes. Two judges – Piotr Pszczółkowski and Jarosław Wyrembak – dissenting the case, the so-called votum separatum.

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The first dissenting opinion was presented by judge Piotr Pszczółkowski. – I believe that the proceedings in the present case should be discontinued, pursuant to article 59, paragraph 1, point 2 of the act on the organization and procedure of proceedings before the Constitutional Tribunal, due to the inadmissibility of issuing a judgment by the Constitutional Tribunal – he said.

1. At a sitting in camera, the Tribunal shall issue a decision to discontinue the proceedings: (…) 2) if the issuing of the ruling is inadmissible;

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– The very application of the Prime Minister only apparently concerned the constitutional review of the norms contained in the provisions of the Treaty on European Union indicated in the application. In fact, the applicant intended to undermine the legal effects of specific judgments of the Court of Justice of the European Union in the Polish legal system – explained the judge.

He judged that “the Constitutional Tribunal, by issuing a substantive judgment in the present case, exceeded the scope of its jurisdiction, as defined in article 188, points 1 and 3, of the Constitution”.

The Constitutional Tribunal adjudicates in the cases of: 1) the compliance of laws and international agreements with the Constitution, (…) 3) the compliance of legal provisions issued by central state organs with the Constitution, ratified international agreements and statutes,

– Regardless of the above, I believe that the incompatibility of the provisions of the Treaties with the provisions of the Polish constitution, raised by the Prime Minister in the application and found by the Tribunal in the judgment, is only apparent – stated Pszczółkowski.

SEE THE ENTIRE TRIAL AT THE CONSTITUTIONAL TRIBUNAL

– What is more, the decision contained in the first paragraph of the judgment eludes classification as a ruling on the hierarchical consistency of law. It is rather a descriptive statement about the principle of supremacy of the constitution and about the limits of integration and primacy, taking only the form of a judgment – he commented.

Judge Sochański presented the oral reasons for the judgment. Fragment of the speech Constitutional Court

According to the judge, in this case “the problem of violating the principle of conferred powers did not arise at all”.

– The case law of the Court of Justice of the European Union does not impose the only possible way of organizing the system of judiciary and proceedings before courts in Poland. In this respect, it does not deprive the Polish, democratically legitimate legislator of his decision-making powers. However, the Court of Justice reserves the right to assess whether the effect of the solutions adopted by Poland guarantees effective judicial protection in the areas covered by European law and to what Poland has committed itself to by ratifying the Treaty on European Union as adopted in the Treaty of Lisbon, which in Article 19. , paragraph 1, subparagraph 2, it imposes expressis verbis on all Member States the obligation to ensure effective legal protection in the areas covered by European Union law – he explained.

He emphasized that “the fulfillment of this obligation by Polish public authorities not only does not violate Article 8 of the Constitution (which refers to the Constitution as the supreme law – ed.), But also has a direct, constitutional anchorage in Articles 90 and 9 of the constitution”.

The Republic of Poland complies with the binding international law.

1. The Republic of Poland may, on the basis of an international agreement, delegate to an international organization or an international body the competences of organs of state authority in certain matters. 2. The law expressing consent to the ratification of an international agreement referred to in para. 1 shall be passed by the Sejm by a two-thirds majority in the presence of at least half of the statutory number of deputies and by the Senate by a two-thirds majority in the presence of at least half of the statutory number of senators. 3. Expressing consent to the ratification of such an agreement may be passed in a nationwide referendum in accordance with the provisions of Art. 125. 4. A resolution on the choice of the procedure for expressing consent to ratification shall be adopted by the Sejm by an absolute majority of votes in the presence of at least half of the statutory number of deputies.

– The implementation of the principle of the supremacy of the constitution, resulting from article 8, is possible only with respect to the constitutional article 9 and the obligation to comply with international agreements binding on the Republic of Poland – the judge continued. – Substantially, article 19, paragraph 1, subparagraph 2 corresponds to the obligation under article 45, paragraph 1 of the Constitution, to ensure that everyone has the right to a fair and public hearing, without reasonable delay, by a competent, independent, impartial and an independent court – he added.

According to the judge, the Prime Minister’s motion presented to the Constitutional Tribunal “was of a special nature”. – Due to the content of this application and the circumstances of its submission – he said.

Judge of the Constitutional Tribunal, Piotr PszczółkowskiTVN24

Main photo source: TVN24



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