The crisis over the rule of law has reached a new low. This time, in their endless struggle with the EU, the Polish authorities have decided to utilise the captured Constitutional Tribunal. When earlier this year the Polish prime minister, Mateusz Morawiecki, requested a verdict on the primacy of the Polish Constitution over EU law it was arguably a done deal. The bench is stuffed with people loyal to PiS (the ruling Law and Justice Party), who rubber stamp PiS requests and thus lends them legitimacy. The fact that some on the bench were appointed in breach of the Polish Constitution is, in the eyes of PiS, a minor inconvenience or even ‘fake news’.
This time, the Constitutional Tribunal opted to strike a major blow to the primacy of EU law and, by doing so, exacerbated the legal chaos meticulously created by PiS over the past few years. As many commentators have claimed, it has moved Poland closer to the EU’s exit door. However, as argued here, it is not yet knocking on that door asking to be let out.
What is the judgment about?
The Tribunal was asked to verify whether the EU Treaties meet Poland’s constitutional requirements, even though the Treaties entered into force – in relation to Poland – 17 years ago. It is notable that the same Tribunal has already adjudicated several times on similar matters, although at the time it was composed (unlike today) of judges appointed in full compliance with the Constitution.
One of the two dissenting opinions indeed highlighted the previous and established jurisprudence, thus making this case redundant. The majority, however, thought otherwise. The Tribunal noted that approval for the EU integration process is not unconditional and cannot be taken for granted as the European Court of Justice (ECJ) permanently and dynamically interprets EU law.
Blame it on the boogie man (i.e. the Luxembourg Court)
In short, the Tribunal chose to place the blame on the ECJ. This – rather clearly – is the Leitmotif of the judgment.
Then the Tribunal expressed doubts about the impartiality and independence of the ECJ by judging the appointment of EU judges against Polish constitutional standards. It was argued that key rule of law standards are undermined by the procedure regulating the appointment of ECJ judges, as well as the possibility for unlimited renewals of their terms. This argument is controversial on several levels.
To begin with, the judges who were selected in breach of the Polish Constitution ruled on the legitimacy of appointments to the ECJ. For this purpose, they used provisions of the Polish Constitution which govern the appointment of domestic judges as a benchmark, including the judges of the Constitutional Tribunal itself. Bearing in mind what has happened to the appointments to the Polish courts over the last few years, this looks rather farcical. Without deeper reflection, the Tribunal questioned whether the ECJ is itself an independent court. The main grounds were time barred mandates of ECJ judges and the renewability of terms.
While leaving the issue thrown up in the air without a definitive answer, the judges failed to acknowledge that ECJ (re-)appointments depend on the will of the Member States and that candidates are heavily scrutinised under the Article 255 TFEU procedure. Finally, it is quite unclear from the oral reasoning presented by the Tribunal how the renewability of terms – by itself – undermines the rule of law.
Getting to the crux of the issue
Moving on to the main target of the ruling, the jurisprudence of the ECJ on ‘reforms’ of the Polish judiciary, the Tribunal underlined that powers not conferred to the EU can neither be presumed by the EU institutions nor created through case law.
According to the Tribunal, the ECJ should only interpret competences which are directly expressed in the Treaties. New developments, made by the ECJ outside the scope of conferral, should be recognised as a violation of the principle of conferral and the Polish Constitution. Thus, the case law on Article 19 TEU developed by the ECJ in a raft of judgments related to Poland was said to constitute an ultra vires act. And since the Treaties do not give jurisdiction to the ECJ to review the national structures of judiciaries or judicial appointments, the Tribunal considers the ECJ’s judgements as not falling under the primacy principle.
Consequently, that case law cannot be followed or applied by the national courts or any other national authorities in Poland. The Tribunal thus sent a warning signal to the ECJ that any future ultra vires judgements would be declared null and void.
For any commentator of such pronouncements the key question is where to start since the ruling of the Tribunal demonstrates either a lack of knowledge or a deliberate negation of the jurisprudence of the ECJ and the way the EU functions. It is a well-established principle that in the areas where the EU has no conferred competence to legislate, the national authorities have the freedom to act, however this is not unlimited freedom. As established by the ECJ many years ago, such competences should be exercised in line with EU law, for instance, with the right of establishment or the free movement of capital.
A good example (out of many) concerns personal income tax, where the EU has generally no competence. However, since the discriminatory taxation of dividends received by individuals may impact the free movement of capital, it falls within the remit of the ECJ. In the same vein, the national regime undermining the independence of judges and the rule of law may not only affect the values on which the EU is based, but also the effectiveness of EU law. Put differently, when the canons of EU law are at play, the issue definitely falls within the ECJ’s remit.
The devil is in the detail
The first point of the operative part of the Tribunal’s ruling raised eyebrows. The Tribunal ruled that Articles 1 and 4(3) TEU have been interpreted as a source of powers that have not been conferred to the EU and as a source of ECJ’s jurisdiction to interpret the Treaties beyond the scope of the principle of conferral. For these reasons they are deemed unconstitutional. The key issue with such a bold proposition is that neither Article 1 nor Article 4(3) TEU have been interpreted in such a fashion by the ECJ or any other EU institution. By the looks of it, the Tribunal firstly implied such an interpretation of the Treaty by the ECJ and then opted not to factcheck it with reality (e.g. recent ECJ judgements or any doctrinal arguments).
Arguably, the real point was to create a big commotion to satisfy a media landscape that’s hungry for soundbites and absolutely uninterested in the finer details.
The second and the third points of the operative part of the Tribunal’s ruling also merit attention. The Tribunal declared the unconstitutionality of the ECJ’s interpretation of Article 19 TEU. The desired consequence of such a pronouncement is that Polish courts cannot follow ECJ judgements interpreting Article 19 TEU to either question the independence of the Polish judicial authorities or to undermine the effectiveness of judicial appointments in Poland.
However, this does not mean that the whole of Article 19 TEU is void or is removed from the Polish legal order. The Tribunal directly questioned ECJ case law; no more, no less. The second and third points serve as a warning signal to Polish national courts and judges, the latter possibly finding themselves caught up in disciplinary proceedings should the Constitutional Tribunal’s judgment be ignored and the jurisprudence of the ECJ followed instead.
The overall message is that the Polish Constitution is supreme over EU law and that there is no space for any discussion on how the alleged conflict could be resolved. The allusions to German or Danish constitutional or supreme court judgments are skilfully taken out of context and deprived of nuance.
A key aspect which is swept under the carpet concerns the fact that judges in these Member States are – unlike their counterparts in Warsaw – part of legitimately constituted and composed courts, not the extended arms of the ruling party. Moreover, the German Constitutional Court’s (GCC) Weiss judgment questioned the ECJ’s proportionality test in a specific case. The GCC neither undermined the ECJ’s case law en block nor implied the lack of the ECJ’s general competence to develop the interpretation of the Treaty.
Similarly, the critical issue in the Ajos judgement was the fundamental difference in the understanding of EU secondary law between the Danish Supreme Court and the ECJ. The Weiss and Ajos judgements did not threaten the EU institutions and permitted national authorities and courts to act in accordance with both national constitutions and EU law. They left at least some room for a judicial dialogue and political compromise.
In contrast, the Polish Tribunal’s ruling took the ECJ’s case law and the EU’s general principles as hostages. The Tribunal seized and held the acceptance of EU law as a security guarantee to force the EU’s unconditional acceptance of unconstitutional reform of the judiciary in Poland.
So, is Polexit on the cards?
The ultimate question is what it all means for the future of Poland as an EU Member State.
To begin with, the judges sat on the bench were appointed in breach of the Polish Constitution. Furthermore, as made clear by a group of former Tribunal judges, the body has no jurisdiction to adjudicate on the compatibility of ECJ judgements with the Polish Constitution. Its own judgment is ultra vires. Thus, contrary to what has been argued, it should not be considered as a notification of Poland’s desire to withdraw from the EU. It simply does not meet the requirement of being adopted in accordance with the constitutional requirements, laid down in Article 50(1) TEU.
If anything, the judgment contributes to the legal chaos created by Jaroslaw Kaczyński (de facto leader of PiS) and his loyalists. But whilst it brings Poland closer to the exit door it does not open it.
Moreover, Polexit is not – as argued by Prime Minister Morawiecki – ‘fake news’. At the EU level he has followed an old rule that the best way to defend oneself is to attack. Hence the letter to other members of the European Council and his hardly persuasive intervention at the European Parliament during its latest plenary session in Strasbourg.
Despite all his assurances, the members of the European Council should confront Morawiecki and seek an unequivocal answer to the straightforward question on whether Poland has just triggered Article 50 TEU by stealth or not. As a matter of fact, if PiS were to play by the official rulebook, the triggering of Article 50 TEU would require a referendum or, at the very least, a vote in the Polish Parliament.
Still, as the events of the last week demonstrate, PiS is very selective when it comes to the application of the rules of either national or EU law. One week the ECJ is dismissed for lacking competence, but the following week it is asked to quash the rule of law conditionality underpinning the distribution of ‘next generation’ recovery funds. In essence, PiS follows its own definition of the rule of law. For its members the rule of law is equal to the law laid down by the rulers. This is a perfect recipe for legal anarchy.
One thing is certain. As demonstrated by what happened after the pronouncement of the Constitutional Tribunal, the Polish public is overwhelmingly supportive of continued EU membership (over 60 % according to a recent poll by Gazeta Wyborcza) and, should that membership be at risk, they will likely take to the streets. This is one of the few things that Kaczyński and his loyalists are afraid of.
As for the opposition, it should show a united front and prepare a legitimate plan for untangling the spectacular legal chaos PiS has managed to create. It will take years to achieve this and even longer for Poland to regain its standing in the EU. In the meantime, the European Commission should carry on triggering infringement cases and block the bankrolling of PiS policies. Triggering Article 7 TEU will unlikely make any difference. As history shows, such proceedings create a bit of a political smokescreen, but they remain ineffective and not fit for purpose.
Going forward, the EU absolutely must use the full arsenal of potentially effective tools at its disposal and hope that it will be Kaczyński and PiS who will blink first.
 The second dissenting opinion argued non-admissibility of the case due to poor quality of the Prime Minister’s submission.
 Statement by the Retired Judges of the Polish Constitutional Tribunal, https://verfassungsblog.de/statement-of-retired-judges-of-the-polish-constitutional-tribunal/
 For an opposite, and according to the present authors wrong point of view, see H.C.H. Hoffman, Sealed, Stamped and Delivered, https://verfassungsblog.de/sealed-stamped-and-delivered/