About the author: Sarthak Gupta is an undergraduate law student at the Institute of Law,
Nirma University, India. He is a staff writer and assistant editor at JURIST, University of
Image by Kasia Derenda available here.
On October 7, the Polish Constitutional Tribunal (Tribunal) held in its K 3/21 ruling that the Constitution of Poland (Constitution) takes primacy over European Union (EU) treaties. The ruling raises questions about whether the EU can become more interwoven, protect its standards, and serve as a model for other nations looking to unite the bloc, or whether Poland can follow the footsteps of the United Kingdom (UK) and leave the EU.
This article does not delve into the question of Polexit [ here, here, here, and here]. Rather, it argues that the Tribunal’s ruling is unconstitutional and structured on erroneous assertions and opinions of political power representatives. It further emphasizes the growing school of thought on de facto differentiation among Poland and Hungary against the EU.
The Tribunal’s rulings and its deconstructive approach
The prima facie issue before the tribunal was whether the Treaty on European Union (TEU) is in accordance with Poland’s Constitution. The Tribunal held that Article 1 of the TEU, read with Article 4/3, Article 2 and Article 19/1, of the TEU are incompatible with the Constitution. Article 1 is the foundational pillar of the EU, and Article 2 reinforces fundamental principles such as the rule of law, freedom, democracy, equality, and human rights protection. Article 4/3 encourages mutual appreciation in facilitating one another in carrying out treaty obligations. Article 19 enables the European Court of Justice (CJEU) to ensure that the law is respected in the interpretation and implementation of treaties.
The rulings raise questions over the CJEU's jurisdiction and the primacy of EU laws. The question of the primacy of EU laws, which is not incorporated in the EU Treaties, traces back to the infamous 1964 Costa v. ENEL ruling, in which the CJEU ruled that if community law and domestic law conflict, then community law must prevail. While the notion of primacy is crucial, Member States have found it difficult to integrate EU laws into their own constitutional norms to achieve consistency in EU jurisdictions. Because the CJEU constantly and continuously interprets EU legislations, the Tribunal underlined that permission for the EU integration process is not unequivocal. The integration process is a cornerstone of European stability and prosperity because EU institutions have the authority to approve regulations and EU member states have pooled their sovereignty to differing extents. Judge Piotr Pszczółkowski’s dissenting opinion did in fact make reference to prior well-established precedent and to observe that the application only formally sought an interpretation of the Treaty on the Functioning of the European Union (TFEU).
By examining the appointment procedure of EU judges with Polish constitutional norms, the Tribunal challenges CJEU's independence and neutrality. The Tribunal claims that the procedure governing the appointment of CJEU judges, as well as the potential of perpetual reappointments of their tenure, weakens the fundamental rule of law standards. However, the Tribunal failed to recognize that the CJEU judges’ reappointments depend on the consent of the Member States, and that the Article 255 Treaty on the Functioning of the European Union framework keeps the candidates strictly scrutinized. Furthermore, the Tribunal's oral rationale did not explain how the reappointments threaten the rule of law in itself.
Interestingly, in May 2021, the European Court of Human Rights (ECHR) examined the Tribunal's structure in Xero Flor v. Poland, and held that the appointment of Judge Mariusz Muszynski, who was elected in 2015 by Poland’s new Parliament, violated the right to a legally established tribunal as established in Article 6 of the European Convention on Human Rights (Convention). Further, the judges whose appointments violated the Polish Constitution ruled on the legitimacy of appointments to the CJEU in the K 3/21 ruling. They cited the Polish Constitution’s Articles that regulate the appointment of domestic judges, specifically the judges of the Constitutional Tribunal, as a precedent.
On the issue of the CJEU's jurisprudence on "reform" in Poland, the Tribunal stressed that EU institutions cannot presume competencies not vested on the EU. The CJEU should only interpret competencies that are expressly stated in the treaties. The CJEU's unprecedented breakthroughs beyond the purview of Article 1 of TEU, which enables European integration, should be considered as a violation of the conferral principle and Article 90 of the Polish Constitution. Thus, the Tribunal considered CJEU's case law on Article 19 of TEU, which formed in a spate of Poland-related judgements, ultra vires because it devalues Poland’s sovereignty and conflicts with Articles 2 and 8 of the Polish Constitution, given that Poland is a democratic state, and the Constitution is its supreme law.
Since the TEU does not confer the CJEU competence to scrutinize national judicial institutions or judicial appointments, the Tribunal determined that CJEU's rulings do not fall within the primacy principle. Therefore, national courts and other national authorities in Poland don’t have to follow or implement the CJEU’s case law. The Tribunal, therefore, served the CJEU an intimation that any further ultra vires rulings would be rendered null and invalid. The substantial concern with such a dramatic approach is that neither the CJEU nor any other EU institution has ever interpreted Article 1 or Article 4/3 of the TEU in this sense. Furthermore, the Tribunal considered the CJEU's interpretation of Article 19 of the TEU as unconstitutional. The ultimate consequence of such ruling is that Polish courts would be autonomous to not apply the CJEU’s rulings on the interpretation of Article 19 of the TEU, which might question the sovereignty of Polish judicial institutions or compromise the competence of judicial appointments in Poland.
The Question of Constitutionality in Tribunal’s ruling
Poland’s ruling is the crescendo of an ongoing struggle over tolerance for EU values and principles, as well as the protection of state sovereignty. It illustrates how profoundly off from one another the EU and Polish authorities are. This is not the first time that the Tribunal hesitated to recognize EU Laws in conflict with the Polish Constitution and presented its ruling as a politically controlled Court. Notwithstanding, with the Prime Minister ignoring Article 188 of the Constitution, the Tribunal also ignored Article 188 of the Constitution and intended to consider the Prime Minister's application as though the TEU and Polish primary legislations were indeed in conflict. In this decision, the Tribunal has thrown off further legal miracles, circumventing two key roadblocks. First, both the Prime Minister's application and the Tribunal appear to have entirely underappreciated Article 9 of the Constitution, which asserts that Poland must respect binding international law and correlates with Article 8 in influencing the association between the Polish constitution and international law, which include EU treaties. Thus, it neglected the substance of recognized case law on addressing problems between the Polish constitution and EU legislation, including the K 18/04  verdict on the 2004 Accession Treaty's compliance with the Polish Constitution.
The Application’s argument and the Tribunal’s interpretation asserted that according to Art. 19/1 TEU, the EU has no jurisdiction over the composition of the Polish judiciary and CJEU legal precedent predicated on Art. 19/1 TEU should not be binding on Polish courts in overturning domestic laws that CJEU determines inconsistent.These assertions are deeply misinterpreted. While EU law does not stipulate exactly how Member States should structure their judicial system, it does require domestic courts that adjudicate on EU law to be independent and devoid of disproportionate influence. Article 45 of the Polish Constitution articulates the same notion.
Further, the Tribunal goes beyond its own jurisdiction, as well as the subject of the Prime Minister's application. As per the Tribunal, the apparent contradiction with the Polish Constitution arises due to the fact that EU legislation provided a framework for court systems to overlook the Constitution. With this assertion, the Tribunal has directly challenged the preliminary referral procedure in Article 267 TEU, which the appellant did not challenge. This essentially gives the Polish government carte blanche to reject CJEU rulings delivered in accordance to Polish court preliminary references.
Lastly, it is also significant to note that the Tribunal, which is accountable for judicial scrutiny of Polish laws under Article 194 of the Constitution, is no longer an autonomous institution. The Tribunal's words and deeds in the last few years, such as its decisions in the abortion case, its multiple postponements of passing judgement in the matter of the Ombudsman's term duration, and the journalistic investigations into alliances between the Tribunal's leadership and the current administration, paint a clear understanding that the Tribunal is a politically controlled body.
De Facto differentiation
Poland and Hungary have been in conflict with EU institutions on a number of aspects since Poland’s conservative Law and Justice (PiS) party came to power in 2015. The PiS has systematically weakened the autonomy of Poland's Constitutional Court by replacing judges, forcing judges to retire early, and giving extensive powers. There have been disagreements over women's rights, LGBTQ+ rights, environmental protection, as well as the autonomy of the judiciary. When the European Parliament declared that the EU is an LGBTQ+ Freedom Zone, Poland took a distant approach and introduced itself as LGBTQ+ Free Zones and the Hungarian Parliament passed an anti-LGBTQ+ statute.
Such deliberate and sustained efforts of non-compliance with EU laws have been termed as de facto differentiation. There have been only a few isolated incidents of member states interpreting EU legislation like a self-service restaurant. Even arrangements like Sweden's refusal to embrace the EU, despite being legally obligated to do so, are accepted. However, Poland and Hungary appear to have completely adopted this strategy, putting the EU's limits to the test and questioning its foundations. Following Brexit, Poland now challenges more explicitly the notion of the EU as a de facto federation, wherein the non-majoritarian institutions including the CJEU have ultimate word on the democratic principles in member states. Poland is not the first country to not recognize EU primacy and disrespect CJEU’s authority. Danish Supreme Court in Ajos, Czech Constitutional Court in Landtova, and Germany’s Bundesverfassungsgericht ruling last year have all taken so-called bold decisions. In other words, the EU is beset with a rule-of-law catastrophe.
Traditionally, 'integration by law' was fundamental to the European vision, and the CJEU was a major institution advancing the integration, often prospering from what Erik Stein called "benign indifference by the powers that be and the mass media." Even when treaty-based European integration stopped in the 1960s and 1970s, "judicial integration" through the CJEU proceeded, including the famous 1964 ruling that EU law was superior.
The Tribunal ruling has sparked massive protest in Poland and has been criticized by member states, institutions, and EC President Ursula von der Leyen. The 26-retired judges of the Constitutional Tribunal also expressed serious concerns that it threatens to undermine the legal framework within which the EU functions, as well as the rule of law and protection for human rights, including rights of the LGBTQ+ Community in Poland. It is undeniable that K 3/21 has uncovered a potential weakness in the EU legal structure and cast a shadow on the EU's viability as a political and legal institution. Therefore, it is crucial for EU member states to step outside of their comfort bubble and explicitly declare that blatant resistance of CJEU rulings, particularly on issues pertaining to the bloc's structural foundations, are not accepted.
In this viewpoint, the ruling may even be preferable to the EU. The mask has fallen, unveiling the underlying political intentions of the Polish would-be autocrats. For those who want to protect the EU's constitutional order, the Polish authorities have put the ball in their court. The Commission must establish that the Tribunal’s ruling has a bearing on the EU budget's efficient financial administration or has a relevant correlation to preserving EU financial interests underneath the Rule of Law Conditionality Regulation.