The escalation of the conflict between Poland and the European Union

Lun, 11/08/2021 - 18:00 / 19:30

Research Seminars Virtual Room, Luiss

Speaker: Maciej Serowaniec , Nicolaus Copernicus University Toruń


On 7.10.2021 Constitutional Tribunal issued a judgment in the case K 3/21 initiated by the motion of the Prime Minister. In the motion, the Prime Minister challenged the interpretation of selected provisions of the CJEU jurisprudence. The background of this politically controversial case is the escalating conflict between Poland and the EU concerning ensuring effective judicial protection in areas covered by EU law (Article 19 TEU). It is related to the introduction of several statutory changes in recent years that interfere with the independence of the courts and the independence of judges. This commentary concerns only the legal aspects of the decision of the Constitutional Tribunal. It points out the specificity of the control of constitutionality of acts of primary EU law and the departure of the Constitutional Tribunal in 2021 from its previous line of jurisprudence on this issue. The commentary touches upon the problems of significant formal defects of the Constitutional Tribunal's verdict resulting from improper staffing of the court and the ostensibility of the constitutional problem formulated in the Prime Minister's motion, which should have resulted in the case being discontinued. The author also points to the specificity of the allegation of an action/act ultra vires, the consequences of applying the scope judgment formula and formulates an assessment of the legal consequences of the commented judgment in the legal system of the Republic of Poland. The commentary concerns only the theses formulated in the operative part of the decision. (The commentary does not refer to the theses formulated in oral recitals of the decision presented during the pronouncement of the judgment).

The judgment of the Constitutional Tribunal is vitiated by a fundamental formal defect resulting from the improperly seated composition of the court. The proceedings in case K 3/21 should be discontinued due to the inadmissibility of issuing a judgment and the ostensible nature of the constitutional problem presented in the petition. The verdict of the Constitutional Tribunal - despite the adoption of the verdict's scope - de facto leads to the control of judgments of the CJEU. Hence, it exceeds the scope of cognition of the Constitutional Tribunal. The decision to adopt the scope formula of the operative part is an attempt to avoid the accusation of interpreting EU law. The competence to interpret the norms of EU law belongs to the CJEU, not to the national courts. If in doubt as to the interpretation of EU law, the Constitutional Tribunal should, under Art. 2673 TFEU, address a preliminary question to the CJEU. The Prime Minister's motion - irrespective of the provisions of the Constitution cited above - was based on a specific accusation of acting beyond the limits of powers delegated to the EU (ultra vires action or act). The specificity of the concept of the prohibition of acting ultra vires, however, means that the adequacy of this allegation is practically excluded when it comes to the control of the Treaties. The reason for this is that the prohibition of ultra vires acts is closely linked to the scope of the delegated powers. It is only based on the treaty that those competencies are transferred. Thus the ultra vires objection should relate only to legal acts issued on the basis of a treaty (EU secondary law, or possibly directly to judgments of the CJEU). 8 The allegation of an ultra vires act directed against the provisions of the TEU should be deemed inadequate, and the proceedings, in this case, should therefore be discontinued. Due to the specific nature of the subject of control (provisions of the EU Treaty), the judgment under review cannot produce a derogatory effect in the form of a loss of binding force of a given scope of a treaty norm from the Polish legal order. At most, it may refer to the sphere of law application. However, an effect in the form of suspension of the application of unconstitutional norms of EU law on the territory of the Republic of Poland would be difficult to reconcile with the obligations of a Member State and the principle of loyal cooperation expressed in Article 4 (3) TEU. Due to the apparent constitutional problem formulated in the motion of the Prime Minister of the Republic of Poland, the proper course of action for the legislative and executive authorities following the judgment of the Constitutional Tribunal in Case K 3/21 should be removed as quickly as possible the contradictory statutory norms that breach the consistent constitutional and EU standard of judicial independence.