The judicial war for Poland’s Supreme Court Disciplinary Chamber: with whom will the final word rest?
If the legal conflict between the EC and Poland is to be compared with war, this war seems to be in an escalation phase. And the matter here is who will be the ultimate referee in the cases of constitutional weight.
Warsaw will scrutinize the documents provided by the European Commission and is ready to embark on a proper dialogue with the EC given a clear distribution of competences between the EU and its member states. This is the tenor of the statement made on July 20 by the spokesman of the Polish government, Piotr Müller, in response to the formal request from the EC to confirm the application of the interim measures and recent ruling by the Court of Justice of the European Union (CJEU) aimed to ensure judicial independence in the country.
“The Polish government will carry out an analysis of the documents presented by the EC. Poland, like other EU countries, stresses the need to observe the prescriptions of the Union’s Treaties. They directly define which competences are delegated to the EU, and which remain the exclusive competences of the countries,” Müller wrote on Twitter. He added in his next tweet, “It’s worth stressing that the legal solutions applicable in Poland are similar to those existing in other EU countries. We will enter into a proper dialogue with the EC, explaining the essence of the difference of opinions in this field.”
An hour earlier, a post by EC President Ursula von der Leyen appeared on Twitter, “Today we sent a letter to Poland, asking Poland to explain how it applies the interim measures and recent ruling of the CJEU to safeguard judicial independence. The @EU_Commission will not hesitate to make use of its powers under the Treaties.” And EC Vice-President Věra Jourová shared a video in which she said that if Poland did not comply with the CJEU ruling before Aug. 16, a penalty payment might be imposed on Poland.
The same day, the Commission decided to empower Didier Reynders, European Commissioner for Justice, to adopt measures to induce Poland to comply with the order and adjudgment of the Court of Justice regarding the Disciplinary Chamber of the Supreme Court of Poland.
The CJEU order (in case 204/21 R) was issued a week earlier, on July 14, obligating Poland to immediately suspend its national provisions on the Disciplinary Chamber. The CJEU took this decision in response to a request from the EC to suspend the Disciplinary Chamber while the Court was considering the case initiated by the EC over new strict disciplinary measures against those judges who refused to accept the validity of judicial reforms. In particular, these disciplinary measures include the possibility to fire the dissident judges.
The Constitutional Tribunal of Poland struck back instantly, having ruled the same day that certain provisions of the Treaty on the European Union and the Treaty on the Functioning of the European Union – “insofar as the Court of Justice of the European Union ultra vires imposes obligations on the Republic of Poland as an EU Member State, by prescribing interim measures pertaining to the organizational structure and functioning of Polish courts and to the mode of proceedings before those courts” – were inconsistent with the Constitution of the Republic of Poland.
The next day, on July 15, in another but closely related case (C-791/19) the CJEU adjudged that the new disciplinary regime applicable to judges in Poland was incompatible with EU law and, in adopting this regime, Poland had failed to fulfill its obligations under EU law. Specifically, the Court, inter alia, pointed out that:
- The global context and a combination of factors in the process whereby the new chamber had been established did not provide all the guarantees of impartiality and independence and did not protect judges from the direct or indirect influence of the Polish legislature and executive;
- The disciplinary regime allowed the content of judicial decisions adopted by judges of the ordinary courts to be classified as a disciplinary offense and so could be used in order to exert political control over judicial decisions or to exert pressure on judges;
- Poland had failed to guarantee that disciplinary cases brought against judges of the ordinary courts would be examined within a reasonable time and had failed to guarantee respect for the rights of defense of accused judges;
- National judges were exposed to disciplinary proceedings as a result of the fact that they had decided to make a reference for a preliminary ruling to the Court of Justice.
– On July 29, 2017, i.e., the next day after the official publication of the Polish Law on the Ordinary Courts, the EC launched an infringement procedure against Poland. In this law, the Commission found the discrimination on the basis of gender due to the introduction of a different retirement age for female judges (60 years) and male judges (65 years).
– On Dec. 20, 2017, in a press release, Brussels stated that “despite repeated efforts, for almost two years, to engage the Polish authorities in a constructive dialogue in the context of the Rule of Law Framework, the Commission … concluded that there is a clear risk of a serious breach of the rule of law in Poland.” As a result, the Commission proposed to the EU Council to adopt a decision under Article 7(1) of the Treaty on European Union recognizing that there was a clear risk of a serious breach by a Member State of the EU’s fundamental values. Reasoning its proposal, the EC said the Polish authorities had “adopted more than 13 laws affecting the entire structure of the justice system in Poland, impacting the Constitutional Tribunal, Supreme Court, ordinary courts, National Council for the Judiciary, prosecution service and National School of Judiciary.” The common pattern of these changes was that “the executive and legislative branches had been systematically enabled to politically interfere in the composition, powers, administration and functioning of the judicial branch.”
The College of Commissioners also decided to refer the Polish Government to the CJEU for breach of EU law concerning the Law on the Ordinary Courts and, specifically, the retirement regime it introduced.
– On July 18, 2018, an infringement procedure was launched against Poland regarding the Polish Law on the Supreme Court. The law lowered the retirement age of Supreme Court judges from 70 to 65, putting 27 out of 72 justices at the risk of forced retirement.
– On Apr. 3, 2019, a similar procedure against Poland was initiated over the new disciplinary regime for judges. According to the Commission, the new regime undermined the judicial independence of Polish judges by not offering necessary guarantees to protect them from political control, as required by the CJEU.
– On Oct. 10, 2019, the above regime was cited by the EC in a press release as a reason for its decision to refer Poland to the CJEU. As pointed out in the press release, after the Commission sent a letter of formal notice of infringement to Poland on Apr. 3, and “following a thorough analysis of the response received, the Commission concluded that the response did not alleviate the legal concerns.”
– On Jan. 14, 2020, the EC approached the CJEU asking to take interim measures against Poland and order it to suspend its Supreme Court Disciplinary Chamber. On Apr. 8, 2020, the CJEU fully sustained the EC motion and ordered Warsaw to immediately suspend its national provisions on the Chamber’s powers in respect of disciplinary proceedings against judges until the final ruling in the infringement procedure.
– On Mar. 31, 2021, the EC decided to refer Poland to the CJEU regarding the law on the judiciary of Dec. 20, 2019, which entered into force on Feb. 14, 2020, and asked the CJEU to order interim measures until it had issued a final judgment in the case. According to the Commission, the law undermined the independence of Polish judges and was incompatible with the primacy of EU law. Moreover, the law prevented Polish courts, including by using disciplinary proceedings, from directly applying certain provisions of EU law protecting judicial independence and from putting references for preliminary rulings on such questions to the Court of Justice.
Gazeta Prawna called the recent developments a “total war for the Disciplinary Chamber.” However, the differences in the views of the EC and the Polish authorities on the judiciary in Poland go back to 2016, the beginning of the judicial reform in the country. The 2015 crisis, triggered by the appointment of five government-loyal members of Constitutional Tribunal through the adoption of a law on Tribunal reorganization, is also worth mentioning.
The actual monopolization of political power in Poland raises concerns not only in Brussels and Luxemburg but also among the Poles. For example, according to various estimates, 20,000 to 50,000 people participated in a rally organized by the newly-established Committee for the Defense of Democracy before the buildings of the Constitutional Tribunal, Sejm, and Presidential Palace in Warsaw on Dec. 12, 2015. That day, thousands of protesters also took to the streets in Poznań, Wrocław, Szczecin, and other cities. Protests against the judicial reform broke out in the following years too.
Polish society is also anxious about the possible financial sanctions because, as Margaret Thatcher once justly noted, “there is no such thing as public money, there is only taxpayers’ money.” Reporters working in Sejm asked Anita Czerwińska, spokeswoman of Law and Justice (PiS), the ruling party, if the Polish authorities were ready to make all taxpayers pay for the “defense of 12 judges of the Disciplinary Chamber” and were answered that PiS did not envisage such a situation. “We believe that it will be exactly like in the case of other EU countries that have not implemented the CJEU rulings. Note that there are countries having as many as a dozen or so unexecuted rulings. We don’t think that Poland should be treated differently,” said the spokeswoman.
However, it looks like the conflict between the EC and Poland has gone too far to be taken lightly, as the PiS does. Evaluating the pitch of the conflict, some politicians do not exclude that it can wind up in Poland leaving the EU. “The refusal to implement rulings of the European Court of Justice in Poland is a clear step towards taking Poland out of the European Union,” Aljazeera quoted Jeroen Lenaers, a European Parliament member from the Netherlands, as saying. “We fear that the Polish government is on the path to ‘Polexit’.”
MASTERS OF THE TREATY
A comment by CCD Cofounder & Chairman of the Board Gennadiy Druzenko
As a matter of fact, the legal battle around the Disciplinary Chamber status has reiterated one of the EU’s fundamental problems, the one on how the constitutional order of member states relates to the legal order of the Union. In other words, what is more important: the provisions of the EU founding Treaties (as interpreted by the Court of Justice of the European Union) or the constitutional provisions of member states (as interpreted by their national constitutional courts)? This dispute is not much younger than even the European Communities and throws back to the earliest years of the EEC. In German, this problem is sometimes worded as kompetenz–kompetenz, that is, the competence to define a competence or demarcate the jurisdiction borders between EU law and national legal orders.
The best-known solution to this issue is the 1993 ruling by the Federal Constitutional Court of Germany In Re Maastricht Treaty. In its decision, Bundesverfassungsgericht concluded that the European Communities were not a democratic polity and hence were only vested with delegated powers whereof limits were defined by the constitutional legal order of member states. Just in this decision did German lawyers mint a phrase that has become renowned in the legal world: Masters of the Treaty, that is, “[EU] member states are the creators of the Treaties.” And so, the final word in jurisdictional disputes between national constitutional courts and supranational European ones should rest with the former. Not all EU member states share this approach. A good deal of them have unconditionally accepted the principles of EU law supremacy and direct operation.
And now the Polish Constitutional Tribunal is challenging their European vis-à-vis from the CJEU in Luxembourg. Apart from the political context detailed above, unwrapping before our eyes is a new season of the thrilling constitutional serial that has been lasting for decades on the jurisdictional frontlines. Will the judges in Warsaw and Luxemburg find a mutually acceptable trade-off (like the one found in Karlsruhe and Luxemburg in 1993)? Or is a head-on collision between the two legal orders unavoidable?
For a more in-depth understanding of what is going on in the Warsaw-Brussels-Luxemburg triangle, I would recommend reading the paper I wrote 13 years ago, “Kompetenz-kompetenz under the Third Pillar in EU Law: Constitutional Puzzle around the European Arrest Warrant.”
The material was prepared with the support of the International Renaissance Foundation within the framework of the project “Startup Center for Constitutional Design.” The material reflects the position of the authors and does not necessarily coincide with the position of the International Renaissance Foundation.