– The Constitutional Tribunal announces:
1. In the judgment of 7 October 2021, ref. K 3/21, having examined the Prime Minister’s motion, the Constitutional Tribunal held that the attempt of the Court of Justice of the European Union to interfere with the Polish justice system constitutes a breach of the rule of law, the principle of primacy of the Constitution and the principle of preserving sovereignty in the process of European integration. The Tribunal stated that the competences of the state authorities of the Republic of Poland must not be exercised by authorities to which Poland has not delegated such competences, while the application of extra-constitutional legal norms in Poland based on the judgments of the CJEU ahead of the Constitution or in conflict with the Constitution results in Poland’s loss of its legal sovereignty.
According to the Constitutional Tribunal, the shaping of the justice system in the Republic of Poland rests with the Polish constitutional identity. Therefore, it has never been delegated to the European Union and remains within the exclusive competence of the Polish lawmakers. Furthermore, in accordance with the provisions of the Constitution, such a transfer can never take place. The Tribunal stated that CJEU judgments which interfere with the system of the Polish judiciary have encroached on the sphere of Polish constitutional identity beyond the competence of the EU.
2. The Constitutional Tribunal held that the first and second subparagraphs of Article 1 in connection with Article 4(3) of the Treaty on European Union are in conflict with the Constitution to the extent specified in the operative part of the judgment. The action of the bodies of the EU overstepping the limits of the competencesdelegated to them by the Republic of Poland in the Treaties and the Constitution’s consequent loss of the features of the overriding law of the Republic of Poland, having precedence in its validity and application, is unconstitutional.
As in the judgment of 2005, ref. K 18/04, under the presidency of the then President of the Constitutional Tribunal, Marek Safjan, the Constitutional Tribunal held that a situation in which Poland is unable to function as a sovereign and democratic state cannot be an effect of the delegation of competence to the EU. By delegating competences to the EU for the achievement of common objectives, sovereign Member States agree that the law created by the European Union should operate directly in the Member States, thereby breaking away from the previous understanding of legal sovereignty of the States. Therefore, none of the Member States exercises its rights in a categorically sovereign manner, because the exercise of sovereign rights by every Member State must be limited to a certain extent by the competencesdelegated to the European Union. However, it should be emphasised that the European Union, as the trustee of these competences, must exercise them while respecting the national and constitutional identities of the Member States, as well as within the framework of the principles of proportionality and subsidiarity.
The distinction between the area of delegated competences and the area of competences remaining exclusively with the Member States is also important for specifying the limits of applicability of the so-called principle of primacy of EU law. It is obvious that this law can operate directly within the Republic of Poland under Article 91 of the Constitution and with precedence over statutes only to the extent of the delegated competences, which the Tribunal has already stated earlier in the judgments of case ref.: K 18/04, K 32/09 and most recently in judgment P 7/20. Allowing a state of affairs in which the European Union creates norms addressed to Poland outside the area of the delegated competences and giving these norms attributes of direct precedence, not only over domestic statutes, but also over the Constitution, implies a loss of legal sovereignty. The Tribunal categorically stated that no authority of the Republic of Poland can allow for this.
The Tribunal stated that the legitimacy of the EU bodies to enact norms that are binding in the Republic of Poland only exists to the extent to which the Polish sovereign, i.e. the nation, gives its consent to this, which the Constitutional Tribunal has already pointed out in the previously cited judgment of 11 May 2005 (ref. K 18/04). This is because it should be remembered that Polish citizens, like citizens of other Member States, do not have a direct influence on the election of members of EU authorities, including CJEU judges.
3. The Tribunal also found that the second subparagraph of Article 19(1) TEU is in conflict with the Constitution to the extent specified in the operative part of the judgment. Therefore, based on EU law, Polish courts cannot disregard the provisions of the Constitution when adjudicating and cannot pass judgment on the basis of provisions that have been repealed by the Constitutional Tribunal or the Sejm. Furthermore, the Constitution Tribunal also found that the second subparagraph of Article 19(1) and Article 2 TEU is in conflict with the Constitution to the extent specified in the operative part of the judgment. This means that Polish courts cannot examine the legality of the procedure of appointing a judge, including the act of appointment of a judge by the President of the Republic of Poland, as well as the resolution of the National Council of the Judiciary regarding the presentation of a candidate for the office of judge to the President, by refusing to recognise a person appointed to the office of judge by the President as being a judge.
The second subparagraph of Article 19(1) TEU provides that Member States undertake to ensure effective legal protection in the areas covered by Union law. The CJEU argues its competence to rule on the structure of Polish courts from this provision. However, the competencesdelegated by Poland to the EU do not include shaping the organisation or structure of the judiciary. There is also no doubt that, while specifying the limits of the competence transferred to the EU, the Member States, as sovereign parties to the Treaties, have not authorised the EU authorities either to presume competence or to infer new competences from the existing competences.
4. In the doctrine of the law, based on the case law of the Constitutional Tribunal, it is sometimes argued that the following consequences are possible in the event of an irremovable conflict between EU law and the Polish Constitution: the amendment of the Constitution, the amendment of European law, or exit from the EU. Such an assertion could be considered acceptable in academic rhetoric, but is incorrect in practice. First of all, an irremovable conflict appears very rarely, if at all, outside the theory of the law. The obvious conduct in the event of a conflict of legislated norms is therefore a mutual sincere dialogue, which arises from the principle of loyalty and European culture.
5. Finally, it should be reiterated that, pursuant to Article 87, para. 1 of the Constitution, the system of sources of law of the Republic of Poland is of a hierarchical structure. International agreements ratified by a statute, such as the TEU, are positioned within this hierarchy below the Constitution, which is the overriding law in the Polish system of sources of law. As part of the Polish system of sources of law from the moment of ratification and publication in the Journal of Laws, an international agreement must be in compliance with the Constitution.
Therefore, the Treaty on European Union, like any international agreement ratified by a statute, became a part of the Polish legal system from the date of its announcement in the Journal of Laws and as a result of its ratification. In the hierarchy of sources of law, the Treaty on European Union is therefore located below the Constitution in the Polish legal system, just like any ratified international agreement and, like any part of the Polish legal system, it must be consistent with the Constitution. The verification of whether it is consistent with the Constitution, in whole or in part, lies within the remit of the Constitutional Tribunal, whose cognition – pursuant to Article 188, item 1 of the Constitution – includes adjudication on matters of compatibility of international agreements with the Constitution.
6. The Tribunal has a special role in the Polish system of supreme bodies of public authority; by upholding the Constitution – the founding legal act of the Polish normative system – it protects the rudiments of security and legal order, and therefore essentially the sovereignty of the Polish State.
According to the well-established position of the CJEU, its jurisdiction is not only developing, but also co-creating the legal order of the EU and consequently of the Member States of the Union, including the Republic of Poland. Since all EU law is subject to the cognition of the Tribunal, as it is hierarchically subordinated to the Constitution of the Republic of Poland, it should be argued that not only normative acts in the meaning specified in the CJEU case law, but this case law itself, as part of the normative order of the EU, will be subject to the Tribunal’s assessment from the point of view of compliance with the supreme legal act in Poland – the Constitution of the Republic of Poland.
The Tribunal is refraining from exercising this constitutional competence in the spirit of the principles of loyal cooperation, dialogue, mutual respect and support. Even so, if the practice of progressive activism of the CJEU, involving, in particular, encroaching upon the exclusive competence of the authorities of the Polish state, undermining the position of the Constitution as the most important legal act in the Polish legal system, questioning the universal applicability and finality of the Tribunal’s judgments and finally questioning the status of the Tribunal’s judges, is not stopped, the Tribunal does not rule out the possibility that it will exercise this competence and will assess the compliance of the CJEU’s judgments with the Constitution, including their removal from the Polish legal order.
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Source of information: Constitutional Tribunal