Professor Safjan on the ruling of the Constitutional Tribunal: an extreme scenario, although unfortunately one that also comes to mind is the exit from the EU

MAGDALENA GAŁCZYŃSKA

Yesterday 19:51

The Constitutional Tribunal, with its full bench, decided today that the resolution of the three combined chambers of the Supreme Court is incompatible with the constitution and international law.  According to Prof. Marek Safjan, a judge of the CJEU, today’s ruling of the Constitutional Tribunal is “seriously disturbing” and can even threaten Poland’s membership of the European Union.

Prof. Marek Safjan

• The Constitutional Tribunal addressed the matter of constitutionality of the resolution of the three Chambers of the Supreme Court of 23 January 2020 on the motion of Prime Minister Mateusz Morawiecki.
• The Constitutional Tribunal held that the resolution is incompatible with numerous articles of the Polish constitution, as well as the EU Treaty and the European Convention on Human Rights.
• Judges Leon Kieres, Piotr Pszczółkowski and Jarosław Wyrembak submitted dissenting opinions. They acknowledged that the Constitutional Tribunal did not have the right to examine resolutions of the Supreme Court.
• In an interview with Onet, Professor Marek Safjan points out that the decision of the Constitutional Tribunal does not have any legal effects on the Supreme Court’s resolution
• In his opinion, the Constitutional Tribunal placed itself in the role of a ‘super court’, which it had no right to do. “The Constitutional Tribunal’s decision is hugely surprising and arouses great anxiety, because it shows that attempts can be made to block CJEU judgments.  And that would threaten Poland’s place in the Union,” says the former president of the Constitutional Tribunal, today a judge of the CJEU.

The Constitutional Tribunal considered the case with its full bench, but in exceptional circumstances.  Neither the public nor the media were allowed into the courtroom, the judges sat at the prescribed distances from each other, they were wearing masks or kerchiefs and gloves.  The President of the Constitutional Tribunal slipped off the kerchief covering her face during her speech and spoke without it.  In this case, the rapporteur was a new member of the Constitutional Tribunal – a former PiS MP, Stanisław Piotrowicz.

The prime minister’s representatives argued that the resolution of the three chambers of the Supreme Court constituted the overstepping of its powers: it created a new legal norm and new provisions, for which the Supreme Court is not authorised.  The Supreme Court held in January that judges appointed by the new NCJ did not satisfy the standard of independence and impartiality of the executive authority, so they should not continue to adjudicate.  This resolution has the force of a legal principle and is applicable to all courts in Poland.  Only that the Constitutional Tribunal tried to deprive it of that force, considering the findings of the Supreme Court judges as being incompatible with the constitution and international law.

Professor Safjan: the Constitutional Tribunal’s decision has no legal effects on the validity of the Supreme Court’s resolution

“I find a judgment of the Constitutional Tribunal of this type and of such content amazing,” Prof. Marek Safjan, judge of the CJEU and former president of the Constitutional Tribunal tells Onet.

“The Tribunal does not have the competence to examine compliance of judgments of ordinary courts or the Supreme Court with the constitution.  The resolution of the Supreme Court did not create any legal norm that can be examined by the Constitutional Tribunal, whereas the Constitutional Tribunal only examines the norm and not its application.  The resolution of the three chambers of January this year was precisely the application of the criteria that were also formulated by the EU Court of Justice in the famous judgment of 19 November 2019,” he emphasises.

“The Supreme Court relied on the criteria specified by the CJEU when assessing whether judges from the Disciplinary Chamber and others, also recommended by the new National Council of the Judiciary, guarantee independence and impartiality of adjudication,” explains Prof. Safjan.

He points out that the Constitutional Tribunal’s decision has no legal effects on the Supreme Court’s resolution.  “This resolution is a fully correct act.  Furthermore, it is precisely the decisions and rulings of the Supreme Court that previously applied these criteria that are referred to by the EU Court of Justice in its decision of 8 April.  Almost two weeks ago, the CJEU pointed out that the Disciplinary Chamber of the Supreme Court does not guarantee independence and its activities should be suspended.

“A huge surprise and great anxiety about Poland’s place in the EU”

Professor Safjan points out that no national court in any EU Member State has the right to examine judgments of the EU Court of Justice.

“The Constitutional Tribunal ignored the principle established a long time ago in the CJEU case-law that judgments of the Court of Justice of the EU are universally binding and must be enforced.  This is the duty of every court.  And no court, including the constitutional court, can prohibit the application of the criteria specified in Luxembourg,” he emphasises.

“The Constitutional Tribunal cannot examine compliance with EU law and this is precisely what it was trying to do.  This is a form of censorship of the judgment of the CJEU, which the Supreme Court is fully correctly implementing in the above resolution of the three Chambers.  Such actions, namely attempts by a national court to examine decisions of the CJEU can lead to complete anarchy.  Such an approach would be the end of the legal order of the EU and would have to cause its disintegration,” emphasises Prof. Safjan.

“I consider the judgment of the Constitutional Tribunal hugely surprising and arouses my great anxiety.  Such an approach indicates that attempts may be made to block the implementation of the decision of the CJEU of 8 April 2020,” he says.

“And this decision arises from the same premises as the resolution of the three Chambers of the Supreme Court.  And perhaps, as a consequence, a very dangerous collision may arise between the Polish legal system and EU law.  This, in turn, could threaten Poland’s place in the EU legal system,” he adds.

Professor Safjan reiterates that it was precisely he who presided over the panel of judges in the Constitutional Tribunal, which held in 2005 that the Polish constitution did not constitute an obstacle to Poland joining the European Community.

“This meant that Polish law does not prevent the application of treaties and EU law.  It led to the acceptance of both the mechanism of requests for preliminary rulings and the primacy of EU law over national law,” he explains.

”Meanwhile, after the recent decision of the Constitutional Tribunal, the question arises as to whether Poland is going to renegotiate the accession treaty because of such an approach by this body to the norms set by the EU Court of Justice?  Or maybe change the constitution?  An extreme scenario, although unfortunately one that also comes to mind is the exit from the EU.  That is why I am repeating that I find the judgment of the Constitutional Tribunal is deeply disturbing,” concludes Prof. Safjan.

see original text in Polish https://wiadomosci.onet.pl/tylko-w-onecie/prof-safjan-o-decyzji-tk-postawil-sie-w-roli-supersadu/pntx4t9