The Constitutional Tribunal issued a judgment on 7 October 2021 in case K 3/21 regarding the position of EU law in the Polish legal order. This judgment has incited great public concern because of its foreseeable destructive consequences with regard to the position of the Republic of Poland as a Member State of the European Union.
The retired judges of the Constitutional Tribunal are also highly concerned about this. However, they also consider it their duty to correct many false assertions contained in the judgment, its oral justification and the comments made by the representatives of the political authority. And so:
∗ it is not true that the judgment of the Constitutional Tribunal of 7 October 2021 was issued in order to guarantee primacy of the Constitution over EU law, as such a position of the Constitution has been sufficiently established in the Tribunal’s judgments to date (in cases K 18/04, K 32/09 and SK 45/09);
∗ it is not true that the judgment of the Constitutional Tribunal of 7 October 2021 itself lies within the competence of the Tribunal and is compliant with the Constitution;
∗ it is not true that EU law and the case law of the CJEU to date question or breach the primacy of the Constitution in the Polish legal order;
∗ it is not true that the CJEU requires Polish courts to disregard the observance and application of the Constitution as the overriding law of the Republic of Poland;
∗ it is not true that the application of EU law by the Polish courts cannot be reconciled with their application of the Constitution;
∗ it is not true that the questioning by EU institutions of the breaches by Polish statutes and the practice of their application of the principles of independence of Polish judges, who also adjudicate in areas covered by Union law, oversteps the competence delegated to the European Union by Article 90, para. 1 of the Constitution.
∗ it is not true that European Union law and the case law of the CJEU encroaches on the regulation of the structure of the judiciary in Poland, because the defence of judicial independence is not a part of the judicial structure.
∗ it is not true that the judgment of the Constitutional Tribunal of 7 October 2021 will be able to incite legal consequences other than exerting pressure on the judicial activity of Polish judges and threatening them with disciplinary proceedings.
∗ It is not true that the Constitutional Tribunal has the authority to examine the constitutionality of CJEU rulings and to decide that Poland, as a Member State, can selectively respect CJEU judgments;
∗ it is not true that the constitutional courts of other Member States have issued judgments similar to the judgment of the Constitutional Tribunal of 7 October 2021 on matters regarding the relationship between national law and EU law.
Stanisław Biernat
Teresa Dębowska-Romanowska
Kazimierz Działocha
Lech Garlicki
Mirosław Granat
Wojciech Hermeliński
Adam Jamróz
Stefan Jaworski
Leon Kieres
Biruta Lewaszkiewicz-Petrykowska
Wojciech Łączkowski
Ewa Łętowska
Marek Mazurkiewicz
Andrzej Mączyński
Janusz Niemcewicz
Małgorzata Pyziak-Szafnicka
Stanisław Rymar
Andrzej Rzepliński
Jerzy Stępień
Piotr Tuleja
Sławomira Wronkowska-Jaśkiewicz
Mirosław Wyrzykowski
Bohdan Zdziennicki
Andrzej Zoll
Marek Zubik