Decision contrary to EU law

In scrutinising the EU Treaty, the Tribunal acted, unquestionably, contrary to EU law. No domestic court, constitutional or otherwise, has an ex post competence (years after ratification) to review, much less to invalidate, any articles of EU Treaties. To grant a court such a right would directly contradict the principle of the primacy of Treaties over domestic legal orders. When ratifying the accession Treaty, Poland had not made any reservations (which would be ineffective anyway, unless previously announced in a protocol approved by all other ratifying states), and the Treaty cannot be ‘carved’ in such a way in any member state. In order to support legal integration within the EU, the Treaties must be in force and legally effective uniformly in all member states. So, the constitutional scrutiny of the Treaties in any member state is contrary to EU law. Even if (arguendo) such scrutiny was allowed under Polish constitutional law (a point to which we will turn momentarily), a member state cannot appeal to its domestic law in order to qualify or restrict the effectiveness of EU law in that state. As the European Court of Justice stated recently in a ‘Romanian judges case’, reasserting its established case law,Footnote ⁹ the principle of the primacy of EU law ‘requires all Member State bodies to give full effect to the various EU provisions, and the law of the Member States may not undermine the effect accorded to those various provisions in the territory of those States’.Footnote ¹⁰ Hence, ‘a Member State’s reliance on rules of national law, even of a constitutional order, cannot be allowed to undermine the unity and effectiveness of EU law’.Footnote ¹¹

But it is also contrary to Polish constitutional law. The Constitutional Tribunal in its Decision asserts its authority under Article 188(1) of the Constitution, which provides that the Tribunal adjudicates about the conformity of, inter alia, international agreements with the Constitution. Furthermore, it alleges to rely on the key judgment of the Tribunal (from a time well before its political capture of 2015-16), namely K 18/04 of 11 May 2005, regarding the constitutionality of ratifying the accession treaty. But the extension of an Article 188(1) competence to EU Treaties is on its face contrary to the principle established by that landmark judgment. That judgment stated that the ‘Constitutional Tribunal is not authorized to conduct independent review of the constitutionality of primary law of the European Union. However, it has authority regarding the Accession Treaty qua a ratified international agreement (Article 188(1)) of the Constitution’.Footnote ¹² But the Decision of October 2021 did not review, nor establish, the unconstitutionality of the Accession Treaty, but the EU Treaty directly. It therefore constitutes ‘an independent review of the constitutionality of the primary law of the EU’ – hence an action expressly disallowed by the Tribunal in its K 18/04 judgment. So much for the current Tribunal’s claim that it is not overruling its prior case law re the relationship between EU law and the Polish Constitution.

So there are two other, perhaps more charitable (though, as we will show, in reality even more problematic), ways of reading the subject-matter of the Decision of October 2021: (1) either that it applies to some specific judgments of the European Court of Justice ; or (2) that it is a judgment belonging to a category of interprétation conforme, and thus provides for a prescribed interpretation of the TEU articles invoked by the motion of the Prime Minister. Before we briefly discuss these two other readings it is important to emphasise that they are distinct from each other. Scrutiny of a judgment (or of a line of judgments) itself is not eo ipso an interpretive judgment: it considers those judgments as an (alleged) novel source of law, and treats them as such.

The accuracy of the first reading, that the Decision’s intention is to target a particular (line of) case(s) of the European Court of Justice, is confirmed by the prominence, throughout the Decision, of judgment C-284/18 of 2 March 2021 in which the European Court of Justice negatively assessed a procedure of appointing Supreme Court judges. Politically speaking, it is this judgment that caused a particular irritation by Polish authorities because court-packing was a centrepiece of political capture of the highest appellate court in Poland, tasked inter alia with confirmation of the validity of elections. Legally speaking, this judgment figures most prominently in the Prime Minister’s motion, as then echoed in the reasons for Decision K 3/21. But while this reading may be accurate as the most plausible way of explaining Decision K 3/21, it is at the same time the least successful way of justifying it. Neither under EU law nor under Polish constitutional law does the Constitutional Tribunal have an authority to set aside judgments of the European Court of Justice. EU law, as applied and interpreted by the European Court of Justice, maintains primacy over domestic law. To establish any domestic court as a sort of super-court over the European Court of Justice would be inconsistent with primacy. This is the EU side of the coin. Turning now to Polish law, the Constitution contains an exhaustive and limited catalogue of subject matter (‘target acts’, as we may call it) that the Constitutional Tribunal may review (Article 188), and an authority to review judgments of the European Court of Justice (or judgments of any other court, for that matter) is not listed. In oral reasons, summarised by the Press Release, the Tribunal attempts to defend having such authority by claiming that European Court of Justice rulings ‘are formulated in the way which assigns the norms of the [EU] Treaties with a specific meaning, including statements imposing obligations’ and ‘[w]ithin that meaning, they are also subject to a review of conformity to the Polish Constitution, carried out by the Constitutional Tribunal’.Footnote ¹³ The non-sequitur of the last sentence is breathless in its ambition. Any court ‘assigns the norms’ of a law being applied in a concrete case ‘with a specific meaning’. To claim an authority of constitutional review on that basis would expand the power of review in a virtually limitless fashion. It also goes well beyond an established constitutional principle in Poland that the list of competences of the Constitutional Tribunal cannot be expanded by ‘adding’ further implied competences.

So that reading of the Decision is a non-starter. What about the other reading, that it is an interprétation conforme type of judgment? Before we consider this reading, we must observe that the Tribunal expressly renounces that reading in two ways, so there should be a strong presumption against adopting this reading. First, in its reasons, the Tribunal urges that its Decision concerns the conformity of the norms of EU law (rather than its interpretation) and, in a rather puzzling statement, announces that it ‘does not provide an autonomous interpretation of EU law’ but rather that the Tribunal’s ‘thought process … merely consists in determining the substance of those norms and in verifying their conformity to the Constitution’.Footnote ¹⁴ What can it mean is anyone’s guess. How can one ‘determine the substance of the norms’ without interpreting them? But even if one attributes to the Constitutional Tribunal an implicit doctrine of ‘clara non sunt interpretanda’, the very fact of there being a controversy around those norms suggests that the norms at issue are not ‘clara’. An interpretation-free determination of the substance of the norms as general and complex as those invoked in the motion is simply not available to any judge.

But there is an even stronger reason to believe that Decision K 3/21 does not belong to the category of interpretive judgments: a literal reading of the operative part of the Decision. It declares the unconstitutionality of several articles of TEU but does so without an ‘if understood as’ proviso. That proviso was present in the motions by Prime Minister but the Tribunal removed it, changing importantly the sense of ‘unconstitutionality’ at stake (to a degree that one may perhaps argue that in its Decision the Tribunal went beyond the scope of the motion – something that Polish Constitutional Tribunal is statutorily prohibited from doing).Footnote ¹⁵ The language of the operative parts of the Decision clearly and self-consciously avoids any hints that it provides for a prescribed, or rejects a banned, interpretation. Rather, it uses a style of ‘insofar as’. The implication is: since the Court declares this unconstitutionality in an unconditional way (not: ‘if understood as…’), then the wrongful conditions abhorred by the Tribunal have taken place, in its view. Note again that it is not an interpretive judgment. While a distinction between ‘if interpreted as…’ and ‘insofar as…’ may seem pedantic to non-lawyers, it is in fact fundamental from a legal point of view. The Decision as announced, in its operative parts, simply and unconditionally ‘removes’ from the Polish legal system some parts of the impugned EU Treaty articles, rather than upholding them under the condition that they are understood in a way prescribed by the Constitutional Tribunal.

But it is true that the distinction does not make any difference from at least one point of view: neither reading is within the authority of the Constitutional Tribunal. Just as the Constitutional Tribunal is ultra vires if it scrutinises some parts of EU Treaty, so it would be ultra vires if it mandated a proper interpretation of the Treaty, because the ultimate, unquestionable authoritative interpreter of the EU is one court, and one court only: the European Court of Justice. And the deep (if repressed) realisation of that fact may explain a bizarre statement, noted above, that the Tribunal does not provide an ‘autonomous interpretation’ of the EU Treaty but ‘merely’ determines its substance. In this context the explanation provided by the Tribunal as to why, when faced with a problem regarding the interpretation of EU law, the Tribunal failed to raise a question of preliminary reference, is disingenuous. The Tribunal basically said: the European Court of Justice is indeed tasked with the interpretation of EU law but it is we, the Tribunal of Poland, who must have ‘the last word as regards the conformity of any norms, including EU norms, to the Constitution of the Republic of Poland’.Footnote ¹⁶ But on its face, this is question-begging because it is the interpretation of EU law (hence, a domain of European Court of Justice) which has inclined the Constitutional Tribunal to find an inconsistency of that law with the Polish Constitution.

An EU-law unfriendly decision

It is both an established rule of European Court of Justice case law as well as of Polish case law that, when interpreting domestic law which prima facie may give rise to inconsistency with EU law, the domestic court should try as best it can to interpret the law in a way consistent with EU law, in order to remove any possible perception of incompatibility. In the already cited ‘Romanian judges’ case, the European Court of Justice put it (encapsulating its long line of cases) in the following way:

The requirement of interpretation avoiding a possible collision applies to any domestic law, sub-constitutional and constitutional alike, and to any domestic court, including constitutional tribunals. This principle had been fully endorsed by the Polish Constitutional Tribunal in its early decisions regarding EU law. In an already quoted judgment, K 18/04 on the accession treaty, the Tribunal invoked the primacy of the Constitution in Poland (Article 8.1) but at the same time noted that this constitutional provision is ‘in direct vicinity’ of the Constitution’s Article 9 principle of compliance with binding international law.Footnote ¹⁸ It added that ‘Community law’ is not quite external to Polish law because it is co-created by Poland; hence, those different legal systems existing in Poland should ‘coexist based on the principle of friendly interpretation and cooperative coexistence’.Footnote ¹⁹ It announced that its interpretation must be ‘EU law friendly’, though it added that such an interpretation has its limits, namely when its results would be either contrary to explicit constitutional rules or undermine minimal ‘protective functions’ (‘funkcje gwarancyjne’) of the Constitution. In another important early judgment regarding relations between EU and Polish law, namely on the unconstitutionality of a Polish law implementing the European Arrest Warrant, the Tribunal used an unusual device of postponing the effectiveness of its finding of unconstitutionality by 18 months, doing so, inter alia, on the basis of the need to protect Poland’s international credibility as a state respecting the ‘pacta sunt servanda’ principle.Footnote ²⁰

No such ‘EU-law friendly’ interpretation or ‘pacta sunt servanda’ maxim are visible, even remotely, in the October 2021 Decision. On the contrary, it reads as if based on an implicit presumption of inconsistency between the Constitution and EU Treaties. Perhaps it is best reflected in the recital of the three phenomena which posit, according to today’s Constitutional Tribunal, the unconstitutionality of Article 1 paras 2 and 3 and Article 4(3) of the TEU (these points are characterised in the Tribunal’s reasons as having ‘fundamental significance’).Footnote ²¹ These ‘new stage’ phenomena are construed in a categorical and antagonistic way, without any attempt at ‘EU-law friendly’ interpretation. We shall review them now in the same order as they appear in the Tribunal Decision.

First, according to the Tribunal, EU institutions acted ultra vires, beyond the scope of conferral by member states, and thus the scope of their competences. The main evidence produced within the Reasons for the Decision is about the alleged intrusion of EU institutions upon the organisation of the system of justice – which is said to belong to the exclusive competences of member states and specifically to not have been conferred upon EU institutions by Poland. ‘Those [conferred] competences comprise neither the functioning of the judicial system nor the organisational structure thereof’.Footnote ²² Yet, neither the relevant Treaty provisions nor the interpretation thereof by the European Court of Justice imply such conferral; rather, what matters is that when exercising its exclusive or any other competence, member states must comply with the principles of EU law voluntarily accepted by member states. To claim otherwise signifies a complete disregard for the place of member states within the EU legal order. The fact that a particular competence (say, organisation of justice) belongs firmly to the states does not mean that it is invisible to the fundamental principles of the EU Treaty, such as the rule of law (Article 2). And at the same time there is no understanding of the rule of law, even in the narrowest sense of the word, which does not place judicial independence at its very core. So ‘reforms’ in a member state which undermine judicial independence, as in Poland after its 2017 statutes, are inconsistent with EU Treaties, not because a new competence has been usurped by EU institutions, but because Poland has flagrantly breached the very principles it had affirmed when acceding to the EU. As the European Court of Justice stated in the judgment on the independence of the Supreme Court of Poland of 24 June 2019, ‘although … the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law’.Footnote ²³ And let us now add, this all assumes, arguendo, that ‘organisation of the judiciary’ is indeed an exclusive domain of member states. Even if the details of the organisation of the judicial system are indeed a domain of member states, the judiciary is not invisible to EU law because, even when acting in their exclusive competence, member states are bound by EU law. In particular, by agreeing to the principle of effective legal protection in Article 19, member states, when ratifying the EU Treaty, explicitly conferred upon the Union an authority to see to it that legal protection in a member state is indeed ‘effective’, and that national courts, when adjudicating under the EU law, meet the institutional conditions inherent in the principle of effective legal protection, as well as the right to a fair trial as announced in Article 6 ECHR (the Convention being cross-referenced in Article 6.3 TEU) and Article 47 of the EU Charter of Fundamental Rights.

Second, the Tribunal deplores, in its list of the characteristics of the ‘new stage’, that the Constitution is no longer the supreme law of the Republic of Poland. It is hard to know what to make of this assertion. To counter the claim about an erosion of the supremacy of the Constitution, one may offer, in a cursory way, the following counter-arguments: (1) the accession of Poland to the EU in 2004 was fully voluntary and was managed at every stage in conformity with the Constitution; (2) a conferral of certain state competences upon the EU (going beyond the usual international treaties) occurred on the basis of a constitutional provision (Article 90(1)) included in the Constitution specifically with the planned accession in mind; (3) Poland is free at any stage to initiate, in accordance with its Constitution, a procedure of exit, under Article 50 TEU. In all these fundamental respects, the Constitution controls the entry, membership and putative exit of Poland from the EU. And it should be added that the principle of the primacy of EU law over domestic (including constitutional) law had been well known and operative well before Poland acceded to the EU: hence, constitutionally, Poland voluntarily accepted an exception to the principle of the unconditional primacy of its Constitution over any other law. But it is a weak exception because it can at any stage be renounced by exit from the EU; it may be seen as a rational collective self-constraint justified by a calculation of the benefits and costs of membership.

These points are also relevant to the third, final complaint regarding the ‘new stage’ of the EU, namely that at this new stage, Poland ‘may not function as a sovereign and democratic state’. The hyperbole of this assessment is extraordinary (and it echoes the conditions of Judgment K 18/04 of 2005, which established that such a situation would place the Polish Constitution at odds with the Treaties).Footnote ²⁴ In contrast to the Tribunal’s view, Poland’s sovereignty is affirmed by the three indicia just listed: its accession was fully voluntary ; the transfer of competences is consistent with the Constitution ; and exit remains an option. Poland was and is exercising its sovereign rights to choose to belong to the EU or to leave. When it comes to democracy, an assessment that democracy is diminished by the oversight of European institutions over the conduct of state institutions is an assertion in search of an argument. Suffice to say that a massive capture of state institutions (courts, prosecutor’s office, electoral commission, civil service, media boards and public media, public support for civil society) by the ruling coalition, with a complete violation of checks and balances and scrutiny by an independent constitutional court in Poland after 2015, shows that dramatic erosion of democracy goes hand in hand with resistance against European oversight, whether by the EU or the Council of Europe. European institutions are supporters, not foes, of Polish democracy.

Abuse of constitutional identity

In the Reasons, the Judge-Rapporteur appealed to the concept of constitutional identity. When asserting that the issue of ‘the organisational structure of courts’ belongs to the exclusive competence of Poland (we have discussed this claim above), the Reasons assert that ‘The subject matter belongs to the Polish constitutional identity, which has been pointed out by the Constitutional Tribunal a number of times before…’.Footnote ²⁵ It is worth tracing back the cross-reference provided by the Reasons: it is to a ‘Decision’ (also invalid, because Mr Justyn Piskorski unlawfully participated in the panel) 7/20 of 14 July 2021 which in many ways prefigured Decision K 3/21 under discussion here. In Decision P 7/20, the Tribunal found unconstitutionality in several articles of the TEU,Footnote ²⁶ insofar as they authorise the European Court of Justice to impose interim measures in respect of breaches of the rule of law. In the reasons for the judgment (also, accessible so far only from a lengthy Press Release) the Tribunal referred to ‘constitutional identity’ by saying: ‘EU law-friendly interpretation has become an established principle and practice in the Republic of Poland but it reaches its limits when Polish constitutional identity is being violated’.Footnote ²⁷

As one can see from these two appeals to ‘constitutional identity’, in Poland the concept has played the role of protecting authoritarian, constitutionally questionable regulations from any oversight by European law. It is no doubt contrary to the letter, structure and spirit of EU law to interpret constitutional identity in this way. These three grounds will be briefly considered in turn.

To start with, the wording of Article 4 TEU suggests that constitutional identity is applied only to the most fundamental structural characteristics of a state. ‘The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’.Footnote ²⁸ As one can see, constitutional identity inheres in the ‘fundamental structures’ having political and constitutional character. A contrario, it cannot be discerned solely in the detailed, specific, and in particular statutory regulations, such as those which both these Decisions attempted to exempt from European norms. In particular, what was at stake in Decision K 3/21, under discussion here, was a detailed regulation that immunised administrative decisions by the KRS (National Council of Judiciary) to recommend to the President judicial nominations, from effective judicial review. This is what European Court of Justice judgment C-824/18 of 2 March 2021 (to which Decision K 3/21 ‘responded’) found defective. It had no ‘fundamental structure, political and constitutional’ character. No constitutional rule of the Republic of Poland was engaged by this matter. Under a purely textual interpretation, therefore, it has not matched any of the indicia of constitutional identity in Article 4 TEU; the ‘constitutional’ in ‘constitutional identity’ is being lost.

The second ground for rejection of constitutional identity in the context in which it was invoked by the Tribunal is systemic: the structure of the TEU. The Article 4 reference to constitutional identity comes after a reference, in Article 2, to the rule of law. At the very least it means that both these values have to be coordinated and reconciled with each other: constitutional identity cannot be interpreted in a way that would be offensive to the rule of law. But an even stronger interpretive point can be made: that the rule of law has primacy over constitutional identity if, in specific circumstances, there is a clash between the two values. It means that constitutional identity cannot be invoked if the consequence is a reduction of the value of the rule of law.

Third, and most importantly, the invocation of constitutional identity in this context is also contrary to the very spirit of the concept of constitutional identity in the normative architecture of the EU. Its main rationale is to protect those fundamental, political and constitutional structures of member states which should be preserved: not just tolerated but cherished because they reflect genuine, deep identities of societies and peoples which make up the EU. Monarchy in the United Kingdom, laïcité in France, federalism in Germany – these are some examples of dimensions of constitutional identity which the EU respects and protects. It is because they are defining of the nature of those states, just as (to take opposite arrangements) republicanism in Italy, an established religion in Sweden or a unitary state in Denmark define fundamental ‘political and constitutional’ identities in those other states. All those alternative structures, which correspond to different European traditions, are perfectly compatible with Article 2 values. But statutory assaults upon the rule of law in Poland post-2016 are not embodiments of Polish constitutional identity. Neither the establishment of a politically controlled, inquisitorial chamber of persecution of independent judges (the subject-matter in Decision P 7/20 which tried to disable interim measures related to the Disciplinary Chamber) nor the exemption of judicial nominations from judicial review (the subject-matter in Decision K 3/21) can be seen as part and parcel of constitutional identity. In K 3/21 the Tribunal attempts to insulate the system of judicial nominations from oversight under European norms, and more specifically, to protect a system introduced to legalise the status of persons appointed as judges in blatant violation of the applicants’ right to court. It is the right to court (as proclaimed in Article 45 (1) of the Polish Constitution) which is part of Polish constitutional identity, and not its breach. It is a travesty of constitutional identity to claim that Polish constitutional identity is best given effect by a steady erosion of the rule of law.

While to engage in a broader discussion of the conception of constitutional identity would go well beyond the scope of this Case Note, a short broader reflection is in order. It is hard not to observe that constitutional identity has become a favourite argumentative tool of populist-authoritarian politicians, judges and scholars who oppose a vigorous control of national laws and practices under the norms of EU law.Footnote ²⁹ This is regrettable. Constitutional identity, as characterised above, need not be seen as opposed to legal and political integration, and as placing obstacles upon ‘a new stage in the process of creating an ever closer union among the peoples of Europe’.Footnote ³⁰ Quite to the contrary, as an ideal celebrating the richness of European positive traditions, constitutional identity in fact facilitates ‘an ever closer union’ by reassuring EU citizens that their most cherished traditions and structures are not threatened by the integration. But this ideal, in the hands of nationalist politicians and lawyers, can easily be weaponised against EU integration, contrary to the letter, structure and spirit of the Treaty, as the recent Decisions of the Polish Constitutional Tribunal demonstrate, just as it was also demonstrated by the Hungarian Constitutional Court’s invocation in 2016 of constitutional identity to reject that country’s proposed role in refugee allocation,Footnote ³¹ or by the Romanian Constitutional Court, which used the concept of constitutional identity eight times in a single judgment to limit the effectiveness of European Court of Justice judgments in Romania.Footnote ³² So construed, ‘constitutional identity’ becomes a trump card to protect from scrutiny anything that the government of the day wants to do, no matter what its international and European obligations are. To be sure, the government may be under pressure from, and genuinely expressing the sentiments of, the majority: in this way, it may argue that it respects the national identity of its people (who, for example, do not favour absorption of any refugees into their state). But it is not constitutional identity, with the ‘constitutional’ understood as imposing legal constraints upon the ‘will of the People’.