The Court of Justice of the European Union in the Case Law of the Polish Constitutional Court: The Current Breakdown in View of Polish Constitutional Jurisprudence Pre-2016

Abstract

The current crisis in the relationship between the Polish Constitutional Court and the Court of Justice of the European Union (ECJ) is of crucial significance for the process of regional integration based on the values of liberal democracy taking place in the EU. The constitutional crisis in Poland that began in the end of 2015 has challenged the systemic position of the Polish Constitutional Court. It resulted in a new model of constitutional adjudication, and in this new model the Constitutional Court, stripped of its counter-majoritarian power, cannot be perceived as the guardian of liberal democracy. This article postulates that the assessment of the present case law of the Polish Constitutional Court in European matters is made through the prism of the Constitutional Court’s jurisprudence pre-2016 (i.e. before the constitutional crisis). Based on that assumption, the current reversal in the case law of the Polish Constitutional Court concerning the ECJ is analysed and assessed. It is argued that the root cause of the constitutional crisis in Poland is the departure from the principles of liberal democracy in the jurisprudence of the Constitutional Court, which are foundational—in light of the assumptions of the integration process—for the axiological identity of the EU and its Member States. This article also shows how the principles and concepts developed in the Polish constitutional jurisprudence pre-2016 could have served to avoid the current conflict with the ECJ, and how those notions are misused in the current jurisprudence of the Polish Constitutional Court.

1 Introduction

The current breakdown in the relationship between the Polish Constitutional Court and the Court of Justice of the European Union (‘ECJ’), or more broadly between Poland and the European Union, is of crucial significance for the process of regional integration based on the values of liberal democracy taking place in the EU. As has been shown by the case of Poland, these processes are not linear, and the values of liberal democracy, which constitute their fundamental premises, can be questioned. The constitutional crisis in Poland is the first such significant breakdown in the relationship between the Court of Justice and a constitutional court of a Member State—the first such significant fracture in the architecture of the composite constitutional order of the European Union.¹ In this sense, the current jurisprudence of the Polish Constitutional Court is no longer an issue of local interest, but becomes a kind of laboratory test for the processes of constitutionalization of EU law. It can be argued that the root cause of the current constitutional crisis in Poland is the departure in the jurisprudence of the Constitutional Court from the principles of liberal democracy, which are foundational—in light of the assumptions of the integration process—for the axiological identity of the EU and its Member States. To enrich the ongoing debate, this article substantiates the above thesis by analyzing the current jurisprudence of the Polish Constitutional Court through the prism of the jurisprudence of the Polish Constitutional Court pre-2016. The jurisprudence of the Polish Constitutional Court pre-2016 was a laborious forging of constitutional framework incorporating the values of liberal democracy—an axiological edifice identical to the constitutionalism of the EU. This meant, in particular, that the primary goal of the constitutional interpretation of law was to protect the rights of the individual by guaranteeing the principle of the rule of law. The current jurisprudence of the Polish Constitutional Court in European matters breaks with these assumptions. In this context, it is striking that such jurisprudence invokes the case law of the Constitutional Court pre-2016 as a crucial, supporting argument. That argument of the current Polish Constitutional Court—as will be explored here—remains entirely unfounded. The same words (principles, concepts) gain different meanings and significance in a different constitutional axiological context. The analysis of the current jurisprudence of the Polish Constitutional Court becomes an excellent (though gloomy) lesson of how much the real, performative meaning of words in the constitutional discourse depends on the axiological assumptions that underpin them. This is another universal lesson emerging from the Polish case.

This article is structured in four sections. The first section presents a synthesis of the pre-2016 Constitutional Court case law on the ECJ (point 2). In addition to a dogmatic analysis of the presented case law, the argument is constructed from the perspective of the theory of EU law—in that respect the reviewed case law of the Constitutional Court will be conceptualized in the light of constitutional pluralism (point 3). The following part of the article (point 4) focuses on the recent case law of the Polish Constitutional Court, which has resulted in a breakdown in its relationship with the ECJ. This shift in the direction of the Constitutional Court’s case law is presented in the broader context of the constitutional crisis in Poland that began in 2015. Two areas for the analysis are distinguished on the basis of the current case law of the Polish Constitutional Court: firstly, the EU standard of judicial independence following the ECJ’s judgment of 19.11.2019² and its (non)implementation in the Polish legal system; and secondly the scope of application of EU law as regards the organization and functioning of the national judiciary following the ECJ’s rulings of 8.04.2020³ and 2.03.2021.⁴ The article ends by offering conclusions (point 5).

2 The ECJ in the Polish Constitutional Court’s Jurisprudence Pre-2016

The position of the Polish Constitutional Court in relation to the ECJ was established primarily in rulings issued in the initial years following Poland’s accession to the EU. The Judgment on the Accession Treaty,⁵ Decision P 37/05,⁶ and the Judgment on the Treaty of Lisbon⁷ expressed the Constitutional Court’s views on the role of the ECJ within the system of European Union law, as well as in relation to the national courts. This position of the Constitutional Court was confirmed in its subsequent jurisprudence.⁸

The indispensable context for the Polish Constitutional Court’s position with respect to the ECJ was the stance taken by the Constitutional Court with regard to the relationship between EU law and the Polish Constitution. The Constitutional Court unambiguously confirmed the supremacy of the Polish Constitution over EU law. In its Judgment on the Accession Treaty, the Constitutional Court emphasized that even after Poland's accession to the EU the Polish Constitution remains, pursuant to its Article 8(1), the supreme law in Poland, and enjoys precedence of binding force as well as precedence of application.⁹ The Constitutional Court also clearly stated that the Member States retain the competence-competence (Kompetenz-Kompetenz),¹⁰ and it is the Constitutional Court that—in matters of principle concerning issues of a constitutional nature—should retain the position of ‘the court of last resort’.¹¹ This firm stand on the supremacy of the Polish Constitution over EU law, and the Constitutional Court's ‘last word’ in any potential dispute with the ECJ, was softened by its formulation of the principle of ‘favourable predisposition towards the process of European integration’.¹² That principle was clearly designed to mitigate any potential conflict between the EU law and the Polish Constitution and provide practical tools to avoid it.¹³

As regards the role of the ECJ in the EU legal system, it was explicitly confirmed in the jurisprudence of the Polish Constitutional Court pre-2016 that the ECJ is the only court competent to rule on the validity and interpretation of EU law.¹⁴ According to the Constitutional Court the division of competences between national courts and the ECJ as regards the interpretation and application of EU law is such that the interpretation is vested in the ECJ, while the application—understood as the application of an EU norm to the facts of a case as determined by a court—is entrusted to a national court, which in a given case shall be bound by the ECJ’s case law.¹⁵ In the Judgment on the Accession Treaty, the Constitutional Court rejected allegations of the non-compliance of Article 234 of the EC Treaty with the Polish Constitution. Having recognised that the ECJ is the only court competent to rule on the validity and interpretation of EU law, the Constitutional Court pointed out the limits on the interpretation by the ECJ. In the view of the Constitutional Court, this interpretation should fall within the scope of functions and competences delegated to the EU by the Member States. It should be based upon the assumption of mutual loyalty between the EU institutions and the Member States. This assumption generates a duty—on the part of the ECJ—to be sympathetically disposed towards national legal systems, and a corresponding duty for the Member States to show the highest standard of respect for EU norms.¹⁶ In this context the most controversial case in the pre-2016 jurisprudence of the Polish Constitutional Court on EU matters was Judgment SK 45/09. In that judgment the Polish Constitutional Court allowed for the constitutional control of secondary EU law. At the same time however, it noted that such control should be treated as independent, but also subsidiary, to the jurisdictional competence of the ECJ. As the Constitutional Court clearly stated, a ruling of the non-compliance of EU law with the Polish Constitution should be the ultima ratio and should occur only when no other ways to resolve a conflict in issue with the norms of the EU’s legal order are possible.¹⁷

A key issue from the point of view of the relationship between the Polish Constitutional Court and the ECJ was the position of the Constitutional Court with respect to the possibility of filing a request for a preliminary ruling with the ECJ. The Constitutional Court allowed for such a possibility.¹⁸ At the same time, it formulated a reservation, in accordance with which if the Constitutional Court decides to request a preliminary ruling concerning the validity or content of an act (provision) of EU law, it shall do so ‘only in cases in which in compliance with the Constitution it would apply Community [EU] law’ [emphasis added]. Such a reservation implied the conclusion that a ECJ judgment issued as the result of a preliminary procedure could not—according to the Constitutional Court—lead to a breach of the principle of supremacy of the Polish Constitution.

A crucial argument of the Constitutional Court's jurisprudence pre-2016 regarding European matters was the reference to the shared constitutional values of Poland and the EU. The pronouncements of the Constitutional Court on a common constitutional axiology of both Poland and the EU are worth citing in detail. It can be argued that they constitute the expression, in the Polish constitutional jurisprudence, of the notion of the EU's composite constitutional order.¹⁹ According to the the Constitutional Court: ‘The values expressed in the Constitution and the Treaty of Lisbon determine the axiological identity of Poland and the European Union […] The basis of full axiological compatibility comprises identical axiological inspiration of the Union and the Republic of Poland […] identical focus on the observance of the principles of freedom and democracy, human rights and fundamental freedoms, as well as social rights, and also the efforts to enhance the democratic character of institutions and the effectiveness of their activities’.²⁰ As has been emphasized by the Constitutional Court, the Constitution and EU law are based on the same shared values defining the nature of the democratic state, the rule of law, and the catalogue and content of fundamental rights. This, in the view of the Constitutional Court, significantly simplifies the ‘mutual application and mutually friendly interpretation of national and Community [EU] law’.²¹ Two observations should be made in light of such statements. First, it can be argued that the reference to the ‘axiological identity’ of Poland and the European Union, emphasised by the Constitutional Court, constituted the basis (legitimacy)—from the point of view of the constitutional legal order—for dialogue between the Polish Constitutional Court and the ECJ. This dialogue could be carried out by reference to objectives, principles, and values—with the aim to form and strengthen an axiologically coherent legal space in the context of the interconnections between national and supranational legal systems, and thereby eliminate conflict at the level of norms (rules). Secondly, a conforming interpretation—in particular of constitutional norms in light of the general principles of EU law—seemed to be especially significant in this regard.²² The obligation of conforming interpretation, being subject to the limitations determined by the Constitutional Court,²³ was perceived in its case law as an instrument of dialogue with the ECJ in the context of the complex relationships between the national and the EU legal systems.²⁴ In the view of the Constitutional Court, in the Polish territory there exist legal subsystems, all of them binding, coming from various centres of legislation. They should coexist on the basis of mutually friendly interpretations and cooperative application.²⁵ As has been reiterated by the Constitutional Court, any contradictions between EU and Polish law should be eliminated using an interpretation respecting the autonomy of both European law and national law.²⁶

3 The Jurisprudence of the Polish Constitutional Court Pre-2016 and Constitutional Pluralism

It can be argued that the relationship between the ECJ and the Polish Constitutional Court pre-2016 can be best conceptualized via the lens of constitutional pluralism.²⁷ The assumptions of constitutional pluralism can be traced in the Constitutional Court’s rulings pre-2016. On the one hand, the Court confirmed the supremacy of the Polish Constitution over EU law and proclaimed that it is the Member States that retain the competence-competence. On the other hand, the jurisprudence of the Polish Constitutional Court pre-2016 provides a good example of ‘openness’ in its constitutional dialogue with the ECJ. As has been argued above, the crucial element in the jurisprudence of the Polish Constitutional Court pre-2016 concerning its relation with the ECJ has been the recognition of the axiological consistency (identity) of the legal systems: the Polish constitutional system and the EU one. A strongly confirmed ‘axiological consistency (identity)’ of the Polish Constitution and EU law mitigated the categorical statement on the supremacy of the Polish Constitution. At the same time, the jurisprudence of the Constitutional Court provided concrete instruments to preserve and enhance that ‘axiological consistency (identity)’, such as the preliminary ruling procedure and conforming interpretation. It is argued here that the position of the Constitutional Court can best be conceptualized in the paradigm of constitutional pluralism, in its ‘dialogical version’, which most clearly articulates the importance of the dialogue between the competing, yet cooperating, legal systems, so long as such dialogue remains conditioned by their common axiology.

The Polish Constitutional Court's jurisprudence pre-2016 concerning EU matters can be best conceptualized in the paradigm of constitutional pluralism, since it fulfilled the crucial condition of this concept, i.e. compliance with the principles of liberal democracy. Such a conclusion relates to the observation that the basic premise of a pluralistic vision of the relationship between the national and EU law systems is the assumption that the structure of European integration remains within the universal framework of the commonly-shared principles and values of liberal democracy which underlie contemporary constitutionalism.²⁸ In other words, the pluralistic vision of European integration assumes that the societies of the Member States remain organized on the basis of the values articulated in Article 2 TEU.²⁹ These Article 2 values (principles) refer to the constitutional principles constituting the common heritage of European constitutional traditions, rooted in liberal and democratic traditions.³⁰ This means: recognizing the primacy of the individual and the need to protect her/his rights; recognizing the principle of the rule of law as the basis for the functioning of the legal system; and adherence to the principle of democracy as legitimizing all public authority. At the same time, it is important that these three systemic assumptions of liberal democratic states remain closely related. It is assumed that decisions legitimized by democratic procedures, but infringing on the rule of law, and in particular interfering with the sphere of individual rights in violation of this principle, are not admissible. Such assumptions found their expression in the consolidation of the role of constitutional courts, whose fundamental role in the political system of liberal democracies is to control the constitutionality of acts of power—in other words to ensure that the decisions of the majority are made and implemented within the limits of the constitution, and thus that the constitution protects against abuses of power by a democratically elected majority. In this sense, liberal constitutionalism seeks to protect freedom through the establishment of the rule of law.³¹ What remains crucial, from the point of view of securing the values constituting the axiological foundations of the constitutional legal order in the liberal legal culture, is the principle of separation of powers.³² Together with the requirement to respect fundamental rights, it is an instrument for setting limits on the exercise of public authority.³³ It is worth noting that in the jurisprudence of the ECJ, the principle of separation of powers is recognized as one of the elements of the rule of law.³⁴

The principles of liberal democracy found expression in the Polish Constitutional Court jurisprudence pre-2016, developed on the basis of the Constitution of 1997, which had been passed following Poland’s transition to democracy in 1989.³⁵ The systemic and axiological grounds of the Constitution were: the principle of the rule of law; the democratic and social state; fundamental rights and freedoms, with specific permissible grounds for their limitation; as well as institutional guarantees and the availability of judicial procedures to protect against infringements of those rights and freedoms. The Constitutional Court carried out a constitutional review of the legal provisions—the main grounds for a declaration of unconstitutionality were violations of the rule of law, the right to a fair trial, the principle of proportionality, and exceeding the powers delegated to the executive.³⁶ It should be emphasized that in the jurisprudence of the Constitutional Court pre-2016, one of the elements of the rule of law principle was the principle of separation of powers. In this respect, the Court stated that the principle of separation of powers presupposes a specific determination of the relationship between the judiciary and other authorities. While various forms of mutual influence and cooperation are possible in the relations between the legislative and executive branches, the relationship between the judiciary and other authorities has to be based on the principle of ‘separation’, and an indispensable element of the principle of separation of powers is the independence of courts and judges.³⁷

From this perspective it can be argued that the above-cited statements of the Constitutional Court concerning the ‘axiological identity’ of Poland and the EU were firmly grounded and justified. The Court’s jurisprudence pre-2016, including its jurisprudence concerning EU matters, expressed the development of (the principles of) liberal democracy in Poland—being at the same time the axiological aim and aspiration of the constitutionalism of the EU. The position of the Constitutional Court provided a solid basis for dialogue with the ECJ, where such dialogue remained within the process of building the composite constitutional order of the EU.³⁸

4 The Constitutional Crisis and the Current Breakdown in the Relationship Between the Polish Constitutional Court and the ECJ

4.1 Background

The pre-2016 vision of the ECJ in the jurisprudence of the Polish Constitutional Court has been challenged by the constitutional crisis in Poland dating from the end of 2015.³⁹ In 2015 the parliamentary election in Poland was won by the PiS (Law and Justice) party. Following eight years of governance by the liberal PO (Citizens’ Platform) party, PiS ran on the slogan of a ‘change for the better’, focused on strengthening control over the State and the economy as well as a greater and more equitable redistribution of the benefits of the transformation. This political message appeared to be particularly effective in view of the sentiment—strong among the less economically successful and adaptable groups—that the economic gains were benefiting only certain privileged parts of the society and that the State was malfunctioning, serving the elites rather than the average people.⁴⁰ At the same time the PiS rhetoric appealed to a sense of community built around ideas and experiences rooted in the Polish history, like adherence to tradition and religion. This proved particularly effective in the election, which was held at the peak of the migration crisis (October 2015).⁴¹ The appeal to social justice and sense of community, combined with a heightened and manipulated fear of attacks on ‘traditional values’, proved to be an effective political message and gained support within a large part of society. Following its election victory, the PiS party began implementing the social agenda it had proclaimed during the election campaign, at the same time beginning to consolidate and increase the areas of its political power. The subsequent changes in the legal system were aimed in particular at increasing the influence of the ruling party on the judicial branch, including the Constitutional Court.⁴²

Consequently, the systemic position of the Constitutional Court has significantly changed since 2015/2016. Successive legislative amendments, as well as changes within the composition of the Court,⁴³ have had a profound impact on the current position of the Constitutional Court in the Polish legal order and undermined the role of said Court as part of the system of checks and balances required by constitutional democracies.⁴⁴ The analysis of the jurisprudence of the Court post-2015 reveals that the function of the Polish Constitutional Court can now be defined à rebours, that is, its decisions serve to confirm the constitutionality of legal acts adopted by the parliamentary majority, and additionally—in the face of protests by minorities and criticism from European institutions—legitimizing them.⁴⁵ This role of the Constitutional Court differs significantly from its model paradigm. A constitutional court deprived of its counter-majoritarian power does not meet the requirements of a liberal democracy. In other words, its role is incompatible with the paradigm of a liberal democracy, which guarantees the protection of individual rights by subjecting the decisions of the democratically-elected majority to review by independent courts.

In this new constitutional environment, it seemed to be only a matter of time until there would be a shift in the direction of the Constitutional Court’s case law in European matters, leading to an unprecedented crisis in the relationship between the EU and a Member State.

4.2 The EU Standard of Judicial Independence: the ECJ’s Judgment of 19.11.2019 and Its (Non)Implementation

The first direct challenge to the earlier-existing relationship between the Polish Constitutional Court and the ECJ can be identified in Case U 2/20. In its judgment of 20.04.2020 (Case U 2/20), the Polish Constitutional Court examined the request of the Prime Minister questioning the Resolution of the Combined Chambers: Civil, Criminal and Labour and Social Security Law of the Polish Supreme Court of 23.01.2020.⁴⁶ The Resolution of Three Chambers of the Supreme Court, was issued in response to the judgment of the ECJ of 19.11.2019⁴⁷ in which the ECJ prescribed the requirements to be fulfilled by courts in democratic states so that—in the light of Article 6 of the European Convention on Human Rights and Article 47 of the Charter—they could be considered impartial and independent. Consequently, the Supreme Court confirmed the legal mechanisms enabling the removal from adjudication of judges appointed at the request of the new National Council of the Judiciary.⁴⁸ In the light of the Resolution of Three Chambers of the Supreme Court, this method of appointing judges—due to doubts as to the status and lawfulness of the actions of the new National Council of the Judiciary⁴⁹—raised concerns as to their independence and impartiality. The provision of procedural instruments enabling, in concrete cases, the removal from adjudication of judges appointed at the request of the new National Council of the Judiciary became necessary—in the view of the Supreme Court—for the implementation of the ECJ's judgment of 19.11.2019. In its judgment of 20.04.2020 (Case U 2/20), the Polish Constitutional Court ruled that the Resolution of Three Chambers of the Supreme Court was inconsistent with the Constitution, with the TEU (Article 2 and Article 4(3)), and with the European Convention on Human Rights (Article 6(1)). In particular, the Constitutional Court ruled that the Resolution was inconsistent with the Polish Constitution inasmuch as it undermines the final nature of the appointment of a judge by the President.⁵⁰

In the context of this analysis, the crucial question is how to assess the judgment of the Constitutional Court from the point of view of the Court’s pre-2016 case law. This becomes all the more necessary inasmuch as a number of the principles set out in the rulings of the Court pre-2016 regarding the relationship between EU law and domestic law were referred to in the judgment in Case U 2/20. They were however used as arguments to essentially negate the implementation of the ECJ's judgment of 19.11.2019. The key argument of the Constitutional Court was that under the Polish Constitution the Resolution of Three Chambers of the Supreme Court could not undermine the President's constitutional prerogative to ‘appoint the judges’—as enshrined in the Polish Constitution (Article 179)—by enabling the evaluation of the procedure preceding the appointment of a judge by the President. However, such an interpretation of the provisions of the Polish Constitution is only one of its possible readings. In light of its case law pre-2016, it can be argued that the Constitutional Court should here have applied a conforming interpretation, i.e. have employed an argument that would ensure the effective implementation of the judgment of the ECJ of 19.11.2019 and the values indicated therein, as expressed in Article 2 TEU, and in particular the principle of the rule of law. In the case U 2/20 this would have implied the necessity to adopt such an interpretation of Article 179 of the Constitution, according to which it is possible to evaluate the procedure preceding the appointment of a judge by the President. The justification for such an interpretation could be found in, inter alia, the constitutional principles guaranteeing judicial independence and impartiality construed in line with Article 2 TEU as well as Article 19(1) TEU and Article 47 of the Charter and their interpretations by the ECJ. Such an interpretation would be consistent with the position expressed in the Resolution of Three Chambers of the Supreme Court. As was stated in the Resolution, it cannot be argued that any defect in the nomination process stands corrected by the presidential act of appointment to the office of a judge; such an interpretation would unreasonably limit the right to a fair trial before an independent and impartial court. The constitutional powers of public authorities cannot be interpreted in such a way that the interpretation undermines fundamental constitutional principles. It is worth emphasizing that adopting the above interpretation would be consistent with the jurisprudence of the Constitutional Court pre-2016,⁵¹ as well as with the obligation of a conforming interpretation established by the ECJ, an obligation which also binds constitutional courts.⁵² Such an interpretation would also avoid a conflict between the Polish constitutional provisions and Article 47 of the Charter. As indicated in the Resolution of Three Chambers of the Supreme Court, in the territory of the EU the independence and impartiality of courts must be real, and their independence and impartiality cannot be uncontestably decreed by the mere fact of being appointed to the office of judge by the President.

When adopting a different interpretation, i.e. concluding that, in light of the provisions of the Constitution, it is not possible for judges to evaluate the procedure preceding the appointment of a judge by the President, the Constitutional Court referred to the principle of the rule of law, the principle of democracy, and the principle of sincere cooperation between the EU and the Member States. The Court also stated that the Resolution of Three Chambers of the Supreme Court breached the standard of judicial independence and impartiality as provided for in the jurisprudence of the ECJ. At the same time, the Constitutional Court used a number of arguments referring to the model of cooperation in the relationship between the ECJ and the Constitutional Court as shaped in the jurisprudence of the Polish Constitutional Court pre-2016⁵³—however, it can be concluded that its statements were a facade to hide the true meaning and implications of the ruling. Such an assessment is justified by the fact that the principles invoked did not serve to develop a ruling most fully conducive to the effectiveness of EU law in the domestic legal order (in particular, the implementation of the judgment of the ECJ of 19.11.2019 and the values indicated therein, expressed in Article 2 TEU), but to justify a judgment with quite the opposite effect, causing a collision between Polish constitutional provisions and the principle of effective judicial protection, fundamental to the EU community of law (Article 47 of the Charter, Article 19 (1) TEU) and related to the values expressed in Article 2 TEU, in particular the rule of law.⁵⁴

The Resolution of Three Chambers of the Supreme Court resulted in another proceeding before the Polish Constitutional Court, initiated by the Marshal of the Sejm,⁵⁵ which questioned the possibility for the Supreme Court to issue that Resolution in view of the conflict of powers between the Sejm and the Supreme Court and between the President and that court. In a decision dated 21.04.2020 (Case Kpt 1/20), the Constitutional Court stated that the Supreme Court—also in connection with the ruling of an international court—does not have the competence to provide a law-making interpretation of legal provisions leading to a change in the normative status with respect to the system and organization of the judiciary. In the opinion of the Constitutional Court, introducing changes in this respect falls within the exclusive competence of the legislator. The Constitutional Court also indicated that the appointment of a judge is the exclusive competence of the President, which he performs at the request of the National Council of the Judiciary personally, definitively, and without the participation and interference of the Supreme Court. The decision of 21.04.2020 was preceded by the decision of the Constitutional Court of 28.01.2020 in a case in which the Constitutional Court suspended the application of the Resolution of Three Chambers of the Supreme Court.⁵⁶

Bearing in mind the arguments indicated above in the context of the Constitutional Court’s judgment in Case U 2/20, it can be concluded that the decision of 21.04.2020 (Kpt 1/20) is manifestly contrary to the case law of the Constitutional Court pre-2016. It should also be noted that while in the judgment in Case U 2/20 the Constitutional Court argued that the Supreme Court—by adopting the Resolution of Three Chambers—had improperly implemented the ECJ's judgment of 19.11.2019, without questioning the judgment of the ECJ itself,⁵⁷ the decision of 21.04.2020 is much more confrontational.⁵⁸ What is important in the context of this analysis is that when justifying its position the Constitutional Court referred to the principle of primacy of the Polish Constitution, developed in the case law pre-2016.⁵⁹ In view of the comments set out above, it must be concluded that this reference was not justifiable. The case law of the Constitutional Court pre-2016, when deciding on the primacy of the Constitution, was issued within the assumptions of a composite constitutional order of the EU. i.e. with recognition of the axiological identity of the EU and national legal orders and the need to shape their relations through a cooperative (dialogue-based) model. The confrontational character of the decision of 21.04.2020 (Kpt 1/20) clearly breaks with these premises, notwithstanding the references of the Constitutional Court to the concepts of a democratic state ruled by law, and the principle of the rule of law as protected constitutional values.

One could argue that the employment by the Polish Constitutional Court of the notions constituting the core of the liberal constitutional order—like rule of law, democracy, separation of powers, and the right to a fair trial—has been acontextual and anti-purposive, since their application in the discussed cases has served only to reach results which are not consistent with the core imperative of liberal constitutionalism i.e. strengthening the effective protection of an individual by safeguarding the system of checks and balances as the major factor determining the distribution of political power. Consequently, such references by the Constitutional Court can be perceived as an example of an abusive constitutional borrowing, being a part of a broader phenomena of abusive judicial review. These notions, as recently elaborated in comparative constitutional law scholarship,⁶⁰ shed new light on analysis of the argumentation of the Constitutional Court. The abusive constitutional borrowing is defined as the use by the courts of Western liberal democratic constitutional ideas, norms, and institutions in order to carry out processes of constitutional change that are actually anti-democratic in nature.⁶¹ When exercising such abusive constitutional borrowing, judges draw on concepts and doctrines designed to protect liberal democracy in an abusive way that subverts their underlying meaning and turns them into tools to actually undermine liberal democracy.⁶² The abusive judicial review is understood as interpretation by judges that intentionally undermines the minimum core of constitutional democracy.⁶³ It should be noted that abusive judicial review is deemed to pose a particular threat to liberal democratic orders, inasmuch as it is the courts which—in the structure of a liberal democracy—are designated as the main defenders of constitutional democracy that are being called upon to engage in a form of democratic hedging.⁶⁴ In particular, it is the constitutional courts that play an important role in protecting democracy from the threat of democratic backsliding.⁶⁵ The failure of a constitutional court to exercise this function may thus become a crucial factor accelerating the processes of erosion of the liberal democratic order.⁶⁶

4.3 The Organization and Functioning of the National Judiciary—EU Matter(s)?

The subsequent rulings which confront the current position of the Polish Constitutional Court with the jurisprudence of the Constitutional Court pre-2016 have been initiated by, respectively, the Disciplinary Chamber of the Supreme Court (P 7/20) and the Prime Minister (K 3/21). Both judgments refer to a matter of fundamental importance for the relationship between Poland and the EU—whether the organization and functioning of the national judiciary are subject (or not) to EU standards of justice. Although the judgment in case K 3/21 has caught particular attention, it is worth putting it in the context of the emerging line of jurisprudence of the Constitutional Court in the matter of concern here.

In case P 7/20 the Supreme Court (Disciplinary Chamber) asked the Constitutional Court whether Article 4(3) second sentence TEU, in conjunction with Article 279 TFEU—to the extent that it results in an obligation on a Member State to implement provisional measures relating to the system and functioning of its constitutional judicial organs—is consistent with the provisions of the Polish Constitution. The question of the Supreme Court (Disciplinary Chamber) was issued as a result of a ruling of the ECJ⁶⁷ in which it ordered Poland to immediately suspend the application of the national provisions on the powers of the Disciplinary Chamber of the Supreme Court with regard to disciplinary cases concerning judges. It should be noted here that the Disciplinary Chamber of the Supreme Court has been established within the context of changes to the Polish justice system that are contested in view of the requirement for judicial independence. Those concerns have been reflected in a number of requests for preliminary rulings filed with the ECJ concerning, in particular: the retirement age of judges⁶⁸; disciplinary proceedings against judges⁶⁹; the correctness of the appointment procedure for the post of a Supreme Court judge⁷⁰; and the Disciplinary Chamber of the Supreme Court.⁷¹ In this latter case, the ECJ issued a judgment setting the criteria to evaluate the independence and impartiality of a court in view of EU standards.⁷² The independence and impartiality of the Disciplinary Chamber of the Supreme Court was negatively assessed in the ECJ judgment Commission v Poland, C-791/19.⁷³

A day before the issuance of the judgment of the ECJ in Commission v Poland, C-791/19, the Constitutional Court ruled⁷⁴ that the ECJ, when granting interim measures relating to the system and jurisdiction of Polish courts and the procedure before Polish courts, acted ultra vires. In this respect Article 4(3) second sentence TEU, in conjunction with Article 279 TFEU was deemed inconsistent with the provisions of the Polish Constitution and not covered by the principles of primacy and direct application of EU law as set out in the Polish Constitution. According to the Constitutional Court, the interim measures granted by the ECJ, contrary to Article 4(2) TEU, Article 4(3) first sentence TEU and Article 5(1) TEU, clearly and significantly infringed on the domain of Polish constitutional regulation. The system and functioning of Polish courts and the procedure before Polish courts belong to the constitutional core of the Republic of Poland, which cannot be transferred to an international organization. According to the Constitutional Court, the European Union cannot replace the Member States in creating regulations concerning the system of courts and systemic, procedural and social guarantees of the independence of courts and the impartiality of judges. The ECJ is neither the supreme body nor a court of higher instance above the national courts and has no power to take any acts of authority against the national courts and judges of the Member States.

The widely commented case K 3/21 was initiated by the Prime Minister of the Republic of Poland who, immediately following the ECJ’s judgment in case A.B.,⁷⁵ filed a request to the Constitutional Court challenging the (potential) results of that judgment on the Polish legal system.⁷⁶ The Constitutional Court, in its judgment of 7 October 2021, ruled⁷⁷ that Article 1, first and second paragraphs, in conjunction with Article 4(3) TUE is inconsistent with the Polish Constitution insofar as the European Union—on the basis of EU law and through its interpretation by the ECJ—enters ‘a new stage’ of integration; one in which: (i) the EU authorities act outside the scope of the competences conferred upon them by Poland in the Treaties; (ii) the Constitution is no longer the supreme law of Poland, which takes precedence as regards its binding force and application; and (iii) Poland may not function as a sovereign and democratic state. Moreover, the Constitutional Court questioned Article 19(1) second subparagraph TEU, declaring it unconstitutional insofar as it grants domestic courts the competence to bypass the provisions of the Polish Constitution in the course of adjudication or adjudicate on the basis of provisions which are not binding, having been revoked by the Sejm and/or ruled by the Constitutional Court to be inconsistent with the Polish Constitution. Finally, the Constitutional Court found Article 19(1) second subparagraph and Article 2 TEU to be unconstitutional insofar as they grant domestic courts the competence to review the legality of the procedure for appointing a judge, including the review of the legality of the act in which the President appoints a judge. In general, the judgment of the Constitutional Court accepted the arguments provided in the request of the Prime Minister of the Republic of Poland initiating proceedings.

In the justification of its ruling⁷⁸ the Constitional Court pointed out that the essence of the Prime Minister's application concerns the relationship between treaty provisions and the principle of the primacy of the Polish Constitution, and thus—Polish sovereignty. The indicated constitutional problem boils down to defining the constitutional boundaries of ‘an ever closer union between the peoples of Europe’, as provided for in Article 1 second paragraph of the TEU. If such a new stage of integration results in the norms of EU law, especially those derived by the ECJ, being located outside the limits of powers conferred by the Republic of Poland and ‘above’ the Polish Constitution, thus causing the loss of sovereignty, then such a stage of ‘an ever closer union’ violates the Constitution. In the view of the Constitutional Court, the scope of competences conferred by the Member States on the EU is basically regulated in the treaties, and among these competences there is none related to the organization or system of the judiciary. Deriving the competence to control the organization and system of the judiciary in a Member State from Article 19 paragraph 1, second paragraph of the TEU constitutes the creation by the ECJ of new competences. The delimitation of the area of competences conferred, and those remaining at the exclusive disposal of the Member States, is also important for defining the boundaries of the so-called principle of primacy of EU law. The Constitutional Court concluded that not only the normative acts as defined in the jurisprudence of the ECJ, but also the jurisprudence itself, as part of the EU normative order, are subject to the constitutional review exercised by the Constitutional Court. If the practice of ‘progressive activism of the ECJ’ is not discontinued, the Constitutional Court will be legitimately entitled to exercise such review and directly assess the constitutionality of the ECJ’s rulings, ‘including removing them from the Polish legal system’. It should be emphasized in the context of this analysis that the arguments of the Constitutional Court have been construed with reference to the jurisprudence of the Constitutional Court pre-2016. Numerous references to that case law were used to justify the position of the Constitutional Court’s questioning, in particular, the understanding of the principle of primacy of EU law and principle of effective legal protection presented in the jurisprudence of the ECJ regarding matters concerning the Polish judiciary.

The Constitutional Court’s judgment in case K 3/21 has met with a widespread critical response, both in Poland⁷⁹ and abroad.⁸⁰ Shortly after the ruling, the Vice-President of the ECJ issued an order imposing a daily penalty for Poland in the amount of €1,000,000 for not suspending the application of the provisions of national legislation relating, in particular, to areas of the jurisdiction of the Disciplinary Chamber of the Supreme Court.⁸¹ The judgment of the Constitutional Court in case K 3/21 also became a bone of contention in negotiations between Poland and the EU concerning the National Recovery Plan (the approval of the NRP has been a condition to benefit from the EU Reconstruction fund). On 22 December 2021 the European Commission launched an infringement procedure against Poland because of serious concerns with respect to the Polish Constitutional Court's case law, i.e. its rulings in cases P 7/20 (as commented above) and K 3/21. The Commission considered that these rulings of the Constitutional Court were in breach of the general principles of autonomy, primacy, effectiveness and uniform application of EU law and the binding effect of rulings of the ECJ. Bearing in mind the position taken by EU authorities and experts in reaction to the Constitutional Court’s judgment in case K 3/21, the scale and intensity of its legal and political significance and consequences should be assessed as unprecedented for the relationship of the EU and its Member State.

In the context of this analysis it should be pointed out that the ruling of the Constitutional Court issued in case K 3/21 was consistent with the positions already taken by the Court in case P 7/20 as well as cases U 2/20 and Kpt 1/20, as were commented on above. From this perspective it can be reasonably predicted that this stance will be confirmed in three other proceedings currently pending before the Constitutional Court concerning the impact of EU law on the organization and functioning of the national judiciary (Cases K 7/18, K 5/21 and K 8/21).⁸²

In the doctrine, as well as in the submissions filed during the course of the proceedings,⁸³ a number of arguments were raised challenging the position of the applicants and, subsequently, the Constitutional Court's judgments in cases P 7/20 and K 3/21. Notwithstanding the formal arguments pointing out that the Constitutional Court should not engage in a substantive review of the motions filed,⁸⁴ the reasoning referred to principles fundamental for EU law and the relationship between the ECJ and national judiciaries. As has been argued⁸⁵ with reference to the jurisprudence of the ECJ,⁸⁶ although the organization of the administration of justice falls within the competence of Member States, when exercising it they are obliged to comply with obligations stemming from EU law, in particular with the principle of effective judicial protection. Contrary to the position of the applicants, the organization of the judiciary is not, viewed in the light of EU obligations, the exclusive domain of the Member States.⁸⁷ If national courts are to decide on questions relating to the application or interpretation of EU law, they must therefore comply with the requirements of the institutional guarantees set out in the principle of effective judicial protection. These guarantees are an integral part of the judicial protection of any rights which individuals derive from EU law. They remain at the heart of the rule of law, which is the cornerstone of the European legal space based on mutual trust and mutual recognition of judicial decisions.⁸⁸ Moreover, as has been indicated⁸⁹ the Constitutional Court judgments favorable to the request of the applicants would be irreconcilable with the ECJ’s jurisprudence concerning the right of the courts to issue a request for a preliminary ruling.⁹⁰ It has also been pointed out that the legal regime established as a result of changes made with respect to the Constitutional Court, the National Council of the Judiciary, and the Supreme Court—changes made in breach of the standards of the Polish Constitution as well as the requirements prescribed under EU law and the European Convention on Human Rights—is not part of the constitutional identity of the Republic of Poland. Constitutional identity with respect to the right to a fair trial results from Article 45.1 of the Polish Constitution, and the essence of that right (being the right to an impartial and independent court) corresponds to the EU principle of effective judicial protection. As has been pointed out by commentators, the purpose of the proceedings before the Constitutional Court was not to resolve any existing, real, irremovable contradiction between the standards of the Polish Constitution on the one hand and those of EU law on the other. The real aim was to provide cover for ordinary national legislation which lowered the standard of judicial independence below the level required by both the Polish Constitution and EU law. In this sense, the illusion of a contradiction between EU law and the Polish Constitution was artificially created.⁹¹ The permanent nature of the shortcomings of the national judicial authorities leads to an effect that is unacceptable from the perspective of the autonomy and effectiveness of EU law.⁹²

Nor can the position of the Polish Constitutional Court be justified in view of the jurisprudence of other apex courts of EU Member States which have been engaged in a conflicting track with the ECJ. It should be noted in this context that that the references to the case law of the constitutional courts of, i.a., Germany, Czech Republic, France, Spain as well as the Supreme Court of Denmark was part of the grounds in case P 7/20 and K 3/21.⁹³ According to the Constitutional Court its judgment fits within this line of judgments questioning the supremacy of the EU law and allowing for the judicial control of EU ultra vires acts. Such argumentation is entirely unfounded when one takes into account the context, merits, and effects of the constitutional conflicts as invoked by the Constitutional Court. Firstly, most of them remained in the declaratory stage. Notwithstanding the claim to the supremacy of a national constitution over EU law made by the constitutional courts, in concrete cases they managed to avoid a real conflict between the national constitutions and EU law.⁹⁴ Secondly, for the reasons indicated above (context, merits, and the effects of the constitutional conflicts), the cases where there was a real conflict between the Court of Justice and the apex courts of Member States⁹⁵ cannot be compared with the dispute between the Polish Constitutional Court and the Court of Justice. Generally, the conflicting judgments of the apex courts in other Member States concerned strictly-defined contentious issues that arose in the interpretations of the domestic constitution and EU law, mainly in particular areas of substantive law.⁹⁶ In Holubec case⁹⁷ the controversy referred to the pension rights of Czech citizens in a specific context after the dissolution of Czechoslovakia. The specifics of this first case in which the doctrine of ultra vires was actually applied by a national court were related to the very particular context of the Czechoslovak pension saga.⁹⁸ In the Ajos case⁹⁹ the dispute concerned the prohibition against discrimination on grounds of age. According to the Danish Supreme Court, the Danish Accession Act did not allow for unwritten general EU law principles, such as the prohibition against discrimination on grounds of age, to be applied directly and take precedence over national law in a dispute between private parties. In the PSPP judgment of the German Federal Constitutional Court of 5 May 2020¹⁰⁰—which was of particular relevance for the argumentation of the Polish Constitutional Court—the core of the dispute was the interpretation of the EU principle of proportionality. Notwithstanding its highly controversial rhetoric and questionable argumentation, the ruling of the German Federal Constitutional Court was in fact a call for more engagement on the part of the ECJ in the scrutiny of the proportionality of the ECB's acts.¹⁰¹ In sharp contrast to the above jurisprudence, the core of the dispute in the discussed cases of the Polish Constitutional Court was the Court’s challenge of the axiological foundations of the EU as expressed in Articles 2 and 19(1) of the TEU, in particular the rule of law and effective judicial protection for the individual, as well as the resulting guarantees of judicial independence. These principles can be considered as core to the EU's (constitutional) identity.¹⁰² The dispute over the content and scope of these principles that is taking place between the Polish Constitutional Court and the Court of Justice is therefore unprecedented vis-à-vis the other constitutional conflicts in the EU. For the first time the very axiological foundations on which the EU is based, as expressed in the Treaties and the jurisprudence of the Court of Justice, have been called into question. The axiological nature of this conflict is key to distinguishing the Polish case from the primacy disputes in other Member States. Moreover, when justifying the variance of the discussed case law of the Polish Constitutional Court with the conflicting rulings of other Member States apex courts one must also point out that before such conflicting judgments were issued by those courts, the Court of Justice had the opportunity to take its stance by issuing preliminary rulings.¹⁰³ Furthermore, the divergences between the jurisprudence of the constitutional courts of other Member States and the case law of the CJEU were of a temporary nature and were usually eliminated through changes in domestic law or the practice of legal (and political) actors. They did not result in a Member State challenging their fundamental duties of loyalty to the EU.¹⁰⁴

When looking at the above discussed cases from the perspective of the Constitutional Court’s jurisprudence pre-2016—which is the perspective of this analysis—the following reasoning can be added to the arguments presented above. From the Constitutional Court’s jurisprudence pre-2016 it can be inferred that it is the Constitutional Court, as the guardian of (the supremacy) of the Constitution, that shall decide—from the perspective of the Polish Constitution—on the scope of the interference of EU law into the Polish legal system. It was also confirmed in the Constitutional Court’s jurisprudence pre-2016 that in case of a collision between the rulings of the Court and the ECJ, the Constitutional Court shall retain the position of ‘the court of last resort’. However, an indispensable element of such jurisprudence was the Constitutional Court’s reference to the ‘axiological identity’ of Poland and the EU. As was stressed in the Court's jurisprudence, the Constitution of the Republic of Poland and EU law are based on the same shared values defining the nature of a democratic state, rule of law, and the catalogue and content of fundamental rights. The basis of full axiological compatibility encompasses the identical axiological inspiration of the EU and the Republic of Poland. The statements of the Constitutional Court concerning the ‘axiological identity’ of Poland and the EU were firmly grounded and justified in view of its jurisprudence pre-2016, including the jurisprudence concerning EU matters, which expressed the development of (the principles of) liberal democracy in Poland. From such a perspective, it can be argued that in order to remain consistent with its case law pre-2016 the Constitutional Court should remain open to the emerging line of judgments of the ECJ concerning the standards of justice in the EU, construed through the prism of Article 2 TEU.¹⁰⁵ That would require that the Constitutional Court accepts that the axiological basis of the organization of the administration of justice in a Member State falls within the scope of EU law, and it would not question the scope of application of EU law as determined in the (future) rulings of the ECJ. Any potential doubts in this respect should be resolved on the basis of preliminary proceedings.¹⁰⁶ Such a position could be achieved by a consistent interpretation of the relevant constitutional provisions as viewed through the notion of the axiological identity of Poland and EU.¹⁰⁷ From the Polish constitutional perspective, this interpretation could be supported by the principle of favourable predisposition towards the process of European integration. Such an approach would express the Constitutional Court's trust in the axiological foundation of the EU's composite constitutional order. In view of this proposed argumentation, the requests for Constitutional Court rulings in the cases discussed above could not be granted positive consideration. The decision on whether or not the organization and functioning of the national judiciary are subject to the EU standards of justice would have to be left to the ECJ.

5 Conclusions

The analysis proposed in this article has been focused on the position of the Polish Constitutional Court in relation to the ECJ. The cut-off date for such analysis has been determined by the constitutional crisis in Poland, whereby the systemic position of the Constitutional Court has been challenged. As has been argued, the constitutional crisis (which began at the end of 2015) resulted in a new model of constitutional adjudication in Poland—in this new model the Constitutional Court, stripped of its counter-majoritarian power, cannot be perceived as the guardian of liberal democracy. Such a change in the role of the Constitutional Court has resulted in a shift in the direction of the Court's case law in European matters, in particular with respect to the ECJ. The jurisprudence of the Polish Constitutional Court after 2015 remains in line with the policy of the Polish authorities to question, on the grounds of national sovereignty, the ECJ's evolving case law on the EU standards of justice, centred on particular aspects of the rule of law. It has been argued here that the point of reference for the assessment of any rulings of the Constitutional Court in the regarded area can/should be provided by the jurisprudence of the Constitutional Court pre-2016.

The case law of the Polish Constitutional Court referring to the ECJ has developed over the course of more than a decade. The crucial viewpoint in the position of the Constitutional Court was, on the one hand, to stress the need to preserve the supremacy of the Polish Constitution over EU law, and—on the other—to recognise the role of the ECJ in the legal system of the European Union and remain open to a dialogue between the two Courts. This openness to a dialogue with the ECJ was confirmed in the Constitutional Court's case law regarding the preliminary ruling procedure and recognition of a conforming interpretation as a means of effecting a constitutional discourse between the ECJ and the Constitutional Court. It should be noted that, notwithstanding some controversies, the jurisprudence of the Constitutional Court pre-2016 with respect to the ECJ was coherent and consistent, based on clearly articulated principles and concepts, like the supremacy of the Constitution, the axiological identity of Poland and the EU, and the recognition of the role of the ECJ as the only court competent to rule on the validity and interpretation of EU law. As has been argued here, the relationship between the ECJ and the Constitutional Court pre-2016 can be conceptualized through the lens of constitutional pluralism, in particular in its ‘dialogical version’. The important condition for such a conclusion was recognition that the Constitutional Court's jurisprudence pre-2016 fulfilled a crucial requirement of the constitutional pluralism, i.e. compliance with the principles of liberal democracy. From this perspective the statements of the Constitutional Court concerning the ‘axiological identity’ of Poland and the EU were firmly grounded and justified. The Polish Constitutional Court’s jurisprudence pre-2016, including the Court’s jurisprudence concerning EU matters, expressed the development of (the principles of) liberal democracy in Poland—being at the same time the axiological aim and aspiration of the constitutionalism of the EU. The jurisprudence of the Constitutional Court provided the solid basis for dialogue with the ECJ, whereby such a dialogue remained within the process of building the composite constitutional order of the EU.

From the perspective of the Polish Constitutional Court’s jurisprudence pre-2016, one can identify and assess the current shift in the Court’s case law as regards European matters, and in particular the ECJ. Such a development leads to the conclusion that the standards and principles elaborated in the Constitutional Court jurisprudence pre-2016 with respect to the role of the ECJ have been undermined. That is notwithstanding the numerous references to the juriprudence of the Constitutional Court pre-2016 in the current case law of the Court. The same words and concepts (such as the primacy of the Constitution; the principle of protection of state sovereignty in the process of European integration; the constitutional identity; the principle of sincere cooperation between the EU and the Member States)—when deprived of the shared axiological context—gain different meanings and lead to different results. In the jurisprudence of the Constitutional Court pre-2016 they were expressing the pluralist vision of the EU legal order, based on the assumption of the axiological identity of the EU and national legal orders i.e. commonly-shared values of liberal democracy. Only based on such an assumption could the relationship between the two Courts—the Polish Constitutional Court and the ECJ—avoid a conflicting track and be shaped through a cooperative (dialogue-based) model. After 2015 the same constitutional concepts have been engaged in the process of legitimizing the acts adopted by the parliamentary majority and as tools to confront the EU institutions, including the ECJ. Moreover, as has been argued above, the employment by the Polish Constitutional Court of the notions constituting the core of the liberal constitutional order, such as the rule of law, democracy, separation of powers, and the right to a fair trial, may be deemed to constitute an example of abusive constitutional borrowing, being a part of a broader phenomena of abusive judicial review. This aspect of the erosion of the liberal democratic constitutional order—bearing in mind the position and role of a constitutional court within its structure—raises particular concerns. The recent judgments of the Constitutional Court discussed herein have brought about a serious threat not only to the relationship between the Polish Constitutional Court and the ECJ, but to the position of Poland as an EU Member State. Such changes can and should be analysed and assessed in view of the change of the systemic position of the Constitutional Court within the constitutional system in Poland. In particular, as has been argued the current jurisprudence of the Constitutional Court and, more generally, its relationships to other state authorities, breaks with the assumptions of liberal constitutionalism and liberal democracy which were foundational for the jurisprudence of the Polish Constitutional Court pre-2016. These factors decisively determine the position of the ECJ in the current case law of the Polish Constitutional Court, as well as the expectations as to the future direction of its rulings with respect to EU matters.