There are many “signs of the times”, which show clearly that, unfortunately, Poland – just as, equally unfortunately, other countries as well which became Member States at the time of the “great enlargement” in 2004, particularly Hungary – wanted to accede to the European Union not so much because it felt “part” of the “European Family”.
- But – and indeed primarily – for reasons of “protection” from the, certainly according to the opinion of its decision-makers over time, Russia’s “threats” against it. In other words, Poland felt and believed that the “Cold War” had not been over yet nor had, consequently, “vanished” the “dangers” against it deriving therefrom. With this regard, there are in addition from time to time many examples of its policies, which prove that it has never been fully “acclimatised” to the general spirit of the “European Family” and, consequently, never managed – more correctly never really wished – to accept and integrate, to the full, inter alia the European Acquis as well.
- The Judgment of the Polish Constitutional Tribunal, of October 7, 2021 came to put a “big stamp”, with clear and self-evident governmental guidance according to the outlined below, to this, almost constant, evidently “heretical” mentality of Poland. A “slap in the face” Judgment for the prestige of the Court of Justice of the European Union (CJEU) and, in essence, for the normative force of the European Law itself in globo, as well as of the European Legal Order based on it. Deep down, however, it is a “slap in the face” Judgment for the prestige of the European Union itself. A Judgment which renders, automatically, Poland a “stranger” within the European Construct. To the point indeed that many today foresee that Poland has, on its own “initiative” and of its own doing, opened the “exit door” from the European Union. This is the way that “Brexit”, on the one hand, was caused by an, adventurous but also controversial, referendum. “Polexit”, on the other hand, can be “launched” having as a starting point a simple court decision, even if this is the “work”, of course following a governmental “order”, of the Constitutional Tribunal of Poland.
I. The Background: When the “Steep Sloping” of Poland’s Democratic “Downhill Way” Began
“Springboard” of the according to the above dramatic developments in Poland, which bring it to a direct “confrontation” with the European Union – and primarily with the CJEU – was its so-called “Judicial Reform”, from 2015 onwards.
A. When Justice Becomes a “Servant” to the Executive Power
It was when the Polish Government, invoking – of course in a totally pretextual manner – “malfunctions” in Justice in the form of delays and “unjustifiable” reactions against the governmental policy, brought to the Parliament and managed to pass a series of provisions, through which the Executive Power could now intervene, freely and without any kind of substantial control, to many of Justice’s interna corporis.
1. The “Reform” of the Organization and Functioning of the Judiciary
At first, the Republic of Poland in order to better control the Supreme Court (Sąd Najwyższy) adopted the New Law on the Supreme Court, in breach of the principle of judicial independence and, in particular, of the principle of the irremovability of judges, under which it was provided the measure of lowering the retirement age of judges in post who were appointed to that court before 3 April 2018, the date on which that Law entered into force and furthermore was granted to the President of the Republic the discretion to extend, twice, each time for a 3-year term, the period of judicial activity of judges of the Sąd Najwyższy (Supreme Court) beyond the newly fixed retirement age. Beyond that the most provocative of those provisions concerned the establishment and organization of a “disciplinary body”, within the Supreme Court of Poland. A body, the functioning of which had as a primary objective the manipulation of judges in exercising their jurisdiction, each time the precedent, deriving from their decisions, could call the “legitimacy” of the choices of the Executive Power into question. How and why the aforementioned “disciplinary body” was, literally, a “puppet” to the Government of Poland resulted from the way of its members’ selection, but also from the fact that no way of control, judicial or even of another form, of the process of the aforementioned selection was institutionalized. Besides, this body was found, as to the way of its establishment and its composition, contrary to the provisions of the European Convention on Human Rights, by a Judgment of the European Court of Human Rights of the Council of Europe of July 2021.
2. The Provisions on the Retirement of Judges and Public Prosecutors
Even worse, with a law of June 12, 2017 the Polish Government decided, suddenly and arbitrarily, to lower the retirement age of judges of the ordinary courts and of public prosecutors. As well as to lower the early retirement age of the members of the Supreme Court of Poland, to 60 years for women and 65 years for men, from 67 years previously set for both sexes. Moreover, by the same law the Minister of Justice was “authorized” to extend, “at will”, the limits of the active service of judges in the frame of the functioning of the ordinary courts beyond the, according to the above, newly fixed retirement age.
B. The Reaction of the Court of Justice of the European Union
Just as expected – given that such a “reform” of the organization and functioning of the Judiciary in Poland exceeded every limit set by the provisions of the, primary, European Law with regard to the Separation of Powers and, furthermore, the Rule of Law – there was a series of appeals before the CJEU, especially from the European Commission. For example:
1. The Judgment of the CJEU of June 24, 2019
The European Commission brought an action to the CJEU against Poland, claiming that the aforementioned “reforms” of the Polish Government directly infringed, inter alia, also the status of personal and functional independence of judges of the ordinary courts and its Supreme Court. The CJEU, with its Judgment of June 24, 2019 (C-619/18) held that the contested provisions of the Polish legislation violate, directly, inter alia, the provisions of the second subparagraph of Article 19 (1) of the Treaty on European Union (TEU) as well, on the basis of which the Member States have to “plan” the appropriate judicial remedies and means, which are necessary to ensure legal protection in the fields covered by Union Law. And this because in these cases the National Judge is also a European Judge, “in charge” with guaranteeing the implementation of European Law in its letter and spirit, and notably in a way in which the cohesion of the European Legal Order is not imperiled. A cohesion, which in the end is secured by the CJEU, through its case law, according to the provisions of the first subparagraph of Article 19 (1) TEU: “[The Court of the European Union] shall ensure that in the interpretation and application of the Treaties the law is observed”.
2. The Judgment of the CJEU of November 5, 2019
However, the European Commission brought an action to the CJEU against Poland and against the substance of the above provisions on the limits in the retirement age of judges, as well as on the discretion of the Minister of Justice to extend, at will, those limits. The CJEU, with its Judgment of November 5, 2019 (C-192/18), held that these provisions are contrary to those of Article 157 of the Treaty on the Functioning of the European Union (TFEU) and of Directive 2006/54, which lay down on the one side the principle of equal pay between men and women for equal work. And, on the other side, the principle of equal treatment for men and women in occupational social schemes. Moreover, the CJEU rejected the claim of Poland that the, according to the above set, different retirement age limits between men and women constitute, allegedly, “positive action” measures. With its same Judgment the CJEU also held that the “reform” provisions that grant the Minister of Justice discretion to extend, without any control, the aforementioned limits of retirement age are directly contrary to the European Law. In particular, in this case the CJEU, in line with its aforementioned Judgment of June 24, 2019, ruled that such a competence of the Minister of Justice violates the provisions of the second subparagraph of Article 19 (1)) TEU, the regulatory content of which was discussed just above.
ΙΙ. When the Constitutional Tribunal of Poland “went beyond the limits” of the European Law and the European Acquis
The “response” of the Polish Government to the aforementioned CJEU case law – consequently, its “response” to the European Union itself – cannot be considered as “coming as a shock”. The “decision-makers” in Poland, at the level of the Executive and the Judicial Power, had already given many “tangible” “examples” of defiant contempt for European Law and the European Acquis in the past, recent and distant. All the more so when it is certain that, when they established the controversial “reform” for the organization and functioning of the Judiciary, they were well aware of its opposition to fundamental provisions of the European Law. And they undertook this “project” in a way that showed that they were seeking, almost, the confrontation with the CJEU and the European Union, in the context of a kind of institutional and political “settling of scores”. What followed in Poland “bears ample witness to this”.
Α. An Unprecedented “Methodology” against the CJEU and the European Union
The Government and the Judiciary in Poland – in fact at the level of the Polish Constitutional Tribunal – undertook an unprecedented “methodology” to express their absolute opposition to the CJEU and the European Union, focusing on the hierarchical, regulatory, relationship between European and National Law. More precisely, the Government and the Judiciary in Poland chose the path of “direct” confrontation with the CJEU, clearly demonstrating that they stay in the European Union under the conditions that Poland wishes to impose. What is the worst, Poland seems to, conspicuously, ignore that a possible acceptance of its conditions leads, almost inevitably, to the fundamental undermining of the European Unification, and, therefore, of the European Integration.
1. The “Obscure” Link between Government and the Judiciary
It all started, in this case, upon the initiative of the Polish Government, as if it wished to show to the European Union who has “the upper hand”. “Utilizing” the provisions of Polish law, Poland’s Prime minister Mateusz Morawiecki – with the well-known and “declared” anti-European Prime minister of Hungary Viktor Orbán as self-appointed “applauder” – “appealed” before the Constitutional Tribunal of Poland against the CJEU and the European Union. And it asked this Tribunal to “rule” as to which is the normative hierarchy between European and National Law, and more in particular between European Law and the Constitution of Poland. This action had all the characteristics of an obvious – but also repulsive, as concerns the Separation of Powers and the Rule of Law – “collusion” between the Executive and the Judiciary in Poland. And this is so because “everyone” knows, “intra” and “extra muros”, that the Polish Constitutional Tribunal lacks, at least as concerns the vast majority of its members, independence from the Polish Government. Suffice it to note that its President, Julia Przyłębska, is considered a close associate of the President of the ruling party (PiS) in Poland, Jarosław Kaczyński.
2. An Expected “Verdict”
The Polish Constitutional Tribunal had not any reservations at all to confirm, in an almost “solemn” way, that it was trying, in this case, by government “order”. Since June 2021 it met four times, not so much on what it would decide but rather to ensure the largest possible majority in favor of the Government’s “wishes”. The “fulfilment” of the Government’s “expectations” on behalf of the Polish Constitutional Tribunal was achieved, “at last”, on October 7, 2021, when by a “very large” majority (12 to 2) not only did it decide that the National Law – and more in particular the Constitution of Poland – has primacy over the European Law, even the primary. But it also “proposed” to the Polish Government to organize a kind of special system of judicial review of the rules of the European Legal Order by the Contitutional Tribunal of Poland, as concerns their “conformity” with the Constitution of Poland.
Β. The “Crucial” obiter dicta of the Judgment of October 7, 2021 of the Constitutional Tribunal of Poland
The aforementioned Judgment of the Constitutional Tribunal of Poland is a form of “war communiqué” against the CJEU, its case law and, finally, the entirety of European Law and the European Acquis.
1. The Full Reversal as to the Relationships between European Law and National Law with regard to the Hierarchy of their Normative Force
The Constitutional Tribunal of Poland has reversed fully, directly and overtly, what was in force until now in the Legal Order of the European Union and its in principle relations with the National Legal Orders, according to the CJEU case law. Adopting as main proposition of its legal reasoning the “doctrine” of primacy, in general, of the Constitution of Poland, it finally held, according to its main rationale, that the aforementioned CJEU Judgments, condemning Poland, are not binding within the Polish Legal Order. And this, because the CJEU Judgments are interfering “arbitrarily” with the Polish system of organization and functioning of the Judiciary, violating the, according to the above, principle of primacy of the Constitution of Poland over the European Law, especially as concerns the areas of the Rule of Law and the rule of maintaining Poland’s sovereignty in the framework of the European Integration process. Moreover, and as already discussed, the Constitutional Tribunal of Poland has taken another step towards challenging the primacy of European Law. And it did so, as pointed out, by “proposing” to the Polish Government to organize a special system of review of the “constitutionality” – always on the basis of the Constitution of Poland – of the provisions of the European Legal Order, as included in the Regulations, Directives and all relevant decisions of the European Union institutions. This is because, according to the Constitutional Tribunal of Poland, the competences as far as the structure and functioning of the system of organization of the Polish Judiciary, were not transferred to the European Union institutions – therefore, neither to the CJEU – upon Poland’s accession to the European Union. This “claim” of the Constitutional Tribunal of Poland leads, inter alia, to the unprecedented and completely inappropriate conclusion that the Judiciary in Poland has jurisdiction without any control by the CJEU, even when it interprets and applies European Law itself, primary and secondary. That is to say, even when it has jurisdiction as a judicial body, empowered by the European Legal Order to ensure the normative enforcement of its rules.
2. The Reactions and the Concequences
The reactions against this Judgment of the Constitutional Tribunal of Poland were instant and angry, as expected. Mostly the reactions by the European Commission. Of particular importance are, however, the reactions “from within” in Poland, such as the one of the eminent Professor of European Law at the University of Warsaw, Robert Grzeszczak. It is characteristic – and very representative of the concern of the serious actors of the, lato sensu, public life in Poland – that Robert Grzeszczak pointed out that the Constitutional Tribunal of Poland, by its abovementioned Judgment, is not only creating a “gap” between Brussels and Warsaw. Α fortiori, it plunges, literally, Poland into a “black hole” within the political and institutional system of the European Union. A “black hole”, which marks the beginning even of Poland’s exit from the European Union. Given that the Constitutional Tribunal of Poland is, as repeatedly pointed out, an “obedient instrument” to the instructions of the Polish Government, the issue is whether the looming “Polexit” will be due, ultimately, not to the European Union’s will but to the Polish Government itself. Which, in this “crude” – institutionally and politically – way, probably opened, on its own exlusive initiative and of its own doing, the door of Poland’s exit from the European Union.
Irrespective, nevertheless, of the consequences for Poland itself – which bears, to the full, the responsibility of its actions as concerns its extremely doubtful, now, European perpective – the main issue is that the Judgment of October 7, 2021 of the Constitutional Tribunal of Poland “operates directly”, as already pointed out and documented, against the European Union, to the extent it undermines, clearly, inter alia the European Unification and, therefore, the European Integration.
Α. As I have recently pointed out, repeatedly – see, in particular, my article on the decision of the French Council of State (“Conseil d’Etat”) of April 21, 2021 (in: constitutionalism.gr, 16.6.2021) – it is not the Constitutional Tribunal of Poland that first opened this “slippery” slope of a form of dangerous confrontation between the European Law and the National Law and the ensuing calling into question of the CJEU’s jurisdiction. It was preceded, in particular, on the one hand by the Constitutional Court of the Federal Republic of Germany (BVerfG), especially with its Weiss decision, of May 5, 2020. And, on the other hand, by the French Council of State (“Conseil d’Etat”), mostly with its decision “French Data Network et autres”, of April 21, 2021. And it cannot be considered a coincidence that the Constitutional Tribunal of Poland issued its controversial Judgment – following many meetings, as it has already been specified – on October 7, 2021. That is, when courts of undisputed institutional “weight”, such as the BVerfG and the “Conseil d’Etat”, had already “had their saying” in calling into question the European Law and the CJEU jurisdiction.
Β. Now, therefore, that the “storm” has already broken out over the European Construct, “hitting” the perspective of European Unification, and being more than obvious that many Supreme Courts of EU Member States are not – quite to the opposite – willing to launch a honest and productive jurisprudential dialogue with the CJEU in order to ensure the cohesion of the European Legal Order, it becomes, without any doubt, clear also the following: As long as the European Union does not have, at the basis and at the top of its Legal Order, a “European Constitution” – that is, a Charter of increased formal power, in accordance with the traditional example of the Member States’ Constitutions – the path towards the European Unification and the European Integration will be “marking time”. Even worse, it might follow a course of – de facto fatal – regression. It is well known, of course, how difficult appears today the task of establishing a, quasi-formal, “European Constitution”. However, if we do not assume the historic responsibility of carrying out such a task, by insisting on hesitations – often clearly hypocritical – about, supposedly, “insurmountable difficulties”, we will then bear, collectively and proportionately, the burden of the definitive abndonment of the “vision” of the European Unification and the European Integration. Let us consider this as well: If the “fathers” of the creation, after World War II, of the then “European Communities”, with the ultimate goal of the full European Integration, had such hesitations, then never would the construction of today’s European Union have been achieved. It would simply refer, metaphorically, and in purely historical terms, to the “unreal conditional” according to the grammar and syntax.