The Polish Constitutional Tribunal has struck down changes to legislation covering the disciplining of judges that had been agreed between the outgoing government and the European Commission. The agreement was designed to unlock frozen funds.
The court ruled on December 11 that the legislation on the independence of judges contravened Poland’s Constitution.
The legislation was initially approved to satisfy the EC and free up billions of euros in post-COVID pandemic funding that had been held up over a rule-of-law compliance dispute between Warsaw and Brussels.
The decision taken by the court could hamper the new coalition Government’s plans to unblock the funds.
The Constitutional Tribunal’s ruling came on the same day the eight-year rule of the Conservative PiS ended. The party had been accused of “politicising” the judiciary and stacking the court with its supporters.
Ousted leader Mateusz Morawiecki’s government was rejected by the Polish Parliament, paving the way for a new pro-EU Government under Donald Tusk, a former Polish prime minister and a former European Council president.
Poland is expecting to receive a total of €59.8 billion, made up of €25.3 billion in grants and €34.5 billion in loans from the EU’s pandemic relief fund, under Warsaw’s National Recovery Plan.
Brussels has said that before these funds could be accessed, Poland must meet a series of rule-of-law “milestones”, including full compliance with an EU court ruling requiring the country to amend its procedures for disciplining judges.
As that milestone has not been reached, the new Tusk Government will have to satisfy the EC in other ways.
Earlier on December 11, the tribunal ruled that fines issued against the country by the European Court of Justice (ECJ) were contrary to the Constitution.
That move looks set to complicate the stand-off between Warsaw and Brussels over rule-of-law compliance issues, even though the incoming Government in Warsaw is likely to be more accommodating to both the ECJ and to the EC.
The ruling stemmed from a case brought by Zbigniew Ziobro, the justice minister and public prosecutor general during PiS rule.
Ziobro argued that fines issued against the country for failing to comply with two interim European court rulings, one to suspend activities at the Turów coal mine and one suspending the functioning of the disciplinary chamber of the Supreme Court of Poland, were illegal and therefore Poland should not pay the penalties imposed.
The EC has been docking the money due from Poland’s EU funds for months and the Polish court’s ruling is unlikely to affect that.
The tribunal ruled in favour of Ziobro’s petition finding that article 279 of the Treaty on the Functioning of the European Union and article 39 of the ECJ’s statute, both used to justify the fines against Poland, are incompatible with the Polish Constitution.
The court is not questioning the right of the ECJ to levy fines, only its right to levy interim measures in the form of financial penalties before actual verdicts are arrived at.
According to the Polish court, the basis for imposing such penalties could only be via an actual judgment of the ECJ as defined by EU treaties, rather than a ruling by an individual judge.
As well as locking horns with the ECJ, the Polish court looks to be heading for conflict with the new Polish Government. The incoming administration disputes the validity of the appointment of three of the constitutional court judges and also argues that the term of office of the chief justice Julia Przyłębska has expired.
In 2021 the Constitutional Tribunal found elements of EU treaties to be unconstitutional. It has also ruled that the Polish Constitution takes precedence over those parts of European law that are inconsistent with the Constitution’s provisions.
The EC response to these judgments has been to launch legal action against Poland for alleged violations of EU law by the Polish constitutional court.