Poland’s Constitutional Tribunal, or court, (TK) cannot be considered impartial and independent, according to the Advocate General of the European Court of Justice (ECJ).
The pronouncement has been met with a rebuttal by the Polish court.
Advocate General Dean Spielmann proposed on March 11 that the ECJ should declare that Poland has failed to fulfil its obligations under European Union law.
His written opinion was issued in response to a complaint by the European Commission against two judgments issued by the TK in 2021.
At that time, the Polish court had ruled that the country’s Constitution had precedence over EU law, a ruling critics claimed meant Poland was exiting the EU’s legal order.
The EC argued that the TK was undermining the primacy of EU law and, in addition, questioned the legitimacy of judicial appointments to the court. It argued that as a result, the TK “no longer satisfies the requirements of an independent and impartial court”.
That challenge was based on the disputed election of three out of the 15 constitutional court judges in 2015 when the then-incoming Conservative (PiS) government annulled the election of three judges to the TK made by the previous parliament, on procedural grounds.
The dispute marked the beginning of the disagreement between European institutions and the then-Polish government over a whole raft of judicial reforms the PiS introduced in the period 2015-2020.
They included the election of the National Judicial Council, the body that recommends judges for appointment, by parliament rather than by the judges themselves.
EU institutions argued that the changes made by PiS politicised the judiciary, making it less independent than had previously been the case.
“There is no doubt that by its judgments, the TK launched a frontal attack on the fundamental principles of the EU legal order and the authority of the judgments” of the ECJ, Spielmann wrote, siding with the EC view.
“Their infringement cannot in any case be justified by provisions of national law, including those of a constitutional nature.
“Similarly, invoking the constitutional identity of the Member State cannot call into question the fundamental principles of EU law,” concluded Spielmann.
An advocate general’s opinion is not binding on the ECJ, although the court has usually issued rulings in line with such standpoints.
Spielmann said it remained for the ECJ to “settle definitively any conflict between EU law and the constitutional identity of a Member State”.
He added that he considered the appointment of three judges to the TK in December 2015 and of its chief justice in 2016 to have been “characterised by several irregularities which may be classified as manifest and serious”.
According to him, that meant the TK “cannot be regarded as an independent and impartial court established by law within the meaning of EU law”.
The PiS government had argued that the EC was exceeding its powers, as the organisation of the judiciary was a competence of the member states. It pointed to the fact that similar judicial arrangements with participation by the executive and the legislature operated in other member states such as Germany and Spain.
The TK issued a statement criticising Spielmann’s opinion that the court had instigated a “rebellion” against EU law.
In its statement, the TK said that “all verdicts issued by the TK were taken in accordance with Poland’s Constitution and laws”.
The Polish court then stated that the Advocate’s General statement constituted “a blatant attempt to interfere in the exclusive powers of the TK”.
The Polish Constitution makes the TK the final arbiter regarding the constitutionality of all legislative and executive actions.
According to the Constitution, the majority of the 15 justices are elected for fixed terms of six years duration by the Polish parliament and the remainder are appointed by the Polish president.
The current centre-left government of Prime Minister Donald Tusk, which came into office in December 2023, has from the outset challenged the legitimacy of the TK on the basis of the EC’s challenges and ECJ’s rulings on the legitimacy of some of the judges.
The Tusk government recently passed a resolution that stated it would not recognise any rulings of the TK as the court was not properly constituted. The administration has proposed legislation that would remove all the present 15 justices from the court and replace them with ones freshly elected by the present parliament.
The Council of Europe’s advisory body, the Venice Commission, has advised that such a move of treating all judges in the same way despite their method of selection or election was “questionable”.
The PiS-aligned President Andrzej Duda has publicly stated that he would not sign such legislation as he considered it blatantly unconstitutional.
