The European Court of Justice (ECJ) has sided with the European Commission and the Polish Government in ruling that Poland’s Constitutional Court (TK) does not meet EU standards of independence and impartiality.
Today’s ECJ decision aligning with with EC marked a landmark case over the rule of law in Poland.
Prior to the current centre-left government led by Prime Minister Donald Tusk, the Conservatives (PiS) in its two terms from 2015 to 2023 introduced judicial reforms disputed by the then-liberal opposition and which Brussels claimed undermined the rule of law.
The ECJ justices found the appointment of three Constitutional Court (TK) members in December 2015 and that of the former chief justice of the court in December 2016, violated Poland’s legal provisions governing judicial nominations. As a result the TK was no longer an independent and impartial court.
The ruling concerned the TK’s rulings on July 14 and October 7, 2021, which challenged the primacy of European Union law and the authority of EU court rulings.
The EC filed its complaint in 2023, arguing that Poland had breached its obligations as an EU member state.
ECJ justices in their judgement today said Poland could not invoke its constitutional identity to avoid respecting shared EU values enshrined in Article 2 of the EU treaty, including the rule of law, effective judicial protection and judicial independence.
“These values form the legal basis of the Union’s identity, which Poland joined voluntarily,” the EU’s top court stated, adding that member states cannot withdraw from binding obligations after accession.
It also ruled that national courts cannot unilaterally define the limits of EU competences, which fall under the exclusive authority of EU courts.
Disputes over those limits, it said, must be resolved through dialogue with the Luxembourg-based ECJ, including preliminary rulings.
Its ruling also found that the TK breached EU law by refusing to respect earlier rulings of the ECJ, citing the Polish Constitutional Court’s rulings in 2021. Those denied Polish courts the authority to review the legality of judicial appointment procedures, including recommendations made by the National Council of the Judiciary (KRS).
The KRS is another body the ECJ and the Polish Government have ruled illegitimate as it was elected by parliament rather than judges, even though Poland’s Constitution does not determine the method of election of the KRS.
By fully upholding the EC’s complaint, the ECJ concluded that Poland had violated its obligations under EU law, giving the EC the authority to impose financial penalties if Poland fails to comply with the judgment.
The TK, which rules on the validity of laws and is currently dominated by judges appointed during the lifetime of the PiS government, has rejected the notion that European law has primacy over Polish law.
In a statement issued in response to the ECJ’s ruling today, the Constitutional Court questioned the legitimacy of the ruling as being based on the false premise that European law has primacy over Polish law.
“The ECJ decision has no impact on the functioning of Poland’s constitutional organs and was taken outside the competences of the court.
“The ECJ does not have the power to assess the Polish constitution or its constitutional court,” reads the TK’s statement.
“The highest law of the land in Poland is the constitution and not international law. Poland did not renounce that on joining the EU and did not transfer to EU institutions powers over its judicial system,” it said.
The court added it had ruled in this way back in 2005, 10 years before the rule-of-law dispute broke out between the EU and Poland.
Many EU member states, including Germany, do not accept the absolute primacy of EU law over national law and their constitutional courts have been known to review and reject European laws as being in violation of domestic constitutions.
The last PiS government argued that, like Italy, Denmark, Czechia and France, Poland maintains that the issues concerning the organisation and structure of the judiciary fall within the exclusive competence of each EU member state.
Commenting on the ECJ ruling, Łukasz Bernaciński, a board member of conservative legal think-tank Ordo Iuris, said the “ECJ is once again undermining Poland’s constitutional order and acting outside of the powers granted to the EU in treaties”.
“Under the pretext of enforcing rule of law provisions the ECJ has carried out a de facto systemic review of a national constitutional court: Its composition, the method of appointing judges and its position within the domestic constitutional order,” he added.
PiS MP and former justice deputy minister Sebastian Kaleta said the ECJ “has just forbidden Poland to apply its constitution by asserting that in all matters it has the final word which constitutes a direct challenge to Polish sovereignty”.
The present Tusk government has so far failed in its efforts to make changes requested by the EU prior to it taking office in 2023. That is despite the EC having unblocked Polish post-pandemic and structural EU funding in the wake of Tusk’s arrival in office.
Justice minister Waldemar Żurek has, though, recently announced that he was only waiting for the ECJ ruling before pushing ahead with changes to the court. They included the appointment of new judges to the court and he immediately welcomed the ECJ’s decision as vindication of the government’s refusal to recognise the present Constitutional Court as being legitimate.
But the opposition PiS-aligned President Karol Nawrocki has already blocked judicial appointments proposed by the government on the grounds that he will not support the promotion of judges who have challenged the status of other judges. He said the decision on who is a judge is ultimately one that the Constitution reserves for the head of state.
The President has also stated that he is answerable to Polish voters and the Polish Constitution and not to European courts or the European Commission. He criticised the frequent challenges made by the government and its allies to the legitimacy of judges who were appointed by his predecessor President Andrzej Duda.
Nawrocki is, therefore, unlikely to accept the nomination of judges whom he believes do not respect Polish constitutional norms.
That will likely lead to more problems for Poland’s judicial system, which is already suffering from disputes over the validity of court rulings issued by judges who were appointed during the time of the last PiS government.
