Polexit or judicial dialogue?

For anyone following public law, EU law, Poland and the rule of law in the EU, the third week of July was wild. A series of events unfolded in Warsaw and Luxembourg, adding to the saga of Polish rule of law travails before courts. The flurry of court hearings, judgments, interim orders, reactions, and counter-reactions left academics, researchers, officials and journalists confused, not to mention the general public trying to make some sense out of it all. So, what exactly happened?

The week began with the Polish Constitutional Tribunal hearing two cases directly related to the relationship between the EU law and Polish constitution. By now, readers of Verfassungbslog likely know well what the current state of the Polish Constitutional Tribunal is. It has been captured by the government, there are unlawfully appointed judges sitting there (as confirmed by ECtHR in the Xero Flor judgment) and the legal status of its leadership is dubious, too. While the Tribunal is, on occasions, capable of issuing a proper ruling handed out by judges whose legal status raises no controversy, this is not the case with politically motivated cases it heard in the first half of July.

Dubious judges, real damage

The first of those was the case K 3/21, brought on application from Prime Minister Mateusz Morawiecki. In his massive 129-page application lodged in this case, the Prime Minister seeks for the Court to find that some of the core elements of the principle of primacy of EU law – such as the judges being able to disregard a domestic law that is not compatible with EU law and to use a prior domestic law that raises no such concerns – are incompatible with the Polish Constitution. Needless to say, this could have the potential effect of upending the entire functioning of EU law in Poland.

The hearing in this case, held on 13 July,  went accordingly to expectations. First off, the Tribunal, represented in this case by a 5-person panel led by the President Julia Przyłębska, has rejected the request from the ombudsman Adam Bodnar with regards to expanding the panel of judges in this case to the full composition of the court owing to the gravity of the judgment. Bodnar’s request was well-founded at face value, but the added twist is that ruling this case in full composition would entail involving the Vice-President of the Tribunal, judge Mariusz Muszyński – found by ECtHR to be unlawfully installed in the Xero Flor case, as well as two other judges whose status is dubious, as they were appointed to replace departed judges who shared the same situation with regards to their appointment as Muszyński. In light of the Xero Flor ruling and possibly other incoming judgments of CJEU and ECtHR regarding the Polish Constitutional Tribunal, having the case decided by a full panel could have major implications down the road with regards to the legality of the ruling.

The actual hearing went pretty much along the expected lines. The representative of the applicant, fully supported by agents of the parliament (Sejm, the lower chamber controlled by PiS), the President and the Prosecutor General/Minister of Justice elaborated on the primacy of the Polish constitution, the subsidiary character of EU law, constitutional identity and pluralism, with multiple references to rulings from courts in other Member States, chiefly to the PSPP ruling from German Federal Constitutional Court with praise for the perceived role of Karlsruhe in defending national legal order against the overreach of Brussels. These arguments were, for the most part, attempts to bend facts into political agenda and to cherry-pick foreign developments as they suited the applicant. Nevertheless, it has probably not been the best week for the enduring legacy of FCC and its former President Andreas Voßkuhle. The sole Polish institution challenging these views was the ombudsman, on his literal last legs as Adam Bodnar’s tenure was set to end on 14 July in line with an earlier ruling of the Polish Constitutional Court. Following the hearing, the case was initially adjourned until Thursday, 15 July with the Tribunal set to hand out its verdict on that day.

Real-time dialogue of punches

The second crucial EU law related hearing that week at the Polish Constitutional Tribunal happened the next day, 14 July. This one, P 7/20, was brought on application from the Disciplinary Chamber of the Polish Supreme Court. It is the very chamber that is the subject of multiple cases before CJEU and ECtHR. Most important for last week’s events are two CJEU cases: infringement case C-791/19 Commission v Poland, concerning the pre-“muzzle law” status of that chamber, which saw an interim order issued by the CJEU on 8 April 2020, and the infringement case C-204/21, also Commission v Poland. The Chamber in question brought the case to the Polish Constitutional Tribunal, asking it quite directly if the CJEU interim orders with regards to the judiciary in Poland are compatible with the Polish constitution. Yes, it is a Chamber of a Member State court that is under an interim order from the CJEU asking another court in that Member State whether those interim orders are legal at all.

That hearing, featuring a similar set of actors but with the addition of the Polish Ministry of Foreign Affairs, was chaired by judge Stanisław Piotrowicz and featured a 5-men panel that included a judge of a dubious status post-Xero Flor, namely Justyn Piskorski. The final arguments and discussion followed the lines outlined above in the case K 3/21. While in principle the hearing was the same “everybody vs the ombudsman” affair as the day before, the sheer aggressiveness and contempt of judges towards Adam Bodnar and his deputies Maciej Taborowski and Paweł Filipek led to heated scenes. Following a long and acrimonious exchange at the courtroom, a break was called for the judgment to be declared at 16:00.

The third major event of the week happened exactly during that break, as the CJEU decided to play its hand and issued an interim order in the case C-204/21 Commission v Poland, ordering the Disciplinary Chamber to halt a slew of its activities that were not covered by the earlier interim order in the case C-791/19. Crucially, these activities included instruments used by the Prosecutor’s Office with compliance from the Disciplinary Chamber towards intimidating several Polish activist judges and prosecutors. These included lifting judicial immunities and suspending judges from work, followed by further inaction from the Prosecutor’s Office, resulting in an effective suspension of the judge in question – as it happened with i.a. judges Beata Morawiec and Paweł Juszczyszyn. Combined, the “new” interim order in the case C-204/21 and the “old” interim order in the case C-791/19, if to be observed, would practically shut down entirely the Disciplinary Chamber.

On the same day, the Polish Constitutional Tribunal issued its judgment in the case P 7/20, finding that the CJEU interim orders with regards to judges and courts are incompatible with the Polish Constitution. While the full opinion of the court is forthcoming, the ruling itself was already published in the Journal of Laws on 16 July  – and thus made into law. As an aside, it is curious to see the government publish this judgment into law while the opinion is still pending, when the same government explicitly argued that it cannot publish the October 2020 ruling on abortion because the Constitutional Tribunal has not yet elaborated the opinion.

In its ruling, the Tribunal sided with the applicant – the Disciplinary Chamber of the Supreme Court fully, finding that the scope of competences of the EU precludes action that would effectively disable constitutional bodies of a Member State, while at the same time the Polish Constitution takes precedence before the EU law. While a detailed analysis of the finer points of the ruling needs to wait until the full opinion is available, one immediate observation is that Poland is continuously haunted by the fact that its Constitution does not have a section of dedicated provisions related to the EU, resolving clearly matters such as clashes between the Polish Constitution and the various sources of EU law and leaving no open room for creative interpretation such as the one conducted currently by the Constitutional Tribunal.

At the same time, the Polish Constitutional Tribunal turned exactly 180 degrees with regards to two requests from the ombudsman in the case K 3/21 – not only rescheduling the second hearing from 15 July to 3 August, but also suddenly agreeing to expand the panel to include all the judges of the Tribunal. The Tribunal is expected to hand out the judgment on that day, and if it sides with the Prime Minister, the potential fallout could be disastrous for both Poland and the EU legal order.

Luxembourg strikes back

The fourth major development came on the next day, 15 July, when the CJEU handed out its much-awaited judgment in the case C-791/19, the “pre-muzzle law” infringement case initiated by the Commission. The Court sided with the applicant and followed an earlier opinion from AG Evgeni Tanchev almost to the letter. In doing so, it examined the Polish system of the disciplinary regime regarding judges in both general and detail, agreeing with all five claims from the Commission and finding a host of Polish regulations to be in breach of Art 19(1) TEU. These include the possibility charging judges with disciplinary offence over the content of their decisions, procedural rights of judges charged for disciplinary offences (including the length of the procedure and the right to defence) and the competencies of the President of the Disciplinary Chamber. The CJEU also found that in general, the Chamber is not an independent body, and it does not guarantee impartiality and fairness of disciplinary proceedings.

But the most striking element of the ruling is the CJEU siding with the Commission with regards to breach of the second and third paragraph of Art 267 TEU concerning how the Polish disciplinary regime of judges affects the right to referral to CJEU. The Court found that the Polish regulations, including the possibility of charging judges with disciplinary offences over the content of their decisions, can lead to a “chilling effect” of preventing them from referring to the CJEU. This aspect has major EU-wide implications, as the EU legal order rests on the assumption that judges in every Member State will refer to the CJEU whenever necessary. A clampdown on that in one Member States imperils and weakens the entire EU-wide system, and so the Polish regulations were rightfully found to be in breach of Art 267 TEU.

No silver lining

What is the outlook for the next steps with regards to the EU and Poland? Not optimistic, sadly. All the levels of Polish government and bodies controlled by the ruling party have decried both the CJEU interim order and the judgment, indicating a complete lack of will to comply. The President of the Supreme Court has “unfrozen” the Disciplinary Chamber and the Chamber is set to take its first actions this week – actions that were explicitly found to be in breach of EU law in the C-791/19 ruling and barred by the C-204/21 interim order. The level of contempt for the CJEU among Polish actors involved in this situation is well exemplified by an op-ed written by Mariusz Muszyński for Rzeczpospolita, where he took a swing at CJEU vice-president Rosario Silva de Lapuerta, asking for somebody to “finally take away the computer and the pen from that woman” (and misspelling her name, while at it).

It seems like the ball is now in the Commission’s court to ensure that the decisions of CJEU will be observed. Will it summon enough determination and political will to reach for its strongest weapon – sanctions for lack of compliance with the decisions of the court? The previous track record of the Commission does not bide well, but perhaps we will see a transformational moment for how the von der Leyen cabinet tackles the destruction of the rule of law in Poland. Without such action, while the prospect of “Polexit” seems unrealistic, there is a real danger of the EU having one more “rotten tooth” – a Member State that in several ways is a part of the union only nominally with the dialogue between its top courts and CJEU being conducted in bad faith.

The final thought of this piece concerns itself with speed and agility. When I set my first foot on the path of constitutional law and human rights many moons ago, a running joke was that public law is for slow people, as developments there happen at a glacial pace compared to areas such as tax law, civil procedure, or administrative law. The last week with regards to Poland and the EU showed quite pointedly that charged political landscapes lead to rapid developments, and being on the top of those requires alacrity, quick thinking, and going beyond libraries and repositories and into the wild of Twitter and live streams in order to react timely.

With many thanks to prof Aleksandra Kustra-Rogatka and Michael Meyer-Resende for their input.