The counter-constitutional case law of the Constitutional Tribunal in 2019-2020

After a fairly long period of effective paralysis of this body’s operations, when, with the end of the so-called old judges’ term of office, the majority of judges chosen by the current Sejm began to form, the Constitutional Tribunal began to adjudicate again, including in cases with a strong political context.

Analysis of the Constitutional Tribunal’s new jurisprudence in cases with a strong political accent should facilitate an answer to the question of whether we are dealing with an illiberal turn of the Constitutional Tribunal itself and if this new jurisprudence can be conceptualised as the last stage of Bruce Ackerman’s constitutional moment.

All of the aforementioned resolutions aroused controversy in public opinion. Each of them is also a breach in the previous line of Constitutional Tribunal jurisprudence.

Judgment K 12/18 concerned new provisions introduced by Law and Justice regulating the composition of the National Council of the Judiciary - a body which, according to the constitution, is designed to safeguard the independence of judges.

Evaluation of judgment K 12/18 requires taking into account the broader context of the systemic changes introduced in Poland since 2015. After the take­over of the Constitutional Tribunal, the next target of Law and Justice were the remaining judicial authorities, including the National Council of the Judiciary, which plays an important role in the process of appointing judges in Poland (judges are appointed by the President, but at the request of the National Court Register, which reviews the candidates). Thus, taking control of the National Council of the Judiciary was a key element in the strategy of appointing judges (including Supreme Court judges) favourable to Law and Justice.

The 1997 Constitution states in Art. 187 (1) that ‘the National Council of the Judiciary shall be composed as follows: (...) 15 judges chosen from amongst the judges of the Supreme Court, common courts, administrative courts and military courts’. A literal reading of the Constitution does not, therefore, prohibit the election of members of the National Council of the Judiciary representing judges by the Sejm.

The temporal and political context of the enactment of the amendment to the Act on the National Council of the Judiciary indicates that its real purpose was to take control of a constitutional body by ensuring its influence over the majority of the composition of the National Council of the Judiciary. Such a political practice is well known and is sometimes used in other countries, but is always treated as a violation of the institutional balance and the rule of law. By accepting it at the constitutional level, the Constitutional Tribunal has played the role of a body which post factum legitimises the violation of the constitution by the parliament.

Two more of the aforementioned judgments also concern what is broadly understood as the ‘reform’ of the judiciary carried out by Law and Justice, but they refer to another body whose composition has changed as a result of the amendments introduced, i.e.

In the judgment of 20 April 2020 (U 2/20), the Constitutional Tribunal found the resolution of the joint chambers of the Supreme Court of 23 January 2020 to be unconstitutional. At a national level, this resolution implemented the judgment of the Court of Justice of the European Union of 19 November 2019, which concerned the ‘reform’ of the Supreme Court introduced by Law and Justice.

In addition to lowering the retirement age of judges (which the Court of Justice of the European Union found inconsistent with EU law in the case of the European Commission v. Poland C-6 1 9/18^[367]), one of the elements of this ‘reform’ was the introduction of two new chambers to the Supreme Court: the Extraordinary Con­trol and Public Affairs Chamber (which is responsible, inter alia, for adjudicating on the validity of elections) and the Disciplinary Chamber (which adjudicates in cases of the disciplinary liability of judges). The Court of Justice of the European Union judgment of 19 November 2019 concerned the compliance of the second of the above-mentioned new chambers of the Supreme Court, as well as the National Council of the Judiciary indirectly, with the EU. The Court of Justice of the Eur­opean Union did not decide (as the Attorney General did) to state openly that the Disciplinary Chamber of the Supreme Court does not meet the EU standard of an independent and impartial tribunal within the meaning of Article 47 of the Charter of Fundamental Rights, yet considered that the objective circumstances in which the Chamber was formed, its characteristics and the means by which its members have been appointed were capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it.^[368]

The Court of Justice of the European Union gave the floor to the referring Supreme Court and pointed out that it is for the national court to determine, in the light of all the relevant factors, whether the Disciplinary Chamber meets the standard of an inde­pendent and impartial court.

On 23 January 2020, the Supreme Court sitting in the three chambers bench issued a binding resolution that indeed such a bench composition in the case of newly appointed Supreme Court justices is contrary to the law and their rulings may be challenged. In the case of common courts, however, it must be verified if the defect of the appointment procedure leads, in specific circumstances, to a breach of the standard of independence and impartiality. The Supreme Court held that the resolution applies to decisions issued with the involvement of judges of the Dis­ciplinary Chamber regardless of the date on which these judgments are issued, whereas in case of other judicial bench the resolution does not act retroactively.^[370]

The judgment of the Constitutional Tribunal of 20 April 2020 is another proof of its new role. It is transforming into a body used in fierce political games, not only at the national level, but also related to Poland’s membership of the EU. The resolution aimed at blocking the effects of the Court of Justice of the European Union judgment of 19 November 2019 is also a transgression of the constitu­tional powers of the Constitutional Tribunal - indeed this concerns the con­stitutionality of the judicial decision (resolution of the Supreme Court), rather than a normative act. In its previous jurisprudence, the Constitutional Tribunal repeatedly indicated that in the event of doubts arising as to whether a given act falls within the sphere of applying a law or legislation, the decisive factor is not the form but the content of the act.^[371] Nevertheless, in this case, there is no ‘normative novelty’ in the resolution of the Supreme Court of 23 January 2020, which only implements the judgment of the Court of Justice of the European Union at the national level.

The decision of 21 April 2020 complements the Eurosceptic turn in the narrative of the Constitutional Tribunal and the questioning of the legality of the resolution of the Supreme Court of 23 January 2020. This decision formally resolves two ‘jur­isdiction disputes’: one between the Sejm and the Supreme Court, and the other between the President and the Supreme Court. The first was thought to concern whether the Supreme Court had the power to issue the resolution of 23 January 2020. The second involved whether the Supreme Court could assess the legality of the act of appointing a judge (which is executed by the President). The basic problem related to the decision of the Constitutional Tribunal of 21 April 2020 is that neither one nor the other doubts of the applicants should be qualified as a dispute over jur­isdiction. According to the previous jurisprudence of the Constitutional Tribunal, a dispute over jurisdiction is a situation where two or more bodies are deemed competent to resolve a given case (positive dispute), or two or more bodies consider that they do not have jurisdiction to resolve a given case (negative dispute).^[373] The jurisdiction of the Supreme Court to issue the resolution of 23 January 2020 does not directly interfere with the sphere of jurisdiction of the Sejm or the President. It indirectly assesses the legality of these bodies’ actions, but does not interfere with the jurisdictions of the legislative or executive power. The Constitutional Tribunal’s resolution of 21 April 2020 is a breach in the existing - and rather self-restrained - jurisprudence of the Constitutional Tribunal concerning disputes over jurisdiction. Although the alleged constitutional problem is embedded in the sphere of domestic law, the decision of 21 April (as well as the judgment of 20 April) is a decision of fundamental importance for relations between Poland and the EU. The previous jurisprudence of the Constitutional Tribunal concerning the constitutional aspects of EU membership (including the status of EU law within the Polish legal order) has followed the ‘course’ set by the constitutional courts of the Member States. The Polish Constitutional Tribunal was certainly not as Europhile as the Belgian con­stitutional court or the Austrian Federal Constitutional Tribunal^[374], but its jur­isprudence in EU-related matters cannot be called Eurosceptic. The Constitutional Tribunal has repeatedly highlighted the primacy of the Polish constitution,^[375] but in practice it has always adjudicated in such a way as to ensure the effective application of EU law within the Polish legal order.^[376] Therefore, the judgment of 20 April 2020 and the decision of 21 April 2020 are not only a breakthrough in the existing jur­isprudence on purely domestic issues, but also an evident shift towards the Euro­sceptic trait of illiberalism.

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