Polish top court finds EU order to suspend disciplinary chamber violates Polish constitution

Warsaw’s long-running dispute with Brussels over the rule of law intensified this afternoon following two conflicting rulings issued by Poland and the European Union’s top courts.

First, the Court of Justice of the European Union (CJEU) ordered the disciplinary chamber of Poland’s Supreme Court – controversially established as part of the government’s judicial overhaul and whose legitimacy has been rejected by the Supreme Court itself – to be entirely suspended.

Soon after, however, Poland’s Constitutional Tribunal (TK) issued a verdict stating that such orders by the CJEU violate the Polish constitution, meaning today’s is likely to be ignored and the disciplinary chamber – which can punish judges who oppose the government’s policies – continue functioning.

Tomorrow, a further ruling on the disciplinary chamber is expected from the CJEU. Meanwhile, the TK, a body seen as subservient to the ruling Law and Justice (PiS) party, will soon rule on whether the Polish constitution has supremacy over European law in a case could have significant ramifications for Poland’s relationship with the EU.

CJEU suspends Poland’s disciplinary chamber

“Poland is obliged to immediately suspend the application of national provisions relating…to the powers of the disciplinary chamber of the Supreme Court,” announced the CJEU in a press release this afternoon.

Its ruling came in response to a request from the European Commission for the chamber to be provisionally suspended while the CJEU considers a case brought by the commission against Poland. This case concerns the government’s introduction of tough new disciplinary measures against judges who reject the legitimacy of judicial policies.

The commission argued that “Poland violated EU law because it entrusted the Disciplinary Chamber, whose independence and impartiality is not guaranteed, with jurisdiction to adjudicate in matters concerning the status of judges”.

The Supreme Court itself ruled in 2019 that the disciplinary chamber is “not a court within the meaning of EU and national law” and the CJEU later ordered Poland to suspend the new disciplinary regime, including cases already before the chamber.

However, the chamber has continued to operate, and today’s ruling requires it to cease all activity. The CJEU gave the chamber one month to inform the European Commission of measures adopted to comply with the judgement. If it does not do so, Poland could face financial sanctions.

The CJEU justified its verdict by noting that “the Disciplinary Chamber’s…independence may not be guaranteed”. Allowing it to continue functioning “may cause serious and irreversible damage to the EU legal order, and consequently to the rights…on which the Union is founded, in particular the rule of law”.

“The fact that…disciplinary liability could be used as a tool for political control of the content of court rulings…may threaten the independence of Polish courts,” added the CJEU in justifying its decision.

The court also said that “Poland has not presented any concrete evidence” to support its argument for not suspending the chamber. Warsaw therefore “has not demonstrated the existence of the risk of the damage” caused by doing so.

The CJEU’s ruling was immediately condemned and dismissed by figures from Poland’s government. Michał Wójcik, a minister in the prime minister’s chancellery, accused the court of “trying to devastate our legal order” and undermine Polish sovereignty.

“The CJEU verdict regarding the disciplinary chamber is irrelevant to its functioning [because] under Poland’s constitution, only the Constitutional Tribunal may waive the application of statutory provisions concerning the judiciary,” tweeted Arkadiusz Mularczyk, a PiS MP and deputy head of Poland’s National Council of the Judiciary (KRS).

“I hope that in half an hour the Constitutional Tribunal will issue a judgement that will clearly determine that such CJEU decisions are issued unlawfully, exceeding the powers conferred by Poland on EU bodies under the treaties,” commented Sebastian Kaleta, a deputy justice minister.

TK rules CJEU orders unconstitutional

Soon after, the TK did indeed issue a ruling along the lines hoped for by Kaleta and his colleagues, in a case brought to the tribunal by the disciplinary chamber in response to last year’s CJEU order to suspend its activity.

The TK today found that “the provisions of the EU treaties are inconsistent with the [Polish] constitution to the extent that they oblige Poland to implement interim measures relating to the judiciary”. It found them to be inconsistent with four articles (2, 7, 8 and 90) of the Polish constitution.

The judgement is the first time that the provisions of EU treaties have been declared unconstitutional by Poland’s constitutional court, notes the Gazeta Wyborcza daily. It signals that the government is now likely to ignore today’s CJEU ruling, says the newspaper.

The TK is widely seen as being under the influence of PiS. Its chief justice, Julia Przyłębska, who was engineered into her position in a breach of procedures, is a close personal associate of PiS chairman Jarosław Kaczynski. The head of Germany’s constitutional court last year called her a “puppet”.

In May this year, the European Court of Human Rights (a body separate from the EU) found that the TK is not a “tribunal established by law” because it contains a judge illegitimately appointed by PiS and President Andrzej Duda.

The panel of judges issuing today’s ruling was chaired by Stanisław Piotrowicz, who, until his appointment to the TK in 2019, served as a PiS MP and played a leading role in passing the party’s judicial policies.

Responding to today’s verdict, Kamila Gasiuk-Pihowicz, an opposition MP, said that it should not be regarded as valid because the current TK is illegitimate.

However, she warned that “it will bring concrete financial losses for Poles [because] it is impossible to be in the EU, to collect EU money, without applying EU law”.

Further landmark cases

Both the CJEU and TK are also expected to soon deliver further potentially landmark rulings. The EU court is due tomorrow to issue a verdict on whether the Supreme Court’s disciplinary chamber can be regarded as a court within the meaning of EU law.

Meanwhile, the TK was also tomorrow meant to resume a hearing that began on Tuesday regarding a case brought by the PiS prime minister, Mateusz Morawiecki, asking whether Poland’s constitution should be regarded as superior to EU law.

Should the tribunal rule that the constitution has legal supremacy, it could have serious repercussions for Poland’s relationship with – and even membership of – the EU, say experts. This evening it emerged that the next hearing has been postponed until 3 August.

Earlier this year, the European Commission asked Morawiecki to withdraw the case, prompting Przyłębska to accuse it of “encroaching on Polish sovereignty”. Meanwhile, the justice minister, Zbigniew Ziobro, condemned the commission’s “obnoxious, insolent and colonialist attitude” towards Poland.

Main image credit: Slawomir Kaminski / Agencja Gazeta

Daniel Tilles

Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.