On Wednesday 22 December, the European Commission opened an infringement proceeding against Poland because of the violation of European law “by its Constitutional Tribunal”. This proceeding is a response to the Polish Constitutional Tribunal’s judgment of 7 October, which questioned the primacy of EU law and compliance with the decisions of the EU Court of Justice (see EUROPE 12808/1), but also to a judgment of the same tribunal in July, which challenged a decision of the Court of Justice on the Disciplinary Chamber of the Polish Supreme Court.
“The Constitutional Tribunal, in its rulings of 14 July 2021 and 7 October 2021, considered the provisions of the EU Treaties incompatible with the Polish Constitution, expressly challenging the primacy of EU law. Poland has two months to reply to the letter of formal notice”, explains the European Commission in a statement.
“We’ve tried to engage in a dialogue, but the situation is not improving. Fundamentals of the EU legal order, notably the primacy of EU law, must be respected”, according to comments on Twitter from the European Commissioner for Justice, Didier Reynders, who visited Warsaw on 18 and 19 November.
In particular, the European Commission considers that these decisions of the Constitutional Tribunal “are in breach of the general principles of autonomy, primacy, effectiveness and uniform application of Union law and the binding effect of rulings of the Court of Justice of the European Union”.
In its July decision, the Constitutional Tribunal had already denied the binding effect of any interim measures ordered by the Court of Justice on the disciplinary chamber of the Supreme Court.
In its October judgment, “the Constitutional Tribunal disregarded its obligations under EU law by considering unconstitutional the Court of Justice’s interpretation of Article 19(1) TEU according to which a national court may be called upon to review the legality of the procedure for appointing a judge and pronouncing itself on any irregularity in the appointment process to verify whether that judge, or the court in which the judge adjudicates, meets the requirements of Article 19(1) TEU”.
The European Commission also considers that these judgments violate the right to effective judicial protection and thus weaken the protection of Polish litigants.
“Finally, the Commission has serious doubts on the independence and impartiality of the Constitutional Tribunal” and considers that it no longer meets the requirements of an impartial and independent court, in particular due to the process of appointing three judges to the Constitutional Tribunal in December 2015, which “occurred in breach of fundamental rules forming an integral part of the establishment and functioning of the system of constitutional review in Poland”.
Polish Deputy Justice Minister Sebastian Kaleta called the infringement proceedings “an attack on the Polish constitution and sovereignty”, Reuters reported. Asked to comment on the issue, Commissioner for Economy Paolo Gentiloni explained that the European Commission expects Poland to “find a solution in line with European law and which respects the primacy of EU law”. (Original version in French by Solenn Paulic)