The procedure for holding the President of the National Bank of Poland constitutionally accountable K 23/23
On 11 January 2024, the Constitutional Tribunal considered the application lodged by a group of Sejm Deputies with regard to the procedure for holding the President of the National Bank of Poland constitutionally accountable.
The Constitutional Tribunal adjudicated that:
1. Article 11(1), second sentence, in conjunction with Article 13(1a) of the Act of 26 March 1982 on the Tribunal of State – insofar as it provides for the possibility of suspending the President of the National Bank of Poland in his/her duties, upon a resolution on holding the said President accountable before the Tribunal of State, adopted by an absolute majority of votes in the presence of at least half of the statutory number of Sejm Deputies – is inconsistent with Article 227(1) in conjunction with Article 227(2) in conjunction with Article 227(3) of the Constitution of the Republic of Poland.
2. Article 13(1a) of the said Act – in the part referring to Article 1(1)(3) of the said Act – is inconsistent with Article 227(1) in conjunction with Article 227(2) in conjunction with Article 227(3) of the Constitution.
3. Article 13(1b) of the said Act – due to the omission of reference to Article 1(1)(3) of the said Act – is inconsistent with Article 227(1) in conjunction with Article 227(2) in conjunction with Article 227(3) of the Constitution.
As to the remainder, the Tribunal discontinued the proceedings.
The ruling was adopted by a majority vote.
There were two dissenting opinions, filed by Judge Bartłomiej Sochański and Judge Rafał Wojciechowski.
THE CONSTITUTIONAL ISSUE
The key constitutional issue in the present case amounted to assessing the conformity to the Constitution of the statutory regulation which provided for the possibility of the automatic suspension in duties of the President of the National Bank of Poland, as a result of holding the said President accountable before the Tribunal of State, upon a resolution of the Sejm, which could only be adopted by an absolute majority of votes in the presence of at least half of the statutory number of Sejm Deputies.
THE SUBJECT OF THE CONSTITUTINAL REVIEW
Ultimately, the subject of the constitutional review comprised the following: a legal norm providing for the suspension of the President of the National Bank of Poland (hereinafter: the NBP), upon a resolution on holding the said President accountable before the Tribunal of State, adopted by the Sejm, by an absolute majority of votes in the presence of at least half of the statutory number of Sejm Deputies; and two provisions added to the aforementioned norm by the same provision of the 2001 amending statute, one providing for the requirement of an absolute majority of votes in the presence of at least half of the statutory number of Sejm Deputies to adopt a resolution on holding officials indicated therein accountable before the Tribunal of State (Art. 13(1a) of the Act), and the other one providing for the requirement of a three-fifths majority of the votes of the statutory number of Sejm Deputies to adopt a resolution on holding the authorities indicated therein accountable (Art. 13(1b) of the Act).
HIGHER-LEVEL NORMS FOR THE CONSTITUTIONAL REVIEW
What arises from Article 227(1) of the Constitution is the principle of the NBP’s independence from other public authorities. In the Tribunal’s view, the NBP’s independence is implicitly guaranteed by that provision (a similar stance was taken by the Tribunal in its judgment of 22 September 2006, ref. no. U 4/06). The said independence constitutes an indispensable guarantee making it possible for the NBP to carry out its tasks indicated in the said provision, namely: issuing money (an exclusive power); formulating and implementing monetary policy, as well as protecting the value of the Polish currency, inter alia, in the course of exercising the first two powers (see the Tribunal’s judgment of 24 November 2003, ref. no. K 26/03). “The NBP’s unique systemic position as the state’s central bank consists, on the one hand, in the NBP’s independence from state authorities and, on the other hand, in the NBP’s ‘apolitical approach’ (the Tribunal’s judgment of 28 June 2000, ref. no. K 25/99). Pursuant to Article 227(2) of the Constitution, the President of the NBP is one of the authorities of the said bank. The principle is safeguarded by the mode of electing the President of the NBP, which requires cooperation between the President of the Republic and the Sejm, as well as by the rule that, in principle, the NBP’s authorities, i.e. its President and the Council for Monetary Policy, may not be removed. The principle of the NBP’s independence from other public authorities primarily comprises the requirement of ensuring the independence of the President of the NBP, who plays the fundamental role in the efficient exercise of the NBP’s constitutional powers. “The fact that it is the Constitution and the Act on the NBP that specify the NBP’s powers, its position, the position of its President (cf. especially the prerequisites for his/her dismissal), as well as the rules of cooperation with other competent state authorities indicates the legal construct guaranteeing the NBP’s independence, which is necessary for the proper exercise of its tasks, adopted by the constitution-maker, and ultimately by the legislature” (the Tribunal’s judgment ref. no. U 4/06). By contrast, the rule that the President of the NBP serves a fixed term of 6 years, and is elected by the Sejm upon recommendation by the President of the Republic, constitutes an additional safeguard against the removal of the President of the NBP from his/her office, which in turn additionally protects the NBP’s independence against any interference from a ruling majority in the Sejm. Hence, in the context of the present case determined by the Tribunal’s judgment, Article 227(1) of the Constitution should be construed in conjunction with Article 227(2) and Article 227(3) of the Constitution, for it concerned a certain aspect of the legal status of the President of the NBP exercising his office for the duration of the term constitutionally protected. In the light of Article 198 of the Constitution, the principle of the independence of the NBP and of its President from other state authorities, including the rule of the fixed term of office for the President of the NBP, may not rule out indicting the President of the NBP before the Tribunal of State. However, what is incompatible with the said independence is the statutory regulation providing for holding the President of the NBP constitutionally accountable before the Tribunal of State by a lower majority than the qualified majority required for holding a member of the Council of Ministers constitutionally accountable and for suspending the President of the NBP in his/her duties. This, in particular, arises from the content of Article 227(3) of the Constitution, setting the rule of the fixed term of office for the President of the NBP, which implies higher constitutional protection of the said President than the protection provided for a member of the Council of Ministers. Indeed, the President of the NBP is primarily safeguarded by the principle of the NBP’s independence from other public authorities, enhanced by the rule of the said President’s fixed term of office, as “[t]he National Bank of Poland shall be responsible for the value of Polish currency” (Art. 227(1), third sentence, of the Constitution). The systemic interpretation of Article 227(1) in conjunction with Article 227(2) in conjunction with Article 227(3) of the Constitution rules out holding the President of the NBP constitutionally accountable before the Tribunal of State and suspending the said President in his/her duties by a lower majority than a three-fifths majority of the statutory number of Sejm Deputies.
ASSESSMENT OF THE CONSTITUTIONALITY OF THE PROVISIONS UNDER REVIEW
The Tribunal held that all three interrelated parts on the subject of the review infringed Article 227(1) in conjunction with Article 227(2) in conjunction with Article 227(3) of the Constitution. What follows from the principle of the NBP’s independence and the protection of the status of the NBP’s President, guaranteed by the aforementioned rule of the fixed term of office, is the obligation to introduce a statutory regulation setting a qualified majority in the case of the Sejm’s adoption of a resolution on holding the President of the NBP constitutionally accountable before the Tribunal of State. The examples of a qualified majority in the Sejm set in the Constitution are as follows: a majority of two-thirds of the votes of the statutory number of Sejm Deputies; a two-third majority vote in the presence of at least half of the statutory number of Deputies; a majority of three-fifths of the votes of the statutory number of Sejm Deputies; a three-fifths majority vote in the presence of at least half of the statutory number of Deputies. The protection of the value of the Polish currency, as a basic task of the NBP, and the rule of the fixed term of office for the President of the NBP, as a guarantee of the effective achievement of that goal, result in the necessity, arising from the constitution, to introduce a statutory regulation, in the event the competence is vested with the Sejm, to hold the President of the NBP accountable before the Tribunal of State by a majority that is at least equal to the majority that is indispensable to hold a member of the Council of Ministers accountable before the Tribunal of State. Hence, this is a three-fifths majority of the statutory number of Sejm Deputies. The Act on the Tribunal of State provides for such a qualified majority in Article 13(1b), which was introduced into the Act in one amending provision, together with the content of Article 13(1a) of the Act, setting the requirement of an absolute majority in the presence of at least half of the statutory number of Sejm Deputies to adopt a resolution on holding the President of the NBP constitutionally accountable before the Tribunal of State. The Tribunal holds that as a result of the entry into force of the said provision of the amending statute, Article 13(1a) of the Act and Article 13(1b) of the Act, as well as the norm reconstructed from Article 11(1), second sentence, in conjunction with Article 13(1a) of the Act infringe Article 227(1) in conjunction with Article 227(2) in conjunction with Article 227(3) of the Constitution. By bypassing reference to Article 1(1)(3) of the Act, i.e. by not indicating the President of the NBP, in Article 13(1b) of the Act, which sets the requirement of a three-fifths majority of the votes of the statutory number of Sejm Deputies for the adoption of a resolution to hold certain officials mentioned in that article [accountable], the lawmaker resorted to legislative omission contrary to Article 227(1) in conjunction with Article 227(2) in conjunction with Article 227(3) of the Constitution. All the three parts of the subject of the review remain interrelated, which also follows from the arguments put forward by the applicants; therefore, the Tribunal assessed them jointly, and declared the unconstitutionality of all the three parts of the reconstructed subject of the review.
THE EFFECT OF THE JUDGMENT
Since the judgment pertains to statutory provisions which assign the Sejm with certain powers, the obligation to enforce that judgment lies with the Sejm, which may not act in a way counteracting the substance and meaning of the jurisprudence of the Constitutional Tribunal, whether by fulfilling its legislative role or by exercising other powers granted thereto by the Constitution and statutes. The rule that the Tribunal’s rulings are universally binding implies the prohibition (arising from Art. 198(1) of the Constitution) against applying a legal norm which have been declared by the Tribunal to infringe the constitutional higher-level norm for the constitutional review, even if the judgment does not result in the complete and literal derogation of the provision which – in the Tribunal’s opinion – constitutes one of necessary elements for its reconstruction. Similarly, in the light of the Constitution, the Sejm’s application of a statutory provision comprising unconstitutional legislative omission, in the course of fulfilling its legislative role, leads to a violation of the Constitution, undermining its position as the supreme law of the Republic of Poland. Therefore, the Sejm is constitutionally obliged to refrain from considering any motions for holding the President of the NBP accountable before the Tribunal of State until this judgment has been executed by means of a relevant statute. Also, the lawmaker has the obligation to adjust the law as it is to the content of the judgment of the Constitutional Tribunal. The lawmaker is obliged to correct the references included in the indicated statutory provisions.
The adjudicating bench of the Constitutional Tribunal in the case was composed of: President of the Constitutional Tribunal, Judge Julia Przyłębska – Presiding Judge; Judge Krystyna Pawłowicz – Judge Rapporteur; Judge Bartłomiej Sochański; Judge Bogdan Święczkowski; and Judge Rafał Wojciechowski.
The dissenting opinions were filed by Judge Bartłomiej Sochański and Judge Rafał Wojciechowski. Both judges accept points 1 and 2 of the operative part of the Tribunal’s judgment. Their reservations concern point 3 of the operative part of the Tribunal’s judgment.