The obligation of an EU Member State to implement interim measures pertaining to the organisational structure and functioning of constitutional authorities within the judicial branch of government of that Member State P 7/20
On 14 July 2021 at 10.00 a.m., at the hearing, the Constitutional Tribunal considered the question of law referred by the Supreme Court as regards the obligation of an EU Member State to implement interim measures pertaining to the organisational structure and functioning of constitutional authorities within the judicial branch of government of that Member State.
The Constitutional Tribunal adjudicated that Article 4(3), second sentence, of the Treaty on European Union (consolidated version: OJ C 202 7.6.2016, p. 13) in conjunction with Article 279 of the Treaty on the Functioning of the European Union (consolidated version: OJ C 202 7.6.2016, p. 47) – insofar as the Court of Justice of the European Union ultra vires imposes obligations on the Republic of Poland as an EU Member State, by prescribing interim measures pertaining to the organisational structure and functioning of Polish courts and to the mode of proceedings before those courts – is inconsistent with Article 2, Article 7, Article 8(1) and Article 90(1) in conjunction with Article 4(1) of the Constitution of the Republic of Poland, and within this scope it is not covered by the principles of precedence and direct application set in Article 91(1)-(3) of the Constitution.
The ruling was adopted by a majority vote.
The constitutional matter presented to the Tribunal in the question of law amounts to the issue whether Article 4(3), second sentence, of the Treaty on European Union in conjunction with Article 279 of the Treaty on the Functioning of the European Union – insofar as the Court of Justice of the European Union ultra vires imposes obligations on the Republic of Poland as an EU Member State, by prescribing interim measures pertaining to the organisational structure and functioning of Polish courts and to the mode of proceedings before those courts – is consistent with Article 2, Article 7, Article 8(1) and Article 90(1) in conjunction with Article 4(1) of the Constitution of the Republic of Poland.
As regards this subject matter, the Tribunal’s jurisdiction ratione materiae has not so far been contested either in the Tribunal’s jurisprudence (i.e. its case law) or in the doctrine of law. What is invoked as the legal basis of the said jurisdiction is Article 188(1) of the Constitution, with the indication that EU Treaties fall under the category of international agreements. The subject of the review conducted by the Constitutional Tribunal in the present case is Article 4(3), second sentence, of the Treaty on European Union in conjunction with Article 279 of the Treaty on the Functioning of the European Union.
Article 4(3), second sentence, of the Treaty on European Union expresses the principle of sincere cooperation, which is also referred to as the principle of solidarity, within the meaning of which EU Member States shall take any appropriate measures in order to fulfil obligations arising from the Treaties or resulting from the acts of the institutions of the Union as well as shall facilitate the achievement of the Union’s tasks. In compliance with that principle – and in accordance with the principle of direct effect, which is well-established in the case law of the Court of Justice of the European Union – the interim measures ordered by the CJEU – in whatever way formulated with regard to an EU Member State are subject to direct implementation by the authorities of the EU Member State, and in particular by its courts. Thus, the relevant component of the legal norm indicated by the court referring the question outlines the general and abstract standard of conduct.
The principle of sincere cooperation, set out in Article 4(3), second sentence, of the TEU, in conjunction with Article 19(1) of the TEU (previously Art. 10 of the TEC), and the principle of effectiveness derived therefrom, constitutes one of the cornerstones of EU law, and is subject to a consistent interpretation by the CJEU. In the judgments which are characteristic in the context of questions referred for preliminary rulings, the CJEU adjudicated that the courts of EU Member States should refrain from applying domestic law when this is necessary for a norm of EU law to have a direct effect. In the judgment of 19 November 2019, in the joined cases C 585/18, C 624/18 and C 625/18, in points 156-160, the CJEU referred the principles of direct effect and of the primacy of EU law to rulings concerning the independence of courts and the independence of judges. This was even more expressly addressed by the CJEU in its judgment of 18 May 2021 in joined cases C 83/19, C 127/19, C 195/19, C 291/19, C 355/19, and C 397/19. In the said judgment, the CJEU stated that the principle of the primacy of EU law may not be hindered by domestic provisions concerning the scope of jurisdiction of courts, including provisions at the constitutional level.
Article 279 of the TFEU, indicated in conjunction with other provisions by the court referring the question of law, stipulates that the CJEU may in any cases before it prescribe any necessary interim measures. These are incidental rulings issued before the CJEU determines a case on its merits, and they are limited in time. What follows from the principle of sincere cooperation, the principle of effectiveness, as well as the rule of pacta sunt servanda is that an EU Member State has the obligation to implement interim measures ordered by the CJEU. In accordance with the principle of conferral (Art. 5(1), first sentence, of the TEU), an interim measure ordered by the CJEU must fall within the limits of the competences conferred by an EU Member State and must be consistent with the principles of subsidiarity and proportionality (Art. 5(1), second sentence of the TEU).
However, the court referring the question of law subjected the two above treaty provisions to a constitutional review within the specified scope, indicating that the obligation arising from Article 4(3), second sentence, of the TEU and Article 279 of the TFEU for the Republic of Poland, as an EU Member State, may not comprise the organisational structure of courts and their jurisdiction, or the mode of proceedings before the courts. To resolve the above-indicated problem, it primarily needs to be established whether the scope of the obligation specified in Article 4(3), second sentence, of the TEU is within the competences conferred upon the CJEU, and in particular whether it does not exceed the limits of the competences conferred upon the European Union by the Republic of Poland as well as whether it does not infringe the principles of subsidiarity and proportionality (Art. 5(1) of the TEU). The above findings require that an ultra vires review be carried out (Latin ‘beyond the powers’; in the legal discourse: ‘beyond the legal power or authority’). The said review had not previously been resorted to by the Constitutional Tribunal in its case law, but the Tribunal did not rule out the admissibility of such a review.
When adjudicating on 11 May 2005, ref. no. K 18/04, in the case concerning the conformity of the Accession Treaty to the Constitution, the Constitutional Tribunal, inter alia, expressed the view that the interpretation of Community law provided by the ECJ should fall within the scope of functions and competences delegated to the Communities by its Member States. It should also remain in correlation with the principle of subsidiarity, which determines the activities of Community-Union institutions. Furthermore, this interpretation should be based on the assumption of mutual loyalty between the Community-Union institutions and the Member States. In the same ruling, the Constitutional Tribunal noted that the Member States maintain the right to assess whether or not, in issuing particular legal provisions, the Community (Union) law-making organs acted within the delegated competences and in accordance with the principles of subsidiarity and proportionality. Should the adoption of provisions infringe these frameworks, the principle of the precedence of Community law fails to apply with respect to such provisions (K 18/04, point 329).
In its ruling ref. no. P 37/05, the Constitutional Tribunal noted that the ECJ safeguards Community law and, while passing judgments, it does not have to take into consideration the standards deriving from legal orders of particular Member States, including the status of the constitution in the system of sources of domestic law thereof. Conversely, the Constitutional Tribunal safeguards the Constitution, which, according to Article 8(1) thereof, shall be the supreme law of the Republic of Poland. Against this background, a clash may occur between decisions taken by the ECJ and decisions taken by the Tribunal. In view of the above, one must state that also by virtue of Article 8(1) of the Constitution, the Constitutional Tribunal is obliged to such recognition of its position that in fundamental issues relating to the constitutional system of the State it shall retain its status as “the court of the last word”. The ECJ and the Tribunal must not be positioned as competing courts. In the Constitutional Tribunal’s judgment concerning the Lisbon Treaty, ref. no. K 32/09, the Tribunal stated that it does not rule out reviewing EU law in the future.
The view that constitutional courts of EU Member States are competent to carry out an ultra vires review of EU acts, including the CJEU’s rulings, has been expressed in the case law of constitutional courts, inter alia, of Germany, the Czech Republic, Denmark, France, Spain, Romania, and Italy. The Federal Constitutional Court of Germany developed the principles of applying the ultra vires review of the CJEU’s rulings in a number of its determinations. In the latest judgment based on the ultra vires doctrine, dated 5 May 2020, issued in the case concerning the purchase of public-sector obligations, the Federal Constitutional Court once again summed up and explained in detail the said principles. According to the Federal Constitutional Court, what constitutes ultra vires activity is an aggravated (serious) infringement of the principle of conferred competences, which occurs when an act issued by an EU organ manifestly (offensichtlich) exceeds the conferred competences and where the significance of that infringement is structurally significant (strukturell bedeutsam). This takes place when the activity of an EU organ exceeding the scope of conferred competences leads to structurally significant interference with the competences of an EU Member State. In the above-cited judgment of 5 May 2020, the second main thesis comprised the statement that the judicial task assigned to the CJEU ends where the interpretation of the Treaties is incomprehensible, and thus from an objective perspective – arbitrary (objektiv willkuerlich).
Such a judicial statement by the CJEU is the case in the interim measure of 8 April 2020. Despite the standard of the independence of judges and courts, which is rooted in the tradition of Polish constitutionalism, in particular the regulation of Article 173 et seq. of the Constitution, as well as statutes issued on the basis thereof and introducing systemic, procedural and social guarantees of the independence of judges, the interim measure does not explain why the systemic, procedural and social guarantees of the said independence, provided in Polish law, require supplementing at the level of such generality and relativism.
Following in the Federal Constitutional Court’s footsteps, the Constitutional Tribunal assumes that an ultra vires review should be carried out in a cautious manner and in the way that is favourable to the norms of EU law. It is indeed obvious that the role and exclusive task of the CJEU is to ensure the consistent interpretation of EU law and to guarantee the applicability of the said law. However, the situation where EU Member States completely forgo an ultra vires review would result – according to the Federal Constitutional Court – in leaving EU organs to single-handedly determine the scope within which they enjoy the competences conferred by EU Member States and to develop EU law in a manner that would lead to creating new norms.
The Constitutional Tribunal, in its current composition, shares the view that the conferral of competences on the European Union to enact legal norms which are directly binding in EU Member States leads to a permanent clash. It is obvious that the European Union only has the competences that have been conferred upon it by EU Member States, acting on the basis of their constitutions (basic law). Hence, the European Union acts ultra vires if it infringes the limits of those competences conferred in the Treaties. Such an infringement may have not only the form of European resolutions, directives and decisions, but also the form of rulings issued by the CJEU.
In its judgment concerning the Lisbon Treaty (ref. no. K 32/09), the Constitutional Tribunal noted that the CJEU is the EU organ deciding, in a final way, on the conformity of EU resolutions to the Treaties, whereas the conformity with the Constitution is determined by the Constitutional Tribunal, and this is so due to the content of Article 8(1) of the Constitution. The Constitutional Tribunal is obliged to understand its position in such a way that, in fundamental matters which are of significance to the constitutional order, the Constitutional Tribunal will maintain the position of “the court of the last word” with regard to the Polish Constitution.
Refraining from the assessment of the content of the CJEU’s order, the Tribunal first of all has to state that the interim measures adjudicated by the CJEU, contrary to Article 4(2) of the TEU and Article 4(3), first sentence, of the TEU as well as Article 5(1) of the TEU, interfere in a manifest and significant way with the area of constitutional regulation. There is no doubt that the organisational structure and functioning of Polish courts as well as the mode of proceedings before Polish courts fall within the core of the constitutional order of the Republic of Poland; the said core may not be conferred upon an international organisation in accordance with Article 90(1) of the Constitution. Above all, those cases fall within the scope of competences referred to in Article 90(1) of the Constitution. In its decision of 21 April 2020, ref. no. Kpt 1/20, the Constitutional Tribunal clearly stated that: “neither the TEU nor the TFEU provides, for the EU, any competences within the scope of the organisational structure and functioning of the administration of justice of an EU Member State. That scope of cases remains within the exclusive sovereign competence of EU Member States.”.
The competence to suspend the Polish statutes concerning the judiciary was derived by the CJEU from Article 279 of the TFEU (in a formal sense) and Article 19(1) of the TEU; the CJEU stated that, within the scope of proceedings concerning referral for a preliminary ruling, the CJEU is not competent to adjudicate on the conformity of domestic provisions or on the conformity of domestic practice with EU law, as the CJEU is competent to provide the domestic court making the referral with all guidance as regards the interpretation of EU law, which enables the said domestic court to issue an appropriate ruling. However, the Constitutional Tribunal states that such interpretive guidance from the CJEU is only justified within the limits of the competences conferred on the EU. Neither the suspension of courts nor the suspension of judges bears any direct and adequate relation to the guidance concerning the interpretation of EU law and it far exceeds not only the limits of conferred competences but also the limits of the principles of proportionality and subsidiarity.
The EU may not substitute EU Member States in creating regulations concerning the organisational structure of courts as well as the systemic, procedural and social guarantees of the independence of courts and judges. the Court of Justice is neither a superior body nor a court of higher instance above domestic courts, and the CJEU is not authorised to adopt any acta iure imperii for domestic courts and judges of EU Member States. Not by virtue of the EU Treaties, but by virtue of the Polish Constitution, in particular Article 9 and Article 91 of the Constitution, Polish judges also apply the norms of EU law, which the Polish Constitution mentions among the sources of domestic law. Still, Polish judges and Polish courts act on the basis of the Polish Constitution and in the name of the Republic of Poland, and not in the name of the EU. Pursuant to Article 174 of the Constitution, courts deliver judgments in the name of the Republic of Poland, which is of significance, since such indication also refers to those provisions of the Constitution which define the Republic of Poland as the common good of all its citizens (Art. 1 of the Constitution) and as a democratic state ruled by law (Art. 2 of the Constitution). Nota bene, the Republic of Poland also employs judges and provides them with remuneration.
If the purpose for the interim measure adjudicated in the order of 8 April 2020 (C-791/19R) is to ensure that Polish courts enjoy the freedom to make referrals for preliminary rulings, then to ensure the attainment of that goal, the suspension of the Disciplinary Chamber of the Polish Supreme Court is neither necessary nor appropriate. This is clear in the context of the case giving rise to the decision of the court referring the question; the case concerns holding a judge criminally liable for a prohibited act penalised in the Polish Criminal Code, in the part comprising specified provisions on traffic offences. Indeed, there are no understandable reasons to suspend the Disciplinary Chamber of the Supreme Court in such a case, or to discontinue referring similar cases to that chamber.
In the context of the case in which the Disciplinary Chamber of the Supreme Court referred the question, the CJEU’s infringement of the principle of subsidiarity consisted in the unnecessary and disproportionate regulation in the realm of the organisational structure of the Polish judicial system (first tiret of the interim measure), which in concreto amounts to excluding certain judges from adjudicating in particular cases (second tiret), which not only contradicts the rudiments of subsidiarity but it also undermines the principle of judicial independence, which, in principle, it should protect.
The non-conformity of the CJEU’s adjudication within the said scope to Article 2 of the Constitution arises from the fact that, in the Republic of Poland, the application of the measures pertaining to the organisational structure and functioning of judicial authorities, which have been provided for in the CJEU’s interim measure of 8 April 2020 (C-791/19 R), introduces the state of uncertainty as to the jurisdiction of courts as well as the competences and position of judges. However, what follows from the principle of the protection of citizens’ trust in the state and its laws is that the citizens of the Republic of Poland have the right to know without previous court rulings, and without reading the CJEU’s rulings, whether a given person is, or is not, a judge. The principle of the specificity of law requires precision, and not generalities, in the above-mentioned realm.
Thus, due to the manifest infringement of the limits of the principle of conferral (Art. 5(1), first sentence, of the TEU) and the considerable infringement of the principles of subsidiarity and proportionality (Art. 5(1), second sentence, of the TEU) in the context of the organisational structure and jurisdiction of Polish courts as well as the mode of proceedings before Polish courts, the obligation to implement interim measures such as those adjudicated in the CJEU’s order of 8 April 2020 (C-761/19 R) – where the obligation is derived from Article 4(3), second sentence, of the TEU in conjunction with Article 279 of the TFEU – is inconsistent with Article 7 of the Constitution, which requires that public authorities function on the basis of, and within the limits of, the law.
The non-conformity of the subject of the review with Article 8(1) of the Constitution arises from the fact that creating obligations for the Republic of Poland in the realm of the organisational structure and jurisdiction of Polish courts clashes with constitutional norms concerning the organisation structure of courts and the independence of courts and judges. The said clash consists in the fact that the obligations – created by the CJEU and pertaining to the organisational structure and jurisdiction of Polish courts as well as to the mode of proceedings before those courts – interfere with the realm of the Polish constitutional regulation, thus assuming a position above the Constitution.
By contrast, the non-conformity to Article 90(1) in conjunction with Article 4(1) of the Constitution arises from the CJEU’s adjudication in the realm of the organisational structure and jurisdiction of judicial authorities, i.e. in the areas in which the Republic of Poland has not conferred, and cannot confer, any competences on the European Union. No nation may face the imposition of rules according to which the nation should organise its law. Indeed, the principle of the Nation’s sovereignty rules out any possibility of subjecting the fundamental norms making up the constitutional identity to the decisions and determinations of such bodies whose members are not elected and overseen by Polish citizens.
Pursuant to Article 190(1) of the Constitution, the Constitutional Tribunal’s judgment in the present case – which declares the hierarchical non-conformity of the challenged norm with the Polish Constitution within the scope specified above – is final and universally binding. The judgment on the unconstitutionality of an EU normative act does not directly deprive that act if its binding force (for such a decision may not be taken by an EU Member State), but it merely rules out the applicability of the said act before domestic authorities.
The Constitutional Tribunal fully appreciates the position and role of the CJEU as an institution that is solely authorised to determine the interpretation of EU law, within the scope of conferred competences and in compliance with the principles of subsidiarity and proportionality. However, when it comes to the Constitution of the Republic of Poland and the competences which have not been conferred on the EU by Poland on the basis of the Constitution, the Constitutional Tribunal expects mutual respect, as regards the role and place of the Constitutional Tribunal as a court that has exclusive jurisdiction to determine the conformity to the Constitution of any norms which are binding in the Republic of Poland.
Opting for an interpretation of the Constitution which is favourable to European law has become a well-established rule and practice in the Republic of Poland; still, that approach has its limits where there is an infringement of the Polish constitutional identity. Even being most favourably inclined towards EU law when interpreting the Constitution, it is impossible to arrive at an interpretation where the CJEU is competent to suspend Polish statutes concerning the organisational structure and jurisdiction of Polish courts, and in particular the independence of Polish judges. Constituting an exception to the principle of independence and sovereignty of the Republic of Poland, the conferral of competences may not be interpreted in a broadening way.
The adjudicating panel in the present case was composed of the following Judges of the Constitutional Tribunal: Judge Stanisław Piotrowicz as the Presiding Judge; Judge Bartłomiej Sochański as the Judge Rapporteur; Judge Zbigniew Jędrzejewski; Judge Justyn Piskorski; and Judge Jakub Stelina.