A (periodic) penalty payment or a lump-sum payment imposed by the CJEU; interim measures pertaining to the constitutional order and to the functioning of the constitutional authorities of the Republic of Poland K 8/21
On 22 February, 19 October, 21 November and 11 December 2023, the Constitutional Tribunal considered the Public Prosecutor-General’s application concerning a (periodic) penalty payment or a lump-sum payment imposed by the CJEU as well as interim measures pertaining to the constitutional order and to the functioning of the constitutional authorities of the Republic of Poland.
The Constitutional Tribunal adjudicated that:
- Article 279 of the Treaty on the Functioning of the European Union (consolidated text: OJ C 202 7.6.2016, p. 47) – insofar as it permits imposing on the Republic of Poland a (periodic) penalty payment or a lump-sum payment – is inconsistent with Article 2 in conjunction with Article 4(1) of the Constitution of the Republic of Poland.
- Article 39 of the Protocol (No 3) on the Statute of the Court of Justice of the European Union (consolidated text: OJ C 202 7.6.2016, p. 210) – insofar as it authorises the President of the Court of Justice of the European Union, or another judge of the CJEU, to prescribe, with regard to the Republic of Poland as an EU Member State, interim measures – is inconsistent with Article 2 in conjunction with Article 8(1) of the Constitution of the Republic of Poland.
As to the remainder, the Tribunal discontinued the proceedings. The ruling was adopted by a majority vote. Dissenting opinions were filed by: Judge Piotr Pszczółkowski, Judge Bartłomiej Sochański, Judge Michał Warciński and Judge Rafał Wojciechowski.
The Constitutional Tribunal deemed that the subject of the review comprised two legal norms:
(1) the first one, arising from Art. 279 of the TFEU, stipulating that in cases considered by the CJEU, it is possible to impose on the Republic of Poland, as an EU Member State, a (periodic) penalty payment or a lump-sum payment;
(2) the second one, arising from Art. 39 of the Statute of the CJEU, which constitutes authorisation for the CJEU’s President or another judge of the CJEU to prescribe interim measures for the Republic of Poland, as an EU Member State.
The Constitutional Tribunal deemed that what was inconsistent with the principle of the rule of law was the norm which permitted creating – outside of procedures provided by law – binding obligations for a state, so as to compel the state to take certain action in the area of international law. Such a norm makes it possible, in an inadequate way, to interfere with the sovereignty of the Polish State. Maintaining the challenged norm arising from Art. 279 of the TFEU in the legal system would lead to the situation where the Republic of Poland may cease to function as a sovereign state.
In proceedings before the CJEU, penalty payments may be imposed on the state under Art. 260 of the TFEU. The TFEU is worded in such a manner that in no way does it follow therefrom that the penalty payments of that type may be imposed in proceedings on the enforcement of compliance with the relevant interim measure. What should constitute the basis of imposed penalty payments is a ruling of the CJEU, issued in accordance with a procedure specified in the Treaty, and it should not be a provisional ruling of the President or another judge of the CJEU. The adjudging of a penalty payment determining that a Member State fails to enforce a CJEU judgment issued under Art. 258 or 259 of the TFEU, and not that the state fails to enforce a provisional ruling issued under Art. 279 of the TFEU.
Thus, a norm implicitly expanding the scope of competence of the CJEU – and in particular in the direction affecting an EU Member State – is contrary to Art. 2 in conjunction with Art. 4(1) of the Constitution. The penalty for non-compliance with an interim measure changes the procedural institution serving to secure proceedings before the CJEU into a systemic measure to hold a state accountable for a treaty violation. However, neither the CJEU nor its members (the President, the Vice-President, other judges of the CJEU) may – by referring to general treaty competences – create new competences. An entity vested with the competence directly specified in the Treaty – which constitutes the manifestation of the will of the parties to the Treaty – may not arbitrarily expand the scope of the competences. Modifications to the scope of the competences established for given entities, as well as the expansion of competences, may only be introduced by entering into an international agreement. This way, the principle of the Nation’s sovereignty is realised, because it is the sovereign that decides on the remit of accepted obligations arising from international law.
The challenged norm derived from Art. 279 of the TFEU has been developed in the process of adjudication on cases, although this was not the case law of the CJEU, but of the members of the CJEU. This entailed the expansion of the Polish State’s international obligations, despite the lack of relevant constitutional procedures in this regard.
The development of the challenged norm arising from Art. 279 of the TFEU for the purpose of creating additional measures to impose obligations on an EU Member State, bypassing consent expressed by the EU Member State in a constitutional procedure, defies the rule of law. The Member State’s lack of consent for the scope of the norm in Art. 279 of the TFEU to comprise penalty payments as a measure ensuring the enforcement of provisional rulings – which entails an extra-treaty way of holding a state accountable for a treaty violation – contradicts the principle of the Nation’s sovereignty.
Both a penalty payment as an interim measure which is irrevocable in nature, as well as a penalty payment for non-compliance with an interim measure – i.e. not pertaining to main proceedings before the CJEU – are inconsistent with the high-level norms in Art. 2 in conjunction with Art. 4(1) of the Constitution.
When assessing the conformity of the norm in Art. 39 of the CJEU’s Statute to Art. 2 in conjunction with Art.8(1) of the Constitution, the Constitutional Tribunal recalled that Art. 8(1) established the principle of the supremacy of the Constitution. The Constitution is the supreme law in the Republic of Poland. This means that, in the legal system, there may not exist legal acts which clash with the Constitution. A legal norm of a lower rank may not be inconsistent with the norms of the Constitution. The supreme position of the Constitution also results from the principle of the Nation’s sovereignty (Art. 4(1) of the Constitution). The principle referred to in Art. 8(1) of the Constitution, interrelated with the principle of a state ruled by law, entails that the state should ensure mechanisms guaranteeing the supremacy of the Constitution.
The Constitution remains supreme and takes precedence over all legal acts which are binding in the Polish constitutional order, including also acts of international law and EU law. Such a position of the Constitution arises from Art. 8(1) of the Constitution and is confirmed by the previous jurisprudence of the Constitutional Tribunal. The binding force of the principle of the supremacy of the Constitution delineates the framework of a state ruled by law. A violation of that principle may be assessed from the point of view of non-conformity to the principle of the rule of law – also when the state’s obligations are shaped outside domestic authorities, contrary to the Constitution. If, pursuant to Art. 39 of the TFEU, the competence to issue a provisional ruling has been granted not to an EU authority such as the CJEU, but to the CJEU’s internal authority or another judge of the CJEU, then such action ought to be deemed inconsistent with the principle of the rule of law. Indeed, in the legal system, there is a binding norm which provides for the possibility that decisions about a state’s obligations are made by entities that are not EU bodies.
Additionally, it should be pointed out that rules for applying interim measures are set out in the CJEU’s Rules of Procedure, which do not constitute an international agreement. Thus, the said rules are included in a legal act the content of which the Republic of Poland may not affect, even though the said act determines the procedure for shaping the state’s international obligations. The application of interim measures does not constitute an internal organisation and administrative matter of the CJEU, but a matter that has an impact on the exercise of competences and the fulfilment of obligations by an EU Member State.
The inclusion of relevant content concerning interim measures in the CJEU’s Rules of Procedure results in the possibility that the CJEU’s Rules of Procedure may modify the CJEU’s Statute, which in fact constitutes part of the TFEU. The setting out of obligations for the Republic of Poland by means of the CJEU’s Rules of Procedure, which is drafted and applied by the CJEU’s authorities, or its other judges, contradicts the principle of the rule of law and the principle of the supremacy of the Constitution. The competence of the President, the Vice-President, or another judge of the CJEU, to prescribe interim measures for the Republic of Poland, as an EU Member State, interferes with the subject-matter covered by the Constitution and influences the state’s exercise of its competences within the relevant scope. Therefore, the said norm is inconsistent with the Constitution and infringes the basic requirements of the rule of law.
The challenged norm indicates no criteria as to the circumstances where interim measures may be applied. A completely discretionary decision within that scope is not based on any legal provisions. Due to the fact that the norm grants entities that are not EU bodies the competence to prescribe interim measures in matters arbitrarily specified by the said entities, i.e. in matters interfering with the subject-matter of the Constitution, the norm is inconsistent with Art. 2 in conjunction with Art. 8(1) of the Constitution. The realisation of the principle of a state ruled by law and the principle of the supremacy of the Constitution – in particular in the context of international-law norms – pertains to the scope of the division of competences between the Republic of Poland and the EU and its bodies. Neither the CJEU’s President nor any particular judge of the CJEU constitutes an EU body, and yet they are authorised to exercise the competences conferred upon the CJEU in the Treaty (see Art. 279 of the TFEU).
Conferring in the Treaty certain competences upon entities that have an impact on the state’s obligations and competences contradicts the principle of the rule of law. The expansion of the scope of competences to apply other interim measures, by granting them to entities that are not EU bodies entails that the entities may in a discretionary and arbitrary way, on the basis of rules set out in an internal legal act of the CJEU, affect proceedings before that Court. Thus, they may decide about the situation of a Member State, or even determine the substance of the ruling in the main case with relation to which interim measures are prescribed, even though it follows from the nature of interim measures that such correlation is inadmissible. Non-conformity to Art. 2 of the Constitution also arises from the fact that Art. 39 of the CJEU’s Statute makes reference to the CJEU’s Rules of Procedure as regards the interim measures from Art. 279 of the TFEU in a summary procedure. The said procedure may modify the content of the CJEU’s Statute, and therefore part of the TFEU.
Shaping the procedure for prescribing interim measures in the CJEU’s Rules of Procedure, which may modify the Treaty, violates the rules for establishing a system of the sources of law in the way that certain acts are of different ranks and all of them must be consistent with the Constitution, since they are binding for Poland.
Irrespective of the fact that the Republic of Poland consented to the certain content of Art. 39 of the CJEU’s Statute in the course of the ratification process, the degree of generality of a given competence and the possibility of shaping it outside the international agreement (i.e. in a legal act issued by the CJEU: the Rules of Procedure of the CJEU) is inadmissible from the point of view of the Constitution. The said competences have been granted even to an entity that is not the CJEU’s authority, and the content of the competences may be developed outside the ratification procedure, although this significantly affects a Member State and its activity. Interim measures require taking certain action or refraining from action, which sometimes affects the exercise of competences by domestic public authorities.
Having considered the above, the Constitutional Tribunal deemed that what clashed with the requirements of the rule of law was the granting of the competence to prescribe interim measures to an entity other than an EU body before which main proceedings are conducted. The application of interim measures does not constitute internal administrative activity of the CJEU. It is provided upon an application by an authorised entity, as an element securing the conduct of main proceedings before the CJEU. Therefore – even by way of summary procedure – it is unauthorised to include in the CJEU’s Rules of Procedure the determination of procedures related to the application of interim measures. The challenged norm allows inappropriate entities to have the possibility of taking a wide range of actions. By virtue of a form which is proper for managing administrative affairs, the CJEU permits decisions to be taken with regard to relations between the EU and its bodies and a Member State.
To sum up, the Constitutional Tribunal concluded that the challenged norms arising from Art. 279 of the TFEU and Art. 39 of the CJEU’s Statute primarily infringed the principle of the rule of law, which is established in Art. 2 of the Constitution and the related principle of the Nation’s sovereignty (Art. 4(1) of the Constitution) as well as the principle of the supremacy of the Constitution (Art. 8(1) of the Constitution). The norm in Art. 279 of the TFEU has shaped the institution of the interim measure contrary to its essence arising from the Treaty. Indeed, it categorised a penalty payment as an interim measure, even though the said penalty is irrevocable. Also, the norm has created an interim measure which is separate from main proceedings in a given case. Additionally, it has created a new measure for the CJEU to hold a Member State accountable for a violation of the Treaty (non-compliance with the prescribed interim measure), which should be deemed as clearly contrary to the rule of law. Moreover, the creation of the said norm has occurred by bypassing the will of the Member State concerned (its consent to the content of the norm), and hence in violation of the principle of the Nation’s sovereignty.
The norm in Art. 39 of the TFEU has vested entities that are not EU bodies with the competence to apply interim measures, and made it possible to determine procedures for prescribing that measure in the CJEU’s Rules of Procedure. By means of legal acts which are proper for managing internal administration of a body, the scope of competences to apply interim measures has been expanded, which is inadmissible from the point of view of shaping certain institutions in appropriate legal acts which are adequate to the rank of the subject-matter regulated. Thus, the challenged norm in Art. 39 of the TFEU had to be declared inconsistent with Art. 2 in conjunction with Art. 8(1) of the Constitution.
The Constitutional Tribunal en banc adjudicated on the case, with the President of the Constitutional Tribunal, Judge Julia Przyłębska, as the Presiding Judge, and Judge Zbigniew Jędrzejewski as the Judge Rapporteur.