The exclusion of a debtor from proceedings before the court of first instance, in the case where the proceedings regarded the enforceability of a ruling issued by a court from another EU Member State SK 45/09
At the hearing on 16 November 2011 at 9 a.m., the Constitutional Tribunal (full bench) considered a constitutional complaint concerning the exclusion of a debtor from proceedings before the court of first instance, in the case where the proceedings regarded the enforceability of a ruling issued by a court from another EU Member State.
The Constitutional Tribunal adjudicated that Article 41, second sentence, of the Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters was consistent with Article 45(1) as well as Article 32(1) in conjunction with Article 45(1) of the Constitution of the Republic of Poland. Moreover, pursuant to Article 39(1)(1)-(2) of the Constitutional Tribunal Act of 1 August 1997, the Tribunal decided to discontinue the proceedings as to the remainder.
1. Due to the special character of the legal act whose constitutionality has been challenged, the Constitutional Tribunal began by examining whether legal acts enacted by the EU institutions might constitute the subject of review proceedings commenced by way of constitutional complaint specified in Article 79(1) of the Constitution. The Tribunal stated that the scope ratione materiae of normative acts – which might be subject to the review of their conformity to the Constitution in proceedings commenced by way of constitutional complaint – had been set out in Article 79(1) of the Constitution autonomously and independently from Article 188(1)-(3). The examination of constitutional complaints constitutes a separate type of proceedings. Arguments in favour of that are twofold.
Firstly this is indicated by the systematics of the Constitution. Article 188, which regulates the scope of the jurisdiction of the Constitutional Tribunal, stipulates in its point 5 that the Constitutional Tribunal shall adjudicate on constitutional complaints, as specified in Article 79(1). The last-mentioned provision is also referred to in Article 191(1)(6) of the Constitution, in the context of individuals or legal entities that are authorised to make application to the Tribunal to instigate proceedings. This indicates that the constitution-maker has rendered proceedings involving the examination of a constitutional complaint separately from other proceedings before the Constitutional Tribunal.
Secondly, the basic function of a constitutional complaint is the protection of constitutional rights and freedoms of individuals or legal entities. Therefore, it would be unjustified to narrow down its scope ratione materiae only to the normative acts enumerated in Article 188(1)-(3) of the Constitution. The last-mentioned provision manifests the division of the scope of jurisdiction, concerning the examination of hierarchical conformity of normative acts, between the Constitutional Tribunal and other courts.
Within the meaning of Article 79(1) of the Constitution, a constitutional complaint may concern a statute or another normative act. According to the Constitutional Tribunal, a normative act, within the meaning of Article 79(1) of the Constitution, may be not only a normative act issued by one of the organs of the Polish state, but also - after fulfilling further requirements – a legal act issued by an organ of an international organisation, provided that the Republic of Poland is a member thereof. This primarily concerns the acts of the EU law which have been enacted by the institutions of that organisation. Such legal acts constitute part of the current Polish legal system.
Pursuant to Article 288, second paragraph, of the Treaty on the Functioning of the European Union, a regulation shall have general application; it shall be binding in its entirety and directly applicable in all Member States. The norms of a regulation are general and abstract in character. The addressees of the norms of a regulation are not only the Member States and the organs of those States, but also individuals (private parties). The Constitutional Tribunal stated that an EU regulation bears the characteristics of a normative act within the meaning of Article 79(1) of the Constitution.
The Constitutional Tribunal also concluded that EU regulations might contain norms upon which basis a court or organ of public administration would make a final decision on the freedoms, rights or obligations of individuals or legal entities, as specified in the Constitution. The regulations may constitute a legal basis of administrative decisions and court rulings in the Member States, including Poland. When participating in proceedings before national courts, individuals may rely on the norms of EU regulations and derive their rights therefrom.
For these reasons, the Tribunal adjudicated that an EU regulation might be the subject of review proceedings commenced by way of constitutional complaint, specified in Article 79(1) of the Constitution. The fact that this is an act of the EU law, although it also constitutes part of the Polish legal system, affects the character of the review of its conformity to the Constitution, conducted by the Constitutional Tribunal.
2. The Constitutional Tribunal stated that EU regulations were legal acts whose position in the Polish constitutional system had been indicated in Article 91(3) of the Constitution. One of the systemic principles of the EU law is the principle of primacy of the EU law (former Community law) over the national law of the Member States. What follows from Article 91(3) of the Constitution is the precedence of the norms of EU regulations in the event of their unconformity with statutes. By contrast, the Constitution retains its superiority and precedence over all legal acts which are in force in the Polish legal system, including the acts of the EU law. The said position of the Constitution is enshrined in Article 8(1) of the Constitution, and has been confirmed by the previous jurisprudence of the Constitutional Tribunal. Due to the position of the Constitution as the supreme law of the Republic of Poland, it is therefore admissible to review the constitutionality of the norms of EU regulations.
The Constitutional Tribunal pointed out that it was necessary to draw a distinction between examining the conformity of the acts of the EU secondary legislation to the Treaties, i.e. the EU primary law, on the one hand, and examining their conformity to the Constitution, on the other. The body that ultimately determines the conformity of EU regulations to the Treaties is the Court of Justice of the European Union, and as regards the conformity to the Constitution – the Constitutional Tribunal. It is crucial to take into account the indicated differences between the roles of the Court of Justice and the Tribunal. In accordance with the jurisprudence of the Court of Justice, national courts have no jurisdiction to adjudicate as regards the invalidity of the acts of the EU secondary legislation.
The courts of the European Union have sole jurisdiction in that regard. By contrast, the Constitutional Tribunal protects the Constitution, which – pursuant to Article 8(1) – is the supreme law of the Republic of Poland. Taking the above into consideration, it should be stated that, also due to the content of Article 8(1) of the Constitution, the Constitutional Tribunal is obliged to perceive its position in such a way that, as regards fundamental matters concerning constitutional and systemic issues, it will “have the last word”. In such context, there may potentially be conflicts between the rulings issued by the Constitutional Tribunal and those delivered by the Court of Justice.
Allowing the possibility of examining the conformity of the acts of the EU secondary legislation to the Constitution, the Tribunal emphasised the need to maintain due caution and restraint in that regard. The EU law binds all Member States (currently 27). One of the systemic principles of the EU law is the principle of sincere cooperation, as referred to in Article 4(3) of the EU Treaty. What would be difficult to reconcile with that principle is granting powers to particular Member States to decide about declaring the norms of the EU law to be no longer legally binding. By contrast, within the meaning of Article 4(2) of the EU Treaty, the Union shall respect the national identities of the Member States, which are inherent in their fundamental structures, political and constitutional.
In the opinion of the Tribunal, any contradictions should be eliminated by applying interpretation that respects the relative autonomy of the EU law and national law. Moreover, the said interpretation should be based on the assumption of mutual loyalty between the EU institutions and the Member States. The said assumption gives rise to an obligation, on the part of the Court of Justice, to be favourably inclined towards national legal systems, whereas on the part of the Member States – the obligation to approach the EU norms with the utmost respect.
Additionally, the review of conformity of an EU regulation to the Constitution, conducted by the Constitutional Tribunal, should be regarded as independent, and also subsidiary, in relation to the jurisdiction of the Court of Justice. When acceding to the EU, the Republic of Poland accepted the division of powers within the system of the EU institutions. An element of that division is the jurisdiction of the Court of Justice to provide the final interpretation of the EU law and to ensure that the interpretation is observed consistently in all Member States, as well as to have an exclusive power to determine the conformity of the acts of the EU secondary legislation to the Treaties and the general principles of the EU law.
Also, the Tribunal considered the effects of a judgment of the Constitutional Tribunal in case of possible adjudication that the norms of the EU secondary legislation were inconsistent with the Constitution. In the context of the acts of Polish law, the said non-conformity results in declaring the unconstitutional norms to be no longer legally binding. With regard to the acts of the EU secondary legislation, such a result would be impossible to implement, as it is not the organs of the Polish state that decide whether such acts are legally binding or not. Therefore, the consequence of the ruling of the Constitutional Tribunal would be to rule out the possibility that the acts of the EU secondary legislation would be applied by the organs of the Polish state and would have any legal effects in Poland.
Undoubtedly, the ruling declaring the non-conformity of the EU law to the Constitution should be final and ought to appear when other ways of solving a conflict between the norms of different legal systems have failed. In its judgment concerning the Treaty of Accession, the Constitutional Tribunal indicated three possible reactions in Poland to the occurrence of a conflict between the Constitution and the EU law: amending the Constitution, taking up measures aimed at amending the EU provisions, or taking a decision to withdraw from the EU. Such a decision should be made by the Polish sovereign, i.e. the Polish Nation, or the organ of the state which, in accordance with the Constitution, may represent the Nation.
Leaving aside the last solution, which should be reserved for the exceptional cases of the most serious and irreconcilable conflicts between the bases of the constitutional order of the Republic of Poland and the EU law, after the Constitutional Tribunal issues the ruling declaring the non-conformity of particular norms of the EU secondary legislation to the Constitution, measures should be undertaken in order to eliminate the conflict. The constitutional principle of favourable predisposition of the Republic of Poland towards the process of European integration and the Treaty’s principle of loyalty of the Member States towards the Union require that the effects of the Tribunal’s ruling be deferred in time, pursuant to Article 190(3) of the Constitution.
3. Examining the constitutionality of the challenged provisions of the Council Regulation (EC) No 44/2001, the Tribunal stated that the complainant had made an allegation about that the infringement of the right to a fair and public hearing, in first instance proceedings to determine the enforceability of a ruling of a foreign court in the Republic of Poland, which had been issued against the complainant. In the end, as the subject of review in the present case, the Tribunal indicated Article 41, second sentence, of the Council Regulation (EC) No 44/2001, in accordance with which a debtor against whom enforcement was sought should not at the stage of first instance proceedings be entitled to make any submissions on the application. Among the higher-level norms for constitutional review indicated by the complainant, the Constitutional Tribunal recognised that it was admissible and justified to carry out the review of the challenged norm from the point of view of its conformity to Article 45(1) (the right to a fair trial) as well as Article 32(1) in conjunction with Article 45(1) of the Constitution (the principle of equality in the context of the right to a fair trial). With regard to the other provisions indicated by the complainant, and also due to the withdrawal of part of the constitutional complaint, the Tribunal decided to discontinue the proceedings as to the remainder.
The Constitutional Tribunal stated that a fair judicial procedure should ensure that parties enjoyed procedural rights which were relevant to the subject of pending proceedings. The requirement of a fair trial implies that the principles of the trial are adjusted to the specific character of particular cases under examination. Constitutional guarantees related to the right to a fair trial may not be regarded as a requirement to provide – in every type of proceedings – the same set of procedural instruments which would uniformly specify the position of the parties to proceedings and the scope of procedural measures available to them.
In the view of the Tribunal, the proceedings regulated in the Council Regulation (EC) No 44/2001 aim at balancing the rights and opposite interests of the applicant (creditor) and the debtor. To achieve that goal, the EU legislator provided for a two-state procedure. The procedure reflects a general assumption that underlies proceedings to determine the enforceability of a ruling issued by a court from another Member State, meant to reconcile the effect of the debtor’s surprise, which is indispensable in the proceedings, with respect for his/her right to a hearing.
What is significant is the fact that proceedings to determine the enforceability of a ruling of a court from another Member State are secondary in character in relation to the court proceedings which ended by issuing the ruling in the Member State of origin. In proceedings to determine the enforceability of the ruling, there is a presumption that, in proceedings before the court of the Member State of origin, both parties were granted procedural rights which corresponded to the guarantees of a fair procedure. The said presumption is based on mutual trust in the administration of justice in the EU Member States. The right to a fair trial is guaranteed in the constitutions and statutes of those States. Moreover, it arises from Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The right to a fair trial is guaranteed by Article 47 of the Charter of Fundamental Rights of The European Union. This is also a general principle which constitutes part of the EU law.
Additionally, the Constitutional Tribunal noted that the legal construct of ex parte proceedings, i.e. proceedings without the participation of the other party – being analogical to the construct adopted in Article 41, second sentence, of the Council Regulation (EC) No 44/2001 at the first stage of proceedings to determine enforceability – occurs also in relation to some proceedings at a later stage, which have been regulated in the Polish Code of Civil Procedure. Particular attention should be drawn to special proceedings aimed at expedient examination of certain types of civil cases, i.e. injunction proceedings and proceedings concerning orders to pay. The character of proceedings without the participation of a defendant (debtor) is also shared, at the first stage, by proceedings concerning precautionary measures and proceedings to issue an enforcement clause. The exclusion of defendants (debtors) at the first stage of the above-mentioned proceedings has not been challenged before the Constitutional Tribunal so far.
For the above reasons, the Tribunal stated that ruling out the possibility of making a statement by the debtor at the first stage of proceedings to determine the enforceability of a ruling of a foreign court, pursuant to Article 41, second sentence, of the Council Regulation (EC) No 44/2001, did achieve the above-mentioned significant goals, and was not arbitrary in character and did not infringe the right to a fair trial. On the one hand, the said procedural solution implements the principle of the free movement of judicial decisions within the EU and the principle of mutual trust in the administration of justice in the EU Member States, which also apply to rulings issued by Polish courts. On the other hand, it facilitates the effective enforcement of court rulings issued to applicants (creditors). Therefore, there are no grounds to conclude that the adopted model of proceedings to determine the enforceability of a ruling of a foreign court, with the existing restrictions imposed on a debtor in first instance proceedings, infringes the right to a fair trial, guaranteed by the Constitution.
As regards the alleged infringement of Article 32(1) in conjunction with Article 45(1) of the Constitution, the Tribunal concluded that - due to the special character of proceedings to determine the enforceability of a ruling of a foreign court, which were instigated by the creditor who had been awarded a ruling ordering compensation for him – it was admissible to differentiate between the procedural rights of one party and those of the other in first instance proceedings. In the view of the Tribunal, it does not follow from the content of Article 41, second sentence, of the Council Regulation (EC) No 44/2001 that the applicant (creditor) is excessively or unjustly privileged in comparison with the participant in the proceedings (the debtor).
4. Due to a precedential character of the case, the Constitutional Tribunal carried out a thorough analysis of the conformity of the challenged EU Regulation to the Constitution. However, the Tribunal deemed it desirable - in the future - to indicate a way of examining the conformity of the norms of the EU law (the Treaties and the EU secondary legislation) to the Constitution, in the course of review proceedings commenced by way of constitutional complaint.
In that regard, the Tribunal made reference to the jurisprudence of the constitutional courts of other Member States, and concluded that the direct review of the conformity of the acts of the EU secondary legislation to the national constitutions had been conducted only in exceptional cases. This confirms the thesis that there is certain caution in that regard. The Federal Constitutional Court of Germany has stated that – as long as the European Union ensures, in particular by means of the jurisprudence of the Court of Justice, the effective protection of fundamental rights, being equivalent to the inviolable protection of fundamental rights which arises from the Basic Law for the Federal Republic of Germany – the Federal Constitutional Court of Germany will not examine the conformity of the EU secondary legislation to the provisions of the Basic Law which guarantee fundamental rights.
Likewise in the jurisprudence of the European Court of Human Rights, there is a presumption that the EU law and the Court of Justice ensure the protection of human rights at the level which is equivalent to the level of protection required by the European Convention for the Protection of Human Rights and Fundamental Freedoms. Therefore, the actions of the EU Member States are consistent with the Convention as long as the European Union protects human rights, by applying – for that purpose – appropriate guarantees of protection as well as control mechanisms, which are at least equivalent to those guaranteed by the Convention. What follows from the above is that the European Court of Human Rights is competent, only in exceptional cases, to assess whether actions, or lack thereof, on the part of the EU bodies and institutions are consistent with the Convention; namely, i.e. when the presumption of equivalent legal protection is undermined, and the protection of human rights at the EU level is ”manifestly deficient”.
In the opinion of the Constitutional Tribunal, there are premisses for adopting an analogical approach when examining the constitutionality of the EU law in Poland.
The legal acts prior to Poland’s accession to the EU were adopted, pursuant to the Treaty of Accession, in the Polish legal system on the day of the accession. Subsequent legal acts were issued when Poland was already a Member State of the EU, usually with the participation of the representatives of the competent organs of the Polish state. What justifies an analogical approach to that taken by other courts are the following aforementioned arguments: the great significance of fundamental rights in the EU legal order, the constitutional principle of favourable predisposition of the Republic of Poland towards the process of European integration as well as the Treaty’s principle of loyalty of the Member States towards the Union.
The approach presented here has procedural consequences. In the case of filing a constitutional complaint which challenges the conformity of an act of the EU law to the Constitution, a given complainant should be required to make probable that the said legal act undermines the level of protection of rights and freedoms, in comparison with the level of protection guaranteed by the Constitution. This requirement arises from Article 79(1) of the Constitution. Proving, by the complainant, that the act of the EU law undermines the level of protection of rights and freedoms, in comparison with the level of protection guaranteed by the Constitution, is not an additional requirement, but more specific rendering of the requirement to indicate in what manner given rights or freedoms have been infringed. The need for such more specific rendering is justified by the character of the acts of the EU law, which come from legislative centres other than the organs of the Polish state.
The requirement to make probable that the level of protection of rights and freedoms has been undermined, in comparison with the level of protection guaranteed by the Constitution, follows from the allocation of the burden of proof in review proceedings commenced by way of constitutional complaint. This is not tantamount to possible indication (proof) that there has been an infringement of the Constitution, which is the task of the Tribunal. Without fulfilling that requirement, the Tribunal may conclude that the constitutional and statutory requirements of a constitutional complaint have not been met and, consequently, may issue a decision in which it refuses to proceed with the constitutional complaint or in which it discontinues the proceedings.
The hearing was presided over by the President of the Constitutional Tribunal, Judge Andrzej Rzepliński, and the Judge Rapporteur was the Vice-President of the Constitutional Tribunal, Judge Stanisław Biernat.
The judgment is final and its operative part shall be published in the Journal of Laws.