“Unprecedented rebellion” against EU law

The Polish Constitutional Court is not an independent and impartial court. This is the conclusion reached by independent Advocate General Dean Spielmann in infringement proceedings before the European Court of Justice (ECJ). He argues that Poland's Constitutional Court's disregard for the primacy of EU law represents an "unprecedented rebellion."

The conflict was triggered by the attempt by the former right-wing populist ruling party, PiS, to gain control of the Polish judiciary after taking power in 2015. Parts of the judiciary resisted this attempt by appealing to the European Court of Justice. However, the Polish Constitutional Court declared the court's orders to preserve independence unconstitutional.

In two rulings in July and October 2021, the Constitutional Court, now controlled by the PiS, declared that the ECJ was exceeding its powers by interfering in the Polish judiciary. The Constitutional Court ruled that ECJ rulings on judicial matters should no longer be observed in Poland. EU law can only be observed if it complies with the Polish Constitution (as interpreted by the PiS-controlled Constitutional Court).

The EU Commission initiated infringement proceedings against this in 2022. Initially, the PiS government rejected all allegations. However, after its defeat in October 2023 and the liberal-conservative Donald Tusk took over, the Polish government fully acknowledged the EU Commission's allegations against the Constitutional Tribunal (still controlled by the PiS). The ECJ must nevertheless examine the allegations.

Court cannot invoke Polish constitutional identity

In his final submissions, which prepare the ECJ ruling, Spielmann concluded that Poland's Constitutional Court disregarded the primacy of EU law. This principle also applies to constitutional law, because otherwise the EU could not function. Nor could the court invoke Polish constitutional identity.

While the EU guarantees all member states that it respects their "national identity," this does not mean carte blanche to deviate from EU law, especially with regard to core values ​​such as the rule of law . If a member state believes its constitutional identity has been violated, the case must be submitted to the ECJ, which will then "finally" decide the conflict after a "productive dialogue," Spielmann said.

The second central allegation against the Polish Constitutional Court concerns its composition. In 2015, the PiS government appointed three judges close to it, even though three other judges had already been elected.

One of the illegitimate constitutional judges is still in office. Advocate General Spielmann also criticized the 2016 election of Julia Przylebska as President of the Court because she was elected predominantly by the illegitimate judges. The ECJ will announce its ruling in a few months.