EUU, Alm.del - 2021-22 - Bilag 63: Henvendelse til Folketingets formand fra formanden for det polske underhus vedr. den polske forfatningsdomstols afgørelse af 7/10-21

Europaudvalget 2021-22
EUU Alm.del Bilag 63
Offentligt

Judgement

Assessment of the conformity to the Polish Constitution of selected provisions of the Treaty on European Union

Ref. No. K 3/21

JUDGMENT

IN THE NAME OF THE REPUBLIC OF POLAND

Warsaw, 7 October 2021

The Constitutional Tribunal, composed of:

Julia Przyłębska –

Presiding Judge

Zbigniew Jędrzejewski

Mariusz Muszyński

Krystyna Pawłowicz

Stanisław Piotrowicz

Justyn Piskorski

Piotr Pszczółkowski

Bartłomiej Sochański –

Judge Rapporteur

Michał Warciński

Rafał Wojciechowski

Jarosław Wyrembak

Andrzej Zielonacki,

Recording Clerks

– Grażyna Szałygo, Krzysztof Zalecki,

having considered, at the hearings on 13 July, 31 August, 22 and 30 September, as well as 7 October 2021

–

in the

presence of the applicant, the President of the Republic of Poland, the Sejm, the Minister of Foreign Affairs, the Public

Prosecutor-General, and the Polish Ombudsman [also referred to as the Polish Commissioner for Human Rights]

–

the

Prime Minister’s application lodged with the Constitutional Tribunal to assess the

conformity of:

1) Article 1, first and second paragraphs, in conjunction with Article 4(3) of the Treaty on European Union (Journal of

Laws

–

Dz. U. of 2004 No. 90, item 864/30, as amended)

–

construed in the way that it enables and/or compels a law-

applying authority to refrain from applying the Polish Constitution or requires the said authority to apply provisions of

law in the way that is inconsistent with the Constitution

–

to Article 2, Article 7, Article 8(1) in conjunction with

Article 8(2), Article 90(1) and Article 91(2) as well as Article 178(1) of the Constitution of the Republic of Poland;

2) Article 19(1), second subparagraph, in conjunction with Article 4(3) of the TEU

–

construed in the way that, for the

purpose of ensuring the effective legal protection, a law-applying authority is competent and/or obliged to apply

provisions in the way that is inconsistent with the Constitution, including a provision which has, on the basis of a ruling

by the Constitutional Tribunal, ceased to have effect due to being inconsistent with the Constitution

–

to Article 2,

Article 7, Article 8(1) in conjunction with Article 8(2) and Article 91(2), Article 90(1), Article 178(1) as well as

Article 190(1) of the Constitution of the Republic of Poland;

3) Article 19(1), second subparagraph, in conjunction with Article 2 of the TEU

–

construed in the way that it authorises

a court to review the independence of judges appointed by the President of the Republic of Poland as well as to review

the National Council of the

Judiciary’s resolution to refer a request to the President of the Republic to appoint a

judge

–

to Article 8(1) in conjunction with Article 8(2), Article 90(1) and Article 91(2), Article 144(3)(17) as well Article 186(1)

of the Constitution of the Republic of Poland,

adjudicates as follows:

1. Article 1, first and second paragraphs, in conjunction with Article 4(3) of the Treaty on European Union (Journal

of Laws

–

Dz. U. of 2004 No. 90, item 864/30, as amended)

–

insofar as the European Union, established by equal

and sovereign states, creates “an ever closer union among the peoples of Europe”, the

integration of whom

–

EUU, Alm.del - 2021-22 - Bilag 63: Henvendelse til Folketingets formand fra formanden for det polske underhus vedr. den polske forfatningsdomstols afgørelse af 7/10-21

happening on the basis of EU law and through the interpretation of EU law by the Court of Justice of the European

Union

– enters “a

new stage”

in which:

a) the European Union authorities act outside the scope of the competences conferred upon them by the Republic

of Poland in the Treaties;

b) the Constitution is not the supreme law of the Republic of Poland, which takes precedence as regards its binding

force and application;

c) the Republic of Poland may not function as a sovereign and democratic state

–

is inconsistent with Article 2, Article 8 and Article 90(1) of the Constitution of the Republic of Poland.

2. Article 19(1), second subparagraph, of the Treaty on European Union

–

insofar as, for the purpose of ensuring

effective legal protection in the areas covered by EU law

–

it grants domestic courts (common courts, administrative

courts, military courts, and the Supreme Court) the competence to:

a) bypass the provisions of the Constitution in the course of adjudication

–

is inconsistent with Article 2, Article 7,

Article 8(1), Article 90(1) and Article 178(1) of the Constitution;

b) adjudicate on the basis of provisions which are not binding, having been revoked by the Sejm and/or ruled by

the Constitutional Tribunal to be inconsistent with the Constitution

–

is inconsistent with Article 2, Article 7, Article 8(1), Article 90(1) and Article 178(1), and Article 190(1) of the

Constitution.

3. Article 19(1), second subparagraph, and Article 2 of the Treaty on European Union

–

insofar as, for the purpose

of ensuring effective legal protection in the areas covered by EU law and ensuring the independence of judges

–

they grant domestic courts (common courts, administrative courts, military courts, and the Supreme Court) the

competence to:

a) review the legality of the procedure for appointing a judge, including the review of the legality of the act in which

the President of the Republic appoints a judge

–

are inconsistent with Article 2, Article 8(1), Article 90(1)

and Article 179 in conjunction with Article 144(3)(17) of the Constitution;

b) review the legality of the National Council of the Judiciary’s resolution to refer a

request to the President of the

Republic to appoint a judge

–

are inconsistent with Article 2, Article 8(1), Article 90(1) and Article 186(1) of the

Constitution;

c) determine the defectiveness of the process of appointing a judge and, as a result, to refuse to regard a person

appointed to a judicial office in accordance with Article 179 of the Constitution as a judge

–

are inconsistent with

Article 2, Article 8(1), Article 90(1) and Article 179 in conjunction with Article 144(3)(17) of the Constitution.

Moreover, the Tribunal decides:

to discontinue the proceedings as to the remainder.

The ruling was adopted by a majority vote.

Julia Przyłębska