Can the EU itself expand its powers, which are beyond the control of the states, through the decisions of the Court of Justice of the European Union? The Polish Constitutional Court had to answer this question when on Wednesday, July 14th, it examined an application from the Disciplinary Chamber of the Supreme Court (the Polish Court of Cassation), which had been “suspended” by the European Court of Justice due to an injunction issued in spring 2020. On August 3, the Polish constitutional judges will have to respond to a similar request from Prime Minister Mateusz Morawiecki. The head of government called the Constitutional Court when the European Court of Justice claimed on March 2 that the Polish Supreme Administrative Court (NSA) had the right to appoint judges, not to recognize those implemented after a reform of the Polish Law on the National Judicial Council (KRS). Under Polish law and the Constitution, the NSA has no such power.
Out of jealousy over the primacy of European law , the European Commission asked the Polish Prime Minister on June 9th to withdraw his application, but the latter refused. Also on June 9 , the Commission initiated proceedings against German-land because of a ruling by the Federal Constitutional Court in 2020, one in which it was confirmed that
the member states remain masters of the treaties, which means that the institutions cannot themselves expand their powers in disregard of treaties signed and ratified by the 27 through a democratic process.
Also in June , the Romanian Constitutional Court reminded the European Court of Justice of the limits of its powers by refusing to recognize the validity of its decisions in areas that fall within the competence of the states. This was a situation similar to the one that prompted the Polish Prime Minister to bring a case to his country’s Constitutional Court.
In its judgment of July 14th, the Polish Constitutional Court recalled that the preliminary measures of the European Court of Justice on the organization and functioning of the Polish courts were incompatible with the Polish constitution, as Poland had never transferred its powers in this area to the EU.
Such a transfer of powers can only take place through a treaty that is signed and ratified in accordance with the normal democratic procedure, and not through an interpretation of the existing treaties that goes far beyond the wording and spirit of the treaties.
This is essentially what the Polish Constitutional Court said in legal language with reference to the relevant articles of the European Treaties and the Polish Constitution.
So it is a true war of the courts that we seem to be witnessing today, because on the same day, July 14th, the Spanish Vice-President of the European Court of Justice (the same who, after a hearing in a single judge, ordered the closure of the Turów mine ) a second injunction at the request of the European Commission , which ordered the Disciplinary Body of the Polish Supreme Court to cease all activities. The Commission considered that the interim measures taken by the ECJ last year had not been applied. And for a good reason! As the Polish Constitutional Court has just confirmed, the Polish Constitution does not allow such a transfer of powers based solely on the arbitrary decisions of judges in Luxembourg.
But the case is even more complicated because the next day, on Thursday, July 15, the European Court of Justice, which this time did not meet with a single judge as in the case of the interim injunctions, passed a judgment on the matter and ruled that the disciplinary code for judges in Poland is not compatible with EU law.
Although the Polish Constitutional Court only decided on the interim measures issued by the European Court of Justice, the problem with this final judgment is the same: it decides on the organization of the Polish judicial system without the Poles (or any other people) having any powers in this area transferred by the European institutions.
Either the Polish government and the Sejm will now reverse the judicial reforms in order to bring the law into line with the wishes of the Commission and the European Court of Justice, and thus a large de facto expansion of EU competences through the judiciary rather than a democratic one Strengthen the process, or the Polish Constitutional Court will be called again and it will have to repeat that the decision of the ECJ cannot be applied in Poland because it affects an area of national competence. The conflict between Warsaw and Brussels could then become very serious.
In a Erklä-tion , the European Commission said it was ” deeply concerned about the decision of the Polish Constitutional Court, which states that are incompatible with the Polish Constitution by the Court of the European Union regarding the functioning of the judiciary arranged interim measures. “It goes on to say that“ The Commission has always been very clear and unequivocal on this issue and reiterates that EU law takes precedence over national law ”and“ All decisions of the European Court of Justice, including interim measures, are for the authorities of all Member States and binding for the national courts . “
As Jerzy kvass niewski , president of the Institute Ordo Iuris , but stresses ” the problem lies in the evolutionary change of EU law. Poland ratified the accession treaties and then, above all, the Lisbon Treaty. However, over time the EU institutions, in particular the Commission and the Court of Justice, have expanded their competences and acquired additional powers – to the detriment of the Member States. And
The subject of the proceedings before the Constitutional Court is the compatibility of these Union competences, which have been systematically expanded without the consent of the member states, with the Polish constitution. “