The judgement of 14 July concerns an highly crucial substance – the compatibility or contradiction of the provisions of key EU treaties with the constitutional principles of the democratic regulation of law, legalism, primacy of the fundamental law in the context of the powers conferred by the associate State on the bodies of the European Union. We have the powers which the Republic of Poland has delegated pursuant to Article 90 of the Polish Constitution, as well as another selected competences – specified as the control of the model and structure of the judiciary, the control of the independency of judges – to which the authorities of the European Union presume their right under very general articles originating from the Treaty on European Union or the Treaty of Lisbon.
The Court's ruling refers to the failure of the Court of Justice of the European Union to comply with the provisions of the Constitution of the Republic of Poland to impose obligations on the national judiciary outside its competence. Under the conditions of a unchangeable constitutional strategy of the state, with the appropriate conduct of proceedings and the issuing of a judgement with a convincing, strong substantive justification, there would most likely be no area for discussion – specified a judgement would should be respected, both in Warsaw and Strasbourg. The argument of the primacy of the law established by the Constitution over ratified global agreements and further over laws, decrees, regulations and regulations, is not the only but possibly the strongest evidence that indirectly besides prejudges the state's preservation of the foundations of sovereignty.
However, the decision of 14 July came under increasing legal and political chaos. Firstly, problems arise in the composition of the ultimate Court Disciplinary Chamber. The ruling included persons whose political activity in this peculiar case called into question the maintenance of the rule of the Court's impartiality erstwhile giving a ruling. I mention to judges Krystyna Pawlowicz and Stanisław Piotrowicz. During the procedure of the application (which lasted respective months), the first of the members disappeared, while the second became the president of the composition.
It should besides be borne in head that, in any of the cases dealt with so far, the European Court of Human Rights has, as a ricochet, challenged the cognitive of the Polish Constitutional Court to regulation on constitutionality in the individual field of persons appointed to that tribunal for places already planted. At the same time, it is fair to add that a separate conviction on the case was published by the distinguished constitutional justice Jarosław Wyrębak, who says that the Polish Constitutional Court cannot be classified as a group of courts in the explanation of the ETPCz. Thus, having at the disposal of 15 judges of the Constitutional Court, a composition without justice Justyn Piskorski could be placed in this peculiar case. It is always 1 little argument against the jurisprudence of the Polish court.
Secondly, the Polish Court omitted an crucial component of the procedure for examining the constitutionality of EU law. As the peculiar message states, a group of 25 judges of the Constitutional Tribunal at remainder did not mention to the Strasbourg Court before issuing the judgement with a preliminary ruling on the explanation of the contested provisions. Obtaining an answer to specified a question (or deficiency thereof) would be an component strengthening the justification for specified a verdict of the Polish constitutional court. If the TEU were to interpret EU law, it would either gotta bend the scope of the powers conferred by the associate State powerfully or to interpret very general standards of primary law which would consequence in its circumstantial competences. In another words, the way to self-compromise the Strasbourg court would be open. But that did not happen.
However, serious doubts supply the legal position of the Disciplinary Chamber of the ultimate Court itself. In general, this chamber was designated in the resolution of the 3 chambers of the SN as an entity established and operating in breach of the law. On the another hand, could the Constitutional Court suspend the implementation of specified a resolution, which is not a normative act? And the next question is: erstwhile assessing the constitutionality of the grounds for ruling on this substance by the Strasbourg tribunal, and so, as if not to look at it, erstwhile deciding to be the Disciplinary Chamber of the SN, can administrative and factual practices of this Chamber be ignored? Prof. Mirosław Granat, who looks closely at its functioning, points out that meetings are postponed there without a deadline, which has a paralysing effect on part of the judicial system. These are very hard questions.
An additional difficulty in responding to them was generated by the actions of public authorities towards the Constitutional Court and the ultimate Court, whose shameful tradition dates back to mid-2015 and the end of the regulation of the PO-PSL coalition. From now on, a series of decisions have been made to this day, the common denominator of which is that 1 organization party organization has achieved concrete political benefits. This repriming of the party's fight on the grounds of constitutional justice and justice degeneration institutions from within and undermining their authority. Hence, specified large emotions and controversy as the judgement of the Constitutional Tribunal of 14 July gives emergence to.
Dr. Paul Momro
