Poland, Constitutional Tribunal (Trybunał Konstytucyjny), K 3/21, Constitutional, October 7, 2021

Member State
Poland
Topic
independence
Sector
Judicial Self-Government (Judicial Council)
Role of national higher courts
Disciplinary proceedings
Judicial Ethics
Use of the Preliminary Reference Procedure
Deciding Court Original Language
Trybunał Konstytucyjny
Deciding Court English translation
Constitutional Tribunal of Poland
Registration N
K 3/21
Date Decision
October 7, 2021
ECLI (if available)
N/A
National Follow Up Of (when relevant)
No
EU legal sources and CJEU jurisprudence

Treaty on European Union (TEU): Article 2 (values of the Union, including respect for the rule of law), Article 4(3) (principle of sincere cooperation), Article 19(1) (obligation of Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law).
Treaty on the Functioning of the European Union (TFEU)
Charter of Fundamental Rights of the European Union: Article 47 (right to an effective remedy and to a fair trial).

Case C-824/18: Concerning the independence of the judiciary and the conditions under which national courts may disregard national laws that conflict with EU law.
Case C-619/18: Related to the independence of the judiciary and the obligation of Member States to ensure effective legal protection in the fields covered by Union law.
Cases C-585/18, C-624/18, C-625/18: Addressing issues related to the disciplinary regime for judges and the principle of judicial independence.
Case C-487/19: Discussing the requirements of judicial independence and the effective functioning of the judicial system in Member States.
Case C-791/19: Concerning the European Commission's action against Poland for alleged violations of EU law related to judicial independence.

ECtHR Jurisprudence
The Constitutional Tribunal of Poland does not refer to any judgments of the European Court of Human Rights (ECtHR)
Subject Matter
The judgment by the Polish Constitutional Tribunal in case K 3/21 examines the conformity of national legal provisions with the Constitution of Poland. It addresses the relationship between national law and EU law, focusing on judicial independence, the appointment process of judges, and the supremacy of the Constitution.
Legal issue(s)
The judgment raises several legal issues, including:
1. Supremacy of National Law: Whether national constitutional provisions take precedence over EU law within the Polish legal system.
2. Judicial Independence: The legality and constitutionality of the procedures for appointing judges in Poland, and their compliance with EU standards for judicial independence.
3. Role of the Constitutional Tribunal: The authority of the Polish Constitutional Tribunal to review the constitutionality of national laws and their alignment with EU law.
4. Mutual Trust and Cooperation: The impact of the judgment on the principle of mutual trust and cooperation between the judicial systems of EU member states.
Request for expedited/PPU procedures
N/A
Interim Relief
N/A
National Law Sources
The judgment references several national law sources including:
Constitution of the Republic of Poland: Article 2 (principle of a democratic state ruled by law), Article 7 (principle of legality), Article 8(1) (Constitution as the supreme law of the Republic of Poland), Article 8(2) (direct application of the Constitution), Article 90(1) (transfer of competences to an international organization), Article 91(2) (precedence of international agreements), Article 144(3)(17) (President's prerogative to appoint judges), Article 178(1) (judicial independence), Article 186(1) (National Council of the Judiciary as the guardian of judicial independence), and Article 190(1) (binding force and finality of Constitutional Tribunal judgments).
Act on the National Council of the Judiciary of May 12, 2011: Article 44(1a) (repealed by the Constitutional Tribunal judgment in case K 12/18).
Act of April 26, 2019, amending the Act on the National Council of the Judiciary and the Act on the System of Administrative Courts: Article 44(1) (amended provision on appeals regarding appointments to the Supreme Court), and Article 3 (termination of proceedings regarding Supreme Court appointments initiated and pending before the act's entry into force).
Act of December 20, 2019, amending the Act on the System of Common Courts, the Act on the Supreme Court, and certain other acts: Article 12(3) and (4) (reference to provisions terminating proceedings on appeals against National Council of the Judiciary resolutions).
Facts of the case
The case K 3/21 before the Polish Constitutional Tribunal arose from a request by the Prime Minister of Poland to review the constitutionality of certain provisions of the Treaty on European Union (TEU) as interpreted by the Court of Justice of the European Union (CJEU). The Prime Minister questioned whether the CJEU's interpretation, which allowed national courts to disregard certain Polish constitutional provisions and judicial decisions, was compatible with the Polish Constitution. The review focused on whether these provisions undermined the sovereignty of Poland, the primacy of the Polish Constitution, and the principle of separation of powers by interfering with the appointment of judges and the functioning of the Polish judiciary. The Tribunal's decision addressed the relationship between EU law and the Polish Constitution, ultimately finding that the contested provisions of the TEU, as interpreted by the CJEU, were incompatible with the Polish Constitution.
Reasoning (role of the Charter or other EU, ECHR related legal basis)

The reasoning in the judgment K 3/21 of the Polish Constitutional Tribunal centers on the constitutionality of specific EU laws and the principles arising from them in relation to the Polish Constitution. The Tribunal addresses whether certain provisions of the EU treaties, as interpreted by the Court of Justice of the European Union (CJEU), are consistent with the Polish Constitution.

Legal Reasoning:


Primacy of National Constitution:
The Tribunal reaffirms the primacy of the Polish Constitution over EU law. It argues that while Poland respects its obligations under EU law, this respect does not extend to allowing EU institutions to overstep their competences as defined by the Polish Constitution. Specifically, it states that the Polish Constitution remains the supreme law of the land and any conflict between national law and EU law should be resolved in favor of the Polish Constitution.

Judicial Independence and Structure:
The Tribunal scrutinizes the EU's influence on the Polish judicial system, particularly the procedures for appointing judges. It argues that EU institutions, primarily the CJEU, lack competence to regulate or assess the appointment and removal of Polish judges. This domain is reserved exclusively for Polish authorities under the Constitution. The judgment refers to the constitutional provisions that outline the role of the President and the National Council of the Judiciary in appointing judges, emphasizing that these processes should not be subject to external interference.

Articles of the Polish Constitution:
The Tribunal invokes several constitutional articles:

Article 2: Principles of a democratic state ruled by law.
Article 8: Supreme legal force of the Constitution.
Article 90: Conditions for delegating competences to international organizations.
Article 144(3)(17): Presidential prerogative to appoint judges.
Article 178(1): Independence of judges.
Article 186(1): Role of the National Council of the Judiciary in safeguarding the independence of courts and judges.
Article 190(1): Finality and binding force of the Tribunal’s judgments.


Conflict with EU Law:
The Tribunal identifies specific provisions and interpretations of EU law that it deems incompatible with the Polish Constitution. It highlights Article 19(1) of the Treaty on European Union (TEU) and Article 2 of the TEU, as interpreted by the CJEU, particularly in the context of the rule of law and judicial independence. The Tribunal asserts that these interpretations intrude upon national sovereignty and the constitutional order of Poland.

CJEU Jurisprudence:
The Tribunal critically analyzes several CJEU rulings that have influenced Polish judiciary reforms. It points to decisions such as:

C-619/18 (Commission v. Poland): This ruling found that Poland's law lowering the retirement age of Supreme Court judges was inconsistent with EU law as it undermined judicial independence.
C-192/18 (Commission v. Poland): Here, the CJEU ruled against Poland's measures concerning the lowering of the retirement age of ordinary court judges.
C-585/18, C-624/18, and C-625/18 (A.K. v. Krajowa Rada Sądownictwa): The CJEU ruled that the newly established Disciplinary Chamber of the Supreme Court does not meet the requirements of judicial independence under EU law.
C-824/18 (A.B. and Others): The CJEU held that national courts must disregard provisions of national law that preclude them from reviewing whether a court is independent under EU standards.
These decisions, according to the Tribunal, unlawfully expand the CJEU's jurisdiction into areas of national judicial appointments and disciplinary proceedings for judges. The Tribunal argues that such rulings exceed the competences conferred upon the EU and undermine the constitutional authority of Polish institutions.
European Charter of Fundamental Rights and ECHR:
The judgment does not directly analyze the European Charter of Fundamental Rights or the European Convention on Human Rights (ECHR). However, it implicitly contests interpretations of these instruments by the CJEU and the European Court of Human Rights (ECtHR) that conflict with Polish constitutional principles. The Tribunal emphasizes that while Poland respects international human rights obligations, these must be interpreted in a manner consistent with the national constitution.

Conclusion:
The Polish Constitutional Tribunal, in its judgment K 3/21, concludes that certain provisions and interpretations of EU law, particularly those pertaining to judicial appointments and the disciplinary regime for judges, are incompatible with the Polish Constitution. It underscores the supremacy of the Polish Constitution and asserts the necessity for EU law to respect national constitutional identities and limits of conferred competences. This judgment reaffirms Poland's commitment to its constitutional sovereignty and delineates the boundaries of EU influence on its legal and judicial framework.

Relation of the case to the EU Charter

Relation of the Case to the EU Charter:

The EU Charter of Fundamental Rights was explicitly invoked in the judgment K 3/21 by the Polish Constitutional Tribunal, particularly Article 47, which guarantees the right to an effective remedy and a fair trial. The Tribunal analyzed this provision in the context of its compatibility with the Polish Constitution and the principles governing the Polish judicial system.

Analysis:
1. Article 47 of the EU Charter:
   The Polish Constitutional Tribunal referred to Article 47 of the EU Charter multiple times. Article 47 ensures the right to a fair trial and effective judicial protection, which aligns with the principles of judicial independence and impartiality. However, the Tribunal emphasized that while these principles are important, they must be interpreted within the framework of the Polish Constitution.

2. Conflict with National Law:
   The Tribunal argued that certain interpretations of Article 47 by the CJEU, particularly those that challenge national procedures for judicial appointments and dismissals, conflict with the Polish Constitution. The Tribunal maintained that the Polish Constitution provides comprehensive safeguards for judicial independence and effective legal remedies, consistent with Article 47 of the EU Charter.

3. Use of the Charter in the Judgment:
   The EU Charter was used to support the Tribunal’s reasoning but not as a legally binding parameter that overrides the Polish Constitution. The Tribunal acknowledged the Charter’s principles but insisted that their application must respect national sovereignty and constitutional identity.

4. CJEU Jurisprudence:
   The Tribunal referenced several CJEU judgments that invoked Article 47 to assert broader EU oversight over national judicial systems. The Tribunal critiqued these judgments for overstepping the competences conferred upon the EU and undermining the constitutional provisions of member states.

Conclusion:

The EU Charter of Fundamental Rights, specifically Article 47, was invoked in the Polish Constitutional Tribunal’s judgment K 3/21. The Tribunal used Article 47 to frame its argument about judicial independence and effective legal remedies but emphasized that these principles must be applied in a manner consistent with the Polish Constitution. Thus, while the Charter was used to support the reasoning, it was not employed as a legally binding parameter that could override national constitutional provisions.

Relation between the EU Charter and ECHR
The Polish Constitutional Tribunal’s judgment K 3/21 does not explicitly cite the European Convention on Human Rights or its provisions. However, the judgment addresses concepts of judicial independence and effective judicial protection, which are central to both the EU Charter of Fundamental Rights and the ECHR. The Tribunal frequently refers to the analysis of Article 47 of the Charter, but does not directly relate it to the rights guaranteed by the ECHR.
Use of Judicial Interaction technique(s)
In this judgment, the Polish Constitutional Tribunal employs a judicial interaction technique that can be described as the disapplication of EU law in favor of national constitutional law. This approach starkly contrasts with the established principles of judicial dialogue between national constitutional courts and the CJEU. By prioritizing national constitutional law over EU law, the Tribunal diverges from the cooperative framework that underpins the European legal order. This stance is fundamentally at odds with the doctrine of the primacy of EU law, which is a cornerstone of the EU legal system. Such a unilateral approach undermines the spirit of mutual respect and cooperation that should guide the interactions between national courts and the CJEU, potentially eroding the cohesion and uniformity of the application of EU law across the Member States.
Horizontal Judicial Interaction patterns (Internal – with other national courts, and external – with foreign courts)
In the judgment K 3/21, the Polish Constitutional Tribunal does not extensively engage in horizontal judicial interaction patterns, either internally with other national courts or externally with foreign courts.

Internally, the Tribunal makes minimal reference to other national courts’ judgments. There is no significant engagement with or assessment of decisions from other Polish courts, such as the Supreme Court or ordinary courts. The Tribunal primarily focuses on its own jurisprudence and the constitutionality review based on the Polish Constitution.

Externally, the Tribunal does not cite or engage with the jurisprudence of foreign Constitutional Courts or international courts, except for its critical engagement with the Court of Justice of the European Union (CJEU). The Tribunal's decision does not involve a comparative assessment or detailed engagement with foreign case law. Instead, it focuses on asserting the supremacy of the Polish Constitution over EU law, which is contrary to the established norms of judicial dialogue and mutual recognition within the European judicial framework.
Vertical Judicial Interaction patterns (Internal – with other superior national courts, and external – with European supranational courts)
In the judgment K 3/21, the Polish Constitutional Tribunal engages in vertical judicial interaction patterns primarily through its interaction with CJEU. However, this interaction is characterized by a confrontational rather than cooperative stance.
Internal Vertical Interaction (with other superior national courts):
The Tribunal does not extensively interact with other superior national courts, such as the Supreme Court, in a manner that reflects a vertical judicial dialogue. There are no significant references to decisions of the Supreme Court or other higher national courts. The focus remains on asserting the Constitutional Tribunal’s interpretation of the Polish Constitution without engaging in a broader internal judicial conversation about the interpretation of national law in relation to EU law.
External Vertical Interaction (with European supranational courts):
The judgment K 3/21 prominently features the Tribunal’s engagement with the CJEU, but this interaction is marked by a strong assertion of national constitutional supremacy over EU law. The Constitutional Tribunal directly challenges the CJEU's rulings, particularly those that it perceives as overstepping the competences conferred upon the EU by the Member States.
Strategic use of judicial interaction technique (purpose aimed by the national court)
The strategic use of judicial interaction by the Polish Constitutional Tribunal in judgment K 3/21 is primarily aimed at asserting the supremacy of the national constitution, resolving conflicts of norms in favor of national law, addressing institutional conflicts with the CJEU, and reinforcing national sovereignty. The Tribunal’s approach underscores a protective stance towards national constitutional identity and judicial independence as defined within the Polish legal framework, resisting the influence of broader supranational interpretations and obligations.
Impact on Legislation / Policy
The changes intended by the ruling were primarily aimed at imposing a new interpretation of the principle of primacy, which the Polish Constitutional Tribunal misinterpreted and misunderstood. However, the significant controversies surrounding the composition of the Tribunal have led many courts to question the legitimacy of this ruling. As a result, numerous courts have chosen not to take this decision seriously. They neither cite nor apply it, reflecting a broader skepticism within the judiciary about the ruling's validity and authority.
Notes on the national implementation of the preliminary ruling by the referring court
The outcome achieved by the national judge does not pertain to a response to a preliminary reference question, and therefore, this context does not apply.
Did the national court quote case law of the CJEU/ECtHR (in particular cases not already referred to by the CJEU in its decision) or the Explanations?
The national court did not quote any additional case law of the CJEU or ECtHR
Did the national court quote soft law instruments, such as GRECO Reports, Venice Commission, CEPEJ Reports, or CCEJ Reports?
No, the national court did not quote any soft law instruments, such as GRECO Reports, Venice Commission opinions, CEPEJ Reports, or CCEJ Reports in its decision.
Did the national court take into account national case law on fundamental rights?
No, the Polish Constitutional Tribunal did not specifically take into account national case law on fundamental rights in its decision K 3/21. The focus was primarily on the interpretation and application of constitutional provisions in relation to EU law, without extensive reference to national case law concerning fundamental rights.
If the court that issued the preliminary reference is not a last instance court, and the “follow up” was appealed before a higher court, include the information
Due to the nature of the case, such a situation does not apply.
Was there a consensus among national courts on how to implement the CJEU's preliminary ruling; and were there divergences between the judiciary and other state powers regarding the implementation of the preliminary ruling?
Due to the nature of the case, such a situation does not apply.
Impact on national case law from the same Member State or other Member States
The ruling of the Polish Constitutional Tribunal in case K 3/21 has had a significant impact on national case law within Poland. The Tribunal's decision emphasized the primacy of the Polish Constitution over EU law, challenging the established principle of the supremacy of EU law. This has led to a divergence in the judicial approach compared to previous case law, which generally aligned with the CJEU's stance on EU law supremacy.

However, the impact of this decision on other Member States' case law appears limited, as the decision has been met with considerable controversy and skepticism. The composition of the Polish Constitutional Tribunal and the legitimacy of its rulings have been questioned, leading many courts within Poland to refrain from citing or applying this decision. Consequently, the anticipated shift in judicial interpretation and legislative changes has not materialized broadly, and the decision remains a point of contention rather than a precedent followed by national courts in Poland or other Member States.
Connected national caselaw / templates
Due to the nature of the case, such a situation does not apply.
Other
N/A
Author
Marcin Michalak, University of Gdańsk (UG)
History of the case: (please note the chronological order of the summarised/referred national judgments.)
N/A
 
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