Judicial Polexit? The captured Constitutional Tribunal and the EU law

The Polish Constitutional Tribunal was certainly not as europhile as the Belgian Constitutional Court or the Austrian Federal Constitutional Tribunal, but its jurisprudence in EU-related matters could not have been called Eurosceptic until 2015. The Constitutional Tribunal has repeatedly highlighted the primacy of the Polish Constitution, but in practice it has always adjudicated in such a way as to ensure the effective application of EU law within the Polish legal order. This has changed with the shifts that have occurred in the Constitutional Tribunal since 2015. The recent rulings of the captured Constitutional Tribunal  (the judgment of 20 April 2020 and the decision of 21 April 2020) are not only a breakthrough in the existing jurisprudence on purely domestic issues, but also an evident shift towards the Eurosceptic trait of illiberalism and a blatant attempt to challenge the CJEU case-law. Apart from the issues related to the formal shortcomings of these decisions (i.a. with the participation of so-called ‘stand-in judges’), the content of the analysed judgments proves that the Constitutional Tribunal has been transformed into a body used in fierce political games, not only at the national level, but also related to Poland’s membership in the EU.

Battle of the Robes – the road towards the CJEU examining the independence of a constitutional court?

So far, the interplay between constitutional courts in EU member
States and the Court of Justice of the European Union has largely
been limited to a dialogue centred around the relationship between
domestic law and the EU legal system, specifically the question of the
supremacy of EU law. From Luxembourg’s point of view, the national
constitutional courts were sometimes obstacles in a metaphorical
sense, trying to reassert the domestic position vis-à-vis the EU – but
at the same time, being valid and constructive participants of the
dialogue. The saga of the 19 November 2019 CJEU judgment on the
independence of the Polish Supreme Court’s Disciplinary Chamber
could well end with just that, as the Polish Constitutional Court is now
on track to hand out a ruling that could block the implementation of
the CJEU’s decision, and perhaps no longer a valid participant of the
dialogue.

What if the rule of law principle and its discontents belong not only to common constitutional tradition of EU Member States but also belong to their particular constitutional identity?

The rule of law principle together with its discontents became one of fundamental imperatives of EU law. It derives from common constitutional traditions of all EU Member States. This community-based character of the principle has been recognized also in wider European context then the EU itself (e.g. Venice Commission Checklist).
EU law, however, must recognize not only what is common in the Member States' legal traditions. The EU is bound to respect constitutional identities of the MSs. In my paper I would like to try to answer how to deal with potentially particular elements of the principle, which could demand recognition under art. 4(2) TEU. I will also propose a way of managing such divergences with what can be labelled as “sequential model of adjudication” by the CJEU and domestic courts (mostly constitutional ones) instead of them engaging in another chapter of the “last word” battle.

How difficult distrust is? Analysis of post-Celmer implementation.

The CJEU ruling in LM case (commonly known as Celmer) regarding
the right to a fair trial in the context of European Arrest Warrant
introduced a two-steps test aimed at verification of threats to judicial
independence of issuing judicial authority. In consequence, CJEU
introduced the national courts as legitimate actors in the ongoing rule
of law debate. The major challenge, however, deals with the fact that
courts will be obliged to verify the independence of other domestic
courts. The paper discusses rulings (Celmer decided by the Irish High
Court and by the Supreme Court; Lis & Ors v Regional Court In
Warsaw; The Circuit Court of Warszawa-Praga v Maciejec), in which
domestic courts applied Celmer test. The analysis covers how the
defendants phrased the relevant arguments; how the court applied
the Celmer test – both on the systemic and individual level; what was
the outcome of the application.

Local tensions and limited European solutions: the case of judicial independence.

The problems of judicial independence are now most often discussed in relation to Poland. However, the recent ECJ case law has triggered references from other national courts which reveal long-lasting tensions in several jurisdictions regarding judicial independence, appointments, supervision and governance. Contrary to what is argued by commentators, the ECJ appears reluctant to meddle in these tensions and aims at limiting the potentially disruptive impact of its case-law under Art. 19 TEU. The hypothesis is that the EU is normatively constrained by the sundry constitutional traditions regarding judicial organisation. It is necessary to examine, relying on empirical and comparative studies, the level of constitutional consensus in Europe regarding the institutional and procedural mechanisms for upholding judicial independence in order to avoid ill-considered ECJ-led harmonisation of the judicial organisation with concomitant risks for the domestic separation and balance of powers.