The Identity of the EU Legal Order as a “Shield” for Judicial Independence in the (Polish) Rule of Law Crisis

By Maciej Taborowski

This article is a shortened version of the re:constitution working paper, which was originally published by the Forum Transregionale Studien in 2023 and can be read here.

Introduction 

The original purpose of my re:constitution project was to answer the question whether the value of the rule of law (Article 2 TEU) could be regarded as having a comparable weight for the EU legal order to that of the national identity clause (Art. 4 (2) TEU) on which Member States may rely within the scope of application of EU law. That would enable the answering of the question, to what extent the legal effects ascribed in the case law of the Court of Justice of the European Union (CJEU) to the national identity clause in Article 4(2) TEU may be transferred and applied to the value of the rule of law in Article 2 TEU. I assumed that the premise of the national identity clause is that there is a national inviolable core that must be protected from Europeanization.[1] This clause counterbalances i.a. the principle of loyal cooperation (Article 4(3) TEU) and can influence, among other things, the way in which Member States apply or evade EU law.[2] Regarding the rule of law clause in Article 2 TEU, I referred to the concept of K. Lenaerts, who used the term “European public policy” in relation to the set of the most important imperative values and principles of the EU legal order, including the rule of law.[3] I argued that this set could constitute the nucleus of an emerging “European identity clause”, the elements of which must be strictly respected by the EU Member States,[4] especially by national courts in the interpretation and application of all provisions of EU law, also, inter alia, of the EU internal market law provisions. 

In the meantime the CJEU, in two cases C-156/21 Commission v. Hungary[5] and 157/21 Commission v. Poland,[6] initiated under Article 263 TFEU, concerning the validity of Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget,[7] has confirmed explicitly that the values contained in Article 2 TEU “define the very identity of the European Union as a common legal order”.[8] In those judgments the Court made also some further important statements on the perception and the functioning of Article 2 TEU values in the European legal space. The project’s premise that Article 2 TEU can be considered a kind of a “European Identity Clause” in EU law has thus been confirmed.

What’s more, in another precedent-setting judgment in the T-791/19 Sped-Pro case,[9] the EU General Court confirmed the project’s second premise that a violation of the value of the rule of law can in principle affect EU internal market law. According to that judgment, contrary to the principle of mutual trust and loyal cooperation (Art. 4 (3) TEU), the European Commission, has been obliged by the EU General Court to ascertain, before sending the complaint for examination to the national competition authority, whether the applicant company would receive effective judicial protection in the Polish legal order. The reason for the EU General Court’s approach was the arguments of the applicant, which claimed that Poland has systemic flaws in respecting the value of the rule of law in the context of EU competition law (Art. 102 TFEU).

Given the above mentioned development in the CJEU’s jurisprudence, in this working paper I will take a closer look at how the Court has shaped the value of rule of law as the “very identity of the EU legal order” [10], and how it has used the rule of law to build a “shield” that serves as a defense for national judges against interference with their independence on the basis of the principle of effective judicial protection under Article 19 (1)(2) TEU and Article 47 EUCFR. Such a “shield” is particularly useful in those EU Member States where there is an ongoing rule of law crisis, such as Poland.[11]

For this reason, I will start with a brief introduction to the Polish rule of law crisis i.e. a concise description of the problems of judicial independence in the Polish legal system in the light of European standards (point 1). Then we will demonstrate how the CJEU has defined the “identity of the EU legal order”[12], around Article 2 TEU values, especially the value of the rule of law (point 2). We will then take a closer look at how the Court has built a “shield” based on Article 2 TEU, Article 19 (1) (2) TEU and Article 47 EUCFR in order to protect the independence of judges in the Member State’s legal orders. Finally, I will also show the potential limits, restrictions, and weak points of such a “shield” (point 4).

1. The Polish Rule of Law Crisis in a Nutshell

The “reform” of the Polish judiciary, which has been carried out by the Law and Justice’s party having the majority in Parliament for several years, is aimed at changing the staffing of the judiciary.[13] The process of appointing judges has been changed so that the ruling majority has been able to nominate “their” judges without scrutiny, especially to the Polish Supreme Court (opening of a “transfer window”[14]). To this end, the Constitutional Tribunal was first targeted and “packed”.[15] Then, the composition of the National Council of the Judiciary (NCJ), which proposes judges for nomination to the President was changed too. From a body that was supposed to safeguard the independence of judges, it was transformed into a body nominated by politicians.[16] As a result of this process, the NCJ has been excluded from the European Network of Councils for the Judiciary (ENCJ) in October 2021.[17] The judicial control over the appointments of Supreme Court judges was also practically removed.[18] Presidents of courts throughout Poland have been changed and subordinated to the Minister of Justice as well.[19]

Thanks to the activity of the European Commission in infringement proceedings, the references of Polish judges for preliminary questions to Luxembourg as well as by judges and citizens submitting complaints to Strasbourg, virtually every element of this judicial “reform” has already had its own international court ruling. All of them point at material contradictions with European standards of effective judicial protection (Art. 6 European Convention for Human Rights (“ECHR”), Art. 19 (1)(2) TEU, Art. 47 of the EU Charter of Fundamental Rights “EUCFR”). Yet despite these important rulings, some precedent-setting temporary injunctions[20] as well as multi-million Euro fines for noncompliance,[21] the breakdown of the independence of the judicial system continues. From the perspective of investors and citizens, court cases are taking longer and longer, legal certainty and the trust in the judiciary is decreasing.

One may wonder how a Member State can function in the European Union where more than half of the judges of the Supreme Court, including the person holding the position of its First President, and the entirety of judges sitting in two chambers: the Disciplinary Chamber[22] (now transferred into the Chamber of Professional Liability[23]), and the Extraordinary Control and Public Affairs Chamber,[24] do not meet the European requirements of a court established by law (Art. 6 ECHR). This was confirmed by the European Court on Human Rights in Strasbourg (ECtHR) in cases such as Reczkowicz[25], Dolińska Ficek[26] or Advance Pharma.[27] This means no more, no less, that these judges (“new judges” of the SC) should at least not rule on matters that are covered by the scope of application of the ECHR. Because of Article 53 (3) of the EUCFR and the judgment in C-487/19 W.Ż.,[28] that conclusion should in principle also apply to the scope of application of EU law. In addition, judges directly covered by Strasbourg judgments stating that they do not meet the requirements of Article 6 ECHR will with time lose the possibility to refer preliminary questions to the CJEU based on Article 267 TFEU.[29] A potential breakdown of judicial cooperation with Poland based on mutual trust within the EU Area of Freedom, Security and Justice cannot be excluded.[30]

The situation is not better at the Polish Constitutional Tribunal, now composed exclusively of judges nominated by ruling majority. For the moment, mostly representatives of the authorities willingly file motions asking the Constitutional Tribunal to invoke Polish constitutional identity and to restrict the effects of the principle of primacy of EU law, or to eliminate from application in Poland particular ECtHR and CJEU judgments indicating violations of European standards concerning the independence of the judiciary and the rule of law.[31] The Constitutional Tribunal gives the authorities exactly what they want.[32] That is also one of the reasons why, for the first time in history of European integration, the European Commission initiated an infringement procedure, claiming that the Polish Constitutional Tribunal is partially not a court established by law,[33] that it does not guarantee an effective and independent control of constitutionality of law and that it undermines the primacy and effectiveness of the EU legal order.[34]

Another element of this judicial “reform” is a regular intimidation of Polish judges.[35] A law has been adopted prohibiting judges from applying the judgments of the European courts (ECtHR and CJEU) regarding the independence of the judiciary under threat of disciplinary sanctions and criminal penalties (“muzzle law”[36]). For example, this was felt by Judge Agnieszka Niklas-Bibik,[37] who dared to claim in her judicial decision that a common court had been composed of judges nominated in violation of EU law and ECtHR rulings. This moment changed her life. After 20 years in office in the Regional Court in Słupsk, the court president, appointed (without any legal criteria) by the Minister of Justice, transferred Judge Niklas-Bibik form the Appeal Division to the Division of First Instance of the Regional Court. All her cases were taken away, access to the files has been denied and she was refused to set up an E-curia account to make a preliminary reference to the CJEU.[38] In addition, judge Niklas-Bibik was suspended from duty for the period of one month. Now she faces disciplinary sanctions and criminal sanctions, which will be decided, among others, by the Supreme Court’s Chamber of Professional Responsibility, which is composed mainly of flawed “new” judges, and which is, just as the former Disciplinary Chamber of the Supreme Court was,[39] most probably not a court established by law under Article 6 ECHR and Article 19 (1)(2) TEU or Article 47 EUCFR.[40]

These “reforms” of the Polish judiciary have led to Poland being in a very difficult position today in terms of meeting the standards of the rule of law. They resulted also in an adverse effect on relations with the EU and other international organizations. In view of the problems of compliance in Poland with the rule of law, the European Union had to “awake” its legal mechanisms to find an adequate reaction for the protection of the EU legal order based on common values enshrined in Art 2 TEU, the principle of equality of Member States (Art. 4 (2) TEU), as well as the principle mutual trust and loyal cooperation (Art. 4 (3) TEU).

Click here to read the full working paper.

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Footnotes

[1] M. Claes, Negotiating Constitutional Identity or Whose Identity is It Anyway? [w:] Constitutional Conversations in Europe: Actors, Topics and Procedures, red. M. Claes, M. de Visser, P. Propelier, C. Van De Heyning, Cambridge–Antwerp–Portland 2012, 206.

[2] See B. Guastaferro, Beyond the Exceptionalism of Constitutional Conflicts: The Ordinary Functions of the Identity Clause, „Yearbook of European Law” Volume 31, Issue 1, 2012, 263–318.

[3] K. Lenaerts, ‘La vie après l’avis: Exploring the principle of mutual (yet not blind) trust’, (2017), 54, Common Market Law Review, Issue 3, 805-840.

[4] D. Sarmiento, The EU’s Constitutional Core, (in:) National Constitutional Identity and European Integration, A. Saiz Arnaiz, C. Alcoberro Llivina, Law and Cosmopolitan Values, vol. 4, Intersentia, 2013.

[5] Judgment of the Court (Full Court) of 16 February 2022, C-156/21 Hungary v European Parliament and Council of the European Union, ECLI:EU:C:2022:97, 127.

[6] Judgment of the Court (Full Court) of 16 February 2022, C-157/21 Republic of Poland v European Parliament and Council of the European Union, ECLI:EU:C:2022:98, 145.

[7] OJ 2020 L 433I, p. 1, and corrigendum OJ 2021 L 373, 94.

[8] Judgment of the Court (Full Court) of 16 February 2022, C-157/21 Republic of Poland v European Parliament and Council of the European Union, ECLI:EU:C:2022:98, 145.

[9] Judgment of the General Court (Tenth Chamber, Extended Composition) of 9 February 2022,
T-791/19 Sped-Pro S.A. v European Commission, ECLI:EU:T:2022:67.

[10] Judgment of the Court, 16 February 2022, C-157/21, para 145.

[11] See in general W. Sadurski, Poland’s constitutional breakdown, Oxford 2019.

[12] Judgment of the Court, 16 February 2022, C-157/21, para 145.

[13] The Court of Justice even used the statement that the reform of the retirement age of serving judges of the Polish Supreme Court was made [..] with the aim of side-lining a certain group of judges of that court – see Judgment of the Court (Grand Chamber) of 24 June 2019, C-619/18, European Commission v Republic of Poland., ECLI:EU:C:2019:531, para 82.

[14] As the Polish Supreme Court stated in its preliminary referral to the CJEU in case C-508/19 (Supreme Court order of 15 July 2020, II PO 16/20, para 50), “It must therefore be clearly emphasised that in 2018-2019 there was a special ‘transfer window’ in the Polish legal system in which with a flagrant and evident violation of the constitutional standard and with full awareness of this by all concerned, appointments to serve in the Supreme Court were handed out [..] What is more, the circumstances under which these appointments took place give rise to justified doubts on the part of the individuals hoping to ensure the right to a court implementation of this right, since first the President of the Republic of Poland prepared draft laws allowing for the creation of courts that do not meet the requirements of independence and impartiality, and then on the basis of such provisions – in violation of then, on the basis of such legislation – in breach of constitutional procedural guarantees providing for prior judicial review of NCJ resolutions – appointed persons close to him to judicial positions”.

[15] See the Commission’s Proposal for a Council Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law (COM/2017/0835 final), paras 26-39, 92-113, as well as the launching by the European Commission of an infringement procedure against Poland because of serious concerns with respect to the Polish Constitutional Tribunal.

(https://ec.europa.eu/commission/presscorner/detail/en/IP_21_7070) (last access 28.06.2023). See also Judgment of the ECtHR in Xero Flor w Polsce sp. z o.o. v. Poland, Application no. 4907/18, 7 May 2021,  CLI:CE:ECHR:2021:0507JUD000490718.

[16] See judgment of the Court (Grand Chamber) of 15 July 2021, C-791/19 European Commission v Republic of Poland, ECLI:EU:C:2021:596, 108. See e.g. also Judgment of the ECtHR in Dolińska-Ficek and Ozimek v Poland, Applications nos. 49868/19 and 57511/19, 11 November 2021, CE:ECHR:2021:1108JUD004986819, paras 290 and 320.

[17] See https://www.encj.eu/node/605 (last access 28.06.2023).

[18] Judgment of the Court (Grand Chamber) of 2 March 2021 C-824/18 A.B. and Others v Krajowa Rada Sądownictwa and Others, ECLI:EU:C:2020:1053.

[19] Judgment of ECtHR in case Broda and Bojara v. Poland, Applications nos. 26691/18 and 27367/18, 29 June 2021, CLI:CE:ECHR:2021:0629JUD002669118.

[20] See e.g. the temporary injunctions ordered by the CJEU: order of the Court (Grand Chamber) of 17 December 2018 C-619/18 R European Commission v Republic of Poland, ECLI:EU:C:2018:1021; order of the Court (Grand Chamber) of 8 April 2020 C-791/19 R European Commission v Republic of Poland, ECLI:EU:C:2020:277; order of the Court (Grand Chamber) of 14 July 2021 C-204/21 R European Commission v Republic of Poland, ECLI:EU:C:2021:593.

[21] See order of the Court (Grand Chamber) of 27 October 2021 C-204/21 R European Commission v Republic of Poland, ECLI:EU:C:2021:878 (ordering the payment of a fine of 1 million Euro per day).

[22] Judgment of the Court (Grand Chamber) of 15 July 2021 C-791/19 European Commission v Republic of Poland, ECLI:EU:C:2021:596.

[23] The Supreme Court’s Professional Responsibility Chamber also includes the “new” Supreme Court judges. Thus, there is a concern that they will not meet the requirement of a court established by law under Article 6 ECHR. This may be evidenced in particular by the first interim injunctions of the ECtHR in the cases of Polish judges who were to be tried before the Supreme Court’s Chamber of Professional Responsibility – see the press release concerning applications nos. 18632/22, 6904/22, 15928/22, 46453/21, 8687/22, 8076/22: https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-7407019-10135002&filename=Interim%20measures%2 (last access 28.06.2023).

[24] See judgment of the Court (Grand Chamber) of 6 October 2021 C-487/19, Proceedings brought by W.Ż., ECLI:EU:C:2021:798, paras 158-160.

[25] Judgment of the ECtHR in Reczkowicz v. Poland, Application no. 43447/19, 22 July 2021, ECLI:CE:ECHR:2021:0722JUD004344719.

[26] Judgment of the ECtHR in Dolińska-Ficek and Ozimek v Poland, Applications nos. 49868/19 and 57511/19, 11 November 2021, CE:ECHR:2021:1108JUD004986819.

[27]  Judgment of the ECtHR in in Advance Pharma sp. z o.o v. Poland, Application no. 1469/20, 3 February 2022, ECLI:CE:ECHR:2022:0203JUD000146920.

[28] Judgment of the Court (Grand Chamber) of 6 October 2021 C-487/19, Proceedings brought by W.Ż., ECLI:EU:C:2021:798.

[29] See judgment of the Court (Grand Chamber) of 29 March 2022 C-132/20, BN and Others v Getin Noble Bank S.A., ECLI:EU:C:2022:235, paras 72-73.

[30] See e.g. the preliminary reference from a German court in case C-819/21 (refusal to recognise a Polish criminal conviction on the basis of Article 2 TEU in the light of the framework decision 2008/909).

[31] There is even a proposal by the Minister of Justice to declare that the asking of questions by Polish courts regarding the principle of effective judicial protection and independence of national courts under Article 267 TFEU is incompatible with the Polish Constitution (see pending case K 7/18).

[32] Regarding CJEU judgments see judgment of the Constitutional Tribunal of 14 July 2021 in case P 7/21 and judgment of the Constitutional Tribunal of 7 October 2021 in case K 3/21; regarding the exclusion of ECtHR judgments see judgment of the Constitutional Tribunal of 10 March 2022 in case K 7/21 and judgment of the Constitutional Tribunal of 24 November 2021 in case K 6/21.

[33] Judgment of the ECtHR in Xero Flor w Polsce sp. z o.o. v. Poland, Application no. 4907/18, 7 May 2021, ECLI:CE:ECHR:2021:0507JUD000490718.

[34] See press release of the Commission under https://ec.europa.eu/commission/presscorner/detail/en/IP_21_7070 (last access 28.06.2023).

[35] See also the judgment of the ECtHR in Juszczyszyn v. Poland, Application no. 35599/20, 6 October 2022, ECLI:CE:ECHR:2022:1006JUD003559920 where for the first time Article 18 ECHR was used against the Polish government.

[36] For detailed information about the “muzzle law” see order of the Court (Grand Chamber) of 14 July 2021 C-204/21 R European Commission v Republic of Poland, ECLI:EU:C:2021:593.

[37] See in detail https://ruleoflaw.pl/judge-niklas-bibik-suspended-for-applying-eu-law-and-for-asking-preliminary-questions-to-the-cjeu/ (last access 28.06.2023).

[38] Cases pending before the CJEU: C-648/21 and C-647/21.

[39] See Judgment of the ECtHR in Reczkowicz v. Poland, Application no. 43447/19, 22 July 2021, ECLI:CE:ECHR:2021:0722JUD004344719 and judgment of the Court (Grand Chamber) of 15 July 2021, C-791/19 European Commission v Republic of Poland, ECLI:EU:C:2021:596.

[40] This may be evidenced in particular by the first interim injunctions of the ECtHR regarding the Supreme Court’s Chamber of Professional Responsibility – see press release https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-7407019-10135002&filename=Interim%20measures%2 (last access 28.06.2023).

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About the Author

Maciej Taborowski is Professor at the Institute of Legal Studies of the Polish Academy of Sciences (INP PAN) and former Deputy Ombudsman of the Republic of Poland (2019-2022) i.a. representing the Ombudsman in proceedings before the Court of Justice of the European Union and the European Court of Human Rights and the Polish Constitutional Tribunal. Maciej is also a Polish advocate (adwokat) and Member of i.a. the Good Lobby Profs, the Council of the Osiatynski Archive and the Expert Team of the Stefan Batory Foundation in Warsaw. The basic themes of his academic research include: protection of the rule of law in European Union law, issues dealing with judicial protection in EU law, the EU internal market and EU citizenship law, the protection of fundamental rights, the effectiveness of the EU legal system, as well as national and constitutional identity of an EU Member State. He was a re:constitution Fellow in 2021/22.

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Citation: Maciej Taborowski, The Identity of the EU Legal Order as a “Shield” for Judicial Independence in the (Polish) Rule of Law Crisis, in: TRAFO – Blog for Transregional Research, 30.01.2024, https://trafo.hypotheses.org/50294

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