The Constitutional Tribunal is to return to the issue of penalties imposed on Poland by the CJEU

The issue of EU regulations on the basis of which the Court of Justice of the EU imposed penalties on Poland regarding the Turów mine and the former Disciplinary Chamber of the Supreme Court is to return to the Constitutional Tribunal’s docket on Tuesday. The hearing in the full bench of the Tribunal is to continue from 11.

Ziobro’s application to the Constitutional Tribunal

An application to the Constitutional Tribunal in this matter was submitted in November 2021 by Prosecutor General Zbigniew Ziobro, who demands that the regulations of EU law relating to these issues be declared unconstitutional. The application was submitted after the CJEU imposed two financial penalties on Poland – regarding the Turów mine and the then Disciplinary Chamber of the Supreme Court.

In his application to the Constitutional Tribunal, Ziobro asked for an examination of the constitutionality of Art. 279 of the Treaty on the Functioning of the European Union to the extent that “the CJEU accepts that this provision allows the imposition of financial penalties for failure to comply with the interim measure ordered.” He also challenged Art. 39 of the Statute of the CJEU, which authorizes the President of the CJEU or a judge of this tribunal to impose on a member state interim measures relating to the shape of the system and the functioning of the constitutional bodies of the Republic of Poland.

Ziobro wrote that this case is about ensuring that the EU, in the activities of its bodies, complies with the provisions underlying its establishment and respects the principle of the rule of law common to all EU member states.

Further hearings in the Tribunal

Consideration of this application by the Constitutional Tribunal began on October 19 last year. Representatives of the participants in the proceedings: the Prosecutor General, the Sejm and the President of the Republic of Poland presented their positions before the Tribunal.

Then – after less than an hour of the hearing – the Constitutional Tribunal adjourned the continuation of the case. The President of the Constitutional Tribunal, Julia Przyłębska, then set a deadline for presenting the necessary written positions.

President Andrzej Duda’s written position was submitted to the Constitutional Tribunal in December last year.

In the opinion of the President of the Republic of Poland, regardless of the critical assessment of the legal regulations challenged by the Polish Government and the practice of their application, international legal conditions should be taken into account. International law consequences should be considered undesirable, resulting in the suspicion that the Republic of Poland does not respect international law binding on it. At the same time, it should be emphasized that it is the duty of state authorities to take all actions aimed at shaping international law in a way that protects the interests of the state and to use all legal instruments aimed at securing these interests in the process of applying international law.

— wrote the president in this position.

In a written position to the Constitutional Tribunal, the Sejm requested that the provisions in the contested scope be recognized as unconstitutional.

Interim measures within the meaning of Art. 279 of the Treaty are, in fact, intended to ensure the proper course of proceedings before the CJEU, rather than having a character typical of classic protective measures. Therefore, imposing (…) financial sanctions is not possible at all. Such a judgment has no legal effects as it is issued without a legal basis

— written in this post.

The hearing in this case was postponed many times in the Constitutional Tribunal. The full bench of the Constitutional Tribunal is chaired by President Przyłębsk, and the rapporteur is Judge Zbigniew Jędrzejewski.

The term of office of president Julia Przyłębska

However, there has been a dispute in the Constitutional Tribunal for many months over the term of office of Julia Przyłębska as the president of the Tribunal, which makes it difficult for the Tribunal to meet in its full bench of at least 11 judges. According to some lawyers, including some current judges of the Constitutional Tribunal, Przyłębska’s term of office expired after six years, i.e. on December 20, 2022, and at the same time she is not able to apply for this function again. According to Przyłębska herself, most of the Constitutional Tribunal judges, as well as Prime Minister Mateusz Morawiecki and some experts, her term of office expires in December 2024 – together with the end of Przyłębska’s term as a Constitutional Tribunal judge.

As a result, Prime Minister Morawiecki submitted an application to the Constitutional Tribunal in which he questioned the constitutionality of the provision establishing the full composition of the Constitutional Tribunal to be at least 11 out of 15 judges. However, in this case the hearing dates are also postponed.

Penalties imposed on Poland

At the end of October 2021, the CJEU obliged Poland to pay a fine of EUR 1 million a day to the European Commission for not suspending the application of the provisions relating to the powers of the then Disciplinary Chamber of the Supreme Court towards judges. In April 2023, the fine imposed on Poland was reduced to PLN 500,000. euro per day. The CJEU announced in June this year judgment found that the reform of the Polish justice system of December 2019 violated EU law and thus upheld the EC’s complaint. Until the judgment in this case was issued, over EUR 500 million in penalties had been imposed on Poland.

Earlier – in September 2021 – the CJEU decided that Poland should pay the EC PLN 500,000. euro per day for failure to implement interim measures and failure to discontinue lignite mining in the Turów mine. The imposition of fines was suspended after the Polish-Czech agreement on this matter.

READ MORE:

— The Constitutional Tribunal postponed the hearing on the penalties imposed by the CJEU. The request for postponement was submitted by the head of the Ministry of Foreign Affairs

— The case of CJEU penalties for Turów and the Disciplinary Chamber of the Supreme Court in the Constitutional Tribunal! The hearing was interrupted and resumed on December 14

— Are the provisions on penalties for Poland imposed by the CJEU inconsistent with the constitution? Valid in the Prosecutor General’s motion to the Constitutional Tribunal

olnk/PAP