Between Wednesday and Thursday there was a serious long-distance judicial confrontation between the Court of Justice of the European Union, the main judicial body of the Union, and the Polish Constitutional Tribunal, the most important court in Poland, after the latter had established the unconstitutionality of the application of the orders of the Court of Justice of the European Union to the Polish judicial system.
In this way, the Polish Court has denied the authority of the Court of Justice of the Union, opening a serious crisis which, according to some experts, could lead to a conflict that is difficult to heal between Poland and the European Union.
The clash between the two courts concerns a body – the so-called Disciplinary Section of the Supreme Court – set up by the Polish government in 2017 to investigate judicial errors by judges. The Disciplinary Section has very broad powers and has, among other things, the power to initiate criminal proceedings against Polish judges. According to the Court of Justice of the Union, this body is not impartial and threatens the rule of law and the independence of the judiciary. The European Court of Justice has been dealing with the Polish Disciplinary Section for years, and also on Wednesday it issued a provisional order (called an “interim measure”) to block its activities.
A few hours later, however, the Polish Constitutional Tribunal (which according to the opposition was filled with magistrates loyal to the government) issued a ruling that the Court’s interim measures would not be compatible with the Polish constitution. This decision is rather serious, because it effectively disregards the authority of the Court of Justice. According to the European treaties, the Court of Justice has primacy over national courts, and to deny it means to question one of the founding principles of the Union.
A spokesman for the European Commission also reiterated on Wednesday, who said she was very concerned about the reaction of the Polish Constitutional Court: “The European Union has primacy over national law and all decisions of the European Court of Justice – including measures to interim – are binding on the courts and authorities of the member states ”.
According to Manfred Weber, group leader of the European People’s Party, the decision of the Polish Constitutional Tribunal is very worrying, and shows that the Polish government is close to exiting the Union.
Finally, on Thursday, the Court of Justice of the Union decided that the entire disciplinary system adopted by the Polish government against judges is completely incompatible with European law, and must be dismantled. The latter decision is separate from the interim measures adopted on Wednesday, but was nevertheless seen as a development of the judicial conflict itself.
This clash is part of a broader dispute between Poland and the European Union over the rule of law and the Union’s right to interfere with Polish laws when these are in violation of fundamental rights. Among other things, the Polish government has asked the Constitutional Tribunal to assess whether or not further parts of the European treaties are compatible with the country’s constitution: the government’s intention is to “establish the supremacy of the Polish constitution over European law” .