On Constitutional Tribunal

A letter to Mr. Frans Timmermans, Vice-President of the European Commission, regarding the law on the Polish Constitutional Tribunal.

Dear Sir,

On 27 July 2016, the European Commission issued a document entitled "Recommendation on the rule of law in Poland" (document C (2016) 5703), which diagnosed the existence in Poland of alleged problems of violations of democracy and the rule of law.

We have read this document. It contains glaring legal errors, and shows a lack of knowledge of the facts relating to the election of judges of the Constitutional Tribunal (CT), as well as the Polish political system. For this reason, we felt compelled to send you this letter, although due to the adopted format we will limit ourselves to the fundamental shortcomings, despite the fact that the document contains many more.

Firstly, it is not true that the amendment of the Act of 19 November 2015 on the Constitutional Tribunal constituted the legal basis for annulment of the election of judges by the Parliament of the seventh term (section 4, page 8 of the recommendation).

The reason why the amendment could not constitute the legal basis is very clear and obvious - this act entered into force on December 5, therefore, after establishing the lack of legally binding resolutions on the election of judges by the Parliament of the seventh term and after the election of judges by the Parliament of the eighth term, which took place on 2 December  2016.

Secondly, contrary to what the Commission is claiming, constitutional applications from the Civic Platform group addressed to the CT, which resulted in the judgments of 3 and 9 December 2015, did not refer at all to the validity of the election of judges of the Constitutional Court which were carried out on 2 December 2015 (point 6, page 8 and point 8, page 9 of the recommendation). The constitutional applications may concern only that which is within the competence of the CT, which is examining the compliance of the normative act with the act of a higher order. Therefore, the Civic Platform proposals related only to the constitutionality of the Act of 25 June 2015 on the CT and its November amendment. This is due to the fact that the CT in Poland does not have the authority to rule on the validity of the election of CT judges, which was confirmed by January 7, 2016, when the CT dismissed the other application of the group of members on examining the resolutions on the election of the judges (case, signature no. U 8/15) due to a lack of competence.

Thirdly, it is not true that in its judgment of 3 December 2015 the CT ruled that the Parliament of the previous term had the right to choose the three judges in the place of the judges whose term of office expired on 6 November 2015. It is also not true that the CT stated that the Parliament had no right to choose judges to replace those whose term of office was to expire in December (section 6, point 8 and section 8 page 9 of the EC recommendation). In its judgment of December 3, the Court held that:

“Art. 137 of the Act referred to in point 1: a) is consistent with art. 112 of the Constitution and is not inconsistent with art. 62 paragraph. 1 and art. 197 of the Constitution, b) is consistent with art. 194 paragraph. 1 of the Constitution with regard to the judges of the Tribunal whose term of office shall expire on 6 November 2015, c) is incompatible with art. 194 paragraph. 1 of the Constitution with regard to the judges of the Tribunal whose term of office expires respectively 2 and 8 December 2015.”

The Tribunal expressly stated in the operative part of the judgment that only these legal standards are in line with the constitution, but not the election that was held on this basis. In addition, those legal norms referred literally to the Tribunal judges whose term of office expired on 6 November 2015.

However, in the explanation of the judgment the Constitutional Tribunal actually referred to the issue of persons elected as constitutional judges in October 2015. It is not even that the Tribunal referred to the issue, that is not resolved in the legal maxim. It is important to know that in the Polish legal system, a legally binding part of a Tribunal’s judgment is its legal maxim. Only the legal maxim is announced in the Official Journal. Justification of the decision has no legal force. It does not pose any legal obligations vis-a-vis state authorities, nor is it universally binding. It does not create law.

The constitutional ruling where the Tribunal referred to the obligation of the President of the Republic of Poland to promptly receive the oath of a judge of the Tribunal elected by the Sejm does not apply at all, as the European Commission wrongly implies, to the persons elected in October 2015. Here, too, the Tribunal ruled only about a meaning of a legal norm. It did not order the President to apply specific provisions to any individuals, simply because there is no such law. The Tribunal has only given its view in general terms. The Constitutional Tribunal’s judgment on compliance of a norm of a legislative act with the Constitution cannot oblige other bodies to apply certain provisions in this particular case. The Tribunal is not a court of facts, but a court of law. As an aside we should say that at this point the Tribunal’s judgment was interperative. So let me emphasize that the 1997 Constitution does not grant the Constitutional Tribunal any right to propose universally binding interpretation of legislative acts. Thus, while the Tribunal may order that the provision is consistent or inconsistent with the Constitution, the requirement that other public authorities follow the interpretation of a provision dictated to them by the Tribunal, would be an overstretch of its competences.

Your recommendations show that the European Commission also seems to not understand that judgments of the CT on the compatibility of laws with the Constitution are not like judgments of the ordinary courts in an individual-specific case (obliging the subject indicated in the judgment to specifically follow court's recommendations). Complying with a Constitutional Tribunal's judgment means that if a provision is declared unconstitutional - in cases where without that provision, the legal system cannot function - a legislative response is required which translates into an adoption of a provision in line with the Constitution. The work of the legislature is a source of law. The Constitutional Tribunal's judgment cannot replace the activities related to the choice of or filling the position of a judge. Such reasoning is incompatible with how the Polish Constitutional Tribunal functions.

Fourthly, a statement by the European Commission that the 8th Polish Sejm elected constitutional judges in December 2016 on the basis of a provision which the Court annulled in its judgment of 9th December 2015 in the case K 35/15 (point 7, page 8 recommendations of the European Commission) is untrue. The Court ruled on 9th December 2015 r. on art. 137a of the Law on the Constitutional Tribunal, but this provision was not a basis for the selection of the judges in 2015. This provision came into force on 5th December 2015, two days after the election was conducted. The basis for the selection of judges on 2nd December 2015 was art. 194 paragraph 1 of the Constitution and art. 17 paragraph 2 of the Act on the CT from 25th June 2015. The selection procedure was in accordance with the rules of procedure of the Sejm.

It is also not true, as the European Commission suggests, that the positions of judges were filled by then. After all, the Sejm of the VIII term stated by way of resolutions of 25 November 2015 r. the lack of legally binding resolutions on the election of judges of the CT of 8 October 2015. These resolutions are valid, until those acts are repealed. The repeal has not happened.  Even the CT did not do so, because when it was to decide, it dismissed the case because of the lack of own competence to reach such a settlement. The lack of filling these positions was also confirmed by the CT itself, stating in the reasons for the judgment under reference no. K 34/15 that: "(...) filling the positions of judges has not yet occurred, because the last act in law has not been complemented (i.e. the oath of judges of the Court to the President), the derogation of appropriate art. 137 of the law on the Constitutional Court has the effect that further proceedings should be discontinued and closed [...] ". Although neither the Act nor the Constitution gives the Court the right to assess whether the judges positions are filled, this statement clearly shows the erroneous line of thinking of the authors of recommendations.

The claim that three judges from December 2015 were selected without a valid legal basis (paragraph 13, page 9 of the European Commission recommendations) is also a major misunderstanding. Resolutions adopted on 2 December 2015 on the election of judges of the Constitutional Tribunal indicated art. 194 paragraph. 1 of the Constitution and art. 17 paragraph. 2 of the Law on the CT as the legal basis. They have been published in the appropriate official journal and have not been repealed. They remain the binding legal basis for the choice.

There are so many errors like that in the recommendations of the European Commission that it is not possible to identify all of them. They lead to the conclusion that the Commission does not understand the political essence of the Polish Constitutional Tribunal and wants to assign it powers, which the Tribunal does not in fact have, and from its judgments derive content and consequences, that do not stem from it, because in the light of the constitutional powers of the Tribunal they cannot.

On the other hand, in terms of announcing decisions by CT, it should be noted that the Tribunal’s ruling must meet the standards of the law, i.e. be issued according to the appropriate procedure and by the appropriate court operating in the required composition. The defects of the recent decisions of the Tribunal in this context are in violation of the constitution, which were shown in the dissenting opinions of judgments. Notwithstanding, the Commission's comments in this respect are very much out of date. Having regard to the good of the state and its citizens, the Parliament ordered the transitional provision of the Act of 22 July 2016 delivering the Tribunal’s decisions issued in violation of the law, with the exception of those related to the provision which lost their binding force before the entry into force of this law. The legislature has taken these steps, to counteract the negative effects of the unlawful activities of the CT in a formal legal context, affecting as little as possible recipients of legal norms, which the Court ruled in violation of the provisions of the Act.

We are concerned by the reservations expressed by the Commission with regard to the alleged limitation of activity of the CT, preventing the assessment of many new laws and regulations (eg. Media Law, the Law on Police, the Law on the Prosecutor's Office, the Counter-terrorism Law). They show a political, not a substantive attitude to the matter. The European Commission appears to be targeting the current legislative policy of a democratically elected government, rather than caring about the solution of many civil constitutional problems by the CT, as it claims. The Court has still not resolved matters dating back to 2013.

To sum up the recommendation made by the European Commission, we conclude as follows:

Firstly, the implementation of the recommendation concerning the "execution of judgments of the Constitutional Tribunal of 3rd and 9th December 2015 under which the appointment of judges of the Constitutional Court is to include three judges appointed in accordance with the law by the previous legislature in October 2015 and not three judges appointed by the new legislature without a valid legal basis " is not possible because it is based on a number of false premises, which were mentioned earlier;

Secondly, the implementation of the recommendation regarding "notice and full execution of the judgments of the Constitutional Tribunal of 9th March 2016 and its subsequent judgments and ensuring the automatic announcement of future judgments regardless of the decision of the executive or the legislative  power" is pointless;

Thirdly, the implementation of the recommendation concerning "ensuring the compliance of any amendments about the Constitutional Tribunal Act with the judgments of the Constitutional Tribunal, including judgments of 3rd and 9th December 2015 and of 9th March 2016 and including in these amendments of the opinion of the Venice Commission” is unfounded . In Poland, the legislator is obliged to comply with the Constitution of the Republic of Poland. National authorities and international bodies can only offer them help and inspire legislative activities,they cannot however, replace the legislator. This is also applies to the Constitutional Tribunal;

Fourthly, the recommendation "to ensure that the Constitutional Tribunal could inspect the compliance of the law with the Constitution of the adopted on 22nd July 2016 a new act/law on the Constitutional Tribunal before its entry into force; publication and full implementation of the Tribunal's judgment in this case” is unfounded. The Polish constitution does not provide for such an obligation, and the Tribunal has already ruled on the present law during vacatio legis, but it infringed the provisions of the act, on the basis of which it has ruled (e.g. in terms of the Judges, the rights of the parties, the conditions for a ruling in camera {on closed session} and disqualification of a judge).

As we have already seen from this brief analysis, in the lack of legal accuracy and false conclusions, that some recommendations of the European Commission are not suitable for implementation, and the others have lost significance since the entry into force of the new act on the Constitutional Tribunal. If necessary, we are happy to present you with an in-depth opinion on this matter.


Ryszard Legutko, Chairman of the Law and Justice Delegation in the European Parliament

Tomasz Poręba, Vice-Chairman of the Law and Justice Delegation in the European Parliament

October 20th 2016