INTERNATIONAL TAX PLAZA - The European Commission has decided to refer Poland to the Court of Justice of the European Union for violations of EU law by its Constitutional Tribunal

On February 15, 2023 the European Commission decided to refer Poland to the Court of Justice of the European Union for violations of EU law by the Polish Constitutional Tribunal and its case law.

The Commission opened the infringement procedure against Poland on 22 December 2021, by sending a letter of formal notice. This followed the rulings of the Polish Constitutional Tribunal of 14 July 2021 and 7 October 2021, where it had considered provisions of the EU Treaties incompatible with the Polish Constitution, expressly challenging the primacy of EU law. The Commission's objective is to ensure that the rights of Polish citizens are protected and that they can enjoy the benefits of the EU in the same way as all EU citizens. Primacy of EU law ensures equal application of EU law across the Union.

The Constitutional Tribunal with these rulings breached the general principles of autonomy, primacy, effectiveness, uniform application of Union law and the binding effect of rulings of the Court of Justice of the European Union.

The Commission considers that these rulings also breach Article 19(1) TEU, which guarantees the right to effective judicial protection, by giving it an unduly restrictive interpretation. Thereby it deprives individuals before Polish courts from the full guarantees set out in that provision.

The Commission also considers that the Constitutional Tribunal no longer meets the requirements of an independent and impartial tribunal previously established by law. This is due to the irregularities in the appointment procedures of three judges in December 2015 and in the selection of its President in December 2016.

On 15 July 2022, the Commission decided to send a reasoned opinion to Poland, to which Poland replied on 14 September 2022, rejecting the reasoning of the Commission. The Polish reply does not address the Commission's concerns. This is why the Commission decided today to refer Poland to the Court of Justice of the European Union.

Background

The rule of law is one of the fundamental values of the European Union. It is essential for the functioning of the EU as a whole, with regard to the internal market, cooperation in the area of justice and home affairs, and to ensure that national judges who are also 'EU judges' can fulfil their role in the application of EU law and can properly interact with the Court of Justice of the European Union.

As reflected in 2022 Rule of Law Report, serious concerns related to the independence of the Polish judiciary continue to persist. In 2019 and 2020, the Commission launched two new infringement procedures to safeguard judicial independence. Since then, the Court of Justice found that the disciplinary regime for judges in Poland is not compatible with EU law. The Court also granted interim measures to suspend the powers of the Supreme Court's Disciplinary Chamber with regard to disciplinary cases concerning judges. In its Recovery and Resilience Plan (RRP), Poland committed to undertake reforms of the disciplinary regime regarding judges, to dismantle the Disciplinary Chamber of the Supreme Court, and to create review proceedings for judges affected by decisions of that Chamber aimed at strengthening certain aspects of the independence of the judiciary. In December 2021, the Commission opened an infringement procedure regarding the Polish Constitutional Tribunal and its case law. The Polish Constitutional Tribunal issued rulings directly challenging the primacy of EU law and the provisions of the EU Treaties. Today, the Commission decided to refer this case to the Court of Justice of the European Union.

Follow International Tax Plaza on Twitter (@IntTaxPlaza)