Dear European Union, on the 17th December 2018 CJEU odrered Poland to suspend the application of laws on judges of the Polish Supreme Court (case C-619/18 R, available in French here: http://curia.europa.eu/juris/document/document.jsf?text=&docid=209302&pageIndex=0&doclang=FR&mode=req&dir=&occ=first&part=1&cid=4468543 ).
Even if you are pleased with the order and even if you think that the future judgment of the CJEU will definitely solve the matter – you are wrong. Why? The posts of judge Jarosław Dudzicz, a member of the Polish National Council of the Judiciary, on his profile on Twitter, clearly shows, what the ruling party Law and Justice is about to do. They will not accept nor apply the forthcoming judgment of the CJEU (if it will be contrary to their expectations).
Here you have an example print screens from his TT profile:
And then, later on, he refers to the judgment of the Federal Constitutional Court (Bundesverfassungsgericht) in case Honeywell (order of the Second Senate of 6 July 2010, 2 BvR 2661/06).
Text of the judgment in German is here:
and in English it is here:
To make the story short, let’s just summarize it. The FCC refused to review the constitutionality of the EU act. However, it stated, that the Court could review the EU law if the EU acted ultra vires, so in clear violation of its competences. Here’s what the judgment says:
- a) Ultra vires review by the Federal Constitutional Court can only be considered if a breach of competences on the part of the European bodies is sufficiently qualified. This is contingent on the act of the authority of the European Union being manifestly in breach of competences and the impugned act leading to a structurally significant shift to the detriment of the Member States in the structure of competences.
b) Prior to the acceptance of an ultra vires act, the Court of Justice of the European Union is to be afforded the opportunity to interpret the Treaties, as well as to rule on the validity and interpretation of the acts in question, in the context of preliminary ruling proceedings according to Article 267 TFEU, insofar as it has not yet clarified the questions which have arisen.
To ensure the constitutional protection of legitimate expectations, it should be considered, in constellations of retroactive inapplicability of a law as a result of a ruling by the Court of Justice of the European Union, to grant compensation domestically for a party concerned having trusted in the statutory provision and having made plans based on this trust.
- Not all violations of the obligation under Union law to make a submission constitute a breach of Article 101.1 sentence 2 of the Basic Law. The Federal Constitutional Court only complains of the interpretation and application of rules on competences if, on a sensible evaluation of the concepts underlying the Basic Law, they no longer appear to be comprehensible and are manifestly untenable. This standard for what is considered arbitrary is also applied if a violation of Article 267.3 TFEU is considered to have taken place (confirmation of Decisions of the Federal Constitutional Court <Entscheidungen des Bundesverfassungsgerichts – BVerfGE> 82, 159 <194>).
The outcome of the judgment does not confirm the statements of judge Jarosław Dudzicz. The FCC clearly stated later that: In the result, the Senate majority does not thus do justice to its responsibility for the rule-of-law-based, democratic meaning of provisions relating to competences. It hence continues to pursue a problematic tendency which is already recognisable in the previous case-law of the Federal Constitutional Court, that is of only asserting on paper the democratically founded national right to hand down a final ruling on the application of sovereign power in one’s own territory and the concomitant responsibility for compliance with the competences granted to the Union, and of shying away from effectively implementing them in practice: Whilst the Federal Constitutional Court initially left it open as to whether Community law could be measured in terms of the Basic Law (BVerfGE 22, 293 <298-299>), it went on to affirm the question in the Solange I ruling with regard to a review according to fundamental rights (BVerfGE 37, 271 <280 et seq.>), and twelve years later to suspend this review competence (see BVerfGE 52, 187 <202-203> on the interim period) with regard to the fundamental rights case-law of the Court of Justice which had grown up (Solange II, BVerfGE 73, 339 <387>). The court then developed only in outline, and later more clearly, the idea of a supplementary review of compliance with the boundaries imposed on competences (see BVerfGE 75, 223 <242>; 89, 155 <188>). However, instead of making these means an effective control instrument, the court practically returned to the status quo of the Solange II ruling (see for instance the banana market decision BVerfGE 102, 147 <163>; on developments see Grimm, Der Staat 48 <2009>, pp. 475 <478-479>).
However, referring to this very judgment in case Honeywell, the member of the Polish Council of the Judiciary revealed the plan of his political coleagues and bosses: to declare that the Union acted ultra vires and to refuse to apply the forthcoming judgment of the CJEU.
Moreover, our „dear” judge Jarosław Dudzicz goes even further. He suggests that Germany decided not to apply the CJEU’s ruling in the following matter:
The text of the article in German is here: https://www.fluechtlingsrat-lsa.de/2018/12/pm-03-12-deutschland-ignoriert-eugh-urteil-weiterhin-willkuerliche-trennung-von-eltern-und-kindern/
In his texts he suggests, that it is done because the FCC declined to apply the ruling of the CJEU, which is clearly not true. Germany, not applying the judgment, probably risks the procedure described in art. 258 TFEU. This and only this. No German court decided that the Union and the CJEU acted ultra vires. However judge Dudzicz, intentionally, is spreading false information among Polish ctizens, non-lawyers, on Twitter.
Meanwhile, the Constitutional Tribunal of Poland will review the legality of the present, political National Council of the Judiciary. In the hearing on the 3rd January 2019, the Tribunal, composed of 5 judges elected by and connected politically to the party Law and Justice will decide on the legality of the elected by and connected politycally to the party Law and Justice National Council of the Judiciary.
That’s not absurd, that’s not a Z movie. That’s Polish reality. Are you prepared for the argument, that the Union acts ultra vires?