Op-Ed: “Constitutional attack or political feint? – Poland’s resort to lawfare in Case K 3/21” by Jeffery Atik and Xavier Groussot
This contribution is part of the EU Law Live Symposium on the primacy of EU law and the implications of the Polish Constitutional Court Decision in case K 3/21. See also the Op-Eds by René Repasi, David Krappitz and Niels Kirst, Paul Craig, Dimitry Kochenov, Christophe Hillion, Justin Lindeboom, Federico Casolari, and Araceli Turmo.
Le pouvoir judiciaire n’a jamais été et ne peut pas être un pouvoir politique; il est le type essentiel d’un pouvoir purement juridique, il est exclusivement pour la déclaration de ce qui est conforme au droit positif.
Maurice Hauriou (Principes de Droit Public, Paris, 1911)
The Government of Poland has enlisted the nation’s constitutional tribunal to express its rejection of long-accepted foundations of the EU legal order. The Polish Constitutional Tribunal’s advice in Case K 3/21 further distances Poland from its commitment to EU membership. The weaponization of a national constitutional tribunal is remarkable − and the Tribunal delivered the strident response the Government clearly desired: fundamental norms of EU law shall not be recognized to the extent they conflict with Polish constitutional provisions. The Tribunal turns supremacy on its head, declaring Polish constitutional principles superior to those of the Union. The Tribunal’s declaration may constitute Poland’s first attack on the EU legal order, signaling to its corps of judges that their duty first and foremost is to the law of Poland. Or it may simply be a feint, drawing an anticipated condemnation from throughout Europe that perversely improves the status of the standing Polish Government among its national supporters.
A Machiavellian Ingenuity
Case K 3/21 was entirely avoidable. Rather, the decision is purely advisory − a formulaic response to a slate of queries proposed by the Polish Government intended to provoke a legal crisis. This is an instrumental use of national legal organs to outrage − it is aggressive lawfare.
The Polish Government, in the last years, has been engaged on the legal and political scenes to create smoke screens at national level in reaction to the expanding Court of Justice’s case law built on the landmark Portuguese Judges case (C-64/16) that reinforces the effectiveness of Articles 2 and 19 TEU. What is more, the Polish Government has systematically contested these principles in response to numerous Member States observations. The reaction was Machiavellian.
K 3/21 appears, based on the timing of the lengthy petition of PM Morawiecki, to be a reaction to the ruling of the Court of Justice in AB (C-824/18). This case built on the principles asserted in Portuguese Judges and reaffirmed the essential right of Polish national courts to rely on legislative provisions previously in force.
K 3/21 is a frontal constitutional attack to the principles established by the Court of Justice’s case law. It is ‘total lawfare’ in the sense that it targets fundamental EU legal principles in their entirety. There is no mercy (or no sense of mercy, which is perhaps even worse!). The Court of Justice’s case law on the independence and impartiality of judges is inapplicable to Poland: in another word, frightening.
Fake Court, Fake Judgement?
But what is more frightening in K 3/21 is that the Polish Constitutional Tribunal is a fake court. The European Court of Human Rights has ruled in Xero Flor v Poland (application no. 4907/18) earlier this year that the Tribunal is not a court based on law. And this should mark any ruling of this court illegal.
To make things more complicated, the K 3/21 ruling has not yet been published in the Polish Official Journal, notwithstanding the obligation to do so immediately according to the Polish Constitution. Hesitation in publishing the ruling of the (previously independent) Polish Constitutional Court had become a common practice in recent years (see in particular K 47/15, K 39/16 and K 44/16). This use of this stratagem in the K 3/21 decision of the now captured Constitutional Tribunal creates even more confusion.
Nothing surprises us anymore from the Polish Government. This is our lesson from years of Commission passivity in regard to Poland; the Commission has done too little, has been too weak, tout petit in this now deplorable rule of law crisis. Thankfully the Court of Justice has taken its role seriously! On 11 October 2021, the Polish minister of EU affairs stated to his Swedish counterpart that K 3/21 should be interpreted narrowly and does not mean a Polexit. But this ruling cannot be interpreted narrowly. On the same day, Poland and Hungary challenged before the Court of Justice the validity of Regulation 2020/2092 on the rule of law conditionality clause in the COVID-19 financial recovery package. These mixed messages were certainly tactical.
Response and Manoeuvre
Europe’s response to K 3/21 so far has been measured. While the decision strikes at the core of the Court of Justice’s project of providing for the supremacy and effectiveness of EU law, the European court for the moment does not have an occasion to strike back. And that may be a good thing − for a war between courts would have the effect of conceding some form of mutual institutional recognition. Rather it has been the Commission who has protested the legal acceptability of the claims recognized in K 3/21.
Indeed, the Commission had largely denatured the Polish Constitutional Tribunal in earlier communications, attacking the legality of its establishment, the irregularity of the personalities occupying its bench, and its essential political nature. By attacking the status of the Tribunal as a court, the Commission undermines its ability to speak the law.
The decision of the Polish Government to turn to the Tribunal at this moment signals the value the Government places on judicial appearances. By invoking a fake juridical institution, the Polish Government sought to convert political provocations − which can be easily ignored or forgotten − into rigid if not unassailable legal principles, committing Poland to a position from which it could not easily retreat.
This political resort to the Polish Constitutional Tribunal may have the perverse effect of increasing its stature in the eyes of the Government’s supporters while demolishing its standing in mainstream Europe. If taken seriously, the case suggests there is little space for legal reconciliation absent a complete repudiation.
Whether Case K 3/21 was intended to be the first attack in a constitutional war of liberation or not, the better course for Europe is to treat it as a feint. A feint is intended to confound and distract; the best course is to ignore it. But a feint does convey information − it signals that some other, hidden conduct is in course, to be revealed at some other moment, in some other place.
Were this the decision of a conventional constitutional court, Polexit would be fait accompli. The Court of Justice has cleverly destabilized the foundation of the Polish Constitutional Tribunal; its use by the Government demonstrates it to be no more than a political instrumentality. The principles declared in K 3/21 are certainly alarming to European constitutionalists as they reflect the defiant position of the Polish State. They do not, for now, constitute the last word on the relationship of Polish law to the protections assured all EU citizens by the Treaty and Charter.
The end of the equilibrium
We return to our starting point: Maurice Hauriou. Hauriou’s understanding of the rule of law was based on an equilibrium between power and liberty. K 3/21 reveals that in Poland this equilibrium is totally broken. The Polish Constitutional court is an organ of the Polish government. Welcome to an ‘illiberalism of fear’!
Jeffery Atik is Professor of Law at Loyola Law School in Los Angeles and Guest Professor at the Faculty of Law of Lund University.
Xavier Groussot is Professor of EU Law at the Faculty of Law at Lund University.