Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 298

Armin von Bogdandy · Piotr Bogdanowicz Iris Canor · Christoph Grabenwarter Maciej Taborowski · Matthias Schmidt (eds.)

# Defending Checks and Balances in EU Member States

## Beiträge zum ausländischen öffentlichen Recht und Völkerrecht

Begründet von Viktor Bruns

Herausgegeben von Armin von Bogdandy •Anne Peters

Volume 298

Armin von Bogdandy • Piotr Bogdanowicz • Iris Canor • Christoph Grabenwarter • Maciej Taborowski • Matthias Schmidt Editors

# Defending Checks and Balances in EU Member States

Taking Stock of Europe's Actions

ISSN 0172-4770 ISSN 2197-7135 (electronic) Beiträge zum ausländischen öffentlichen Recht und Völkerrecht ISBN 978-3-662-62316-9 ISBN 978-3-662-62317-6 (eBook) https://doi.org/10.1007/978-3-662-62317-6

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### Preface

For much time, the general impression has been that Europe is doing little to nothing in responding to developments that threaten checks and balances in the European legal space. Today that is not true anymore, so the discussion should move on. This book brings together insight from two conferences on this topic. One conference was held at the University of Warsaw in September 2017, the topic being "Protecting European Union Values: Breaches of Article 2 TUE and their Consequences." The other conference, held in Berlin at the Wissenschaftskolleg in January 2019, focused under the title of "Constitutional Courts and Political Change" on the role of domestic constitutional courts in this respect. The common thread is to better understand how checks and balances are threatened in some Member States and to assess what Europe is doing about it.

At the time when the first conference took place, few could expect that the whole situation develops so dynamically. A few months later, in December 2017, the European Commission triggered Article 7 (1) TEU for the first time in relation to Polish judicial reforms. There have been three infringement proceedings started against Poland by the Commission under Article 258 of the Treaty on the functioning of the European Union (TFEU). One of them concerning the regime of disciplinary liability of Polish judges is still pending (C-791/19). Two of them concerning aspects of judicial independence of Polish Common Courts (C-192/18) and the Polish Supreme Court (C-619/18) have been already brought to the end.

Worth mentioning is especially the latter case, which in fact saved the substance and independence of the Polish Supreme Court. The Court of Justice imposed on Poland a groundbreaking interim order (C-619/18 R), consisting not only of the suspension of the application of the regulations lowering the retirement age but also in reinstating the judges of the Supreme Court dismissed. The Court pointed out that ordering interim measures has the effect of directly and immediately suspending the application of the challenged national regulations, including those that led to repealing or replacement of the regulations formerly fixing the retirement age of Supreme Court judges, in view of which those former regulations shall apply until delivery of final judgment in the case. Consequently, the Court "brought back to life" the former law that had been repealed by the national legislature.

In the final judgment, the Court held in strong words that doubts may be raised as to whether the reform of the retirement age was made by the Polish government in pursuance of standardizing the retirement age of judges and all other employees and not "with the aim of side-lining a certain group of Supreme Court judges." By the same, it rejected Poland's explanation that the introduced changes had an important, justified purpose and were proportionate.

It should also be stated that since 2018, Polish courts, including but not limited to the Supreme Court and the Supreme Administrative Court, referred to the Court of Justice for numerous preliminary references concerning the independence of judiciary treating EU law as a shield against governmental measures undermining the judiciary. A variety of these references are still pending before the Court of Justice.

One of the last notable events in Poland was the judgment issued by the Court of Justice on 19 November 2019 in Joined Cases A.K. v. Krajowa Rada Sądownictwa (C-585/18) and CP (C-624/18), DO (C-625/18) v. Sąd Najwyższy. This judgment made it clear that judicial independence must be guaranteed also in the context of procedures of appointing judges which must exclude any reasonable doubt as to the court's independence of any external factors as well as its neutrality with respect to the overlapping interests on which it rules. It opened the door to questioning panels in courts that include individuals appointed with the recommendation of the Polish National Council of Judiciary and judgments issued by them.

Following the Court's Judgment, the Chamber of Labour and Social Security of the SC issued three rulings in which it has been stated that the Disciplinary Chamber of the SC is not a court within the meaning of EU law due to its lack of independence according to the criteria established by the ECJ. Worth mentioning is also the resolution adopted by three "old" chambers of the Polish Supreme Court on 23 January 2020, which adopts binding criteria of the Court's November ruling to Polish judicial procedures and national courts. That resolution states i.a. that two "new" chambers of the Polish Supreme Court (Chamber for Disciplinary matters and the Chamber of Extraordinary Control and Public Affairs), appointed by the current governmental majority, are not independent Courts in the meaning of EU Law and according to the Polish legal system.

As courts across Poland started to apply those criteria, the ruling majority started a counter-attack: massive disciplinary proceedings against judges (even with criminal charges) are being initiated under the supervision of the Prosecutor General who is at the same time the Minister of Justice. The government and the "new" part of the Supreme Court simply ignore the binding resolution of the "old" Supreme Court. A special "muzzle" law has been prepared in order to silence those judges who try to apply the ECJ's judgment. According to that law actions challenging the existence of a service relationship of a judge, the effectiveness of a judge's appointment or the legitimacy of a constitutional authority of the Republic of Poland constitutes a disciplinary offense for which the judge may be punished with dismissal from office.

In January 2020, few days before we finished this foreword, the Polish Constitutional Tribunal, which has already been subordinated to the will of the executive power and does not guarantee impartial and effective constitutional control, issued an interim measure suspending the judgment of the Supreme Court which followed the aforementioned ruling of the Court of Justice. That suspension is without precedent and according to the majority of constitutional scholars also without any legal grounds. One of the contributions in this book emphasizes the importance of the "red lines". Is it a moment in which these lines are just crossed?

Finally, one should not lose sight of numerous proceedings which are still pending before Polish courts, aimed at the verification of legislative solutions adopted by the ruling majority in Poland from the perspective of judicial independence. Those cases include preliminary referrals i.a. on suspending a national law on the basis of the principle of effective judicial protection (C-522/18), on the scope of application of Art. 19 (1) TEU in judicial proceedings that have no EU element at all (C-558/18 and C-563/18), on whether two chambers of the SC are "established by law" due to a flagrant infringement of national law during the appointing process of judges sitting on those benches (C-508/19 and C-487/19), or on the right to judicial control of the appointment process of judges to the SC from the perspective of candidates for judicial positions (C-824/18). There is no doubt that after those questions have been answered by the Court, a huge step in developing the standard of judicial independence in EU law will be made.

We wish to thank the Leibniz Program of the Deutsche Forschungsgemeinschaft for generous support as well as the rector of the Wissenschaftskolleg, Barbara Stollberg-Rilinger, for her generous welcome, as well as Giacomo Rugge, Dimitri Spieker, and the MPIL's Editorial Department for bringing the volume to publication.

February 2020

Heidelberg, Germany Armin von Bogdandy Warsaw, Poland Piotr Bogdanowicz Tel Aviv, Israel Iris Canor Vienna, Austria Christoph Grabenwarter Warsaw, Poland Maciej Taborowski Heidelberg, Germany Matthias Schmidt

### Contents

## Part I Understanding the Development in EU Member States

## Not on Bread Alone Doth Man Liveth (Deut. 8:3; Mat 4:4): Some Iconoclastic Views on Populism, Democracy, the Rule of Law and the Polish Circumstance

Joseph H. H. Weiler

#### Contents

Abstract Polarization in today's politics, pre- and post COVID, transcends nations, states regions and continents. It's a feature of politics which, in and on itself, when played to extremes by demonizing one's opponents, it threatens democracy itself since it frays the demos some cohesion of which is necessary for the legitimacy of majoritarianism, one of the pillars of national democracies. Its lexical manifestation is to be found with expressions such as 'traitors' or 'not real' Americans, Italians, Israelis—take your pick and fill in the gap.

It has, lamentably in my view, a spillover effect also into the academic world of scholarship. A word of criticism of, say, the European Court of Justice instantly brands you a 'Eurosceptic' and one of 'them'. To speak of Universal Values, casts you as an enemy of this or that national cause. This is not to say, not at all, that one cannot bring to one's scholarship a fully engaged normative and ethical commitment, especially in the field of law which has, or should have, at its roots a commitment to justice. But it militates against careful listening, complex reasoning and understanding and more fine grained normative judgments. Justice is oftentimes not black and white.

It is particularly so when it comes to dealing with the phenomenon of Populism which has moved from the fringe to the center of politics. Trying to understand Populism is not akin to justifying it.

© The Author(s) 2021

J. H. H. Weiler (\*)

New York University, New York, NY, USA e-mail<EMAIL_ADDRESS>
A. von Bogdandy et al. (eds.), Defending Checks and Balances in EU Member States, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 298, https://doi.org/10.1007/978-3-662-62317-6\_1

### 1 Populism

I despise the word Populism. When you like them, (Tzipras in Greece or Podemos in Spain perhaps?) they are Popular. When you dislike them, they are Populist. But this is just the beginning. In a political circumstance which requires discernment and careful judgment in arriving at moral and political conclusions, 'Populism' is a broad and lazy paintbrush which colors everyone with the same damning color and allows one to feel virtuous, basking in one's own self-righteousness. Salvini, Hungary, Marine Le Pen, Poland, Brexiteers, AfD etc? They are all the same, are they not? Well, they are not, far from it. It is as wrong as it is unhelpful.

'Populism' is a proxy for two judgmental sentiments: 'They' are either fascists, or at best crypto-fascists, whom you can thus just write off and consign to the beyondthe-pale waste bin, (which is appropriate for those who are truly so!) And/or, they are (resorting to that odious Marxist trope of False Consciousness) simply dumb. 'They' do not get it, if only they understood...Yes, there are among them quite a few which are both, but I refuse to accept that millions of Europeans, in Member States from East to West, from North to South, are either dumb or have become in short order fascists.

Be that as it may, there is a deep self-exculpatory streak in the simplistic narrative concerning those 'awful populists'. It exculpates us, the bien pensants of the Post WWII political and moral comfort zone which extends between Christian Democracy and Social Democracy and an ironclad commitment to European integration. It obviates the necessity of some serious soul searching of what in the established political order has led to this major, non-peripheral rupture in the European consensus and to examine, what if anything is our responsibility for such.

The two principal sins of the 'populists' is a growing Euroskepticism and a disillusionment with the fundamentals of the liberal democratic order.

I hope my credentials are such that my lifelong commitment to the European construct will not be called into question nor, my old fashioned liberal commitment. When it comes to Europe, this enduring commitment is rooted not only or even principally in the material and utilitarian benefits of such, but in the deep moral and even spiritual dimensions of the construct—aimed at forging a different kind of human relations among peoples divided by borders: Nous ne coalisons pas des Etats nous unissons des hommes. And the commitment to liberal democracy (which in Europe can cover the gamut from Socialism, through social democracy, through liberalism, Christian Democracy including democratic social conservatives) is to be considered as the oxygen of our shared political life.

But we cannot turn a blind eye to some major fault lines in the construct which contradict its most cherished values. Despite the full empowerment of the European Parliament European democracy remains deeply flawed. The two most primitive features of democracy, which cut across the rich variety of specific arrangements in our Member States, are the ability of the electorate, through parliamentary elections (in this case elections to the European Parliament) to determine, or have a decisive weight in deciding, by whom we will be governed, and, at least in a broad way, what will be the ideological and policy direction by which we will be governed. It is not comfortable to admit, but European democracy fails on both grounds. The first point was painfully visible in relation to electing the current incumbent heading the Commission (like her predecessor I think she is an impressive incumbent, but this is beside the point); and over the years we have come to realize that voter preference in the outcome of such elections has had a tenuous connection to the policies of the Union. Our system does not allow European citizens to feel, even in relation to these two primitive parameters, that they have any appreciable impact on the governance of the polity.

It should surprise no one that the slogan, iterated in different forms by Eurosceptics, Taking back Control, had and has so much resonance. The resulting alienation is not simply understandable but in no small measure justified.

These defects of the political process give added weight to the importance of the European Court of Justice and the European legal order. It is not perfect, far from it; I have published from time to time trenchant critiques of some of its judgments and certain aspects of its modus operandi.1 But it is fiercely independent in its spirit and self-understanding, does not kowtow to Member State government interests and has placed the individual and his or her rights squarely in the center of its juridical sensibilities. It is not only the de facto constitutional court of the Union, but more than Brussels, Luxembourg epitomizes the meaning that may be given to European citizenship. The Court might infuriate us from time to time. If the motto of the EU is United in Diversity, in its jurisprudence it might have, in the eyes of some, given more weight to United than to Diversity. One could argue that it would be well advised to foster a veritably more dialogical process with its Statal judicial interlocutors. But the way to change, if change is needed, is through constitutional channels. If the authority of and the loyalty to the European Court of Justice were to be seriously undermined, it would not only be a blow to the rule of law in the transnational arena for which Europe is the world leader, the very European construct as a space of justice would be threatened.

### 2 What of the Disillusionment with Liberal Democracy?

The 'Holy Trinity' of the liberal order are Democracy (free elections and majoritarian rule), Human Rights and the Rule of Law. I use the term 'Holy Trinity' only with limited irony. Since, like the real Holy Trinity, the three are one: Majority governance without the constraints of human rights and the rule of law is but a tyranny of the majority. Human rights without effective rule of law are but slogans. The rule of law, outside a democracy is simply the most effective instrument of authoritarianism and worse. That is why so called 'illiberal democracy' is an oxymoron. It is no democracy at all.

1 See for example https://www.ejiltalk.org/je-suis-achbita/.

There is a second sense in which I use the metaphor of 'Holy Trinity'. These three values represent the bedrock of our civil faith, the reason we fought to overturn both fascism and Communism in the twentieth Century.

But whence, then, the disillusionment with these noble values?

It is oft forgotten that these are peculiar values in the sense that they are mostly but conditions for the Good Life (in the ancient Greek and Biblical sense). Democracy is a 'technology' of governance, flawed but the best we have. But it gives no instruction as to the content that has to be put in place in the act of governance.  Human Rights guarantee our liberties but give no instruction as to how one should exercise such liberties. One can use freedom of expression, for example, to be vile. One can be mean spirited, egoistic, hard hearted and lacking in charity and mercy and yet not violate anyone's human rights. And provided our laws do not violate fundamental human rights, they too, can be uncaring, socially unjust, draconian and yet the rule of law would still be observed.

In this sense, then, the 'Holy Trinity' are but a framework to be filled. They are like the oxygen of physical life. You need it to live, but it does not determine how your life will be lived.

What has been, generally speaking, the governance policy content that has been put into this framework in the Post WWII decades by the European political consensus, and what has been left out?

It has been primarily material: Prosperity. The Treaty of Rome expresses this enduring concern very well: The [European] Community shall have as its task, by establishing a common market and progressively approximating the economic policies of Member States, to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the States belonging to it.

The Treaty of Nice further elaborated this concern by stating: The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States.2

2 Treaty establishing the European Community (Nice consolidated version), Article 2, Official Journal C 325, 24/12/2002 P. 0033—0184, Official Journal C 340, 10/11/1997 P. 0173—Consolidated version.

The magic square of development of economic activities, expansion (growth), increased stability (low inflation) and raising standard of living—the Canon of Ordo-Liberalism—has been the bedrock of European politics for decades. This is mainly what the main parties argue about—the best way to achieve such: Fiscal austerity or otherwise and how much? And what policies of redistribution are the best to ensure prosperity with social justice. There are some notable theorists of democracy who claim that the essence of democratic governance is but the issue of redistributive politics. Christian democracy and social democracy, until recently occupying the central space of European politics shared this same bed.

Our record in this sphere is both spectacular and dismal. These politics, the different political divisions between the center left and center right notwithstanding, has resulted in remarkable overall growth in prosperity and the European construct has played a critical role in such. But these politics, the different political divisions between the center left and center right notwithstanding, has also seen a remarkable growth in the uneven distribution of the deserts of this political project and of, more recently economic globalization. It is a common place that as a result of this gap, a growing segment of the population has felt left out of this success story.

A blind spot of Ordo-liberalism which under different guises and labels has so dominated our political landscape is that it regards the human person, in as much as politics is concerned, as Homo Economicus. But Not on Bread Alone doth Man Liveth. When one, explicitly and implicitly, places Prosperity at the center of your politics, one is transmitting a value, a measurement of 'worth' and of Respect. Just think of the respect that is accorded those States that 'make it' in these terms: The Germanys and Americas and Switzerlands of this world. And the same becomes true at the social and individual human level. The gap thus produces not only a resentment at the material unequal distribution of prosperity, but a deep sense of 'not making it' in a society which values 'making it' above all, an attendant sense of disrespect.

One cannot overstate the centrality of respect (and the lack of it) to human wellbeing. If we consider how, in Europe, in our various constitutions and charters of rights we have placed the inviolability of dignity as our primary human right, one can understand how potent will this disrespect be, real and perceived, in the political arena. The sense of material inequality pales in comparison to the sense of dignitarian inequality and deprivation. It is no answer to say that personally one does not disrespect persons because of their economic condition, if the system, as a whole, privileges so much material well-being and prosperity.

Our centrist politics are characterized not only by what has been placed at the center but by what has been removed.

In the critique of liberalism by such as Michael Sandel and Michael Walzer to name but two, a central argument concerns the very focus of liberalism on the individual and his or her liberties. Yet, the human person is always 'situated', sociality is integral to the sense of self. And I would add I would postulate—that as part of the very human condition there is a quest to give 'meaning' to one's life in the sense that the sum of one's existence not be limited to self-betterment—the engine of the free market—but will have some meaning that transcends such. And indeed it is the social condition that often provides this because it is only in sociality that altruism may be practiced and experienced. Moreover, the social situates the individual within a collective identity; it is commonplace that it is the collective identity which contributes to the sense of meaning that goes beyond the self.

In the pre-War era the two institutions which were most prevalent in this respect were national patriotism and religious faith. People found deep meaning in both. It is important to state, immediately, that the understanding of both is not exhausted, not even remotely so, by the meaning that was given to them in that era.

For reasons that are quite understandable, the very word 'patriotism' became 'unprintable' after the War notably in Western Europe. Fascist regimes (among others), by abusing the word and the concept, had 'burned' it from our collective consciousness. And in many ways this has been a positive thing. But we also pay a high price for having banished this word—and the sentiment it expresses—from our psycho-political vocabulary. Since patriotism also has a noble side: the discipline of love, the duty to take care of one's homeland and people, of one's neighbour; of accepting our civic responsibility toward the community in which we live. In reality, true patriotism is the opposite of Fascism: 'We do not belong to the State as fascism claims; it's the State that belongs to us' and we are responsible for it and what happens to it which is the essence of democratic republicanism.

But the baby—a liberal and enlightened sense of national belongingness and pride—was thrown out with the bathwater of pre-War odious atavistic nationalism.

For reasons which I will not elaborate here, Europe, with probably the exception of Poland and a handful of others, underwent in the post war politics a rapid process of secularization. Not only did Laicite become prevalent and normative, but with time it has, as I argue in my book A Christian Europe,3 been accompanied by distinct Christophobic manifestations.

This is obviously not a call for evangelization. I never judge a person by their faith or lack of it. I know religious persons who are awful human beings and atheists who are noble. But as a society we have paid two heavy prices for this process. First, we have lost a voice which was at one time universal and ubiquitous. A voice in which the emphasis was on duty and responsibility and not only rights, on personal responsibility in the face of what happens to us, our neighbours and our society. It has been replaced by an instinctive appeal to public institutions as both the source of all ills and as the remedy. In Church you do not hear about your entitlements from the State and others but on your duty towards society and others. No politician today in Europe could or would repeat the famous Kennedy Inauguration speech of 1960—Don't ask what your country can do for you but what you can do ... . Etc. The Citizenship chapter of the European Treaties are a poignant example. They speak of rights and duties which the citizen enjoys and owes—but then no duties are ever mentioned.

Duty and responsibility—towards others and not only ourselves and our families—are empowering as citizens and human beings. They, like identity, are meaning

3 Weiler (2004).

giving. And, of course, with a laique culture which consigns religions to the private sphere at best, and disdains it at worst, those to whom religion is an important point of reference feel marginalized, at times disrespected and under (non physical) threat.

Our commitment to rights, as has been pointed out by many is not, too, without ambiguities. We've accepted, both at the national and international levels, a serious and irreversible obligation rooted in our Constitutions to protect the fundamental rights of individuals, even against the political tyranny of the majority. At a more general level, our political-juridical vocabulary has become a discussion of legal rights. The rights of, say, a German citizen are protected by our Courts, and, above all, by the Constitutional Court. But also by the Court of Justice of the EU in Luxembourg, and—again—by the European Court of Human Rights in Strasbourg.  And this is true for the other Member States.

Just think about how common it has become, in the political discourse of today, to speak more and more about 'rights.' To try and turn any political action into a legal action about rights, and entitlements. And using the courts, again and again, to achieve our political objectives. It's enormously important. I would never want to live in a country in which fundamental rights are not effectively defended. But here too—as with the banishment of patriotism—we pay a dear price. Actually, we pay two prices.

First and foremost, the noble culture of rights does put the individual at the center, but little by little, almost without realizing it, it turns him or her into a self-centered individual. It not only atomizes the individual since most fundamental right battles poses an individual and his or her liberties against the collective good but it also 'objectifies' him or her—as an object of someone else's power. The (justified) concern with human rights at the European level gives some cover to the loss of power resulting from our flawed democratic process.

And the second effect of this 'culture of rights'—which is a framework all Europeans have in common—is a kind of flattening of political and cultural specificity, of one's own unique national identity.

For the most part 'Identity' politics are considered an evil. And when identitarianism turns into atavism and worse, it is an evil. But Identity, individual and collective, like patriotism, have, too, a noble dimension. The notion of human dignity—(in the secular version it is part of human ontology; in the religion version it flows from the fact that we have been created in the image of God) contains, at one and the same time, two facets. On the one hand, it means that we are all equal in our fundamental human dignity: rich and poor, Italians and Germans, men and women, Gentile and Jew. To assign more worth to the life of one individual over another, is an assault on our dignity. On the other hand, recognizing human dignity means accepting that each of us is an entire universe, distinct and different from any other person. To treat any of us as fungible with others is an equal assault. And the same is true for each of our societies. To deracinate the cultural specificity of each of our nations and societies is, in this sense, to compromise an essential element of our dignity. When this element of diversity is diminished or derided, we rebel.

And since with only small differences of nuance our supreme value as Europeans are our belief in the Holy Trinity of Rights, Democracy and Rule of Law (and thankfully this is the case) the specificities of our identities are seen to be devalued.

The 'Holy Trinity' remain indispensable, a 'sacred' dimension of our civil life. But I have argued that they are accompanied by a vacuum as regards the politics of meaning which I had ostulated as indispensable to the human condition.

The vacuum thus created has not been filled by mainstream politics, and the 'populist' turn at least in some appreciable measure has been a response to such. Of course it is tragic if the vacuum is filled by a return to pre-War versions of atavistic identity but the pretense that all is well if only the material needs of the human person are satisfied—as in Clinton's famous adage 'It's the Economy, Stupid' is terribly reductionist and as wrong in America as it has proven to be in Europe.

Mussolini understood this perfectly and his Family, Church, Nation slogan had immense mobilizing power for just this reason—it catered to the politics of meaning. But it has to be emphasized again and again—different imaginaries exist. There can be, if we are to fasten on those three social institutions—and they are not the only ones—a concept of Patria and patriotism which is neither fascist nor atavistic but inclusive and celebrating diversity richness; there can be family which is not patriarchal but progressive and egalitarian and there are forms of our classical religions which are non-hierarchical but communitarian. This is not the place to elaborate on these but simply to remind us that a politics which and a social telos which reduces men and women to homo economicus are bound to produce the backlash we are experiencing today.

### 3 Poland

I turn now to Poland. The Polish narrative leaves few indifferent. Decades of oppression by both fascism and then Communism followed by liberation and impressive rejuvenation is a success story widely shared. Poland enjoys both high prestige and affection. It was Poland and the Polish who rocked the foundations of the Soviet empire and toppled the first domino which ended with the fall of the Berlin Wall. Who cannot feel deep solidarity, admiration and, yes, gratitude for Solidarnosc, for Tischner, for Wałęsa, for father Jerzy Popiełuszko and all the rest?

And the story of Poland in WWII—the heroism of Warsaw 44 is unique among those countries occupied by Germany. It was neither Paris or Rome or Amsterdam which rose in quite the same way and with quite the same cost.

And in more recent times, once liberated, who cannot but exclaim at the creativity and industriousness resulting in such rapid economic and political transformation, second to none?

I am not ignorant or oblivious to the shadows—we do not live in a society of saints and Poland is no exception; I am aware of the current critique of Polish democracy, both from within and without, some fully justified, some exaggerated, some outright fanciful. But Polish democracy endures. No one can fault the integrity of Polish elections themselves; the 2019 elections with power in the Senate changing hands is just one testimony to such. No one is afraid of a knock on the door in the middle of the night. There are no political prisoners languishing in camps or prisons. There is still a robust free media, traditional and social, as some counterweight to a government dominated public media, and the pro- and anti-government demonstrations are proof of an engaged citizenship, the life of a vibrant democracy. Yes, I detest the use of criminal sanctions in cases of alleged or real defamation, especially in the political arena. But I detest it as much in France as I do in Poland.

Can Polish democracy be better? Of course it can. Are there dangers and threats? There are. Should one be vigilant and engaged? One should. But this should not cloud one's overall judgment—which is far from black and white.

Do I agree with the policies of the current government? With some I do. I have, for example, sympathy for their concern for those segments of the population which suffered the unequal distribution of the deserts of the 'Polish economic miracle.' I also have sympathy for the legitimate concern to cherish that which is unique and special in Polish identity, including its Catholic heritage (though naturally I recoil when for some this legitimate and even essential value provides cover for vulgar expressions of xenophobia, homophobia and anti-Semitism). I do think the World needs educating on the suffering and heroism of Poland in WWII. The outrageous comments of Mr. Putin are particularly revolting in this context.

With other policies I do not. For example, government use of public media in the political arena is, against the American and British practice to which I am accustomed, alien to me and mars Polish democracy.

But I am always mindful that it is the democratically elected government of Poland, and it is well to remember that the discipline of democracy is such that one has to accept the discipline of democracy.

In my view the gravest threat to democracy in Poland and some other Western countries (the USA, Italy, Spain, Israel and others) is, as noted above, a polarization of society which goes beyond the normal divisions between strongly held views of, say, Left and Right. A polarization which entirely delegitimizes one's political adversaries, considers them as betraying the patria and worse. This not only stifles civic discourse it also fractures the demos; a sense of shared destiny, beyond political divisions is essential to democracy. The word Demos in democracy is not a lexical artifact. It is an ontological necessity for a functioning democracy. This imposes a duty, easier to preach than to practice, to moderate the tones of contentious political discourse for both sides and to realize that once a certain line has been crossed it is extremely difficult to pull back. Lack of restraint on one side feeds the same on the other and the vicious spiral just deepens.

But when it comes to the Rule of Law one cannot but lament some of the measures recently introduced. One should not get the impression that the functioning of the Polish judicial system pre 2015 was a bed of roses. Voices both of the left and right of the political spectrum identified serious flaws which called for reform. But the manner in which this reform has been taken has been, in my view, impatient, short sighted and damaging in the long term to one of the foundations of democracy. There is no need to list these measures, the principal ones of which have been the subject of litigation and already condemnation by the European Court of Justice.

I say this for several reasons.

Politics have some role in the appointment of the judiciary, and different countries manage such in different ways. In the United States some State judges are selected by a popular vote on election day. A terrible system. And appointments to the Supreme Court have become a highly charged political battle, an example for no one. One better look to, say, Italy or Germany for more thoughtful and politically balanced systems. Be that as it may, once appointed, the independence of the judiciary becomes, for obvious reasons, the bedrock of the Rule of Law. Judicial misconduct such as bribe taking has of course to be dealt with, including eventually by criminal sanctions. But objectionable judicial decision making is to be dealt with through the judicial appeal process. Disciplinary proceedings affect directly the kind of judicial independence in deciding a case essential to the judicial function. A threat is no different from a bribe. I think this point has been made sufficiently and I do not need to add. But there is one dimension which troubles me beyond the intrinsic point. Poland is a democracy which means that sooner or later, as in all our European democracies, a new party and a new government will come into power. It would be a disaster, if the practice were established, that each new government would feel it had a license to reshape the judiciary to fit its own sensibility. The damage, thus, is not simply to the immediate independence of the judiciary but to the long term culture of judicial independence. Democrats in the USA might be furious with judicial appointments made during a Republican administration and no less so with decisions of judges so appointed. And vice versa, of course. But both sides would consider it anathema to seek to touch those sitting judges precisely for realizing that the principle of judicial independence in the political culture of the nation is in the long term more important than a short terms gain in, say, the manner of appointing or disciplining judges. Self restraint and patience are the only viable approach to this dilemma if the essential balance between democracy, human rights and the rule of law is compromised. The rule of law and the independence of the judiciary is what stands between democracy and the tyranny of the majority.

There has also been enough discussion on the ill will towards Poland which the various judicial reform plans have generated, even among firm friends of Poland. Seen from the outside, Poland is paying an increasingly heavy reputational price for a project which is intrinsically flawed.

But here, too, I want to add, with humility, a point which has received somewhat less attention. I have already expressed, in word and deed, my sympathy for a country such as Poland which wants to hold on to its Christian identity respecting at the same time, in the European tradition, full freedom of religion and freedom from religion. In some ways it is one of the few remaining countries in Europe which is serious about such and certainly the most important. It is the embodiment of JPIIs encyclical Centesimus Annus, a foundational document of the twentieth Century, which argued persuasively the manner in which Christianity and democracy are not antagonists. This is not only important for Poland but for Europe as a whole. This places a special responsibility on the State. There are certain lines which Poland crosses not only compromise the reputation of Poland but the perception of the viability of the Centesimus Annus proposition to the detriment of European civilization.

### Reference

Weiler JHH (2004) Ein christliches Europa: Erkundungsgänge. Verlag Anton Pustet, Salzburg

Joseph H. H. Weiler is serving as European Union Jean Monnet Chair at New York University Law School and Senior Fellow of the Minda de Gunzburg Center for European Studies, Harvard.

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

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## Constitutional Crisis in Poland 2015–2016 in the Light of the Rule of Law Principle

Marcin Wiącek

#### Contents

Abstract This chapter concerns the constitutional crisis in Poland that began in 2015. It was triggered by appointing judges of the Constitutional Tribunal, by the outgoing Parliament, and then by re-appointing new judges for the same vacancies. Thus, the status of three judges elected by the previous Parliament and three judges elected by the current Parliament remains disputable.

One of the crucial elements of the rule of law is the principle of legality. There are two aspects of this principle: the presumption of legality that covers all acts of state bodies; the revoking of this presumption may be performed only within procedures prescribed by the law. The law should indicate a state body competent to revoke the presumption of legality and define the legal effects of such revoking. If the law is incomplete, incoherent or imprecise in that scope—that may lead to legal and political crisis. Polish legislation and Constitution fail to comply with the said standard. This is one of the causes of the constitutional crisis in Poland.

In a state governed by the rule of law state bodies should mutually respect their acts. State bodies should not treat acts or decisions issued by other state bodies as invalid or non-existent, unless it is declared within a procedure prescribed by the law. Otherwise, a legal chaos may occur. Courts are not empowered to evaluate the

M. Wiącek (\*)

Faculty of Law and Administration, University of Warsaw, Warszawa, Poland

© The Author(s) 2021

A. von Bogdandy et al. (eds.), Defending Checks and Balances in EU Member States, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 298, https://doi.org/10.1007/978-3-662-62317-6\_2

lawfulness of the Tribunal's judgments. One of the crucial elements of the rule of law principle is the certainty of law.

### 1 Introduction

This contribution concerns the crisis that was caused by the election of five judges of the Polish Constitutional Tribunal (CT) in October and December 2015. The events that took place at that time led to the greatest constitutional dispute in the modern history of Poland and to the so-called 'rule of law crisis' in Poland that was subject to numerous procedures, in particular, before the organs of the European Union and the Council of Europe.1 The principal aim of this contribution is to explain and evaluate sine studio et ira the sequence of actions that led to the crisis and to identify its root causes from the perspective of the rule of law principle.

It should be emphasised that the precise analysis of the aforementioned question is crucial, since the whole rule of law crisis in Poland began with the Constitutional Tribunal-related problem.2

### 2 Facts and Law

The constitutional crisis in Poland began in October 2015. It was triggered by appointing, by the outgoing Parliament (elected for the 2011–2015 term of office), five new judges of the CT. Subsequently, in December 2015, after parliamentary elections, the newly-elected Sejm re-appointed constitutional judges for the same vacancies.3

According to Art. 194 para. 1 of the Polish Constitution:4 'The Constitutional Tribunal shall be composed of 15 judges chosen individually by the Sejm for a term

1 See, in particular, Opinion no. 833/2015 of the Venice Commission on Amendments to the Act of 25 June 2015 on the Constitutional Tribunal of Poland; Opinion no. 860/2016 of the Venice Commission on the Act on the Constitutional Tribunal; Commission Recommendation (EU) 2016/1374 of 27 July 2016 regarding the rule of law in Poland; Commission Recommendation (EU) 2017/146 of 21 December 2016 regarding the rule of law in Poland complementary to Commission Recommendation (EU) 2016/1374.

2 Cf. Sadurski (2019), pp. 15–16.

3 Detailed information, concerning subsequent stages of the constitutional crisis in Poland 2015–2016, is presented, in particular, in the following publications: Kustra (2016), Szuleka et al. (2016), Krzywoń (2018) and Sadurski (2019).

4 Constitution of the Republic of Poland, adopted by the National Assembly on 2 April 1997 (English translation: www.sejm.gov.pl/prawo/konst/angielski/kon1.htm [accessed 19 August 2019]).

of office of 9 years from amongst persons distinguished by their knowledge of the law. No person may be chosen for more than one term of office.' 5 On the basis of this constitutional provision, in 2006, five constitutional judges were appointed. Their terms of office began on 6 November (three judges), on 2 December (one judge) and on 8 December 2006 (one judge). Thus, five vacancies opened 9 years later, accordingly, on 7 November, on 3 December and on 9 December 2015.

On 25 June 2015, a few months prior to parliamentary elections, the Parliament adopted the new CT Act (2015 Act) which repealed the hitherto binding CT Act 1997.6 The principal aim of the new Act was to simplify the procedure for the constitutional review, to accelerate this procedure and to explain certain procedural doubts that had arisen in the past.

The Sejm decided, however, that the 2015 Act should comprise also some transitional provisions which would concern the election procedure for the vacancies that would open on November and December 2015. According to Art. 137 of the 2015 Act: 'With regard to judges of the Tribunal whose terms of office end in 2015, the time-limit for submitting the proposal referred to in Art. 19 para. 2 shall be 30 days from the date of entry into force of the Act.' 7

On 21 July 2015, the then Polish President signed the new CT Act. On 30 July 2015 it was published in the Journal of Laws and it entered into force after the expiry of a 1-month vacatio legis period.8 In the meantime, i.e. on 17 July 2015, the President summoned the parliamentary elections. The day of elections was set for 25 October 2015.

During the last session of the outgoing Sejm, the Deputies decided to elect five new constitutional judges. Five Sejm's resolutions on appointing judges were adopted on 8 October 2015, i.e. 17 days before the parliamentary elections. Each resolution indicated the exact date when the term of office of a newly-elected judge would commence. Three of them indicated 7 November (R. Hauser, A. Jakubecki, K. Ślebzak), one—3 December (B. Sitek) and one—9 December 2015 (A. Sokala).

According to Art. 21 para. 1 of the 2015 Act, a person elected by the Sejm to assume the office of a constitutional judge was subsequently obliged to take the oath of office in the presence of the Polish President.9 As regards persons elected on 8 October 2015, the President did not, however, organize the swearing-in ceremony.

5 Sejm is the first chamber of the Polish Parliament.

6 English translations of the 1997 Act and the 2015 Act: www.trybunal.gov.pl/en/about-the-tribunal/ legal-basis/the-constitutional-tribunal-act/archive/ (accessed 19 August 2019).

7 Art. 19 para. 2 of the 2015 Act: 'A proposal of a candidate for the judgeship at the Tribunal shall be lodged with the Marshal of the Sejm no later than 3 months prior to the end of the term of office of a judge of the Tribunal.'

8 See Art. 139 of the 2015 Act.

9 According to Art. 21 para. 2 of the 2015 Act: 'Refusal to take the oath of office shall be tantamount to resignation from the office of a judge of the Tribunal.'

Parliamentary elections were held on 25 October 2015. The term of office of the newly-elected Sejm began on 12 November 2015, according to the order of the Polish President, issued on 5 November 2015.10

Immediately after the inauguration of the new Sejm's term of office, on 17 November 2015, a group of Sejm Deputies lodged with the CT a motion to review the constitutionality of Art. 137 and some other provisions of the 2015 Act, in particular provisions concerning the swearing-in stage of a constitutional judge nomination procedure. Two days after having received the motion, the CT announced that the hearing of the case would be carried out 2 weeks later, i.e. on 3 December 2015.

A few days before the hearing, on 25 November 2015, the Sejm adopted five resolutions declaring that the elections of constitutional judges, performed by the previous Sejm on 8 October 2015, had been null and void due to procedural irregularities. In the reasoning for these resolutions their authors (a group of Sejm Deputies) acknowledged that the Sejm was not empowered to dismiss a constitutional judge from office, once he/she had been lawfully elected. The Sejm was, however, authorized to proclaim—merely in the form of a declaration, as opposed to a law-making decision—that a resolution on appointing a constitutional judge had been adopted in breach of law and thus it had been invalid from the very beginning. The authors of the November 2015 resolutions argued that, notwithstanding the transitional provisions of the 2015 Act, the resolutions of 8 October 2015 had contravened the Sejm's Rules of Procedure (Standing Orders).11 For that reason, the majority of the Deputies expressed the opinion that the said resolutions had not brought about any legal effects and, consequently, there were still five judicial vacancies opened at the CT.

Three days before hearing the case, on 30 November 2015, the CT issued a decision on temporary (interim) injunction. The Tribunal called upon the Sejm not to appoint new judges until pronouncing a judgment on constitutionality of the 2015 Act (i.e. until 3 December 2015). It should be pointed out that the temporary injunction was not directly based on the 2015 Act, since this Act did not explicitly empower the Tribunal to issue such injunctions, unless the procedure was initiated by an individual's constitutional complaint (referred to in Art. 79 of the Constitution). The Tribunal explained, however, that legal bases for the injunction have been

10According to Art. 98 para. 1 of the Constitution: 'The Sejm and the Senate shall be chosen each for a 4-year term of office. The term of office of the Sejm and Senate shall begin on the day on which the Sejm assembles for its first sitting and shall continue until the day preceding the assembly of the Sejm of the succeeding term of office.' According to Art. 109 para. 2 of the Constitution: 'The first sitting of the Sejm and Senate shall be summoned by the President of the Republic to be held on a day within 30 days following the day of the elections (...).'

11The Deputies argued that, on the day of the elections of constitutional judges by the previous Sejm, Art. 137 of the 2015 Act had been contrary to Art. 30 para. 3(1) of the Sejm's Rules of Procedure according to which a candidature for the office of a constitutional judge shall be presented to the Marshall of the Sejm 30 days before the expiry of a constitutional judge mandate. That lack of coherence between Art. 137 of the 2015 Act and Art. 30 para. 3 subpara. 1 of the Sejm's Rules of Procedure led to the invalidity of the resolutions of 8 October 2015.

found in the Civil Procedure Code 1964 which was applicable, mutatis mutandis, to the procedure before the Tribunal in matters not regulated within the 2015 Act.12

The Sejm decided not to follow the temporary injunction. On 2 December 2015 (a day before the CT judgment) the Sejm elected five persons for the offices of constitutional judges (H. Cioch, L. Morawski, M. Muszyński, J. Przyłębska, P. Pszczółkowski). They have been forthwith sworn by the Polish President.13

Next day, on 3 December 2015, the Tribunal issued the judgment (ref. no. K 34/15).14 In the operative part of the judgment the Tribunal ruled, inter alia, that Art. 137 of the 2015 Act, insofar as it concerned three judges whose terms of office ended on 6 November 2015, was consistent with the Constitution and, insofar as it concerned two judges whose terms of office either ended on 2 December 2015 or would end on 8 December 2015, violated the Constitution. Furthermore, the Tribunal ruled that the Polish President was, in general, devoid of the power to deny giving the oath of office to a person elected by the Sejm for the office of a constitutional judge. In the reasoning part of its judgment, the CT expressed the viewpoint that three judges had been lawfully elected by the previous Sejm and, therefore, the President was still under obligation to give them the oath of office. The Tribunal was of the opinion that the appointment of two other judges lay within the scope of competence of the newly-elected Sejm and, therefore, the previous Sejm had not been constitutionally empowered to fill in these two vacancies 'in advance.' 15

One day after the Tribunal had delivered the aforementioned judgment, a group of Sejm Deputies lodged with the Tribunal a motion to review five Sejm's resolutions of 25 November 2015 (declaring that the appointments performed by the previous Sejm had been invalid) and five resolutions of 2 December 2015 (on appointing new constitutional judges). These motions were not, however, adjudicated to their merits. On 7 January 2016, the CT discontinued proceedings (ref. no. U 8/15), since according to the majority of judges the Tribunal was not constitutionally authorized to review the aforementioned resolutions.

Subsequently, the then CT President A. Rzepliński expressed an opinion that, as a result of the K 34/15 judgment, three judges elected by the previous Sejm for the

12See Art. 74 of the 2015 Act. In its hitherto jurisprudence the CT had always rejected motions to issue temporary injunctions in proceedings initiated by a group of Sejm Deputies, due to the lack of legal basis to issue such injunctions (see e.g. the decision of 11 May 2004, ref. no. K 15/04; English summary: www.trybunal.gov.pl/fileadmin/content/omowienia/K\_15\_04\_pp\_GB.pdf [accessed 19 August 2019]).

13Four judges were sworn on 3 December 2015, prior to the opening of the hearing before the CT. Judge J. Przyłębska was sworn on 9 December 2015, since she had been appointed for the term of office which would inaugurate on this day.

14English translation: www.trybunal.gov.pl/en/hearings/judgments/art/8748-ustawa-o-trybunalekonstytucyjnym (accessed 19 August 2019).

15See also the similar judgment of 9 December 2015, ref. no. K 35/15 (English translation: www. trybunal.gov.pl/en/hearings/judgments/art/8792-nowelizacja-ustawy-o-trybunale-konstytucyjnym [accessed 19 August 2019]).

terms of office beginning on 7 November 2015 (R. Hauser, A. Jakubecki, K. Ślebzak) were still expecting to be sworn by the Polish President. In consequence, the CT President allowed only two judges, from amongst five persons elected by the new Sejm and sworn by the Polish President, to perform their judicial duties, i.e. judges elected for the terms of office beginning on 3 December and 9 December 2015 (P. Pszczółkowski, J. Przyłębska). The CT President denied assigning cases to three other judges elected by the new Sejm (H. Cioch, L. Morawski, M. Muszyński). The CT President did, however, make it possible for these persons to work at the Tribunal, as its employees. They obtained their own office rooms and their judicial salary has been paid every month.

As a result of the aforementioned facts, the CT was composed of 12 judges allowed by the CT President to perform their judicial duties. Three remaining judgeships have become disputable, since, on one hand, the Polish President did not give the oath of office to three persons elected by the previous Sejm and, on the other hand, the CT President did not allow three persons elected by the new Sejm to perform their judicial duties.

In the meantime, on 22 December 2015, the Parliament adopted the Amendment Act, modifying the 2015 Act (Amendment Act). It envisaged, inter alia, that the CT should have adjudicated most of the cases sitting in a plenary session composed of at least 13 judges. It also imposed upon the CT the obligation to adjudicate cases in accordance with the order in which the motions were received by the Tribunal. Furthermore, the Tribunal's judgments, issued by the full bench, were to be adopted by the qualified majority of 2/3 votes. The Amendment Act entered into force upon the day of its publication (on 28 November 2015), without any vacatio legis period.

After its entry into force, the Amendment Act was immediately challenged before the Tribunal by two groups of Sejm Deputies, the First President of the Supreme Court, the National Council of the Judiciary and by the Ombudsman. The Tribunal decided to bypass some of the Amendment Act's provisions and to rule upon its conformity with the Constitution sitting in a panel composed of 12 judges, i.e. ten judges appointed prior to parliamentary elections and two judges appointed by the new Sejm, who had been allowed to perform their judicial duties by the CT President. The judgment was issued on 9 March 2016 (ref. no. K 47/15).16 The Tribunal ruled that the whole Amendment Act was unconstitutional and the Act failed to bring about any legal consequences, in particular it did not effectively modify the original version of the 2015 Act. The majority of judges decided to proceed the case directly on the basis of the Constitution. These judges were of the opinion that Art. 8 para. 2 and Art. 195 para. 1 of the Constitution17 empowered the Tribunal to deny applying provisions of the Act of Parliament. Hence, the CT

16English translation: www.konstytucja.wpia.uw.edu.pl/wp-content/uploads/2017/05/Judgmentof-the-Polish-Constitutional-Tribunal\_ref.-no.-K\_47\_15\_en.pdf (accessed 19 August 2019).

17Art. 8 para. 2 of the Constitution: 'The provisions of the Constitution shall apply directly, unless the Constitution provides otherwise.' Art. 195 para. 1 of the Constitution: 'Judges of the Constitutional Tribunal, in the exercise of their office, shall be independent and subject only to the Constitution.'

disregarded, inter alia, the provision pursuant to which the full bench of the CT should have been composed of at least 13 judges.

On 9 March 2016, the K 47/15 judgment was verbally announced in the courtroom and, subsequently, its operative part, signed by 12 judges,18 was delivered to the Chancellery of the Prime Minister for official publication in the Journal of Laws. It should be pointed out that according to Art. 190 para. 2 of the Constitution: 'Judgments of the Constitutional Tribunal (...) shall be required to be immediately published in the official publication in which the original normative act was promulgated (...).' Art. 190 para. 3 of the Constitution stipulates that 'A judgment of the Constitutional Tribunal shall take effect from the day of its publication (...).' The duty to publish the Journal of Laws is vested in the Chancellery of the Prime Minister.

The Prime Minister's Chancellery expressed the opinion that the K 47/15 judgment was null and void, since it had been delivered by the 12-judge panel, as opposed to the panel composed of at least 13 judges, as it had been required by the Amendment Act which, during the Tribunal's session, had been in force and had enjoyed the presumption of constitutionality. Therefore, the judgment was not perceived by the Prime Minister as a CT's decision, but rather as a non-binding opinion of the majority of constitutional judges. For this reason, the Prime Minister's Chancellery denied publishing the judgment. However, according to the majority of the constitutional judges, the act delivered on 9 March 2016 was indeed the CT's judgment, its verbal announcement resulted in the revoking of the Amendment Act's presumption of constitutionality and, therefore, this Act may not be applied in the future.

From that moment, the Tribunal continued its routine adjudicating work, but the Prime Minister's Chancellery refused to publish its judgments in the Journal of Laws. It stemmed from the fact that the Tribunal respected the K 47/15 judgment and went on proceeding on the basis of the 2015 Act in its original wording. The Prime Minister's Chancellery was of the opinion that the K 47/15 judgment had not brought about any legal effects. Therefore, in the Chancellery's opinion, the Amendment Act was still in force and decisions issued in breach thereof may not be treated as CT's judgments.

On 22 July 2016, the Parliament adopted the new CT Act, repealing the 2015 Act. The new Act obliged the Prime Minister to publish all CT's judgments issued 'in breach of the 2015 Act,' except for the K 47/15 judgment. The situation became more complex after the Tribunal, several days before the Act of 22 July 2016 entered into force, had ruled that some of this Act's provisions had been unconstitutional (judgment of 11 August 2016, ref. no. K 39/16). That judgment has not been published either, since the procedure within which it was issued ignored the

18Two newly-elected judges (J. Przyłębska, P. Pszczółkowski) presented dissenting opinions. They expressed the viewpoint that the CT was not empowered to bypass the Amendment Act, even when reviewing its conformity with the Constitution, and that three remaining persons, who had been elected to be the CT judges in December 2015 (H. Cioch, L. Morawski, M. Muszyński), should have been allowed by the CT President to participate in the adjudication of the K 47/15 case.

Amendment Act of 22 December 2015. Therefore, not only the K 39/16 judgment, but also other CT's decisions pronounced after that judgment were denied being published.19

On 30 November and 13 December 2016, three new Acts concerning the CT, the status of its judges and transitional provisions were issued by the Parliament, signed by the President and entered into force.20 On 19 December 2016, the term of office of the hitherto CT President expired. Two days later the Polish President nominated a new CT President (judge J. Przyłębska).21

The newly-appointed CT President allowed the three judges elected on 2 December 2015, who had not been hitherto assigned cases by the previous Tribunal's President (H. Cioch, L. Morawski, M. Muszyński), to perform their judicial duties. Furthermore, the CT President ordered the publication of the hitherto unpublished judgments (except for the K 47/15, K 39/16 and K 44/16 judgments).22 These CT President's orders were based on transitional provisions contained within the Act of 13 December 2016.23 The aforementioned three judgments were also removed from the official collection of the CT's rulings.24 Eventually, the aforementioned three judgments were officially published in 2018.25

19For more details, see Sadurski (2019), pp. 75 et seq.

20English translations: www.trybunal.gov.pl/en/about-the-tribunal/legal-basis/the-constitutionaltribunal-act (accessed 1 March 2018).

21According to Art. 194 para. 2 of the Constitution: 'The President and Vice-President of the Constitutional Tribunal shall be appointed by the President of the Republic from amongst candidates proposed by the General Assembly of the Judges of the Constitutional Tribunal.' The procedure of proposing candidates for the position of new CT President provoked certain legal doubts as to whether the General Assembly lawfully presented candidatures to the President. These doubts stemmed from the fact that, on 20 December 2016, during the sitting of the General Assembly, only six judges did cast their votes, eight judges denied voting and one judge was on leave. The procedure was based on a special transitional provision (Art. 21 of the Act of 13 December 2016). On one hand, this provision envisaged that candidatures should have been presented 'by resolution' of the General Assembly. On the other hand, it did not require any particular quorum that should have been reached in order to adopt resolutions. That problem has been presented before the Supreme Court by the Warsaw Court of Appeal's referral. The Supreme Court, however, refused to rule the case to its merits (decision of 12 September 2017, ref. no. III SZP 2/17).

22The judgment K 44/16, issued on 7 November 2016, concerned the procedure for electing candidates for the positions of the President and the Vice-President of the Tribunal.

23According to Art. 18 para. 2 of the Act of 13 December 2016 (containing the transitional provisions), a person performing the duties of the CT President 'shall (...) assign cases to the judges of the Tribunal who have taken the oath of office before the President of the Republic of Poland and create conditions that make it possible for the judges of the Tribunal to perform their judicial duties.' The special basis for publishing judgments which had been issued 'in breach of' CT Acts of 2015 or 2016 had been created in Art. 19 of the said Act.

24It is published in the electronic form by the CT (see Art. 115 of the Act of 30 November 2016 on the Organization of the CT and the Mode of Proceedings before the CT).

25The specific legal basis for these publications was created by the Amendment Act of 12 April 2018. For more details, see Sadurski (2019), p. 78.

### 3 Controversies Concerning Three Constitutional Judges

From the moment when the new CT President assumed her office, the Tribunal started to continue its routine adjudicating work being composed of 15 judges. However, some constitutional judges, participants to procedures, scholars and publicists express the opinion that the Tribunal's composition is contrary to law, since three mandates at the Tribunal are not exercised by legally-appointed persons. Judges holding these mandates are sometimes even called 'anti-judges' or 'body doubles'.

Some argue that judgments issued with the participation of at least one of the aforementioned three persons are illegal and invalid. For instance, in his dissenting opinion attached to the CT judgment of 4 April 2017 (ref. no. P 56/14), judge S. Rymar stated that one of judges of the adjudicating panel (H. Cioch) was not a constitutional judge, since he had been elected by the Sejm for the judgeship that had been already occupied by a person appointed by the previous Sejm. Therefore, in judge Rymar's opinion, the P 56/14 judgment has been invalid, since it was delivered with the participation of a person who was not legally capable to perform his judicial duties.26

On the other hand, arguments are being raised that, currently, the Tribunal is lawfully-composed, since due to the law violations committed by the previous Parliament, the new Sejm was empowered to fill in all five vacancies at the Tribunal. For instance, in the reasoning for one of its latest decisions, i.e. the judgment of 24 October 2017, ref. no. K 10/17, the CT, sitting as a 5-judge panel, expressed the opinion that it was a misunderstanding to argue that the legal status of three constitutional judges had been determined by hitherto-delivered CT's judgments. In particular, the K 34/15 judgment concerned merely the constitutionality of Art. 137 of the 2015 Act which regulated nothing more than time-limits for submitting candidatures for the offices of a constitutional judge. As regards the Sejm's resolutions on appointing constitutional judges, the Tribunal declared, in the U 8/15 decision, that it was not constitutionally authorized to perform the review of such acts. In conclusion of the K 10/17 judgment, the Tribunal stated that the K 34/15 judgment's entry into force did not affect the legality of any of five appointments performed by the new Sejm on 2 December 2015.27 The detailed analysis of this complicated constitutional problem will be performed hereinafter (in point 6 below).

26See also dissenting opinions attached to the following CT's decisions: judgment of 16 March 2017, ref. no. Kp 1/17 (judges L. Kieres, M. Pyziak-Szafnicka, S. Wronkowska-Jaśkiewicz); procedural decisions of 20 April 2017, ref. no. K 23/15, of 16 May 2017, ref. no. P 115/15, and of 11 October 2017, ref. no. K 14/16 (judge P. Tuleja); judgment of 24 October 2017, ref. no. K 1/17 (judge L. Kieres).

27See also: CT's procedural decisions of 15 February 2017, ref. no. K 2/15, and of 19 April 2017, ref. no. K 10/15; Muszyński (2017), pp. 127 et seq.

### 4 The Rule of Law and the Principle of Legality

The rule of law principle, enshrined in Art. 2 of the Constitution and in Art. 2 of the Treaty on the European Union, is a very broad concept and the source of several detailed principles.28 One of the crucial elements of the rule of law is the principle of legality which, in general, means that all state bodies should act on the basis and within the limits of the law (see also Art. 7 of the Constitution). The discussion on the constitutional crisis in Poland should take into account the fact that there are two specific aspects of the principle of legality:

Firstly, it is the presumption of legality that covers all acts of public power, namely Acts of Parliament, courts judgments, administrative decisions, acts of the President etc. In general, all acts of public powers should be presumed legal and valid.29

Secondly, the presumption of legality may be challenged and then revoked. It is obvious that, on one hand, the violation of law by state bodies, or the abuse of powers, should not take place, but, on the other hand, it is not per se anything unusual in a state governed by the rule of law that such situations may occur. In the light of the rule of law principle, the revoking of the presumption of legality may, however, be performed only within procedures prescribed by the law. The law should, in particular, precisely indicate a state body competent to revoke the presumption of legality and define the legal effects of such revoking. Should the law be incomplete, incoherent or imprecise in that scope—that may lead to legal and political crisis.

Against that background, I express an opinion that Polish legislation and Constitution fail to comply with the aforementioned standard. The legality of state bodies' activity, which is the element of the rule of law principle, is not sufficiently safeguarded by appropriate procedural provisions of Polish law. That is one of the root causes of the crisis concerning the Polish CT. The Constitution and legislation fail to provide for exhaustive and sufficiently precise procedures within which certain essential legal disputes might be resolved. Therefore, as regards certain legal acts (e.g. constitutional judges' appointments, judgments of the CT), there is no procedural way to finally revoke or confirm their presumption of legality in case of a dispute.

28See, on the conceptual vagueness of the rule of law principle, e.g. Bárd (2016), pp. 190 et seq. See also Taborowski (2019), pp. 59 et seq.

29The concept of the presumption of legality may be found, in particular, in the ECJ case-law, cf. ECJ, Case 101/78 ECR 1979, 38 paras. 4–5; see also General Court Case T 471/11 ECLI EU T 2014, 739 para 117.

### 5 Constitutional Tribunal's Scope of Competence

The main source of the constitutional crisis were controversies concerning the legality of the Sejm's resolutions, issued on 8 October 2015, on electing new constitutional judges. They have not been sworn by the President, and, after the parliamentary elections, the Sejm declared aforementioned resolutions to be legallyineffective (resolutions of 25 November 2015) and, consequently, appointed five new constitutional judges (resolutions of 2 December 2015).

One may pose a question whether there is an independent state body which would be legally capable to review the legality and constitutionality of the aforementioned Sejm's resolutions. The answer is 'no', since the Polish Constitution empowers neither the CT, nor any other judicial body, with the competence to examine the legality of the Sejm's individual resolutions, i.e. resolutions on personal nominations. In general, the CT may examine only statutes (Acts of Parliament), international agreements and legal provisions issued by central state bodies.30 In consequence, certain Sejm's resolutions are reviewable in the proceedings before the Tribunal, but that refers only to so-called 'normative' resolutions, i.e. resolutions that are the source of general and abstract legal norms.31 For that reason, in the aforementioned procedural decision of 7 January 2016 (ref. no. U 8/15), the Tribunal ruled that it was deprived of the power to review the Sejm's resolutions on appointing constitutional judges.

The Polish Constitution failed to introduce any systemic mechanism enabling constitutional review of state bodies' acts of applying the law, in particular acts issued by the Parliamentary Chambers.32 Perhaps the situation would be different, should the Polish Constitution expressly empower the Tribunal to review all acts enacted by the Parliament, notwithstanding their contents, like it is, for instance, in Lithuania.33 In particular, in 2005 the Lithuanian Constitutional Court ruled that the parliamentary resolution on the appointment of a constitutional judge was consistent with the Constitution.34 Another good example is Spain. The Spanish Constitutional Court is explicitly authorized to control the appointments of constitutional judges.35 Possibly, should the Polish CT have a similar scope of competence, the

30See Art. 188 para. 1–3 of the Constitution.

31E.g. the CT found itself to be authorized to examine some provisions of the Sejm's resolution on appointing an investigative committee (see the judgment of 22 September 2006, ref. no. U 4/06; English translation: www.trybunal.gov.pl/en/case-list/judicial-decisions/art/5888-zakres-dzialaniatzw-bankowej-komisji-sledczej [accessed 19 August 2019]; see also Wiącek (2007), pp. 193 et seq. 32Cf. Brzozowski (2017), p. 20.

33See Art. 102 of the Lithuanian Constitution 1992.

34Judgment of 2 June 2005, ref. no. 10/05 (English translation: www.lrkt.lt/en/court-acts/search/ 170/ta924/content [accessed 19 August 2019]).

35See Art. 2 para. 1 lit. (g) of the Organic Law 2/1979 on the Constitutional Court of 3 October 1979 (English translation: www.tribunalconstitucional.es/es/tribunal/normativa/Normativa/LOTC-en. pdf [accessed 19 August 2019]).

constitutional crisis could have been avoided or, at least, it would not have so escalated as it proved to be.

### 6 Legal Effects of the K 34/15 Judgment

During the debate on the constitutional crisis in Poland the argument was frequently raised that, as a result of the CT judgment of 3 December 2015 (ref. no. K 34/15), the Polish President became obliged to give the oath of office to three judges appointed by the previous Sejm. This judgment was also referred to as the justification of the CT President's refusal to assign cases to three judges elected by the new Parliament. In general, the aforementioned judgment is often understood as declaring the lawfulness of elections of three judges appointed by the previous Sejm.36 Some important questions should be, however, explained in a more detailed manner.

First of all, it should be explained that the K 34/15 judgment was announced already after the new Sejm had appointed five constitutional judges and the President had sworn four of them. Furthermore, the judgment concerned merely some legal provisions of the CT Act 2015. The Tribunal did not directly examine the Sejm's resolutions adopted within the constitutional judges' appointment procedure, since (as it was explained herein before) it was not constitutionally authorized to review such resolutions. Nonetheless, in the reasoning of the K 34/15 judgment, the Tribunal expressed a viewpoint that the previous Sejm had been empowered to elect, and actually had effectively elected, three judges who should have been sworn by the President, despite the fact that, a few hours before, the President had sworn judges elected by the new Parliament.37

It is undisputable that, under the rule of law principle, all state bodies should respect and implement the CT's judgments. Simultaneously, there are many doubts concerning the legal effects of these judgments. Pursuant to the Constitution, the CT's judgments are, in general, prospective and they do not automatically exert influence upon acts or decisions issued before a judgment's entry into force.38 For

36Cf., inter alia, the Venice Commission's Opinion no. 833/2015 (referred to in footnote 1), margin numbers 26, 124; the Commission Recommendation (EU) 2016/1374 (referred to in footnote 1), 8.

37In the Tribunal's opinion: 'In the case of the two judges of the Tribunal whose terms of office either ended on 2.12 or will end on 8.12.2015, the legal basis of the significant stage of the judicial election process was challenged by the Tribunal as unconstitutional. (...) the derogation of the relevant scope of Art. 137 of the CT Act should result in the discontinuance and closure of the procedure (...). The completion of the aforementioned procedure is inadmissible (...). (...) what does not raise constitutional doubts is the legal basis of the election of the three judges of the Tribunal who were to take office after the judges whose terms of office had ended on 6.11.2015. The derogation of Art. 137 of the CT Act within the indicated scope does not affect the election of those judges. (...) the judicial election carried out on that basis was valid and there are no obstacles to complete the procedure by the oath of office taken, before the President of Poland, by the persons elected to the judicial offices in the Tribunal.'

38See Art. 190 para. 2–4 of the Constitution.

that reason, it is debatable whether, and in what manner, the K 34/15 judgment affected the Sejm's resolutions of 8 October and 2 December 2015 on electing constitutional judges. It would be an oversimplification to argue that the said judgment nullified three out of five resolutions of the new Sejm (adopted on 2 December 2015) and definitively confirmed the legality of three out of five resolutions of the previous Sejm (adopted on 8 October 2015). The constitutional judges have been appointed directly on the basis of Art. 194 para. 1 of the Constitution, as opposed to the 2015 Act which only provided for certain procedural components of the appointment process.

According to the legal doctrine and courts' jurisprudence, including the jurisprudence of the CT, only the operative part of a CT judgment is legally binding within the meaning of Art. 190 para. 1 of the Constitution.39 Arguments or opinions expressed by the CT in the reasoning parts of its judgments are, on one hand, frequently respected and applied by courts and other state bodies but, on the other hand, they are not universally binding since the Constitution did not introduce such an obligation. Consequently, state bodies are not legally compelled to obey such directives in their activity.40 It is not unusual that a state body, e.g. a court, refuses to follow the CT's instructions contained within the reasoning part of a CT's judgment, in particular the instructions concerning the legal effects produced by the judgment. Therefore, ignoring certain considerations contained in the reasoning of a CT's judgment, including considerations concerning the legal effects of a judgment, may not be, in general, tantamount to the law violation.

It should also be noted that, as regards the participation of the Polish President in the appointment procedure (the swearing-in stage), the Tribunal issued a so-called interpretative judgment.41 Yet, the Tribunal's power to issue such judgments remains disputable and, for many years, it has been questioned in some courts' jurisprudence. In particular, in 2009, the Polish Supreme Court adopted a resolution in which it expressed an opinion that the Tribunal was not constitutionally empowered to declare, in a universally binding manner, which interpretation of a legal provision is constitutional and which violates the Constitution.42

The legal problem concerning the swearing-in stage is pivotal, since the Constitution fails to envisage any form of the Polish President's participation in the procedure of appointing constitutional judges. One may, therefore, pose a question why the Tribunal decided to resolve the aforementioned problem in the controversial form of an interpretative judgment. Should the Tribunal have quashed the whole

39'Judgments of the Constitutional Tribunal shall be of universally binding application and shall be final.'

40See, in particular, the resolution of the Supreme Administrative Court of 10 January 2011, ref. no. I OPS 3/10.

41See point 5 of the K 34/15 judgment's operative part: 'Art. 21 para. 1 of the Act (...), interpreted other than that the President of the Republic of Poland is obliged to give the oath of office forthwith to a judge of the CT who has been elected by the Sejm, is inconsistent with Art. 194 para. 1 of the Constitution.'

42See the resolution of the Supreme Court of 17 December 2009, ref. no. III PZP 2/09.

provision concerning the swearing-in procedure, the legal effects of its judgment would have been, to that extent, less ambiguous.43

In consequence, the legal effects of the K 34/15 judgment remain vague. Perhaps the situation would have been different, should the law have expressly empowered the Tribunal to define the legal effects produced by its judgments and the way they should be implemented, like it is, for instance, in Germany.44 Maybe it would be also worthy of searching for some ideas in the Amendment of the Spanish Constitutional Court Act, concerning the enforcement of the Court's judgments.45

### 7 May the Constitutional Tribunal Bypass an Act of Parliament?

One of the most important stages of the constitutional crisis occurred when, on 9 March 2016, the majority of the Tribunal's judges decided to bypass some provisions of the Amendment Act of 22 December 2015, which entered into force on the day of its official publication, and to declare this Act's unconstitutionality (the K 47/15 judgment). As it was explained herein before, the judgment was passed by the 12-judge panel, despite the fact that, according to the Amendment Act which had already been in force, the plenary session of the Tribunal should have been composed of at least 13 judges. For that reason, the Prime Minister's Chancellery denied the official publishing of the judgment.

Some arguments that justified the constitutional judges' decision to bypass certain provisions of the binding Act of Parliament might have been found in Art. 195 para. 1 of the Constitution, according to which constitutional judges are subject only to the Constitution.46 A similar provision is contained in Article 178 para. 1 of the Constitution which stipulates that 'regular' judges (in particular, judges of common and administrative courts) are subject only to the Constitution and statutes (Acts of Parliament). The aforementioned provision is commonly understood in Polish legal doctrine and jurisprudence as empowering judges to bypass sub-statutory acts (inter alia, governmental regulations, referred to in Article 92 of the Constitution) which are, in a court's opinion, inconsistent with an Act of Parliament or with the Constitution. Accordingly, Article 195 para. 1 of the Constitution may be interpreted as granting judges of the CT the power to deny applying a sub-constitutional act, in

43See Wiącek (2016), pp. 125 et seq.

44See Art. 35 of the Act on the Federal Constitutional Court 1951.

45See Organic Law 15/2015 of 16 October 2015 on the reform of Organic Law 2/1979 of the Constitutional Court concerning the execution of decisions of the Constitutional Court as a guarantee of the rule of law (English translation: www.venice.coe.int/webforms/documents/ default.aspx?pdffile¼CDL-REF(2016)035-e [accessed 19 August 2019]). 46Cf. Radziewicz (2017), pp. 23 et seq.; Safjan (2016), pp. 35 et seq.

particular an Act of Parliament, in the situation where according to the CT an act in question is unconstitutional.

There are, however, scholars and constitutional judges who express the opinion that the Tribunal should obey even constitutionally questionable procedural norms, since—until ruling upon their inconformity with the Constitution—these norms enjoy the presumption of constitutionality. Furthermore, on one hand, pursuant to Article 195 para. 1 of the Constitution, constitutional judges are bound only by the Constitution but, on the other hand, the Constitution itself, in Art. 197, stipulates that the mode of proceedings before the Tribunal shall be regulated by the Act of Parliament.47

Perhaps the situation would be different, if acts concerning the mode of proceedings before the Tribunal were under obligatory constitutional review prior to their entry into force, like it is, for instance, in France.48 Such a provision would make it possible to avoid the paradox situation where the Tribunal would be obliged to proceed on the basis of an Act which already came into force and, at the same time, is under constitutional review.

Furthermore, the constitutional crisis in Poland could have proved to be less escalated, if the law explicitly stated that the Tribunal may refuse to apply provisions that it deems unconstitutional, like it is in Lithuania. Art. 17 sentence 2 of the Lithuanian Constitutional Court Act 1993 stipulates that the Constitutional Court shall obey the Constitution and only such laws that are not inconsistent with the Constitution.

### 8 Presumption of Legality of Acts Issued by State Bodies

In the debate concerning the constitutional crisis in Poland, another fundamental question arose, namely whether a Tribunal's judgment may be found, by another organ of public power—e.g. by the Prime Minister (whose duty is to officially publish the Tribunal's judgments) or by a court (whose duty is to apply the Tribunal's judgments in individual cases)—illegal and non-existent due to controversies concerning the composition of a Tribunal's panel that adjudicated a particular case.

In my opinion, the answer to that question is 'no'. Neither the Constitution nor the legislation vest any state body with the power to evaluate the lawfulness of the Tribunal's judgments—in particular, with the power to declare that a judgment was delivered by the unlawfully-composed panel and thus was illegal or non-existent. From the moment when a judgment is ordered to be published by the CT President and referred to the Prime Minister's Chancellery, it should be presumed legal, then

47See, in particular, the dissenting opinions of judges J. Przyłębska and P. Pszczółkowski attached to the K 47/15 judgment (referred to in footnote 18). Cf. Zubik (2011), p. 116.

48It stems from Art. 61, read in conjunction with Art. 63, of the French Constitution 1958.

officially published and respected by individuals and all state bodies, in particular courts. It is the CT President's legal responsibility that an act sent for publication is indeed a legally-delivered Tribunal's judgment. That act enjoys the presumption of legality.

Nonetheless, I am of the opinion that the Parliament would be empowered to introduce a procedure under which, in certain exceptional circumstances, the Tribunal's judgments might be challenged. In particular, the current Polish legislation makes it possible to nullify a final court judgment issued by the wrongfullycomposed judicial panel.49 There are no constitutional obstacles against introducing such an extraordinary procedure when it comes to the Tribunal's judgments. Not only a final court decision but also a judgment delivered by the CT may be, hypothetically, burdened with such procedural defects that may justify the nullification of a judgment and re-considering a particular case.50 It should be emphasized that there are some states in Europe where the proceedings before constitutional courts may be, in certain circumstances, re-opened what, in consequence, may lead to the re-examination of a case which was already settled by a final judgment.51

### 9 Closing Remarks. The Crisis of Procedures

The constitutional crisis in Poland is, to some extent, the crisis of procedures. There are some crucial constitutional issues which are not reviewable and, therefore, some pivotal constitutional disputes may remain unsettled by the judiciary. In particular, the authors of the Constitution failed to anticipate that the appointment of a constitutional judge may be subject to legal controversies and they failed to provide for procedures that could lead to the definite resolving of such controversies by an impartial organ of the judiciary. A constitution of a state governed by the rule of law should provide for, one may call it, 'fail-safe procedures', guaranteeing the respect for the principle of legality. The constitutional crisis proved that the Polish Constitution is not sufficiently consistent with this standard. As it turned out, the political will of the majority of Parliament was capable to break the hitherto established

49See, in particular, Art. 401 para. 1 of the Civil Procedure Code 1964; Art. 542 para. 3, read in conjunction with Art. 439 para. 1 subpara. 1–2, of the Criminal Procedure Code 1997; Art. 271 para. 1 of the Act on the Proceedings before Administrative Courts 2002.

50For instance, one of the judges sitting in the Tribunal's panel which pronounced the judgment of 2 April 2003 (ref. no. K 13/02) had been previously a Senator and had voted on the provision that was under review in this case. The Tribunal, however, decided that there was no basis for the re-opening of procedure (see the decision of 17 July 2003, ref. no. K 13/02, English summary: www.trybunal.gov.pl/fileadmin/content/omowienia/K\_13\_02\_GB.pdf [accessed 19 August 2019]; see also Tuleja (2014), pp. 62 et seq.

51See, in particular, Art. 119–119b of the Czech Republic Constitutional Court Act 1993; Art. 75–75b of the Slovakian Constitutional Court Act 1993; Art. 62 of the Lithuanian Constitutional Court Act 1993.

practice in electing the CT judges and there was no legal remedy to be filed directly against these decisions.

In particular, the question of legality of electing three judges by the previous Sejm remains controversial and debatable, since no organ of judicial power is vested with the power to finally adjudicate upon that question in a binding manner. As it was explained herein before, the legal effects of the K 34/15 judgment are unclear. Simultaneously, the Sejm's resolutions on electing judges may not be reviewed by the Tribunal, what was confirmed by the Tribunal in the U 8/15 decision. Hence, on one hand, one may raise arguments, based on the CT's stance, expressed in the reasoning parts of judgments delivered in 2015 and 2016, that the previous Sejm was empowered to appoint three constitutional judges who, subsequently, should have been sworn by the Polish President. On the other hand, it should be noticed that the thesis that the previous Sejm was authorized to elect three judges is founded on the assumption that three vacancies at the CT undoubtedly opened in the course of the previous Sejm's term of office (i.e. on 7 November 2015). Such an assumption has basis in facts, the calendar of these facts was, however, unknown on the day when the previous Sejm appointed judges. In other words, on 8 October 2015 it was uncertain whether the previous Sejm's term of office would encompass the day when three vacancies at the Tribunal would open.52 A question whether this argument, overlooked in the CT's judgments, influenced—in the light of the tempus regit actum principle—upon the legality of elections, performed by the previous Sejm, remains open.

Under the rule of law principle, all state bodies should mutually respect their acts and decisions. It means that, except for certain extraordinary and evident situations, a state body should not treat acts or decisions issued by another state body as invalid or non-existent, unless it is declared within a procedure prescribed by the law. Otherwise, a legal chaos may occur, what would be per se contrary to the rule of law principle. In particular, in the current system of law the Prime Minister's Chancellery is not vested with the power to deny publishing a CT's judgment in the situation where it was properly sent for publication on the basis of the CT President's order. For the same reasons, Polish courts are not empowered to evaluate the lawfulness of CT's judgments, including the situation where a court raises doubts as regards the composition of a particular Tribunal's adjudicating panel. Such a conclusion flows from the fact that one of the crucial elements of the rule of law principle is the certainty of law. Notwithstanding the legal controversies concerning the current composition of the Tribunal, its judgments should be published, respected and

52In the light of Art. 98 para. 1 and Art. 109 para. 2 of the Constitution (see footnote 10) the Sejm's term of office is, to some extent, flexible. The exact date of the inauguration of new Sejm's term of office had been unknown until 5 November 2015, when the President summoned the first sitting of the new Sejm and set its date for 12 November 2015. Theoretically, the new Sejm could have inaugurated its term of office even one day after parliamentary elections, on 26 October 2015. It was, therefore, conditional upon the decision of the Polish President. Cf. Brzozowski (2016), p. 149.

applied by courts and other state bodies. The protection of the principle of legality may not lead to the negation of the principle of law certainty.

### References

Marcin Wiącek is a professor of the Faculty of Law and Administration at the University of Warsaw; the Head of the Human Rights Division.

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

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## Hungary's Latest Experiences with Article 2 TEU: The Need for 'Informed' EU Sanctions

Beáta Bakó

#### Contents

Department of Law, European University Institute, Florence, Italy

B. Bakó (\*)

© The Author(s) 2021

A. von Bogdandy et al. (eds.), Defending Checks and Balances in EU Member States, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 298, https://doi.org/10.1007/978-3-662-62317-6\_3

Abstract This contribution will concentrate on the Hungarian situation by analysing the generalised practice of targeted legislation and the different causes for legal uncertainty on the constitutional level. The European Parliament initiated an Article 7 TEU sanctioning procedure against Hungary in September 2018 and several infringement proceedings have been launched by the Commission. Unfortunately, these EU responses were not able to grasp the gist of the Hungarian developments. Even the so called Sargentini report of the European Parliament—intended to be a comprehensive analysis of the rule of law deficiencies in Hungary—could not identify the most significant patterns of the Hungarian rule of law decline. This reveals a central shortcoming of EU sanctioning mechanisms employed against 'backsliding' Member States: the need for 'informed' sanctions. Some recent legislative proposals for measuring the rule of law illustrate, that the need for such informed sanctions has been realised by EU institutions. However, the question of 'how' is still unanswered. Taking the case of Hungary as an example, I will finally recommend some aspects to be considered in order to grasp the patterns of 'systemic' rule of law decline.

Polak, Węgier, dwa bratanki / I do szabli, i do szklanki Lengyel, magyar, két jó barát / együtt harcol, s issza borát 1

### 1 Introduction

Today, this proverb of Polish-Hungarian friendship has developed a new meaning, as Hungary and Poland 'fight together' against the EU and its founding values as listed (but not defined) in Article 2 TEU. Both countries are shifting towards an extreme version of what Richard Bellamy termed 'political constitutionalism'. 2 Against 'legal constitutionalism' and judicial review as one of its key features, Richard Bellamy argues that the democratic mechanisms and decision-making by majority rule offer superior and sufficient methods for upholding rights and the rule of law. The absence of popular accountability renders judicial review a form of arbitrary rule which lacks the incentive structure democracy provides to ensure rulers treat the ruled with equal concern and respect. According to Bellamy, one of the key legal constitutionalist methods is establishing boundaries for the political sphere by 'designating certain values ... as beyond the realm of politics.' 3

Applying Bellamy's words to the current debates revolving around the 'Copenhagen dilemma', it is hard to decide whether the current events should be framed in political or legal terms. Indeed, it seems that Article 2 TEU is at the interface of the

1 'Polish and Hungarian are two brothers [Polish]/two good friends [Hungarian]; they fight and drink together.'

2 About constitutionalism as understood in the EU legal order see e.g. Glencross (2014), pp. 1165–1167; Walker (2007), pp. 254–267.

3 Bellamy (2007), p. 147.

political and legal realm. While the EU's founding values are clearly beyond the realm of day-to-day politics, the contours of their exact meaning and their enforcement could hardly be more politicised: Article 7 TEU is commonly labelled as a 'nuclear option'. 4 Just like nuclear weapons, pressing the button is exclusively up to politicians. In this light, the defence of the Union's common values faces a twofold risk: first, the risk of becoming a highly politicised question, and second, the risk of losing the bigger picture in narrow and particularized judicial proceedings.

On one hand, politicians usually do not decide in line with constitutional concepts and ideas but rather in line with their interests. An important interest that concerns all EU Member States is to maintain peaceful relations and not to give reason for any kind of 'revenge' or 'retaliation'. The recent procedures against Poland and Hungary are testimony to this: After Poland,5 a second Article 7 TEU procedure was launched against Hungary.6 Yet, nothing moved forward in the Council. Indeed, the risk of 'mutual indulgence' 7 has increased especially after the Polish and the Hungarian governments enormously contributed to the nomination of the surprise candidate for the presidency of the Commission.

On the other hand, the infringement procedures brought by the Commission were unable to sufficiently address the gist of the illiberal developments in the respective Member States. They were instead, focused on particularized, individual details while leaving the systemic patterns aside.

The Hungarian example perfectly illustrates these shortcomings. Taking Hungary as a case study, this paper will reveal that systemic patterns might be complex and not always visible in the Member States. First, this contribution systematizes the developments in Hungary and reveals two crucial threats to the rule of law: on one hand, the Hungarian government established a skilfully designed, complex and nuanced system of legislation targeting specifically its 'enemies' and 'friends'. On the other hand, there are serious malfunctions on the constitutional level like the questionable use of constitutional amendments as an instrument of every-day politics and the declining role of the Constitutional Court (see Sect. 2). This analysis demonstrates how difficult it is for EU institutions to grasp these developments especially in a highly politicised (Art. 7 TEU) or particularized legal procedure (Art. 258 TFEU). Seen in this light, it becomes clear that the developments in Hungary were only partially addressed by the Commission's infringement procedures (see Sect. 3) and the Article 7 TEU procedure initiated by the European Parliament (see Sect. 4). These procedures concentrate on specific laws without having the bigger picture in mind. What could be responses to these shortcomings? I argue that there

4 Critically on the 'nuclear myth', see Kochenov (2017).

5 Proposal for a Council decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law (2017/0360(APP), 20. December 2017.

6 European Parliament resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded (2017/2131(INL)), P8\_TA(2018)0340.

7 von Bogdandy et al. (2012), p. 497.

should be no procedures against 'backsliding' Member States without a profound legal assessment involving independent experts beforehand—in a nutshell: there is a need for more 'informed' EU sanctions. Some recent legislative proposals reflect the need for 'measuring' the rule of law. However, it is important that any system of indicators should follow a comprehensive approach (see Sect. 5).

### 2 The Big Picture: Targeted Legislation and Constitutional Malfunctions

### 2.1 Lex Friends and Lex Enemies

Targeted legislation can take different forms and shapes. In the first years after setting up the new constitutional system in January 2012, several independent state institutions were affected by organisational changes and this was a proper occasion to dispense with independent officials, like the data protection ombudsman (see Sect. 2.1.1), the president of the Supreme Court and 'communist judges' in general (see Sect. 2.1.2). As the years passed and the new constitutional system was consolidated, targeted legislation has diverged from constitutional institutions to everyday subjects: some of them were also useful in the political communication of the governing parties (see Sects. 2.1.3–6).

#### 2.1.1 Turning the Data Protection Ombudsman into an Authority Influenced by the Government

As the new Hungarian Fundamental Law entered into force in January 2012, the office, and together with that, the term of the former data protection ombudsman was terminated and a new Data Protection Authority was established.8 Contrary to the ombudsman who had been elected by the parliament, the president of the National Data Protection and Freedom of Information Authority (NAIH) is nominated by the President of the Republic on the proposal of the Prime Minister. He may be reappointed for a second term which only strengthens his political dependency.9

8 § 38 of Act CXII. of 2011 on the Right to Informational Self-determination and Freedom of Information.

9 In details see also Polyák and Szőke (2011), pp. 164–165.

#### 2.1.2 Sending Judges into Retirement

Similar reorganisational measures have been adopted in the judiciary: new administrative organs have been established10 and the Supreme Court has been renamed 'Curia'. 11 At the same time, the president of the Supreme Court was released and the Curia started its work with a new president.12 The new constitution further prescribed that 'with the exception of the President of the Curia, no judge may serve who is older than the general retirement age.' 13

The law on the status of judges prescribed that judges had to retire at the age of 62 instead of the former 70. The new rule affected about 10% of the judges.14 Prosecutors and notaries had to meet the same age-requirements too. The law would have entered into force with a tight vacatio legis: half a year before the affected judges would have had to retire.

#### 2.1.3 Labelling Foreign Funded NGOs

Unlike in 2012 and 2013, when the institutional reforms concerned state institutions, the Hungarian government found quite different targets by 2017. These were nongovernmental institutions: civil society organisations on one hand, and a university, on the other—moreover, only a few particular players within these specific categories were affected.

After the government started to systematically undermine the rule of law, to limit the powers of the Hungarian Constitutional Court (HCC) and to amend the constitution routinely in line with its political interests, it had received harsh criticism from civil society, particularly from different NGOs like the Hungarian Civil Liberties

10The National Judicial Office (NJO) has been established by the new Fundamental Law. It is led by its president who is elected by the parliament: accidentally, she is the wife of a Fidesz-politician and an old friend of the Prime Minister. Her most criticised competence was the transfer of cases between different courts but later this was abrogated by the fifth amendment of the constitution in autumn 2013. For details about the judiciary reform see e.g. Sonnevend et al. (2015), pp. 102–103. Since the beginning of 2017, a conflict has developed between the NJO and the self-administration body of the judiciary, the National Judiciary Council (NJC). Namely, the president of the NJO often declared applications to judicial positions as void in order to avoid the control of the NJC. The controversies in details are discussed by Vadász (2018).

11Originally: Art. 25 (1) of the Fundamental Law, due to amendments now Art. 25 (2).

12The former Supreme Court president, András Baka made a complaint before the European Court of Human Rights on the issue. The Strasbourg court dismissed Hungary on the grounds of the right to access to court and the freedom of expression. Concerning the latter, the Court found that the reason of 'the early termination of his mandate as President of the Supreme Court was not the result of a justified restructuring of the supreme judicial authority in Hungary, but in fact was set up on account of the views and criticisms that he had publicly expressed in his professional capacity on the legislative reforms concerned'. (ECHR decision no. 20261/12, Baka v. Hungary, paras. 75, 96.). 13Art. 26 (2) of the Fundamental Law.

14Szente (2017), p. 466.

Union (TASZ), the Hungarian Helsinki Committee, or, the Hungarian division of Amnesty International.

Their activity must have been a thorn in the government's eye for a couple of years but the first concrete legislative step against them was linked to the migration crisis—at least on the rhetorical level. According to the government's narrative, the Hungarian-American billionaire George Soros planned to smuggle millions of migrants into Europe and is financing NGOs to fulfil this plan.15

The new law on the transparency of foreign funded NGOs was adopted in June 2017. According to the new rules, NGOs receiving more than 7.2 million HUF (approximately 24,000 Euros) from abroad per year must register themselves as 'organisations supported from abroad'. This label must be used on their website and on their materials. They were also obliged to provide detailed information to the authorities about the funding they receive.16

Some affected NGOs declared civil disobedience and refused to register themselves as being financed from abroad, emphasizing at the same time, that their financial background was already transparent.17 Several NGOs made constitutional complaints before the Constitutional Court based on personality and privacy rights and the freedom of expression.18 Additionally, opposition MPs issued a norm control procedure before the Constitutional Court, arguing that the law violated the principles of legal certainty and the rule of law and threatened the freedom of association.19 For now, all cases are pending before the Court.

#### 2.1.4 Targeting the 'Soros University'

The other problematic law applies to an even narrower circle of addressees and has an important overlap with the NGO law: George Soros. The amendment of the Higher Education Law adopted in April 2017 clearly targets the Central European University (CEU) founded by the Hungarian-American billionaire. The amendment has set up new requirements for universities operating from a third country (non-EEA) to continue their activities in Hungary.

The most significant change is that an international agreement between Hungary and the third state is needed. If this is a federal state, a prior agreement with the

15The story contains truth in small and fragmented pieces in so far as the abovementioned NGOs get funding from the Soros founded Open Society Foundations and some of them offer legal aid to asylum seekers. However, it is not the only and main focus of their activity and the financing sources (including the OSF) had been published in their financial reports at their website already earlier.

16Act LXXVI of 2017 on the transparency of civil organisations financed from abroad.

17The boycott declared by HCLU/TASZ, Amnesty International and Hungarian Helsinki Committee was joined later by four further NGOs. By doing so, they are risking a fine between 10,000 and 900,000 HUF (30-3,000 Euros). For now, they have not announced being fined because of that.

18AB cases no. IV/01830/2017, IV/01685/2017 and IV/01857/2017.

19AB case no. II/01460/2017.

federal government is required. The amendment further prescribes that the affected foreign universities must perform educational activity in their country of origin too.20 There are 27 third country universities operating in Hungary but most of them have only a few study programs together with other Hungarian universities. Conversely, the entirety of CEU's educational program has been threatened by this law. Further, this is the only university among the addressees having no campus and educational activity in its country of origin (the U.S.) at all. The sum of these special requirements has made one thing clear: the exclusive target was the 'Soros University', the CEU.

The amendment has set a tight vacatio legis: originally, the deadline for compliance with the new rules was the 1st of January 2018. However, in October 2017 after an infringement procedure and several constitutional reviews had been initiated21—the government suddenly realised that this was not realistic and extended the deadline for one more year.22 In December 2018 the CEU announced it would move to Vienna because the Hungarian government rejected to sign or ratify the required international agreement.23

The decision on the constitutionality of the law still has not been made by the Constitutional Court. The Constitutional Court suspended the procedures of the lex CEU and the NGO law in June 2018 with a very strange reasoning. Namely, referring to the European constitutional dialogue and the obligation of cooperation within the European Union, the Court found it necessary to wait for the closing of the parallel cases pending before the European Court of Justice.24 The decision illustrates that the HCC did not (want to) acknowledge that the CJEU will decide on grounds of EU law, which is a totally different yardstick than the Hungarian constitution.25

20§ 2 of Act XXV of 2017 on the amendment of Act CCIV of 2011 on the national higher education.

21The university issued a constitutional complaint and opposition politicians initiated norm control before the Constitutional Court. Both cases are still pending under case numbers II/01036/2017 and IV/01810/2017. Details about the infringement procedures in Sect. 3 below.

22Act CXXVII on the amendment of Act CCIV of 2011 on the national higher education and of Act XXV of 2017 supra note 20.

23The development that started with the lex CEU, continued in the Summer of 2019 the law on the Hungarian Academy of Sciences was amended. The most important point of the amendment is that the Academy would be deprived of its research network (Act. LXVIII of 2019). Opposition MPs initiated a norm control before the Constitutional Court (pending case no. II/01214/2019). The president of the Academy also announced to file a constitutional complaint in the matter. Since the Academy is a public institution and a part of the central budget, the reform itself does not necessarily mean that it was a lex enemy. However, such motivations cannot be excluded either, especially taking into account that the government has no visible and constructive plans for a reasonable restructuration of the Academy.

24AB orders no. 3198/2018 (VI. 21), 3200/2018 (VI. 21) and 3199/2018 (VI. 21) (ABH 2018, 1050, 1057, 1064, respectively).

25This point is however addressed in some parallel reasonings and dissenting opinions. See e.g. the dissenting opinion of István Stumpf and the parallel reasoning of Balázs Schanda and Ildikó Hörcherné Marosi to AB order no. 3200/2018, supra note 24.

#### 2.1.5 'Stopping Soros' (and Migration)

The latest package amending several laws related to immigration has been named 'Stop Soros' 26 by the government in order to link the fight against immigration and Soros stronger in their political rhetoric. However, contrary to the name, this is not a typical piece of targeted legislation (unlike the 'lex CEU' that was officially labelled the amendment of the Higher Education Law).

The package was adopted in Summer 2018, after Fidesz won a third two thirds majority in the parliament in the aftermath of the elections held in Spring 2018. The most striking point of the law is the introduction of a new criminal offense called 'facilitating illegal migration.' The offence refers to any 'organisational activity' aimed at enabling a person to file an asylum application in the event that the latter is ineligible for asylum.27 The police is also empowered to issue injunctions against persons suspected (not even accused or condemned) to facilitate illegal migration or other immigration-related offences from approaching the border closer than 8 km.28 Therefore, it seems that the ultimate objective is not to condemn but rather to keep away any persona non grata from the border.

#### 2.1.6 The System of Lex Friends and Lex Enemies: The Fundamental Challenge to the Rule of Law in Hungary

The above listed pieces of targeted legislation are by far not unique examples, but they are the ones that have been noticed in Brussels. However, many other targeted legislations have not triggered the EU's attention yet. One of the most striking examples of lex enemies is strongly related to the EU-values, especially to the principle of democracy. It is most commonly known as the 'billboard law' and was adopted with a procedural trick. In the summer of 2017—ahead of the 2018 elections—the parliamentary majority adopted an amendment of Act LXXIV of 2016 on the protection of the landscape.29 On its face, the law has nothing to do with political campaigns. Yet its new § 11/G prohibits parties ('organisations supported from the central budget') to advertise under a certain listed price beyond the period of election campaigns.

The new provisions clearly target opposition parties, especially Jobbik, which was supported at the 2018 elections by an investor owning several billboards. The

26Officially: Act VI. of 2018 on the amendment of certain law related to the measures against illegal immigration.

27§ 353/A of Act C of 2012 on the Criminal Code. It must be noted that according to the general rules of Hungarian criminal law, intentional crimes can only be committed deliberately: See Blaskó (2016). Therefore, it is not that easy to condemn someone according to this provision: it has to be proven before the court that the accused person exactly knew that the migrant he helped was safe in his home country or during his journey.

28New § 46/F of Act XXXIV of 1994 on the police.

29Act CIV of 2017.

governing Fidesz, however, can easily avoid the scope of this law by labelling its advertising as 'government information' instead of party campaigning.30 The reason why this provision had to be implemented through the law on landscape protection was the fact that at that time Fidesz did not have the two-thirds majority in parliament. Both the election procedure—including the rules of campaigning—and party financing must be regulated through cardinal laws that require the support of the two-thirds majority of attending MPs.31 So Fidesz bypassed its 'own' Basic Law by hiding the rules in a piece of ordinary legislation that could be adopted with simple majority.

Besides these examples, several laws have been made to favour 'friends', to make them eligible to certain positions32 or to benefit them otherwise. The content of such lex friends may change according to who the friend is, and which position he holds. For example, the company called MAHIR was owned by an oligarch who had been an old friend of the Prime Minister: MAHIR owned several billboards in the country. A concurrent company, the ESMA owned smaller advertisements on electricity poles along the roads. In order to influence the competition between both companies, the government amended the law on road traffic and prohibited advertising on electricity poles and similar objects.33 However, the Prime Minister broke with said friend and competition was immediately restored. After another governmentfriendly oligarch purchased the ESMA, the law was changed again allowing to advertise on objects along the roads with permission.34 Further, a lex friend has been introduced, that may be applied flexibly to any friendly businesses if needed. A specific exception was added to the law on the prohibition of unfair commercial practices and of restriction of competition in 2013. The general rule prescribed that corporate mergers concerning companies whose annual turnover exceeded 15 billion HUF (47–48 million EUR) in total, were bound to take permission from the Competition Authority. The new exception rule made it possible for the government

30See e.g. decision no. 647/2018 of the National Election Office. The Office argued that basically, the 'information campaign of the government' should not be able to be confused with the campaign of the ruling party. However, in the concrete case, the massive anti-immigration 'government information' was not found to be such intervention to the election campaign—even if it happened only 8 days before the day of the election. The law was challenged before the Constitutional Court by opposition parties but the Court found no violation of the constitution. The Constitutional Court argued that the law in question did not regulate a cardinal subject because in fact, it did not change the normative content of the law on the functioning and management of parties. That law (Act XXXIII of 1989) is also cardinal and it sets up the elements of the asset of a party (§ 4). See AB decision no. 3001/2019. (I. 7.), ABH 2019, 35, especially para. 68 et seq.

31Art. VIII of the Basic Law, § 354 of Act XXXVI of 2014 on the election procedure.

32The news portal Index collected many of them: https://index.hu/belfold/2012/06/04/lexek/. Beyond these examples, the so called 'lex Mocsai' is worth to be added. Namely Act XXXVI. of 2014 on the amendment of certain education laws prescribed (in its § 39) that Olympic medals count to be equal to an academic PhD in the higher education of sport: a month later, ex-trainer of the national water polo team, Lajos Mocsai became the rector of the University of Physical Education. 33§ 7 (3b) of Act CXIX of 2012 on amending certain laws related to the traffic.

34§ 1 of LXXXVII of 2015 on amending certain laws related to the traffic.

to qualify certain mergers to be of strategical importance: such mergers do not have to be reviewed by the Competition Authority.35 Since then, this exception has been used several times: for the first time, in the same year, through a two-step privatisation of the biggest savings bank Takarékbank.36

In light of these examples, one thing becomes clear: these laws are targeted. Some have a wider, some have a narrower scope but the intention behind them is always the same: to punish the enemies or favour the friends of the government. Legislation designed to target individuals is not a new feature in the Hungarian legal system.37 A good example for this is the CEU itself which was recognised by a distinct law in 2004 by the then socialist government.38

Yet, individually designed legislation is always problematic because the rule of law requires laws to be general, applying to subjects in an undifferentiated manner.39 Therefore, it is questionable whether laws that genuinely apply only to a distinct scope of individuals, institutions or companies fulfil these essential requirements. Even more dangerous are laws, which pretend to have general effect but are designed in a way that they de facto apply only to a circumscribed circle of people. This is the common feature of the recent lex friends and lex enemies which became everyday practice of Hungarian politics. They became the 'silver bullets' for resolving almost any problem. This is one of the most important systemic rule of law problems in Hungary now—even if it has not been acknowledged by the EU institutions as a general pattern.

### 2.2 Unrestrained Constitutional Amendments

Even more alarming, however, are the developments at the constitutional level. The amendment of the constitution is relatively easy in the Hungarian unicameral parliamentary system: it simply requires the two-thirds majority of all MPs.40 With regard to the Hungarian mixed election system,41 however, it was not expected that one single party could obtain such an overwhelming majority. In this sense, the two thirds majority requirement seemed to be a proper guarantee for political

35§ 24/A of Act LVII of 1996 on the prohibition of unfair commercial practices and of restriction of competition.