The Rule of the Courts

Claas Friedrich Germelmann

the European Court of Justice and with the European Court of Human Rights by declaring their decisions incompatible with Polish constitutional law. In a rather bold and legally untenable judgment, it held that article 6 ECHR was contrary to the Polish constitution and denied the ECtHR the right to rule on the proper composition of the constitutional tribunal. 48 On the referral of the (illegally established and subsequently abolished) disciplinary chamber, it similarly ruled that the obligation to enact changes in the Polish judicial system according to article 4 para. 3 TEU and article 279 TFEU was ultra vires and therefore not applicable in the Polish legal order. 49 This is a clear infringement of basic EU law principles and an unjustifiable position since the interpretation of article 19 TEU and article 47 EU-CFR, which form the basis of the requirements of independence and impartiality, clearly falls within the jurisdiction of the Court of Justice. In another decision, the Polish constitutional tribunal questioned the applicability of articles 2 and 19 TEU and the entirety of EU law in the Polish legal order. 50 Finally, it ruled that article 260 TFEU, according to which violations of Union law by Member States can lead to the imposition of periodic penalty payments and fines, was equally incompatible with the Polish constitution. 51 In its most recent judgment in this matter, the European Court of Justice took a very clear stance on the matter. It held that these judgments of the Polish constitutional tribunal violate the core principles of autonomy, primacy, effectiveness and uniform application of Union law, as well as the principle of the binding effect of the judgments of the European Court of Justice, for which the Polish state is liable. 48 Polish constitutional tribunal, 24 November 2021, Case K 6/21. 49 Polish constitutional tribunal, 14 July 2021, Case P 7/20; cf. Kiener/Gunjic , EUZ 2020, 112 (at 121 et seq.). In the grounds for the referral, reference is made to the doctrine of the German federal constitutional court (Bundesverfassungsgericht, 5 May 2020, Case 2 BvR 859/15 e.a., BVerfGE 154, 17 [at 107 et seq.] – PSPP), which illustrates the destabilising potential of the German case law; see Germelmann/Gundel , BayVBl. 2021, 583 (at 585). 50 Polish constitutional tribunal, 7 October 2021 – K 3/21; see, e.g., Martucci , JCP 2021, 2043; Petit , Europe 11/2021, 4. 51 Polish constitutional tribunal, 11 December 2023, Case K 8/21; see also Bro ż yna , GPR 2023, 194.

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