Rule of law European Union

Challenging the EU’s top court: Comparing Polish and German approaches

Rule of law issues have been making headlines in the EU this autumn. The Council of Ministers and the European Parliament negotiated a new rule of law mechanism to protect EU funds, because of which Hungary and Poland are now threatening to block the EU’s budget deal. In addition, the European Commission published its first annual rule of law report on all 27 member states. In all this activity, important developments in Poland fell off the radar.

On 23 September, the Polish Supreme Court issued a ruling that undermines the authority of the EU’s highest court, the European Court of Justice (ECJ), disregards fundamental principles of the European legal order and paves the way for the prosecution of dissident judges.

Why does this matter? What was in the judgment? How does it compare to the challenge of the Germany Constitutional Court against an ECJ ruling earlier this year? And what are the implications for the EU as a whole? Luise Quaritsch examines the issue.

The Polish judgment

In the controversial September decision, three judges of the Polish Supreme Court’s Disciplinary Chamber held that a ruling issued by the ECJ in November 2019 was not binding and would be ignored. In this ruling, the ECJ had found that the Polish Supreme Court’s Disciplinary Chamber could not be considered a real court because it lacked independence and impartiality. The Disciplinary Chamber is a new body of the Polish Supreme Court that deals with disciplinary proceedings of judges. Its establishment has led to grave concerns over judicial independence in Poland as its creation appears to violate European law and Poland’s constitution.

The case was brought to the ECJ, which in April 2020 issued an order to temporarily suspend the activities of the Disciplinary Chamber until the Court publishes its final decision, expected at the end of this year. Yet the Polish Disciplinary Chamber has continued to initiate proceedings against independent judges, in disregard of the ECJ’s order.

On 18 November, the Disciplinary Chamber waived the judicial immunity of one of the most prominent critics of the Polish government and its judicial reforms, Judge Igor Tuleya. Tuleya was suspended from his official duties and is now facing criminal charges and up to three years in prison after he allowed the public to participate in open court sessions on a case that concerned the conduct of the ruling party in parliament. The prosecutor’s office claims that this resulted in an unauthorised release of confidential information from the prosecutor’s office's case file. The proceedings against him are widely considered to be politically motivated. He refused to enter the courtroom during the proceedings in order not to legitimise the Chamber.

Primacy of EU law – why it matters

The decision by the Disciplinary Chamber to ignore the ECJ’s ruling undermines a fundamental principle of the EU, the primacy of EU law, a principle upheld by the ECJ for decades. For the common market and open borders to work, it is essential that EU laws are applied the same way everywhere. This is why member states cannot unilaterally invalidate EU laws or come up with their own interpretation, and neither can their courts. If national courts were allowed to ignore EU laws or rulings by the Court of Justice, they could set aside those they see as unfavourable to their country and the EU legal order would erode.

The German challenge to the ECJ’s authority

However, the Polish decision is not the first time this year that a top national court has questioned the authority of the ECJ. In May 2020, the German Federal Constitutional Court (FCC) ruled that the European Central Bank (ECB) had acted beyond its competencies with its bond-buying scheme, in direct opposition to an ECJ decision from 2018 which had validated the scheme. Doing so, the German court not only questioned the foundations of the eurozone’s monetary policy but also the authority of the European Court of Justice, calling its reasoning incomprehensible and arbitrary.

At the European level, this ruling was not well received. Fearing it could lead to disintegration and inspire other national courts to follow suit, some commentators described the decision as “setting a bomb under the EU legal order”. Others were less harsh and suggested that the ruling may well be an outlier. As anticipated, the Polish Prime Minister Mateusz Morawiecki was quick to laud the German judgment as “one of the most important in the history of the European Union”.

So, what is the difference?

If both the Polish and German top courts are challenging the ECJ’s authority, is the Polish decision any more problematic than the German one? The difference lies in the intentions.

National courts play a crucial role in the European judicial system. They apply EU law and contribute to its development through dialogue with the Court of Justice. The German Constitutional Court has played an active role in this. In its landmark “Solange” cases,  issued in 1970 and 1986, it carefully built a jurisprudence on fundamental rights protection at the European level.In the case on the ECB’s bond-buying scheme, the FCC argued that the ECJ did not exercise sufficient judicial oversight over the ECB’s activities. It was concerned with executive action that remains unchecked and indicated that without better justification, the German Bundesbank should not take part in the bond-buying scheme. The ruling was not welcomed by the German government, which had supported the ECJ’s position. It was criticised by many legal scholars, yet it was built on decades of jurisprudence and its focus was on better judicial checks against actions by the executive.

One may argue that the Polish Supreme Court was essentially doing the same thing: sending a message to Luxembourg. Yet there are crucial differences. The Polish Court had not built up any case law on this issue. Its concern is not that executive powers should be better checked, it is the opposite: making sure that the Polish government is not criticised or checked in its actions by judges. The German case was concerned with asserting judicial oversight against governments and executive agencies. The Polish decision is about weakening independent judges to increase government control. Their directions are diametrically opposed. Moreover, the German court highlighted a way out of the impasse, namely a better justification by the ECB, whereas the Polish court merely insists on continuing its illegal activities.

Regardless of its subject matter, the questionable Karlsruhe judgment clearly invited a government-controlled court in another EU country to copy its reasoning. With the decision of the Polish Supreme Court's Disciplinary Chamber, the fears of many experts – that the FCC’s arguments would be taken out of context and weaponised against the EU legal order – seem to have materialised.

Implications for the EU

Amid an escalating rule of law crisis, the decision of the Polish Supreme Court issued in September is undermining the integrity of the European legal order. It is a clear message from pro-government judges that EU law has no precedence. Without the willingness to accept such a basic concept as the primacy of EU law, there is little common ground left. This path has already led to erosion of the rule of law from within and if nothing is done to redress the direction, further disintegration of Europe’s judicial framework seems inevitable.The controversial judicial reforms by the ruling majority in Poland, designed to undermine judicial independence and the rule of law, have already shown effects beyond the country’s borders. Courts in the Netherlands and Germany have stopped approving extraditions of suspected criminals to Poland, an otherwise common practice among member states under the European Arrest Warrant, citing a lack of systemic guarantees of judicial independence and the right to a fair trial. Judicial cooperation is falling apart.

To date, the European Commission has not reacted directly to the Polish Supreme Court’s ruling. But even if it did bring an action before the European Court of Justice, it is unclear what remedying effect this could have when the Polish court refuses to acknowledge the ECJ’s authority. Nevertheless, the European Commission could order financial penalties for the time of non-respect of its judgment.

Democracy Reporting International (DRI) works to improve public understanding of the rule of law in the EU as part of the re:constitution programme funded by Stiftung Mercator. Sign up to DRI’s newsletter and follow us on Facebook and Twitter to find out more about the rule of law in Europe.

Photo credit: Gwenael Piaser / CC BY-NC-SA 2.0

Tags: Judiciary