Justice minister: is EU treaty compatible with Polish constitution?

The Onet website reported that Poland’s Justice Minister Zbigniew Ziobro filed an application with Poland’s Constitutional Tribunal concerning the legality of making references for ECJ preliminary rulings by Polish domestic courts regarding the country’s justice system.

The application, pertaining to the interpretation of article 267 of the Treaty on the Functioning of the European Union (TFEU), was filed in the wake of recent controversy concerning Poland’s judicial reform, which led the EU to launch a probe into alleged rule of law violations by the Polish government.

Both Poland’s Supreme Court and a number of judges of lower courts have recently made references for preliminary ECJ rulings on judicial independence. This move led to the proceedings before the courts in question being stayed, which sparked criticism in government circles.

Poland’s Justice Minister filed an application, asking whether Article 267 is consistent with Poland’s constitution insofar as preliminary rulings would pertain to Poland’s domestic justice system which are not covered by EU legislation.

Article 267 of the TFEU states that “The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union. Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon”.

Critics of the current government have immediately cried foul of the Justice Minister’s decision to ask the country’s top constitutional court about the scope of application of Article 267, alleging that the initiative would force the court to decide whether EC law takes precedence over domestic law or vice versa.

“This is an advanced move towards Polexit,” one of the Poland’s judges was quoted as saying, and the liberal media coverage set off a wave of speculations on the current conservative government’s possible willingness to loosen its ties with the EU.

However, due to the complex nature of the legal issues at hand, one may only speculate as to the intentions behind the move. Since Article 267 only covers questions on the interpretation of EC law, intended to ensure its uniform application across the EU, one may suspect the Justice Minister merely wished to specify whether questions concerning Poland’s domestic law should also be included within the scope of the article, which, on the face of it, seems contrary to its wording.

Some of Poland’s judges, fiercely opposed to the government’s reforms, may have wished to use the preliminary ruling procedure to block their implementation – something the government would be keen to prevent.

The Polish Constitution states clearly that its provisions take precedence over any other laws, barring those to which Poland has signed up in international agreements. So it is is a matter of interpretation of what exactly Poland has signed up for with its accession to the EU and whether legislation covering the organization of the judicial system is included therein. The Constitutional Court will now have to decide on what that interrelationship is.