Thread by @SimonFRCox

#Poland: Gov using Constitutional Court (Gov-controlled?) to block Supreme Court from suspending law giving Gov control of judiciary. Thoughts from EU law PoV 1/17

https://twitter.com/patrykwachowiec/status/1034770936501809152

There are two legal challenges underway vs Poland Gov’s attempt to capture the judiciary: 1. PL Supreme Ct case 2. @EU_Commission infringement vs Poland. But this hasn’t been filed with CJEU yet 2/

(There’s a third challenge - Commission’s proposal for *political* action by Council under article 7 of Treaty of EU.) 3/

On 2 Aug, Supreme Ct sent Qs about EU law to CJEU & suspended the case to wait for the answer.

Sup Ct also suspended the new law to avoid a breach of EU law until a ruling eulawanalysis.blogspot.com/2018/08/the-cj… 4/

Supreme Ct asked CJEU to expedite the case - which it probably will. Poland’s #RuleOfLaw crisis is important & urgent. A ruling could be made within a few months. 5/

But PL Gov doesn’t want to wait for CJEU and Supreme Ct. It’s asked the Constitutional Court to declare the suspension contrary to Poland’s constitution. 6/

EU law matters here. When Poland joined EU, it agreed to be bound by EU law, including judgments of CJEU. 7/

Under CJEU caselaw, a national court has the *duty* to uphold the effectiveness of EU law in cases before it, even if that conflicts with the national constitution. 8/

And under EU law each national court has the *right* to refer Qs to the CJEU. No other court can deprive it of that power. 9/

So, Con Ct cannot interfere with Sup Ct’s right to ask Qs to CJEU. But Con Ct hasn’t (yet) been asked to do this (afaik) 10/

Instead, Con Ct *has* been asked to use PL law to overturn Supreme Court’s interim suspension of the new national law.

Does EU law allow this? 11/

EU law *doesnt* prevent superior national courts from deciding that an inferior court’s interim ruling wasn’t needed *by EU law*.

But this does require the superior court to consider *EU law*. 12/

So Poland’s Con Court would break EU law if it overturned Supreme Ct’s suspension ruling *only under the constitution* 13/

EU law allows PL Con Ct to decide EU law Qs itself. But because there’s no appeal from its rulings, EU law only allows this if the answers are “acte clair” - ie completely clear.

How can they be that clear when Poland’s SUPREME Court thought the Qs needed CJEU to rule. 14/

So, if PL Con Ct respects EU law, it cannot rule on Gov’s claim before CJEU has given its ruling on Sup Ct’s Qs. 15/

A Con Ct ruling reversing Sup Ct before CJEU’s answers wd be a serious worsening of Rule of Law crisis and threatening Poland’s membership of EU. 16/

And would such a Con Ct ruling be respected within Poland’s legal order? Judges could consider such an order as outside Con Ct jurisdiction, especially if Sup Ct eventually rules that law is ineffective for breach of EU law. 17/17

cc: @PatrykWachowiec @ProfPech @ProfKochenov @alemannoEU @michal_ovadek @RnEngstad @BardPetra @adrianidori @BDStanley @crsdavies @wsamraz @WojSadurski
@StevePeers