Poland’s Constitutional Tribunal cannot be considered an impartial and independent court, an advocate general of the European Union’s top court has said in an opinion.
His opinion was issued in response to a complaint by the European Commission against two judgments issued by the Polish Constitutional Tribunal in 2021.
The Commission argued that by declaring the Polish constitution to have precedence over EU law, the Polish tribunal had undermined the primacy of the bloc's legislation.
Observers argued at the time that the Warsaw tribunal’s ruling meant Poland was exiting the EU’s legal order.
The Commission also questioned the legitimacy of judicial appointments to the Polish tribunal, arguing that as a result, the body “no longer satisfies the requirements of an independent and impartial tribunal.”
In his opinion issued on Tuesday, Advocate General Spielmann said that the Commission’s position is well-founded.
Judicial reforms enacted by Poland’s previous right-wing government led to a rule-of-law dispute with Brussels. The bloc deemed the changes to be contrary to EU principles and to have politicized the judiciary.
Poland’s Constitutional Tribunal was one of the key bodies the EU considered to have been brought under party-political influence, undermining the principle of separation of powers.
‘Frontal attack’ on EU legal order
“There is no doubt that by [its] judgments, the Polish Constitutional [Tribunal] launched a frontal attack on the fundamental principles of the EU legal order and the authority of the judgments” of the Court of Justice of the European Union, Spielmann said in his opinion.
“Their infringement cannot in any case be justified by provisions of national law, including those of a constitutional nature. Similarly, invoking the constitutional identity of the Member State cannot call into question the fundamental principles of EU law.”
An advocate general’s opinion is not binding on the Court of Justice of the European Union, though the court usually issues rulings in line with such opinions.
Spielmann said it remains for the Court of Justice of the European Union to “settle definitively any conflict between EU law and the constitutional identity of a Member State.”
Meanwhile, Spielmann said he considers the appointment of three judges to the Polish Constitutional Tribunal in December 2015 and of its president in 2016 to have been “characterized by several irregularities which may be classified as manifest and serious.
“Accordingly, the Polish Constitutional [Tribunal] cannot be regarded as an independent and impartial tribunal established by law within the meaning of EU law.”
