The Polish Constitutional Tribunal and the Europeanization of the Constitution.pdf (original) (raw)
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Przegląd Prawa Konstytucyjnego
In the article, the issue of the relationship between the Polish Constitution and European Union law is analysed from the perspective of its shaping in the adjudication of the Constitutional Tribunal. Firstly, the constitutional regulations that define the relationship between the Constitution and EU law will be analysed. This part of the article also includes the issues relating to the legal basis of the most commonly used instrument that shapes this relationship – the EU-friendly interpretation of the Constitution. Secondly, the contexts in which the Constitutional Tribunal refers to EU law are examined. The case study that is undertaken focuses on the instruments that prevent conflicts between EU law and the Constitution, inter alia legislative and interpretative instruments. The application of these methods in recent controversial judgments Ref. no. P 20/07 and Ref. no. K 3/21 concerning the relationship between the Polish Constitution and the EU law will be analysed.
Studies of the Central European Professors’ Network, 2023
The paper aims at describing, in a synthetic but still systematic way, the impact that EU has for Polish legal system in general and constitutional order in particular. Considering category of the constitutional identity as determined in the jurisprudence of the Polish Constitutional Court, an attempt is made to demonstrate the way in which Polish constitutional order is altered beyond the procedures provided to this end by the Constitution and without proper involvement of the Polish Parliament. It is described, how delegation of certain powers to EU pursuant to specific provisions of the Polish Constitution has profoundly affected domestic balance of power between three branches in at least two different dimensions. However, regardless which dimension is concerned, it always results in the limitation of the powers of national legislature. This process demonstrates also decline of the modern politics and its displacement by its postmodern successor, where real political power is no-longer located on national level, but above, upon supra-national level.
Hague Journal on the Rule of Law
The current crisis in the relationship between the Polish Constitutional Court and the Court of Justice of the European Union (ECJ) is of crucial significance for the process of regional integration based on the values of liberal democracy taking place in the EU. The constitutional crisis in Poland that began in the end of 2015 has challenged the systemic position of the Polish Constitutional Court. It resulted in a new model of constitutional adjudication, and in this new model the Constitutional Court, stripped of its counter-majoritarian power, cannot be perceived as the guardian of liberal democracy. This article postulates that the assessment of the present case law of the Polish Constitutional Court in European matters is made through the prism of the Constitutional Court’s jurisprudence pre-2016 (i.e. before the constitutional crisis). Based on that assumption, the current reversal in the case law of the Polish Constitutional Court concerning the ECJ is analysed and assessed....
POLISH CONSTITUTIONALISM AND THE CONSTITUTIONAL JUDICIARY IN POLAND
HUNGARIAN REVIEW, 2014
This text is an abridged version of the lecture that I gave on 25 September 2013 during the conference “Constitutionalism – American and European ways. Fundamental rights and values in Anglo-Saxon and continental models”, organised by the Central European Policy Centre on 24–26 September 2013 in Budapest.
Europeanisation of Polish Law Following Poland’s Accession to the European Union
Studia Iuridica, 2017
The article concerns primarily the effects of the membership of the European Union on national (Polish) law and, to a limited extent, on the political system of a state. The conclusions presented in the article are of universal value. Although the article deals with Polish affairs, the principles, tendencies and consequences identified are typical of the relationship state – the EU, both before and after accession, regardless of the state concerned. It should be, however, noted that the path to membership and the membership itself are different in each case. The practice of the Polish membership of the European Union, its systemic dimension and the changes in the national legal system (Europeanisation) do not differ significantly than in the case of other Member States. Europeanisation of Polish law, politics, economy, culture and society has been in progress since the 1990s. One can differentiate between two stages of Europeanisation: before and after Poland’s EU accession, each ch...
CONSTITUTIONAL COURT AND THE CONSTITUTIONAL CRISIS IN POLAND
TORUŃSKIE STUDIA POLSKO-WŁOSKIE XV — STUDI POLACCO-ITALIANI DI TORUŃ XV , 2019
Poland, which along with Hungary, used to be regarded as the leading example of a successful transition to democracy, is now experiencing (along with Hungary) processes of the so-called “illiberal backsliding”. As, unlike in Hungary, the new parliamentary majority is too weak to control constitutional amendments, the process of changes is developing “next” to the principles and rules of the 1997 Constitution of Poland. This paper is focused on the presentation of the consecutive stages of the political absorption of the Court in 2015-2016 (I). It further considers the situation of the “new” Court in its post-2016 form (II), the main streams of criticism of the reform (III), the changes in the situation of the remaining segments of the judicial branch (IV), the reactions of the CJEU and ECtHR (V), and ends with few concluding remarks (VI)
Judicial Change to the Law-in-Action of Constitutional Review of Statutes in Poland
Utrecht Law Review, Volume 18, Issue 1, 2022, 2022
One of the unexpected effects of the constitutional crisis in Poland that began at the turn of 2015 is the expansion of diffuse constitutional review of statutes. The Polish Constitution adopts a centralised model of constitutional review, but in the cases they hear common courts still independently disapply statutes that violate constitutional norms. Their stated grounds for doing so focus on the need to act in the place of the Constitutional Tribunal, which has lost its independence from the political power, as well as the necessity of continued effective preservation of the Constitution’s primacy and of the fundamental rights and freedoms of individuals. This article takes a more detailed look at this new judicial practice, describes the rationale for its adoption and analyses its consequences from the legal perspective. The trend is capable of being described in theoretical terms, which is the reason for this article’s research hypothesis that the courts’ activities are changing the law-in-action of constitutional review in Poland, as a consequence of the formulation and activation of a defensive mechanism for constitutional democracy.
The European transformation of the legislative, executive and judicial power in Poland
The aim of this article is to analyse the transformative power of the EU with regard to the Polish system of governance. The Europeanisation of Polish law, politics, economy, culture and society has been in progress since the 1990s. One can differentiate between two stages of Europeanisa-tion: before and after Poland's EU accession, each characterised by different conditions. In the course of time, this process, on the whole, has been undergoing numerous changes but it has never reduced in importance. The spectacular transformation of the political system prior to EU accession was followed by further changes, less visible but equally profound and remarkable after EU accession. Of course, most modifications related to the Europeanisation of law and the system of governance which are similar, if not the same, in all EU member states as well as the states associated with the EU. This is so because one of the fundamental principles of the EU is uniformity in the application of its law. However, this uniformity can be ensured in various ways. This is expressed and guaranteed by the principle of procedural autonomy of the member states. Under this principle, the member states may adopt different legal procedures and systems, inter alia with regard to their public administration and territorial structure, as long as they ensure that EU law is applied effectively. The author advances the thesis that the more the structure of the political and legal system of a member state differs from that of the EU, the more visible is its transfor-mative power. This explains why the transformative power of the EU varies from one member state to another. The European transformation of the legislative, executive and judicial power in Poland cannot be analysed solely in terms of their quantity as this would lead to overly simplified conclusions. Each member state should be addressed individually with regard to the specific circumstances of its EU membership. The process of unification does not keep pace with the advancing integration of various, frequently divergent, phenomena 21
Should We Polish It Up? The Polish Constitutional Tribunal and the Idea of Supremacy of EU Law
German Law Journal, 2005
Just one year after Polish accession to the European Union, the Polish Constitutional Tribunal was provided the opportunity to clarify its position regarding the supremacy of EC and EU law. In its two recent judgments, it joined the long tradition of a rather uneasy relationship between national Constitutional Courts and European Court of Justice (ECJ). The uneasiness of this relationship results from an ever-unsolved dilemma – which of the two judicial fora should have the last word in case of conflict between European norms and national constitution norms? The solution given by European Court of Justice in a series of early judgments seems obvious. It opted for an absolute supremacy of EC norms over national norms. On the other hand, the national Constitutional Courts usually accept the supremacy of EC law - but only as a consequence of transfer of some competences under strict conditions set by national constitutions. They thus accept the concept named by Neil Walker “constitutio...