On 28 April 2021 the Constitutional Tribunal will be considering a case P 7/20 in response to a question of law concerning the constitutionality of the second subparagraph of Article 4(3) TEU (principle of sincere cooperation) in connection with Article 279 TFEU (power of the Court of Justice to grant interim measures).
If the mentioned provisions of the Treaties are found to be unconstitutional, they will cease to be applicable in Poland. Therefore, it will create an apparent basis for disregarding interim measures granted by the Court of Justice, including interim order suspending the functioning of the Disciplinary Chamber of the Supreme Court.
The retired Constitutional Tribunal judges feel themselves morally bound to express the following statement concerning the case P 7/20.
In view of the Constitutional Tribunal’s previous case-law, the case requires to be heard by a full court and not by a five-member panel (Article 37(1)(1)(e) of the Act of 30 November 2016 on the Organisation of the Constitutional Tribunal and the Mode of Proceedings Before the Constitutional Tribunal).
A judge who, as an active politician, has repeatedly and violently expressed her negative attitude towards the European Union and Poland’s membership in the Union, should not sit on the bench, let alone preside at the hearing. Such a person should be disqualified from the bench (Article 39(2)(2) of the mentioned act). In addition, the adjudicating panel consists of another person elected to already-occupied judicial post, as it is apparent from the judgment of the Constitutional Tribunal of 3 December 2015 (case K 34/15).
If this case, or any case of this kind, were to be heard by the Constitutional Tribunal in line with Polish and EU law, the Constitutional Tribunal is obliged, before issuing its judgment, to request the Court of Justice for preliminary ruling concerning the interpretation of the contested provisions of the Treaties. It is the Court of Justice that is authorised to give a binding and final interpretation of EU law.
The position expressed in the Commissioner’s for Human Rights pleadings of 14 April 2021 deserves full approval (see https://www.rpo.gov.pl/pl/content/zawieszenie-izby-dyscyplinarnej-sn-uzupelniajace-stanowisko-rpo-dla-tk).
The retired Constitutional Tribunal judges state that issuing a judgment resulting in a refusal to apply fundamental provisions of the Treaties in Poland by the Constitutional Tribunal in its current composition and without the judicial dialogue with the Court of Justice, would be a drastic violation of the obligations of a Member Stated and a further step towards taking out our country out of the Union.