Różnice między polskim a niemieckim wymiarem sprawiedliwości – analiza

Jakie są różnice między polskim a niemieckim wymiarem sprawiedliwości? Zachęcam do przeczytania ciekawej analizy S&D.


1. Summary of both judgments
The PSPP judgment by the German Federal Constitutional Court (‘GFCC’) of 5 May 2020
The judgment deals with the European Central Bank (‘ECB’)’s public sector purchase programme (‘PSPP’) and was prompted by the applicants’ claim that the German government, the German legislature and the German Central Bank had violated the German constitution by refraining from taking all measures possible to stop the programme. Pursuant to Art. 267(1) TFEU, the GFCC initiated a preliminary reference procedure before the EU Court of Justice (‘ECJ’) whereby it questioned the ECB’s competences to implement the PSPP and argued that it violated Arts. 123 and 127 TFEU. On 11 December 2018, the ECJ confirmed in its Weiss judgment that the programme did not violate EU law. Instead of implementing the ECJ’s decision, the GFCC considered both the PSPP and the Weiss decision as ultra vires and in violation of the German constitution, thus declaring it was not bound by the ECJ’s judgment and proceeding with a new review of the PSPP. Moreover, it gave the ECB 3 months to remedy the situation by providing a proportionality assessment of the PSPP. In the absence of such assessment, it would order the German Central Bank to stop participating in the PSPP.
It is arguable that in order to legitimise its review of whether acts of EU institutions are ultra vires, the GFCC relied on the principle of democracy and the right to participate in elections that are guaranteed in Arts. 20 and 38 of the German Basic Act. According to its interpretation, these provisions require that competences that are transferred to a supranational
organisation have to be well-defined and limited and, as a consequence, the GFCC derives an obligation of the German government and the German parliament to monitor potential competence transgressions of the supranational organisation and to take measures to address such transgressions. It furthermore considered the ECJ’s reasoning in Weiss as “objectively arbitrary”. In its view, Arts. 123 and 127 TFEU had been violated insofar as the first provision prohibits the purchase of debt instruments directly from Member States and, under the second provision, the PSPP should not be qualified as monetary policy. While it accepted the ECJ’s decision concerning the first point, it rejected the conclusion whereby the latter qualified the PSPP as monetary policy, in particular the proportionality test used to reach that conclusion. The GFCC considered the ECJ too deferential in its proportionality assessment since, from its perspective, the lack of democratic legitimacy of the ECB warranted a narrow interpretation of its competences and the assessment of its measures therefore had to be strictly scrutinized, including by taking into account the economic consequences of the PSPP beyond its monetary policy goal of increasing the level of inflation.
Following the PSPP judgment, the ECB provided a proportionality assessment of the PSPP in the protocols of its meetings on 3 and 4 June 2020, leading the president of the German Central Bank to consider the requirements of the judgment to be met and announcing the continuation of the bank’s participation in the programme. However, on 7 August 2020, several applicants of the PSPP judgment applied for an implementation order before the GFCC asking the latter to declare that the ECB had not complied with the judgment and to order the German Central Bank to discontinue its participation in the PSPP – the procedure is pending.
The PSPP judgment breaches EU law since it puts into question the ultimate authority of the ECJ to interpret EU law. It can also be argued that it breaches German constitutional law because it is inconsistent with the standards that the GFCC has developed for the ultra vires review in its earlier jurisprudence. A long-term consequence of this judgment is the uncertainty it introduces with regard to EU monetary policy because it de facto allows German citizens an actio popularis against all policy measures of the ECB without providing clear guidance on its standards of review. It furthermore undermines the judicial dialogue between the ECJ and Member States’ highest instance courts. Nevertheless, the judgment does not call into question the primacy of EU law.
The judgment by the Polish Constitutional Court (‘PCC’) of 7 October 2021
The judgment concludes that the Polish Constitution has primacy over EU law. It argues that four crucial provisions of the Treaty of the European Union (‘TEU’) – Arts. 1, 2, 4(3) and 19 – are in contravention of and should not prevail over the Polish Constitution, specifically its Arts. 2, 8 and 90(1). In other words, it has declared the EU Treaties as ultra vires in Poland.
With Art. 1 TEU, EU Member States agree to set up an “ever closer union among the peoples of Europe”. Art. 2 TEU enshrines the EU’s core values of respect for human dignity, freedom,
democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities, in a society in which “pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail”. Art.4 (3) TEU establishes the principle of sincere cooperation between EU Member States and the EU to assist each other in carrying out the tasks which flow from the Treaties. Finally, Art. 19 TEU tasks the ECJ with ensuring that “in the interpretation and application of the Treaties the law is observed”.
In essence, the judgment declares that Arts. 1 and 4 TEU allowed the EU to act beyond the limits of competences transferred by the Republic of Poland in the Treaties and Arts. 2 and 19 allowed the ECJ to illegally override the Polish Constitution and prevent Poland from functioning as a democratic and sovereign state, namely by checking the legality of the appointment of judges and checking the independence of Polish courts.
This judgment does not concern one specific measure by an EU institution. It is a systemic decision that clearly rejects the values underpinning the EU, first and foremost the primacy of EU law. It is an unprecedented decision that has never been made by any other constitutional court in the EU. As such, its long-term consequences are currently being assessed but the unprecedented nature of such a disregard for the established EU legal order is bound to have legal and political repercussions.
2. Comparative analysis
The narrative whereby the judgment by the PCC of 7 October 2021 is a continuation of the case law of the GFCC, including the PSPP judgment of 5 May 2020, has no legal merit – as demonstrated by the table that follows.
German judgment Polish judgment Applicant
Private individuals
Polish government Primacy of EU law
Emphasizes primacy of EU law (including over German Constitution) while classifying only one individual secondary legal act of an EU institution (ECB) as ultra vires by way of exception.
Rejects primacy of EU law by declaring two primary law norms (Arts. 1 and 19 TEU) enshrined in the Lisbon Treaty as unconstitutional and ultra vires. Legal reasoning
Can be criticised for its interpretation of vague and hand-picked legal concepts. However, it attempts to harmonise and reconcile EU law in its claim to primacy with the requirements of
Does not follow a limited and established doctrine of reservations or develop such a doctrine; in fact, it is lacking in reasoning insofar as it merely postulates a blanket absolute primacy of the Polish Constitution
the national constitution in a cooperative manner.
without any attempt to limit this constitutional primacy to certain aspects (e.g. national identity). Scope of application
One single act of one EU institution (the ECB’s PSPP). The judgment expressly states it does not apply to other future purchase programmes.
Primacy of EU law is excluded from all areas with regard to the Polish constitution, i.e. it does not just concern the field of legal remedies. Interpretation
Nothing comparable to the Polish judgment since by asking for stricter control by the ECJ, the GFCC calls for a strengthening of the EU legal order with respect to the separation of powers. In addition, had the German Central Bank been blocked from participating in the PSPP, the result would likely have been a successful petition for temporary relief with the ECJ and the German legislator would have been forced to amend its ‘Basic Law’ and incorporate provisions reaffirming the EU institutions’ independence and autonomy.
The judgment resists any form of alleged encroachment by the ECJ in particular. It thereby declares Arts. 1 and 19 TEU as unconstitutional insofar as they jeopardise Poland’s functioning as a “sovereign and democratic state” – a vague and legally unclear statement. Legal effect
The German government did not implement the judgment. In addition, as it exclusively referred to the ECB’s PSPP and explicitly excluded future programmes, any legal effects would have been retroactive. Once the dispute on the proportionality of the PSPP is settled, the judgment will no longer have any direct effect.
Given the lack of legal clarity of the statement above, there is room for wide and free interpretation and the Polish government is now able to effectively oppose any obligation stemming from EU law as a legal order. It will most probably invoke this judgment against future judgments of the ECJ – as was likely the intention behind its application before the court. Substance
Focuses on very technical questions related to the monetary union which do not ultimately threaten the foundation of the EU and whose actual impact on the monetary union and the ECB’s ability to act was not substantial.
Concretely, the idea was to force the ECB to yet again disclose the
Denies any competence of the EU with regard to the ongoing so-called “reform” of the national judicial system, thereby incongruently disregarding that Polish courts are part of the European judicial network and act within this framework.
Concretely, the judgment denies national judges the established
full details of the national forecasts on which the PSPP is based.
power to review the conformity of national measures with EU law themselves and to disregard conflicting provisions. It also prohibits national judges from applying superseded national law inasmuch as the new superseding law should be contrary to EU law.
3. Conclusion and political assessment
In trying to insist on a separation between monetary and economic policy measures, the GFCC arguably claimed for itself a political and economic authority higher than that of the relevant EU institutions which it has never been granted under the German Constitution. Consequently, this judgment has been the subject of strong criticism and legal infringement proceedings against Germany have been initiated by the European Commission. However, it is not comparable, both in nature and intent, to that of the PCC.
By bluntly rejecting the primacy of EU law, the latter puts European integration into question as it would see the EU merely as a confederation of Member States and undermines the functioning of the supranational European judicial system by fundamentally encroaching on its basic principles. In contrast, the judgment of the GFCC does not question the primacy of EU law but rather concluded that the EU was acting outside its competences in respect of a very specific policy. While the first renders general integration difficult or almost impossible, the second demands selective corrections. What is more, while the PSPP judgment is a sign of judicial independence of those who drafted it, it is arguable that the judgment of the PCC is the result of undue political influence on the country judiciary’s discretion and autonomy.
Once formally published by the Polish government, this judgment will not only inflict political but also legal damage on the EU legal order. It will help the Polish PiS-led government carry out its judicial reforms and effectively abolish the tripartite separation of powers that is key to the independence of courts and the rule of law. As a result of these reforms, Polish judges are now being chosen by the ruling “Law and Justice” party and dissenting judges in other courts are being suspended and fired with the help of an illegal disciplinary body. Accordingly, the PCC no longer issues judgments that would jeopardise the government. In Germany, while judges are also nominated by politicians, this appointment is not carried out only by the ruling party or the government and the GFCC often makes judgments that can be critical of the government’s actions.
While the Polish government argues that the EU Treaties do not empower the European Commission to interfere in the reform of the Polish justice system, Art. 2 TEU enshrines the rule of law as a core fundamental value and this question has notably already been addressed by the ECJ when assessing the 2018 temporary cuts in judges’ salaries in Portugal and recognising that judicial independence is a condition sine qua non of EU Membership and funding. As such, national courts whose independence is weakened and questionable are
incompatible with the EU core principle of the rule of law. The EU has a duty to sanction any Member State that does not have an independent judiciary as this is a matter of fundamental principles and concerns the very core of the European project.
With this judgment, the Polish government wishes to create a discussion about Member States’ sovereignty but this is a discussion already underway and kept alive by the very same politicians (in Hungary, Poland, Slovenia and right-wing groups across the EU) who wish to breach EU values and fundamental rights and still benefit from the EU’s budget and who know that this will not be tolerated by the EU legal order. As for the consequences, infringement proceedings must be initiated against Poland – as happened with Germany – and the payment of the country’s share of the EU’s Recovery and Resilience Fund could possibly be withheld.
Sources  Thiele, Alexander: Whoever equates Karlsruhe to Warsaw is wildly mistaken, VerfBlog, 2021/10/10, https://verfassungsblog.de/whoever-equals-karlsruhe-to-warsaw-is-wildly-mistaken/, DOI: 10.17176/20211010-181242-0.  EP Vice-President Katarina Barley’s interview to Polish Gazeta Wyborcza of 10 October 2021  EP Vice-President Katarina Barley’s article “The Brutalist style” for the European Journal of Business Law of 29 June 2020  “Primacy’s Twilight – on the legal consequences of the ruling of the Federal Constitutional Court of 5 May 2020 for the primacy of EU law”, DG IPOL Study for the AFCO Committee  EU law live, “Polish Constitutional Court declares EU Treaties ultra vires in Poland”, https://eulawlive.com/polish-constitutional-court-declares-eu-treaties-ultra-vires-in-poland/