Presentation by Dr Marian Grzybowski, Judge of the Constitutional Tribunal of Poland

Prof. dr hab. iur. Marian Grzybowski
Constitutional Tribunal of Poland
Jagiellonian University of Krakow, Poland
  
    
1. The interplay between the European supranational law and the national regulations of the EU member states is only partially determined, from one side, by the European treaties and on the other side, by constitutional legislation of the member countries. It should be stressed that the constitutions of the member states were established by far before the accession and then they were quite rarely sufficiently modified when the negotiations to enter the EU were initiated and then finalized. The most of the constitutional acts of the member states do contain only vague and general (fragmentary) provisions dealing with the EU institutions as well as with the European law.
 
2. In general, the two alternative approaches should to be noticed. The first one, derived mostly from jurisdiction of the European Court of Justice, is based on “supremacy clause”. It tends to underline almost unconditional priority of the European regulations when confronted with the “national” acts issued by the respectively legitimized bodies in all the member countries. Its purpose is to guarantee harmonization and uniformity of Community law in all the member states.
     Both the concepts of supremacy of European law and of its direct effect have been developed by the European Court of Justice (ECJ) on the basis of art. 234 ETC [1] From the very beginning the ECJ proclaimed that this provision (formerly: art. 177) is “essential for the preservation of the Community character of the law established by the Treaty and has the object of ensuring that in all circumstances this law is the same in all states of the Community” [2].
The ECJ has adopted a welcoming attitude to such a standpoint for the new member states. In particular, in Menacarte case from Portugal the ECJ stressed that the effectiveness of the system established under art. 234 ECT requires the national organs (courts) to have the wide possible powers to refer questions to the Court of Justice in the case pending raises a question of Community law. In the same case, the ECJ underlined that even the national court (or tribunal) declared a provision of national law unconstitutional; it did not lose the right, or escape the obligation, to refer questions to the ECJ[3].
The opinion, mentioned above, has raised a question whether such a statement refers to the constitutional court (or tribunal). In other words: is it possible, that the issue of conformity with European law may be, at the same time, an issue of “constitutionality” within the internal legal system of a given member state? In addition, can the constitutional court (or tribunal), after solving the problem of “conformity with national constitution” in the same case, raise an issue of “conformity with the Community law”? And is it obliged to refer the second question to the ECJ aiming at receiving the adequate preliminary ruling? Or has it only a right (a “kind of freedom”) to refer to the ECJ (due to its recognized “monopoly” to interpret Community law)? Can it decide on the basis of the national constitution and, in addition, of its own interpretation of the EU law?
 
The second and alternative interpretation is determined by far-going carefulness vis-a-vis a kind of preponderance of supranational regulations. Both the recognized (and defended) national sovereignty and the attributive nature of the EU competences (in particular, in the field of legislation as well as in field of public administration) are pointed as the crucial and, to some extend, the decisive arguments. Another, subsidiary argumentations come from the procedural aspect of law-making processes within the European Union.
 
According to this opinion the institutions of the EU should be endowed only with such competences which are regarded as indispensable to carry the “exclusively European” (“Community”) functions and to fulfill the EU “exclusive” tasks. According to Maastricht Treaty the EU plays only a subsidiary role in economic and public life of the member states’ activities. The decisive tasks have remained with the legislatures, the public administration as well as with the judiciary of the member states. So there is only a limited reason to “transmit” both the regulatory competences and the controlling ones towards the EU institutions. Thus the necessity of the EU exclusive competence should touch only the limited areas .The respective competences should be, in addition, pointed precisely by law; only within their frames there are justified reasons for EU law priority and for unconditional implementation of the “supremacy” clause concerning the EU law.
 
3. According to the second opinion both parallel and the competitive (concurring) legislation (when the same areas remain regulated simultaneously be European and national law of the member states) should be seen mostly in light of lacking precision in delimitation of respective competences. Such omissions are probable, in particular, on the level of treaty regulation; at that time there was quite difficult to foresee all the consequences of the future development of ongoing European integration.
 
4. Those who tend to be adherent to the second way of thinking try to argue, that the kind of carefulness shown in transmission of attributes of public power from the state to supranational (EU) level is, at least partially, justified by a strong and legitimized desire to preserve the constitutional distribution of power among the constitutional institutions of a given member country. Every step in “transferring “the competences has its significant and visible impact on internal “power network”. In addition, it has also an outside impact and importance, in particular, for interplay between the respective EU and national public institutions. There is no real reason to allow that the constitutional system of a given member state will be modified without adequate changes of the national constitution, mostly via implementation of the EU legal provisions or via the ECJ jurisdiction – they said.
 
5. Some skepticism (as it has been mentioned in point 2) - also in terms of legal argumentation - is derived from the situation, when the most important European legislation is drawn up by the Council of European Union, a body composed by the representatives of the member countries’ cabinets. The same cabinets serve as the institutions whose “internal” constitutional functions in the field of law-making are limited to submitting the proposed bills when the decisive legislative competences are realized by parliament, whose political legitimization is by-far better established. Taking into account the necessity of democratic legitimization and the entire parliamentary tradition of most of the EU member countries, the situation of such kind should be regarded as quite paradoxical. At least, it will be very difficult to consider this systemic solution as shaped in line with the bulk of democratic expectations.
 
6. According to the provision of art. 234 ETC and due to the ECJ own interpretation the European Court of Justice (in Luxemburg) is recognized (up to the Treaty of Nice, which tends to add some the Court of First Instance competences) the only court equipped by the possibility to offer a binding and respected the EU law interpretation. This sui generis monopolistic position has not relevant equivalent in frames of the constitutional arrangements of the most member states. In the Republic of Poland, at least the two institutions, the Constitutional Tribunal and the Supreme Court are equipped with the highest interpretative competences; the Constitutional Tribunal preserving its “last word” in issues of “constitutionality” (“conformity with the constitutional provisions”). Also the Supreme Administrative Court has preserved some influential competences.
It seems to be, in addition, of some importance that the European Court of Justice has its impact on harmonization of EU law mostly via its preliminary rulings, i.e. via mechanism enabling the ordinary (or special) courts of the member states to refer questions to the ECJ. Thus the task of unification and harmonization is mostly of the reactive then preventive nature. It, in addition, remains dependent of the courts, decision to run with the respective question in case; this situation may create some doubts pertaining to functional efficacy of such procedure.
 
7. The controlling possibilities of the European Court of Justice on one side and of the national constitutional courts (or tribunals) on the other remain different in terms of criteria used for evaluation. In case of the ECJ the judgments are determined exclusively by the European Treaties as well as by the general principles of legal interpretation. In case of the national constitutional courts and the supreme courts their activities are based and determined by the national constitutional and (in case of the supreme courts) statutory regulations. In those frames the constitutional provisions are considered to be the “supreme law” and “the core of the country’s legal system”.
 
8. From the Polish perspective one should point additional set of difficulties. According to the provisions of Chapter II of the Constitution of April 2nd, 1997 the European treaties as well as the accession treaty received the status of “ratified international treaties”, which form the second highest category of legal acts in the constitutionally determined hierarchy of “sources of law”, next to the Constitution.
However such position allows to the Constitutional Tribunal to review the constitutionality of those treaties and in case of non-conformity with the constitutional provision, to make them non-binding and thus eliminated from the national system of law. Simultaneously, the national constitutional tribunal has no competence to eliminate the treaties under consideration from the EU legal system. It is necessary to add, that the practical possibility to question the legality of the European treaties is, due to membership status of the EU states, of a really limited scale.
 
To clarify the legal situation two alternative solutions may be proposed. The first one is to amend the provisions of Chapter II of Constitution of Poland and to add a set of provisions concerning the constitutional status of European non-treaty law. In such a situation the competences of the Constitutional Tribunal should be also clarified. The second and alternative solution is to separate more precisely the two spheres of competence: this of the EU bodies and the other one, of the member states. As a result the two parallel “lines” of control would be established: within the sphere “covered” by European regulations the exclusive control by the European Court of Justice and within the sphere of national law the control of constitutionality being the competence of the “national” Constitutional Tribunal. The possibility of “interfering” competences will be, by far, reduced. It is of some importance, that the Treaty of Amsterdam extended the ECJ competence to give preliminary rulings In addition, the Treaty of Nice allows dealing with these proceeding to the Court of First Instance (CFI).
 
9. The complex nature of Community law makes the interpretations of the binding legal acts in all the member countries after accession much more complicated than before accession. First of all, it is necessary to draw-up the border line between the sphere of exclusive competence of the EU (and the European Community) and the sphere which constitutes the member states’ competence. The ECJ should be regarded being “a guardian” of “legal order” only in the first sphere of activity. But it seems to be not very clear who (which institution, European one or, in addition, the national one, i.e. the Constitutional Tribunal) is empowered to resolve this legal question? And according to which regulations?
It seems to be quite reasonable, however, to accept double control on some pieces of interfering legislation. The ECJ will control their “conformity” with legal content of the European treaties as well as with the “higher” European acts (when the strict legal hierarchy will be established). The Constitutional Tribunal will control conformity with the national (Polish) constitutional provisions. The first type of control can result in elimination of a given provision from the EU legal system. The result of the second type of control – in terms of the EU law – remains not so clear.
 
10. The priority of the constitutional regulation and its superiority constitutes the core of principles of the most of the EU member states’ legal systems. In this context the competences of the constitutional courts (or tribunals) are seen as the institutional guarantee of such order. After accession this established tradition has become confronted with the principle of supremacy of European law, according to which the national legislation non-coherent with the EU law should be replaced in processes of its implementation by the European law provisions.
The legal difficulty and a kind of dilemma caused by this requirement[4] is that the supremacy of European law is not derived from constitutional provisions and even the precise treaty regulation. It is created via interpretation of the European Community Treaty and, additionally, by jurisdiction of the European Court of Justice. In others words, the ECJ competence is lacking of strict, precise and recognized constitutional justification. According to national legal criteria, a kind of written constitutional competence is mandatory for any activities of a given important public organ. The “purely jurisdictional” justification does not fit to the national constitutional standards of legality.
 
11. The another practical problem has been raised as connected with right to refer a legal question to the Constitutional Tribunal and, in case of doubts dealing with conformity with EU law, to the European Court of Justice. The mutual relation between the “question of constitutionality” and the preliminary question to the European Court of Justice (and, according to the Treaty of Nice, additionally to the Court of First Instance) is not, up-to now, precisely described in legal terms (both national and the European).
As it was mentioned, the preliminary questions have its legal source in art.234 of European Community Treaty and aims at desired unification of implementation practices of the EU law. However, in case of Poland the right to submit such a question to ECJ is, to some extend, diminish by provision of art.178 of the Poland’s Constitution of 1997, according to which “ the judges are independent in fulfilling their duties and they remain subordinated only to Constitution and to the statutes”. Even, if someone will add the provision of art. 90 para.2 of the Polish Constitution (containing an obligation to respect “the ratified international treaties”) still the right to refer the preliminary question to the ECJ has no constitutional “empowering clause”. The lacking regulation can be regarded as a visible limitation of the expected courts’ activities, even when the risk of erroneous interpretation (and then: implementation) of the EU law by the member countries’ courts (or the other institutions) remains both high and costly.
 
12. Both jurisdiction of the European Court of Justice and the doctrine of European law urge the member states to be active in elimination of those national regulations which remain non-coherent with the EU law provisions. This kind of activity is regarded to be necessary due to cohesion of the Community (and EU)[5]. In this context the EU law is considered to be an autonomous legal system. Quite paradoxically, the same European regulations should be implemented as an integral part of the legal order of all the member countries. And because of this status the institutions (organs) of the member states (whose competences are regulated by a given country constitution) ought to interfere in implementation (and interpretation) of the EU law. In such context also the constitutional courts (tribunals) have their “sphere of interference” on the border-line between the EU and the member state activities.
 
13. In Dzodzi v. Begian State[6] the European Court of Justice said that neither the wording of art. 234 nor the article’s purpose indicated the authors of the Treaty intended to exclude from the Court’s jurisdiction consideration of requests for preliminary rulings on a Community provision where the national law of the member country refers to the content of that provision in order to determine rules applicable to a situation which is purely internal to that country. The similar opinion was expressed also in Gmurzynska-Bscher case[7].
 
14. According to Pardini judgment[8] as well as Zabala Erasun case[9] the European Court of Justice is not empowered to give a ruling unless a case is pending before the national court. In other words: the ECJ has no own initiative to form a ruling; it remains dependent on questions raised by the national court. In this respect, the situation seems to be similar to that which concerns the Constitutional Tribunal and its competences in case of the “legal questions” based on problems of “constitutionality”.
 
15. The European Court of Justice has declared, that “the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court defines the factual circumstances on which those questions it is asking or, at the very least, explains the factual circumstances on which those questions are based”[10]. It also added: “those requirements are of particular importance in the field of competition, which is characterized by complex factual and legal situations”.
In other words, the ECJ has confirmed a requirement, that the question should refer to concrete circumstances (both factual and legal) and the legal issue had to be of importance for the national court’s judgment. Here, once again the analogy with the “legal questions” referred to the Constitutional Tribunal of Poland is quite clear: the issue raised in frames of “legal question” has to be of a real and not only hypothetical significance for a case at stake and the entire question must be relevant to the dispute before the court.