"We promote freedom"



FOR Communication 7/2023: The European Commission sues the politicized Constitutional Tribunal to the CJEU. Will this affect National Recovery Plan?


  • The Commission's complaint against the Polish government concerning the Constitutional Tribunal has been filed to the Court of Justice of European Union. The allegations against the Constitutional Tribunal are unprecedented and concern the very foundations of our membership in the European Union.

  • The Commission's objections concern two decisions of the Constitutional Tribunal which undermine, among others, priority of EU law, as well as the choice of the so-called understudy judges and defective appointment of the President and Vice-President of the Constitutional Tribunal.

  • Constitutional courts may also violate the EU law with their judgments. Moreover, the method of appointing judges and the leadership of the Constitutional Tribunal should be in line with the EU Treaties.

  • After the amendment to the Act on the Supreme Court was submitted to the Constitutional Tribunal, there is a real risk of further delays in payments and financing of the entire NRP. This is entirely the responsibility of the Polish authorities. 

After the Commission's complaints to the Court of Justice regarding judges of common courts and the Supreme Court, the Disciplinary Chamber or the so-called Muzzle Act, this time the institution used strongest measure in its arsenal. The complaint that was related to the politicization of the Constitutional Court and its undermining of the foundations of EU law was filed to the court in Luxembourg. Some commentators, as in the case of previous complaints, are of the opinion that the EU does not have the competence to take action regarding Polish courts. This is a myth that should be scattered in the context of the CT case. Finally, one should consider the impact of this complaint on the possible payment of funds to Poland from the Recovery Fund. 

Summary. Does the complaint affect the funds from the Recovery Fund? 

The Commission's complaint to the CJEU regarding the politically dependent Constitutional Tribunal is undoubtedly an unprecedented event. However, the nature and seriousness of the treaties’ violations committed by the Polish authorities leading to the “exclusion” of part of EU law in Poland were also unprecedented. In a situation where our legal system is currently incapable of "self-correction" or shows "temporary discontinuity", the use of supranational mechanisms - accepted in the accession referendum and shared by citizens - may be the only effective way to limit the effects of legal changes that violate the rule of law, giving hope for their repeal in the future. The Constitutional Tribunal is an active participant in the crisis of the rule of law and a partner of the current parliament majority. It is one of the main bodies which repair will be essential for the success of the process of restoring the rule of law. 

It remains to be considered, what impact the proceedings before the CJEU will have on the payment of the first tranche of funds from the EU’s Recovery and Reconstruction Fund to Poland. Such influence is hard to see at a first glance. Actions at the national level seem more important in this context. On the one hand, the recent request of the President of the Republic of Poland to examine the constitutionality of the amendment to the Act on the Supreme Court (it should be noted that the Commission's complaint coincided with it only accidentally), assuming that all milestones are met, may delay the submission of the request for the first payment. Thus, the implementation of the entire NRP planned until 2026 is at risk. It is also not clear how and when the politicized Constitutional Tribunal will evaluate the head of state's motion. 

On the other hand, it should be remembered that “court” milestones can be considered fulfilled only when the relevant changes in the law come into force. From the perspective of EU institutions and NRP implementation, this means that the legislative process is still unfinished. EU regulations do not allow these milestones to be transferred to another tranche of payments, and even more so for the Commission to omit them when assessing the government's application for the first payment. 

To sum up, the responsibility for a possible delay in the implementation of the NRP, and the related risk of losing part of the funds, now is entirely in the hands of Polish authorities and the Constitutional Tribunal, which is dependent on politicians. 

Contact to author:

Patryk Wachowiec, FOR legal analyst