Opinions & Speeches

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The Supreme Administrative Court of Poland President's speech given during the scientific conference „Application of the European law in jurisprudence” held on 19 March 2018

Ladies and Gentlemen,

Honourable guests,

I would like to welcome you to the 6th scientific conference for the assistants and lawyers of the Supreme Court, the Constitutional Court, and the Supreme Administrative Court. which will be dedicated to the “Application of the European law in jurisprudence” this year./This time the conference will be dedicated to “Application of the European law in jurisprudence”.

Let me extent a particularly warm welcome to our guest of honour – professor Koen Lenaerts, President of the European Court of Justice and Professor of European Law at the Katholieke Universiteit Leuven. We have the pleasure to welcome the professor at the Supreme Administrative Court for the third time, so we can easily say that your visits have become a tradition of this Court.

I would also like to warmly welcome the assistants of judges, lawyers, court referendaries as well as assessors and judges of administrative courts. I also welcome representatives of universities.

The idea behind the conferences organised by the assistants of the Supreme Court, the Constitutional Court, and the Supreme Administrative Court goes back to 2012, where it originated in a circle of young lawyers associated with Warsaw-based universities, who also practised in legal teams of the highest court institutions.

Their idea enjoyed support of the presidents of all three highest courts and and it was decided that the conferences will be organised in turn by the Constitutional Court, the Supreme Court, and the Supreme Administrative Court.

The topic of the first conference, held in 2012 at the Constitutional Court, concerned the “Effects of the judgements of the Constitutional Court in the light of the case law of the Supreme Administrative Court, the Supreme Court, and the Constitutional Court”.

The next conference, held at the Supreme Court, was dedicated to the issue of cohesion in jurisprudence.

During the third conference in 2014 – and the first one held at the Supreme Administrative Court, we discussed the “Reasons for court rulings as a form of enforcement of the right to a fair trial”.

The topic of the next conference, organised by the Constitutional Court, was the “Control of constitutionality of law and the application of law in the light of the jurisprudence of the Supreme Administrative Court, the Supreme Court, and the Constitutional Court”, and the last conference held at the Supreme Court was dedicated to the “Constitutional argumentation in court jurisprudence”.

The purpose of these conferences has always been to foster open discussion among young lawyers, who – being members of legal teams at the courts – use their knowledge, professional and academic experience to support judges in their adjudicating roles, and thus, they co-create the jurisprudence.

The issues related to European law have already been raised during earlier conferences; however, this year's conference is for the first time fully dedicated to the issue of application of European law – Union law – and the European Convention on Human Rights and supranational standards.

It is of utmost importance in the current situation, because as you very well know, Polish judiciary has been undergoing in-depth systemic reforms for the past two years. Starting with a series of acts of law revising the system and the functioning of the Constitutional Court, through revising the principles of appointing judges – members of the National Council of the Judiciary, until the new act on the Supreme Court, whose provisions will enter into force in a dozen or so days and will also apply accordingly to administrative courts.

The reforms that affected the Constitutional Court resulted in many controversies and allegations raised both in Poland and abroad concerning the loss of trust of the public opinion (both in Poland and abroad) in that institution. The position and the legitimacy of the Constitutional Court in Poland have been effectively undermined. The judges refrain from referring legal questions to the Constitutional Court and apply the provisions of the Constitution directly, acting under Article 8(2) of the Polish Constitution.

At this time, the National Council of the Judiciary is composed of judges, who have been selected by politicians – not by the judicial communities, as it had been before.

Controversies have been raised as to the interpretation of many provisions of the new act on the Supreme Court. For example, the proposed differentiation of the retirement age for men and women judges is an example of gender-motivated discrimination and as such violates fundamental rights established in the common European values. It must also be remembered that action has been taken by the European Commission on the Rule of Law under Article 7 of the Treaty on the Functioning of the European Union.

In the light of the number of legislative changes that concern the highest court instances, there are doubts as to whether Poland is still a country following the rule of law and whether Polish courts are still independent. That was exactly the question that was raised by the Irish High Court, deciding to refer a question for preliminary ruling to the Court of Justice of the European Union.

The court withheld the decision to extradite a Polish national to Poland under the European Arrest Warrant, recognizing that the arrested person may not count on a fair trial in a country where the Minister of Justice is also the Prosecutor General and plays an active role in supervising the presidents of courts. While withholding the extradition, the Irish court stated that before the final decision is made, it is necessary to apply for a ruling of the Court of Justice of the European Union on the independence of the Polish judiciary.

In this context, attention must be drawn to the recent ruling of the Court of Justice in the case C-64/16 concerning Portuguese judges, in which CJEU responded to question referred for preliminary ruling on the matter of reducing the salaries of judges. The Court ruled that the salary-reduction measures at issue in the main proceedings cannot be considered to impair the independence of the judges; yet the importance of this judgement lies more in the reasons than in the decision itself.

In the judgement in this case the Court quoted Article 2, Article 4, Article 3a and Article 19 of TEU, emphasizing that in line with the said provision “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law. Therefore, the Member States are tasked with establishing a system of measures and procedures to ensure effective court control in these areas.” And thus, CJEU recognized that the provisions of the Union treaties comprise a stand-alone legal basis for the obligation of the Member States to ensure that the Member States apply and respect the Union law and protect the  rule of law.

As we are waiting for the opinion of the Luxembourg-based Court concerning the question referred for preliminary ruling by the Irish court, it must be emphasized that the Act – Law on proceedings before administrative courts has not been amended in connection with the reform of the Supreme Court’s system. Administrative courts are separate and independent of other constitutional powers and contrary to the system of common courts, they are not subject to the organisational supervision of the Minister of Justice.

Ever since the Poland’s accession to the European Union, administrative courts actively serve their purpose as Union courts – courts, which are tasked with the duty to apply the law, to ensure the effectiveness of the law, and to provide individuals with legal protection and the enforcement of the rights granted to the citizens of the Union, under the principle of loyal cooperation.

In our jurisprudence, the issues involving Union law come up mostly when examining cases in the area of: taxation, customs law, road and air transport, environment protection and spatial management, agriculture and forestry, sanitary, veterinary and pharmaceutical supervision, personal data protection, access to public information, social security, games and mutual betting, financial aid from Unit budgetary funds within the Common Agricultural Policy and Regional Operational Programmes and in the cases regarding foreigners.

In these categories, courts refer to primary and secondary law and the case law of the Court of Justice. Polish administrative courts also refer to the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights. They do so in order to indicate that particular rights of an individual are guaranteed not only by the Polish Constitution, but also within supra-national systems of law.

Polish administrative courts also take the opportunity to maintain the judicial dialogue with the Court of Justice by way of the preliminary rulings procedure, defined in Article 267 of the Treaty on the Functioning of the European Union (TFEU). The first question was referred for preliminary ruling to the Luxembourg-based Court by the Voivodship Administrative Court as early as in 2005, case C-313/05 Brzeziński v. Dyrektor Izby Celnej w Warszawie [Director of the Customs Chamber in Warsaw]. Since then, Polish administrative courts directed 67 requests for preliminary rulings to the Court of Justice (with 47 questions referred by the Supreme Administrative Court). The majority of the questions referred for preliminary ruling by the Polish administrative courts concerned cases related to tax legislation, the value added tax to be exact.

The judgements of the Court of Justice significantly contributed to the development and uniformization of the jurisprudence of the Polish administrative courts not only in the matters in which Polish courts issued judgements directly after the CJEU’s judgement, but also in other, similar matters. In its resolution of 16 October 2017, the Supreme Administrative Court ruled that even a tax payer whose matter was not directly concerned by the judgement of CJEU, may move to reopen the proceedings before a Polish court after the Court’s judgement.

Finally, I would like to emphasize that I am very happy with the successful dialogue we have maintained to date among the Polish administrative courts and the Court of Justice of the European Union, and I hope that the dialogue will continue.

I would like to thank professor Lenaerts for accepting my invitation to attend the conference and to hold a speech.

Thank you all for your attention and I would like to say that this conference is now open.

I would like to wish you all to have fruitful and inspiring discussions!

I now give the floor to professor Lenaerts.