• Constitutional Discourse

Márton CSAPODI: A “CT scan” with unexpected results – The Xero Flor v Poland judgment of the ECtHR

An interesting conflict arose between the European Court of Human Rights and the Polish Constitutional Tribunal (CT). In May, after scanning the CT, the ECtHR ruled that a judge of the CT had previously been unlawfully elected and that the Polish company (Xero Flor) that had brought the case before the ECtHR, after its constitutional complaint was refused by the CT, was therefore deprived of its right to have its case heard by a court established by law, as set out in Art. 6 of the Convention.[1] In response, the CT ruled that the Convention is contrary to the Polish Constitution if interpreted by the ECtHR in a way that results in the review of the election process of the CT’s judges.[2] The status and composition of the CT is a delicate issue in Poland, with a long-running constitutional dispute underlying these conflicting decisions. The case resembles to the debate between the Polish CT and the Court of Justice of the European Union.

The 2015-2016 constitutional crisis

In Poland, when the Law and Justice (PiS) party defeated the Civic Platform (PO) in both the presidential and parliamentary elections in 2015, a unique conflict between the new government and CT emerged. The election of the members of the CT was the subject of a lengthy stand-off that shook the entire constitutional system and involved all branches of power. Although the dispute over the election of the CT’s judges was finally partially resolved[3] in 2016, the constitutional conflicts continued. The dispute is not completely settled on the European stage: the issue of the CT's status is raised in EU rule of law reports or before the ECtHR.[4] The European Parliament, for example, has gone so far as to call the CT illegitimate, putting it in quotation marks and declaring that it does not have a competence to interpret the Constitution.[5] However, this EP resolution adopted by a very large majority[6] is by its nature not binding, and is rather just a blatant political communiqué than anything to be regarded as legally relevant.[7]

It is interesting that the size and constitutional status of the Polish CT has not changed (PiS did not have a two-thirds majority), yet the maneuvers of the PiS government in power since 2015 are commonly referred to as court-packing measures.[8] The problem, however, started during the reign of the Civic Platform, which was in power until 2015: before the election defeat, they decided to insert a clause in the law on the CT, allowing them to elect new judges to replace all the judges whose terms expired in 2015 as soon as the new law entered into force. This way, instead of three judges, they elected five, but President Andrzej Duda, who took office in the meantime, considered this method to be unconstitutional and did not appoint the elected judges, who were then not allowed to sit on the court. The CT also declared unconstitutional the law on which the early election of the judges was based, but ruled that the appointment of three out of five judges was legal.[9] In the meantime, however, PiS won the parliamentary elections and did not hesitate to appoint five completely new judges and they were appointed by the President. The President of the CT, however, with reference to the CT’s previous decision, only allowed two of them to begin their mandate. An interesting situation arose: in addition to the 'ordinary' justices, there were justices elected by the Seym but not appointed by the president, and then there were justices elected by the Seym and appointed by the president, but not allowed to adjudicate according to the decision of the CT’s president. The Sejm tried to legally force the CT to accept the new judges, but the CT resisted, even at the cost of exceeding its powers. In the end, the expiration of the term of office of the CT President and the appointment of a new CT President by Duda decided the conflict in favor of PiS: all the judges elected by PiS were now allowed to join the CT.[10] Therefore, from the court-packing plans of the Civic Platform and PiS, the latter was a more successful attempt.

What could be the consequences of the CT’s crisis from a fundamental rights perspective?

A Polish company (Xero Flor) took its case to the CT, where its constitutional complaint was rejected.[11] They then turned to the ECtHR, claiming that their fundamental right under the Convention had been violated in the CT’s proceedings. They argued that the appointment of the judges of the CT (with only one of them still on the court) was unlawful and that their right to a fair trial under Article 6 ECHR had been violated, as the CT is not an independent and impartial tribunal established by law. The ECtHR decided in favor of the petitioner and held that the appointment of one of the judges of the CT was unlawful and that the petitioner's right to a fair trial before an independent and impartial tribunal established by law, as enshrined in Article 6 ECHR, was therefore indeed violated.[12] Applying the test developed in Guðmundur Andri Ástráðsson v. Iceland,[13] the ECtHR concluded that the infringement in the election process of the judges reached such a serious level that it amounted to a substantive violation of the right granted under Article 6.[14]

How could the ECtHR's decision be implemented?

As an individual measure, the ECtHR ordered Poland to pay the costs incurred by the petitioner in connection with the case. No general measure was set out in the judgment. If there was an intention to take a general measure, it could be to exclude the CT’s judge involved from sitting on the court, at least in cases where the CT is called upon to rule on individual constitutional complaints. This would not be necessary in the case of abstract constitutional review proceedings of the CT, although it cannot be excluded that the legality of the decisions of the CT in such proceedings could be questioned by some in the wake of the ECtHR ruling.[15]

Following the Xero Flor case, it became clear that there is no intention on the Polish side to align the functioning of the CT with the ECtHR ruling. This would discredit the CT’s operation retroactively to 2015, which would damage the authority of the CT and also the government's political agenda, including its by now infamous judicial reforms. On the other hand, opposition politicians and lawyers critical of the government would of course support the ECtHR's decision not to allow the judge involved in the case to sit on the panel, and in the event of a change of government, they would seek to restore the pre-2015 conditions not only for the CT but also for most judicial reforms.[16]

Twin decisions K3/21 and K6/21

It soon became clear that the government and the CT would prefer to challenge the ECtHR's decision. The situation is similar to the conflict between the Polish government, the CT and the Court of Justice of the European Union. Just as the Prime Minister had asked the CT to rule on the relationship between the Constitution and EU law in the light of the CJEU's findings in a preliminary ruling procedure, in this case the Minister of Justice, in his capacity as Prosecutor General, also turned to the CT to rule on the compatibility of the ECHR with the Constitution. At stake in both cases is the authority of the CT, i.e. the effective enforcement of its decisions within the Polish legal system. While the CJEU decision would allow ordinary courts to disapply the CT’s decisions (for example by allowing the application of norms annulled by the CT) by applying EU law,[17] the ECtHR judgment discredits the CT with regard to individual constitutional complaints.

The judgment on the relationship between EU law and the Constitution received a lot of media coverage, sometimes accusing the CT of indirectly pushing Poland towards leaving the EU by declaring some articles of the TEU unconstitutional. Although the CT did indeed seem to rule the Treaty unconstitutional, it used a language reminiscent of the German Bundesverfassungsgericht’s Solange rulings. The CT ruled that certain articles of the Treaty are unconstitutional insofar as certain conditions are met.[18] The existence of these conditions is subject to the practice and decisions of the CJEU, so the decision does not fundamentally attack the Treaty but rather the CJEU's expansive jurisprudence. The judgment has no direct – let alone tragic – consequences, but it is rather a pre-emptive strike anticipating the CJEU's future decisions.[19]

A judgment deceptively similar to this one has been published by the CT regarding the relationship between the ECHR and the Constitution. It held that if the Strasbourg judges interpreted Article 6 of the ECHR as including the Constitutional Tribunal within its scope, or as allowing the ECtHR to review the legality of the election of constitutional judges, the ECHR is contrary to the Polish Constitution.[20] So the Convention is contrary to the Constitution of Poland insofar as the ECtHR interprets it so. With this, the CT has ruled out any internal general measure as a possible consequence of the ECtHR's decision. It seems that the Polish CT does not wish to tolerate its own internal authority being undermined by international courts.

The ECtHR did not treat the Polish Constitutional Tribunal gently even after the Xero Flor case and interestingly the Polish government did not ask for the cases (Xero Flor, Broda and Bojara, Reczkowicz and Dolinska-Ficek and Ozimek) to be referred to the Grand Chamber.[21] Instead, the CT was left to decide on the issue, and it stood its ground. It could not have done otherwise, because then it would have inevitably been rendered weightless in the internal and international judicial system. But that might not make the ECtHR back down, so anyone whose constitutional complaint is rejected by the CT can turn to Strasbourg with high hopes.

In this case, the ECtHR did not merely apply the Convention, but interpreted domestic constitutional norms in order to give effect to Article 6. Deciding on the positive or procedural legality of domestic legal acts is a task that is usually attributed to domestic high courts. Apparently, the ECtHR is ready to enter the field of domestic constitutional adjudication in cases related to the independence of the judiciary and to open a new arena in Strasbourg, where disagreements of mainly political nature can be decided by judges.

[1] Xero Flor w Polsce sp. z o.o. v. Poland, Judgment of 7 May 2021, no. 4907/18. §6 [2] Judgment Ref. No. K 6/21 [3] It was partially resolved, meaning that on the question of mandates the CT is not conflicted anymore with the government or the Seym – but it is since then in conflict with other courts (domestic and European). [4] See e.g. European Commission: Commission Staff Working Document – 2020 Rule of Law Report Country Chapter on the rule of law situation in Poland. Brussels, 30.9.2020. [SWD(2020) 320 final] and Commission Staff Working Document – 2021 Rule of Law Report Country Chapter on the rule of law situation in Poland. Brussels, 20.7.2021 [SWD(2021) 722 final]. Alongside the Xero Flor case, see Reczkowicz v. Poland, Judgment of 22 July 2021, no. 43447/19. [5] [6] 502 MEP’s voted for the resolution, 153 voted against and 16 abstained. [7] [8] See e.g. Bugaric, Bojan; Tushnet, Mark: Court-Packing, Judicial Independence, and Populism: Why Poland and the United States Are Different, VerfBlog, 2020/7/11,; Kustra, Aleksandra: Kryzys konstytucyjny w Polsce. Od planu upakowania sądu (court-packing) do negowania orzeczeń Trybunału Konstytucyjnego. Toruńskie Studia Polsko-Włoskie. 2016/12/16,; Sweeney; Richard J.: Constitutional conflicts in the European Union: Court packing in Poland versus the United States. Economics and Business Review 2018/4. p. 4 [9] Interestingly, the revision of this law was initiated by PiS, but their motion was withdrawn, so the CT could not have continued the procedure if the MPs of the Civic Platform had not submitted a motion (which had the same wording as the PiS motion) for revision of the law they earlier adopted. [10] For detailed analysis of the 2015-2016 constitutional crisis in Poland see e.g. Muszyński, Mariusz: Legal analysis of the election process of the judges of the Constitutional Tribunal in the autumn of 2015. Iustum Aequum Salutare 2017/1.; Zubik, Marek: A.D. 2015/2016. Anni horribili of the Constitutional Tribunal in Poland. Przegląd Konstytucyjny 2018/2.; Csapodi, Márton: Közjogi állóháború – A 2015-2016-os alkotmánybírósági válság Lengyelországban. In: Kurunczi, Gábor; Varga, Ádám; Pogácsás, Anett (eds.): Vis unita Fortior. Válogatott tanulmányok joghallgatók tollából. Pázmány Press, Budapest, 2021.; Czarny, Piotr: Viták a lengyel Alkotmánybíróságról – (Az alkotmányjogi problémák rövid összefoglalása). Parlamenti Szemle 2017/2. p. 131-147.; Sadurski, Wojciech: Poland’s Constitutional Breakdown. Oxford University Press, New York, 2019.; Banaszak, Bogusław: Constitutional Tribunal of Poland: changes in the appointment of judges (legal analysis). Website of the Constitutional Court of Moldova, 2016/02/16, [11] Admissibility requirements were found unfulfilled. [12] Xero Flor w Polsce sp. z o.o. v. Polska, Judgment of 7 May 2021, no. 4907/18.{%22itemid%22:[%22001-210065%22]} [13] Guðmundur Andri Ástráðsson v. Iceland of 1 December 2020, No. 26374/18.{%22itemid%22:[%22001-206582%22]} [14] Grabowska-Moroz, Barbara: Strasbourg court entered the rule of law battlefield – Xero Flor v Poland, Strasbourg Observer, 2021/09/15, [15]Szwed, Marcin: What Should and What Will Happen After Xero Flor: The judgement of the ECtHR on the composition of the Polish Constitutional Tribunal, VerfBlog, 2021/5/09, [16] See e.g. Sadurski, Wojciech; Dalkilic, Evin; Steinbeis, Maximilian: What happens after the Polish Elections?: An Interview with Wojciech Sadurski, VerfBlog, 2019/8/18, Interview made before the 2019 parliamentary elections. Sadurski, Wojciech: The Disciplinary Chamber May Go – but the Rotten System will Stay, VerfBlog, 2021/8/11, [17] CJEU Judgment C-824/18 A.B. and others (Nomination des juges à la Cour suprême - Recours) [ECLI:EU:C:2021:153] Para 150 „[…] the principle of primacy of EU law must be interpreted as requiring the referring court to disapply the amendments at issue, whether they are of a legislative or constitutional origin [emphasis added], and, consequently, to continue to assume the jurisdiction previously vested in it to hear disputes referred to it before those amendments were made.” It should be added that the statutory provision providing the base for the„jurisdiction previously vested in” the Supreme Administrative Court was repealed by the Constitutional Tribunal. [18] Judgment Ref. No. K 3/21 [19]Csapodi, Márton: Kiugrik-e a nyúl a bokorból? A lengyel alkotmánybíróság és az Európai Bíróság viszálya. Országút 2021/23. [20] Judgment Ref. No. K 6/21. [21] They did in Reczkowicz, but then withdrew the request. See Garner, Oliver; Lawson, Rick: On A Road to Nowhere: The Polish Constitutional Tribunal assesses the European Convention on Human Rights, VerfBlog, 2021/11/23,

Márton Csapodi is a fifth year law student at Pázmány Péter Catholic University Faculty of Law and Political Sciences and is currently member of the MCC Center for Constitutional Politics. He completed two semesters at the Faculty of Law and Administration of the Jagiellonian University, Poland with Erasmus+ studies. He received National Higher Education Scholarship in 2019 and 2020. He also studied for two years at the MCC School of International Relations.


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