Thread by @J_Jaraczewski

🇵🇱⚖️🇪🇺🧵And we're off, the Constitutional Tribunal is hearing the case P 7/20 on the conformity of CJEU interim measures with the Polish Constitution. Judge Stanisław Piotrowicz leads the proceedings with Sochański, Jędrzejewski, Piskorski and Stelina flanking him #manel (1/x)

Interestingly, one of these judges - Justyn Piskorski - has been appointed as a replacement of a judge who was appointed unlawfully in an analogous situation to that of judge Muszyński, the "hero" of ECtHR Xero Flor judgment.

Justyn Piskorski also continues to straight-facedly teach criminal law at the law faculty of my alma mater (Adam Mickiewicz University, Poznań). I wonder how his lectures on constitutional aspects of criminal law look like these days.

Unlike yesterday, when the Polish Ministry of Foreign Affairs didn't bother to turn up for the hearing, they're today out in full force with 3 representatives. One of them is the deputy MoFA Piotr Wawrzyk, who recently was ... PiS candidate for the ombudsman (unsuccessful).

Adam Bodnar's request for the case to be heard by the full panel of all CT judges - rejected, unsurprisingly.

The representative of the President goes into the broken record of national sovereignty and supremacy of the Polish constitution. The fact that Poland didn't insert an "EU chapter" in its constitution back when it was doable is haunting us today.

MP Arkadiusz Mularczyk (PiS) representing the Parliament once again, this time aided by his regular sidekick Marek Ast (PiS). I wonder if we'll once again hear about the relief Mularczyk feels at Adam Bodnar leaving the office.

MoFA on how CJEU has no right to issue interim measures wrt to judiciary, as the EU has no competence to shape or influence core constitutional institutions of Member States, such as the Supreme Court.

Karlsruhe PSPP judgment invoked! Truly, a stellar week for global influence and impact of the German Constitutional Court.

The representative of the Prosecutor General seems to be more concerned with attacking Bodnar's opinion in the case and not arguing (obviously, for) with regards to the Disciplinary Chamber's application.

More Latin. Never, ever agree to play a drinking game on how many times will Latin be used during a hearing in a Polish court. You won't survive.

Polish authorities arguing that CJEU is unlawfully becoming a "negative lawmaker" after the Polish Constitutional Tribunal did just that by restricting abortion rights is some level of hypocrisy.

Deupty ombdusman Maciej Taborowski taking the floor and requesting for the case to be dropped. "The Disciplinary Chamber is not a court, and does not have the qualities of independence, impartiality and integrity".

The CJEU interim order issued in the case C‑791/19 (judgment tomorrow!) ordering the Disciplinary Chamber to halt its activities has been brought up by the ombudsman. I'm glad that these two cases interact with each other, makes for easier tweeting.

Speaking for the ombudsman now is Paweł Filipek, saying how since Member State courts apply EU law, the state of MS judiciary is within the scope of activity of the EU and CJEU jurisdiction. Obvious, but necessary to be stated loudly in this case.

By the way, while I knew the quality of Bodnar and Taborowski, Filipek is the breakout star of this week. My only complaint is that the ombudsman's 3-man representation is all-male.

Judge Piotrowicz disciplining Filipek for going off topic. Apparently it's fine to speak at the Polish CT for 10 minutes on etymology of Greek words but if you're going into EU law you're getting reprimanded to speak ad rem.

Also, more Latin.

Big "I'm a former communist era prosecutor but luckily my political patrons don't mind that despite being overtly anti-communist" energy from Piotrowicz, as usual.

Piotrowicz silences Bodnar and Filipek and orders 15 minutes of break, visibly agitated. Maybe he got a flashback to one of his trials against opposition activists in the 80s?

Break extended to 12:45.

Status update: empty chairs, sadly no lo-fi beats to dismantle the rule of law to.

The hearing has resumed. We're in the QA phase which will in practice be the "bash the ombudsman" phase with PiS MP Marek Ast kicking off with his astonishment at Bodnar & Co. questioning the independence and competences of state bodies.

Prosecutor General rep: "It's unthinkable to imagine that the EU might be deciding who is a judge and who is not" this might age very badly as soon as tomorrow morning.

Taborowski: "Judges could be nominated by the president or prime minister, parliament, or even a king - who nominates doesn't matter as much as the broader picture of the influence the procedure has on judicial independence."

One again, the Polish government is arguing in the rule of law cases that CJEU jurisdiction is severely limited but they're going to tell you all about how CJEU has extensive jurisdiction in any case regarding energy coming from Russia to an EU Member State.

Prosecutor General rep: "The EU is also an area of security but it doesn't mean the EU gets to tell Poland how many armoured divisions it can have". Some interesting interpretation of what the security part of AFSJ is.

Hot take: if the CJEU wasn't so cautious about calling things out as breaches of the rule of Poland (and if the tomorrow's CJEU case was decided last week) the Polish ombudsman would have a much easier job.

Judge Sochański to Taborowski: If you're saying that the Disciplinary Chamber isn't a proper court, how can you say that it should refer to the CJEU?
Taborowski: Because the Chamber in question considers itself a proper court?

Judge Sochański seems to be of the idea that national judges are "EU judges" when they decide on cases related to EU law and aren't when they are not. Truly, an afternoon of creative interpretation of Treaties and CJEU case law.

🇵🇱🇭🇺 Bodnar recalls CJEU judgment C-288/12 Commission v Hungary in which CJEU found Hungary in breach of EU law by prematurely bringing to an end the term served by the supervisory authority for the protection of personal data. Know your EU law, folks, not just wrt your country.

Mularczyk: "This case is political." Well, that's at least one statement by the Polish parliament in this case that I can fully support. Of course, he's going on about how CJEU and ECtHR are increasingly political active and overstep their legal bounds.

Judge Jędrzejewski to Taborowski: "So are you going to tell us how we should resolve our conflicts with CJEU or are you going to give us more of this lofty unpractical intellectual padding?". This level of discourse makes Justice Scalia look like an amicable and cooperative guy.

Judge Piskorski: "You people at ombudsman's office have expressed political aspirations lately, so are you here to solve problems, or to promote your careers?". I admire the resolve of Taborowski to face this stuff with a straight face.

🇵🇱🇩🇪Taborowski: "I'm not sure if the Polish Constitutional Tribunal should be basing its interpretation on scientific articles by select German judges" ouch ouch ouch multi-dimensional burn here, that's how you retort to the above.

Final speeches. Everybody except the ombudsman considers this case to be trivial and requests for the Tribunal to establish that Polish law > EU law wrt CJEU interim measures regarding the judiciary.

The judgment will be delivered today at 16:00 Warsaw time.

I'm seeing black, this whole situation.

Another delay, until 16:30. Did the CJEU interim order in the case C-204/21 cause a pause of breath? We'll find out soon, but unfortunately this means I'll have to abandon my commentator station - recruitment interview incoming (what did possess me to schedule them today?)

Briefly: the Polish Constitutional Tribunal has handed out its ruling, finds that CJEU interim orders with regards to Polish judiciary are incompatible with the Polish constitution.

"Polish judges don't become EU judges by the virtue of applying EU law" says the Polish Constitutional Tribunal. Now that's some form of judicial dialogue that no other MS court ever got close to.

Important: Constitutional Tribunal rulings become law only after they are published in the Journal of Laws. That has not happened yet.