ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

20 WHAT ARE THE LIMITS OF
CONSTITUTIONAL REVIEW?:
THE CASE OF THE POLISH
CONSTITUTIONAL TRIBUNAL
The Panel debates the challenges faced by the Polish
Constitutional Tribunal in light of the globalization
of constitutional law and the constitutional crisis
in Poland, which has led to the EU Commission’s
scrutiny procedure and the opinion of the Venice
Commission requiring respect for and publication
of the PCT’s judgments. These developments have
brought to the fore key normative queries regarding
the limits of constitutional review in Poland. In order
to analyze them, the papers appraise the case-law
and position of the PCT in the context of both, the
external transnational rules of EU/international law
and the internal pressures of political control. The
papers are complementary. The first two explore the
PCT’s approach to EU law and the standards of international
human rights law. The next ones assess
the PCT’s status and its adopted models of constitutional
review against the executive and legislative
powers, constitutional amendments, and the current
political reality.
Participants Krystyna Kowalik-Bańczyk
Aleksandra Gliszczyńska-Grabias
Arkadiusz Radwan
Bartosz Marciniak
Anna Śledzińska-Simon
Name of Chair Patrycja Dąbrowska-Kłosińska
Room UL6 3119
Krystyna Kowalik-Bańczyk: The Polish Constitutional
Tribunal and European Law: A Poker Face
Relationship?
This paper presents the “European” jurisprudence
of the Polish Constitutional Tribunal (PCT) from the
moment of Poland’s accession to the European
Union until the present. It analyses the evolution of
the attitude of the PCT Tribunal towards the European
Union both from the point of view of the sovereignty
dilemma and the principle of loyalty to the EU. The
PCT has departed from an initial “neophyte’s zeal”
to a more critical reading of the impact of EU law
on the Polish legal system, in particular articulating
some areas where the principle of primacy should
not play a role. These limits to integration should be
examined carefully. The paper also addresses the
recent changes in the functioning of the PCT and
speculates whether the attitude of this court might
further evolve due to the changes in its composition
and procedural framework.
Concurring panels 48
Aleksandra Gliszczyńska-Grabias: International
Law in the Polish Constitutional Tribunal’s Human
Rights-based Case-law
The experience of transitional democracies reflects
a recurring tendency to consider international law, and
international human rights law in particular, as a kind
of “foreign invention” or “arbitrarily enforced concept”.
Thus, it seems desirable that the constitutional courts,
when faced with such attitudes, should serve as an
“avant-garde” in making the standards of international
human rights law a legitimate, indispensable part of domestic
legal systems. In this paper I discuss the issue
of how the PCT invokes, understands, and implements
the standards of international human rights law. The
analytical framework used is the “triad of freedoms”:
freedom of speech, freedom of assembly, and of association.
Also the issue of the PCT’s attitude towards
international human rights law is more generally discussed.
I try to show an emerging positive trend in this
regard, at the same time reflecting upon still-existing
deficits.
Arkadiusz Radwan: Serious but not hopeless or
hopeless but not serious? – ways in and out of
the 2015/16 Constitutional Crisis in Poland
In this paper we present the facts of the 2015/16
Constitutional Crisis in Poland and seek to explain its
logic by means of public-choice analysis. We sketch
the evolutionary path of judicial interference with the
social and economic policies of the government in
various phases of recent Polish history: from decadent
communism through the economic transformation of
the 1990s up to the present day. We then turn to critically
assessing the powers of the Court with regard to
constitutional review: the ill-tuned balance between
abstract and concrete review, as well as the institutional
weakness of the constitutional complaint. While
rejecting the claims of undue political entanglement
of the judges, we point to the institutional design features
of the Court that make it apt to being politicized.
A proper understanding of the logic determining the
behavior of the parties in this conflict, as well as making
an identification of flaws in the past and present setting
of the Court, allow us to suggest proposals for reform.
Bartosz Marciniak: Declaring the (Un)constitutionality
of Constitutional Amendments:
It’s Poland’s Turn
In this paper I argue that the Polish Constitutional
Tribunal is constitutionally authorized to determine the
(un)constitutionality of constitutional amendments
(CAs) and to strike them down when appropriate. I deploy
a theoretical-comparative methodology, divided
into three consecutive steps, each presented in a separate
part of the paper. First, I argue that nationalistic
claims and claims to omnipotent sovereignty ought
to be disentangled. In order to do this, I reconstruct
the normative residue of the sovereignty principle.
Secondly, I analyze the jurisprudence of the Czech