MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1507/H46-22

19 September 2024

1507th meeting, 17-19 September 2024 (DH) Human rights   H46-22 Xero Flor w Polsce sp. z o.o. v. Poland (Application No. 4907/18) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)717, DH-DD(2024)317, DH-DD(2023)1502, CM/Del/Dec(2023)1483/H46-26

 

Application	Case	Judgment of	Final on	Indicator for the classification
4907/18	XERO FLOR w POLSCE sp. z o.o.	07/05/2021	07/08/2021	Complex problem

Case description

The case concerns the denial of the applicant company of a determination of its constitutional complaint by “a tribunal established by law” due to the participation in the Constitutional Court panel that rejected its complaint of judge M.M., whom the European Court found to have been appointed in 2015 following grave procedural breaches, since he was not elected in accordance with Polish law by the Sejm sitting when the seat in the Constitutional Court became vacant, but by the following Sejm. It also found that the President of Poland had acted in contravention of domestic law by refusing to swear in three judges correctly appointed by the previous Sejm in October 2015, instead he swore in judge M.M. and the two judges elected in similar circumstances to him[1]. The Court further expressed concern about other irregular interferences by the legislature, the President, and the Prime Minister, including a refusal to publish judgments of the Constitutional Court and repeated legislative amendments aimed at forcing the inclusion of the irregularly elected judges (violation of Article 6 § 1 of the Convention).

In addition, the applicant company did not have at its disposal a procedure whereby it could challenge the alleged defects in the election process for judges of the Constitutional Court.[2]

Status of execution

The Committee of Ministers examined the execution of this case most recently during its 1483^rd DH meeting (December 2023). In his subsequent letter to the Committee of Ministers (DH-DD(2023)1502), the Minister of Foreign Affairs expressed the authorities’ commitment to the European Convention assuring that Poland would make determined and concerted efforts to implement the Court’s judgments concerning the rule of law, including in the case of Xero Flor w Polsce Sp. z o.o. This commitment was repeated by the authorities during a meeting in Warsaw on 27 February 2024 with the Director General of Human Rights, the Secretary to the Venice Commission and representatives of the Department for the Execution of Judgments, and in their subsequent submissions.

The most recent information concerning the execution of this judgment was submitted on 20 March 2024 (DH-DD(2024)317) and updated on 27 June 2024 (DH-DD(2024)717).

Individual measures

At its December 2023 meeting (DH), the Committee expressed deep regret over the authorities’ failure to thoroughly examine the possible options for ensuring restitutio in integrum to the maximum extent possible and urged them to provide the outcome of such an examination without further delay.

The authorities provided no new information on the individual measures for the present meeting.

General measures

1)     Previous examinations by the Committee

At its December 2023 meeting (DH), the Committee expressed deep regret at the authorities’ continued and erroneous reliance on the judgment of the Constitutional Court in the case K 6/21 as an obstacle to implementation, and on the argument that the European Court acted beyond its legal authority in adopting the Xero Flor judgment. The Committee exhorted the authorities to rapidly elaborate and adopt measures to avoid similar violations of the right to a tribunal established by law through: (i) ensuring the lawful composition of the Constitutional Court, by allowing the three judges elected in October 2015 to be admitted to the bench and to serve until the end of their nine-year mandate, while also excluding from the bench judges who were irregularly elected; (ii) addressing the status of decisions already adopted in cases concerning constitutional complaints with the participation of irregularly appointed judge(s); and (iii) preventing external undue influence on the appointment of judges in the future. The Committeeurged the authorities to enter into high level consultations with the Secretariat to explore possible solutions for the execution of this judgment.

2)     Information provided by the authorities or otherwise available in the public domain

- Resolution of the Polish Sejm: On 6 March 2024 the Polish Sejm adopted a resolution on eliminating the effects of the constitutional crisis of 2015-2023 in respect of the activities of the Constitutional Court in which it stated that the former Sejm’s resolutions irregularly electing three judges in December 2015 and the resolutions declaring null and void the election of legitimate judges in October 2015 were adopted in flagrant violation of law, including the Constitution and the European Convention. The Sejm therefore declared that the three irregularly appointed judges[3] were not judges of the Constitutional Court and that judgments adopted with their participation were affected by legal defects. The Sejm also expressed concern as to the status of the current President of the Constitutional Court.[4]

The Sejm called for re-establishment of the Constitutional Court in line with the Constitution, involving in this process all political stakeholders. It expressed the view that judges of the new Constitutional Court should be elected with the participation of the opposition and that their election should be spread over time. The Sejm in addition appealed to all the Constitutional Court’s judges to resign and thus join the process of democratic change.

- Ongoing legislative reform: On 6 March 2024 a group of parliamentarians introduced to the Sejm a draft Act on the Constitutional Court together with transitional provisions.[5] The draft Act would increase the majority required in the Sejm for the election of Constitutional Court judges from an absolute majority to three-fifths, and broaden the catalogue of stakeholders that may present candidates.[6] It  imposes on the President an obligation to swear in judges of the Constitutional Court within 14 days from their election by the Sejm and provides a possibility for current Constitutional Court judges to take early retirement. The draft transitional provisions declare invalid and void decisions determining which state body is competent to deal with a particular issue (“conflict of competence cases”) and judgments of the Constitutional Court adopted with the participation of irregularly appointed judges. Such cases would have to be reheard. In contrast, final judgments and decisions in individual cases based on invalid judgments of the Constitutional Court will remain valid.

Decisions on discontinuation of proceedings before the Constitutional Court adopted by irregularly composed panels will remain valid. Nevertheless, in the proceedings initiated by a constitutional complaint and discontinued, like in the Xero Flor case, an applicant may file a new complaint within three months of the entry into force of the Act.

After first reading both texts were discussed at a public hearing on 24 May 2024, adopted by the Sejm on 24 July 2024 and transmitted to the Senat. The Senat proposed certain modifications and returned them to the Sejm for consideration. The legislative process continues.

- Proposals for constitutional amendments: The authorities in addition referred to draft amendments to the Constitution proposed by the Senat,[7]intended to introduce new safeguards to guarantee the independence and impartiality of the Constitutional Court, notably through protecting judges from political influence. The proposed changes concern Articles 193 and 194 of the Constitution governing the functioning of the Constitutional Court. The amendments for example provide for temporary ban on the possibility to be elected as a judge of the Constitutional Court for members of the Sejm, senators, members of the European Parliament, and members of the Council of Ministers. The first reading took place at the meeting of the Legislative Committee of the Senate on 23 May 2024 and a public hearing concerning the draft was held on 2 July 2024. Legislative work on the draft continues.

- Other measures: new judgments adopted by the Constitutional Court with the participation of irregularly elected judges contain a notice referring to the legal situation as determined by the European Court in the cases of Xero Flor, Wałęsa and M.L.[8]

3)     Rule 9 submission

In a letter to the Committee of Ministers, received on 8 August 2024 (DH-DD(2024)939-rev), the Helsinki Foundation for Human Rights stressed the need to exclude the irregularly appointed persons from participating in any type of proceedings concerning review of the constitutionality of laws and for their removal from the Constitutional Court. As they cannot be considered judges of the Constitutional Court, they are not protected by the principle of irremovability. In addressing the status of rulings adopted by the Constitutional Court in panels including irregularly elected judges, the Foundation submitted that the authorities should ensure respect for the principle of legal certainty and the interests of persons who acquired rights in good faith. Therefore, a declaration of invalidity of all the judgments adopted with the participation of irregularly appointed persons, as provided in the temporary provisions to the new Act on the Constitutional Court, does not seem to be the most adequate means. A more individualised approach should be applied. If constitutional complaints were negatively considered by irregularly composed panels of the Constitutional Court, the parties should have the possibility to request reopening of the proceedings or to file a new complaint.

To prevent undue external influence on the election of the Constitutional Court’s judges the Helsinki Foundation advocated for implementing far-reaching changes in the selection procedure. It proposed that the right to elect judges should not be exercised only by the Sejm but should be dispersed among several bodies.[9] It also proposed introducing a requirement for the Sejm and the Senat to act by a higher majority than the currently required absolute majority.

Analysis of the Secretariat

Unconditional obligation to execute the Court’s judgments

The positive change in the authorities’ position towards their obligation under Article 46 of the Convention in this case, evidenced in their recent official declarations (including in the letter of the Minister of Foreign Affairs submitted to the Committee on the first day of work of the new government, and during the high-level discussions in Warsaw with representatives of the Secretariat) is of key importance for the execution of the present judgment. It is proposed to the Committee to welcome the authorities’ commitment to thoroughly execute this judgment, as well as the fact that they have now elaborated certain general measures.

Individual measures

The authorities have so far failed to respond to the Committee’s earlier requests to clarify whether it is possible to ensure through an abstract review by a panel meeting the requirements of a tribunal established by law, the examination of the constitutionality of the secondary legislation, which was decisive for the applicant company’s right to compensation.

That said, the recent information presented concerning the general measures could be relevant also for the individual measures in this case. Indeed, the draft temporary provisions to the Act on the Constitutional Court provide for a possibility of resubmitting a constitutional complaint within a certain deadline in all the cases in which a decision to discontinue proceedings before the Constitutional Court was adopted with participation of deficiently appointed judges. Therefore, the authorities’ assessment concerning the relevance of the proposed general measures for the adoption of the individual measures would be useful.

In this context, it is proposed to the Committee to again call on the authorities to present their position regarding how full restitutio in integrum could be ensured to the applicant company, including on the applicability of the abovementioned solutions, without any further delay.

General measures^[10]

The Committee has repeatedly insisted that the Polish authorities elaborate and adopt general measures to achieve three aims: (i) ensuring the lawful composition of the Constitutional Court; (ii) addressing the status of decisions adopted with the participation of irregularly appointed judges; and (iii) preventing undue influence on the appointment of judges of the Constitutional Court.

In reply to these calls the authorities have now presented information about a comprehensive draft of a new Act on the Constitutional Court and transitional provisions. The Act, as well as draft amendments to the Constitution, are all subject to ongoing legislative process. The fact that the authorities have responded to the decisions of the Committee through concrete proposals is very positive.

-       Ensuring the lawful composition of the Constitutional Court

It should be recalled that in its previous decisions and Interim Resolution, the Committee indicated the need to ensure the lawful composition of the Constitutional Court, by allowing the three judges elected in October 2015 to be admitted to the bench and to serve until the end of their nine-year mandate, while also excluding from the bench judges who were irregularly elected.

The draft legislative amendments as currently formulated appear to respond overall to these concerns, as they aim at overcoming the causes for the unlawful composition of the Constitutional Court through introducing new rules for electing judges and carrying out the necessary elections and appointments.

That said, it appears necessary to clarify whether any steps are possible and foreseen for ensuring the lawful composition of the Constitutional Court while the legislative process is still ongoing.

In this context, it could be noted that the unlawfully elected Judge M.M. will in any event leave the Constitutional Court in December 2024. However, it still appears necessary to take steps to exclude from the bench two other judges, who were irregularly elected following the death of their irregularly appointed predecessors in 2017, and whose presence on the bench could lead to further similar violations.

It is also necessary to clarify whether it will be possible to ensure the admission to the bench of the lawfully elected judges in October 2015 until the end of their term of office or whether other measures are foreseen for addressing their situation. In particular, the authorities need to confirm whether the mandates of these judges expire in November 2024[11]. It could also be noted that the temporary provisions of the draft Act on the Constitutional Court provide for a possibility of early retirement of judges whose term of office started before the entry into force of this law. The authorities could be requested to clarify whether these provisions would be applicable also to the lawfully elected judges, who were prevented from adjudicating, or whether any other arrangements are envisaged to address their situation.

-       Addressing the status of decisions adopted with the participation of irregularly appointed judges

The legislative proposals regulate not only the status of judgments adopted by deficiently composed panels in cases concerning constitutional complaints, as required by the Committee in its previous decisions, but also the status of judgments reviewing the constitutionality of laws, without any link to individual cases. The authorities’ choice to address also the status of judgments adopted under the abstract review procedure appears to respond to one aspect of the violation established in the recent judgment M.L. v. Poland,[12] which reveals procedural similarities to the issues examined in the Xero Flor case.

The publicly available text of the draft transitional provisions appears to provide that only one category of decisions adopted by deficiently composed panels will be declared void ex lege, i.e. decisions resolving a conflict of competences between public bodies, and that all the other decisions, including on discontinuation of proceedings before the Constitutional Court, will remain in force. However, the draft foresees a legal avenue for re-examination of the cases where the proceedings before deficiently composed Constitutional Court panels were terminated with a decision on discontinuation of the proceedings, as in the case of Xero Flor.

In conclusion, it may be noted that, in view of the complexity of the conflicting interests to be weighed, the above proposals appear capable of meeting the requirements of this judgment in the relevant respects. In this context, it appears important to encourage the authorities to ensure that the rights of third parties acquired in good faith are not negatively affected by the possibility to request re-opening.

-       Measures to prevent undue influence on the appointment of judges of the Constitutional Court

As explained by the authorities, the adoption of a completely new Act on the Constitutional Court, combined with the amendment to the Constitution, aims at increasing the independence of the Constitutional Court thus protecting it from external influence, and at addressing the serious rule of law concerns related to the way the Constitutional Court has operated since the end of 2015.

The solutions presented by the authorities, for example temporary restrictions in eligibility for judicial positions of active politicians, could be considered relevant and useful. Other proposals might also have a positive impact on increasing the Constitutional Court’s independence from political influence, such as the proposed changes in the procedure for the election of its judges, through broadening the scope of the bodies that may propose candidates for judicial positions, the increase in the majority required for their election or the proposed obligation for the President to swear in judges within 14 days of their election.

-       Conclusion

As the draft legislative and constitutional amendments are currently being examined in the Polish Parliament, the authorities should be encouraged to continue the legislative process and to adopt solid arrangements that fully implement the Court’s judgment in this case, considering at the same time the relevant European and international standards. They could also be encouraged to draw on the Council of Europe’s relevant expertise and works in their reform efforts and to make full use of further cooperation, particularly from the Venice Commission.

Financing assured: YES