Marek Safjan: In Poland, no rule is safe

In an interview with the daily “Frankfurter Allgemeine Zeitung”, Safjan, who is leaving the Court of Justice of the European Union, admits that he is leaving it with mixed feelings. – On the one hand, I am proud that it unequivocally and resolutely defends European values. The Tribunal supports the rule of law more categorically than it was imagined a few years ago, he said.

At the same time, a Polish judge admits that he has doubts as to the effects of the judgments issued. – It is good that the CJEU has sent some clear signals, but what are the results? I do not know what will happen next, but I still hope that the situation in Poland will change for the better. I believe in Polish society, most of which feel very attached to. They are Europeans with more enthusiasm than elsewhere, he says.

Blurred border

Asked by the FAZ about whether the current conflict between the authorities and the European Union is legal or political, Safjan replies that he himself is constantly reflecting on this. – Of course, law affects the political sphere, law is created precisely by politicians. In constitutional law, it is particularly difficult to designate. The approach, however, is different when you make law and when you make politics. Legal methodology cares for objective logic and prevents arbitrary sentences. In the case of the rule of law in Poland, the jurisprudence of the CJEU ends where it enters the field of politics. The Court has emphasized this in each of its judgments, ‘he said.

Marek Safjan believes that the recent Polish judgment on the primacy of national constitutional law over EU law is directly contrary to European law. – This confrontation is unique and unmatched by any other judgment of the domestic court. It will be difficult to cooperate here. When the primacy of European law is questioned, the Union is finished, he says.

The judge adds that some exceptional situations can be accepted where national constitutional identity is placed above EU law, provided that the fundamental principles of the European Union are not violated. – Besides, Poland’s membership in the EU corresponds to the constitutional and legal will of Poland. And as a member it has to accept the EU rules – he adds.

When asked if the famous judgment of the German Constitutional Court in the case of the European Central Bank, in which the Court in Karlsruhe opposed the CJEU, can be compared with the judgment of the Court in Warsaw, Marek Safjan replies that some similarities can be found. – But the doubts of the Federal Constitutional Court referred very precisely and punctually to the control of the proportionality of the CJEU. However, I very much regret the judgment in Karlsruhe and disagree with the arguments. Besides, he was a very negative role model – he said.

According to Safjan, it was predictable that some circles in Poland would accept the judgment of the German Tribunal with great satisfaction as a demonstration of national sovereignty. In his opinion, this is an instrumentalisation of the decisions of German judges. – The differences with the Polish judgment are huge, Karlsruhe has repeatedly emphasized its friendly attitude to European law – he emphasizes.

A painful lesson

In an interview with FAZ, Marek Safjan admits that he did not expect that 30 years after the fall of communism in Poland, the country would find itself in the same situation as it is today. As he says, in 1989 he was convinced that the fight for a liberal and democratic state of law in Poland had been won. – We are experiencing, in a very painful way, that no principle, even the most elementary one, is safe. There is no guarantee. Polish society now has to decide in which country it wants to live – he says.

Prof. Marek Safjan was the president of the Polish Constitutional Tribunal, and since 2009 he has been a Polish judge of the Court of Justice of the European Union. His second term in the CJEU ended in October this year, and the process of selecting his successor is currently underway. Poland proposed prof. Rafał Wojciechowski, currently a judge of the Polish Constitutional Tribunal.