The legal chaos into which the Polish judicial system has been plunged generates huge practical problems and threats to the security of legal rulings. It casts into doubt the legality of hundreds of judicial appointments and the validity of thousands and thousands of rulings on which commercial and social life are based. One way to contain these threats could be the principle functioning in common-law countries known as the “de facto doctrine,” which under certain conditions allows the acts of judges and officers who were unlawfully appointed to be deemed nonetheless valid. Outside the common law, this doctrine could also be inferred from the constitutional principle of the rule of law as well as the fundamental principles of EU law.
The dispute over the legality of changes in the Polish judicial system adopted by a parliamentary majority has reached a critical juncture. Both the European Court of Human Rights and the Court of Justice of the European Union have ruled in noted recent judgments that these changes, particularly the politicisation of the process of appointing members of the National Council of the Judiciary (KRS), and limiting the input of the judiciary on those appointments, violate fundamental principles of EU law and human rights relating to organisation of the judicial system. In response, the Polish Constitutional Tribunal, earlier packed by the parliament with judges under equally controversial circumstances, accused the CJEU of overstepping its competence and unlawfully interfering in the sovereign affairs of the Republic of Poland. The Polish government asserts similar allegations against the ECtHR.
This whole conflict has a serious practical dimension. It throws into question the legality of hundreds of judges’ appointments and the validity of tens of thousands of rulings which those judges have already handed down and continue to issue—rulings on which commercial and social life is founded not only in Poland but also elsewhere in the EU and in other countries of origin of litigants whose rights and obligations are ruled on by Polish courts. After all, judgments of Polish courts have also determined, and continue to determine, the rights of persons from other EU member states and third countries, and have been and continue to be enforced in those jurisdictions, becoming the basis for social and economic relations in those countries. This is a classic example of a conflict between two important principles and values: the principle of legalism and the principles of security of trade and legal certainty.
This conflict also arises in situations strictly confined to Poland, when the Constitutional Tribunal holds that a norm of national law of lower rank, which has previously exerted real consequences in legal dealings, is inconsistent with the Polish Constitution. But Polish law provides an appropriate solution for this problem: the possibility for the Constitutional Tribunal to limit in time the effects of rulings it issues. When the tribunal holds a given norm to be unconstitutional, but recognises that eliminating that norm from the legal system ex tunc (retroactively, from the very moment when it entered into force) could pose a significant danger to the security of legal dealings, the tribunal may decide that the judgment it is issuing, holding that norm to be unconstitutional, will exert effect only in the future or only after a certain time following issuance of the judgment, during which time the state and participants in legal dealings can prepare for the ruling to enter into effect.
This possibility does not exist in the case of the judgments referred to above from the Court of Justice or the ECtHR. Technically, neither of them rule on removal from the legal system of the challenged norms of Polish law. Thus they cannot decide to defer the effective date of their rulings. The Court of Justice only interprets EU law. It may find that in adopting a given legal solution, Poland violated its obligations under EU law, and should repeal that solution and prevent its enforcement within the relevant respect, and potentially impose appropriate sanctions. Similarly, the European Court of Human Rights does not rule on the validity or invalidity of Polish laws, but only whether in adopting or applying given national laws, Poland violated the European Convention on Human Rights. But the principle of direct application of both, the relevant rules of EU law and the ECHR, as well as the principle of their primacy over Polish statutory norms (particularly effective in the case of EU law), means that in practice these judgments do indeed strike incompatible statutory norms from legal dealings within Poland, without limitations in time—and with retroactive effect. This would tip the scales in the aforementioned conflict of values in favour of legalism, while utterly ignoring the other value: the security of legal dealings. This would also mean, as asserted by certain lawyer activists, that all judicial nominations by the National Council of the Judiciary operating under the new rules would be unlawful and invalid, as would all judgments issued by judges appointed in this manner or by panels on which they sit.
But I would urge consideration of a principle that serves to protect the security of legal dealings in similar situations in common-law countries. This is the principle of competence known as the “de facto doctrine.” Under this principle, the actions of a judge (or public officer) who was appointed unlawfully but did meet the criteria for proper appointment and was not aware of the unlawfulness of the appointment (i.e. was not a “usurper” but rather a de facto judge, or “judge in fact”) can remain valid.
This principle is not derived from positive (statutory) law, but was developed in the case law. This gives the principle flexibility. A detailed discussion of the principle lies beyond the scope of this brief essay. But in essence it performs a similar function as the possibility, discussed above, of postponing the effectiveness of a judgment by the Polish Constitutional Tribunal holding a legal norm to be inconsistent with a higher-ranking norm. It raises similar issues from the intersection of law and the policy of adoption and enforcement of law. However, the de facto doctrine allows this assessment to be conducted in a decentralised manner—i.e. by the authority considering a given matter, with reference to the specific circumstances of the case.
In short, this doctrine protects citizens’ trust in the state, ensures proportionality in the consequences of rulings invalidating laws enacted by the state, and heads off situations in which the effects of such rulings would be disproportionate to the aims of the higher-ranking legal principle which led to setting aside the law in the first place. It also counteracts procedural abuses. In particular, it can block attempts at instrumental use by a party of the invalidity of a legal norm under which a judge or officer was appointed, to dispute rulings issued by them which the party is dissatisfied with for other reasons (in other words, the doctrine prohibits collateral attacks).
A similar rule could readily be inferred from the principle of the rule of law enshrined in the Polish Constitution, and the principles founded on it of citizens’ trust in the state, protection of legitimate expectations and legal certainty, principles of social co-existence (objective good faith), and the prohibition of abuse of procedural rights. In a certain sense, existing rulings of the Supreme Court of Poland regarding this issue already point in this direction.
All of the aforementioned principles, from which the de facto doctrine could be inferred, are also the foundations of European law. Perhaps the de facto doctrine, or an analogous principle, should be applied when assessing the effectives of the finding by the Court of Justice that the amended regulations on the National Council of the Judiciary are inconsistent with European law, or the consequences of the similar ruling by the ECtHR, regardless of whether such a doctrine is found within the Polish legal system. It could after all be inferred from EU law itself, or from the European Convention on Human Rights (or for example from international investment treaties ensuring foreign investors “fair and equitable treatment,” which covers legal certainty and protection of legitimate expectations). Then it would not only be Polish courts considering appeals against judgments issued by judges nominated by the reformed NCJ that would need to apply this doctrine, but also courts and other authorities of other member states called upon to decide on the validity and enforceability of such judgments in their own jurisdictions. This could greatly (although not entirely) mitigate the potentially drastic social and economic consequences of the chaos into which the Polish judicial system has already been plunged due to the conflict arising out of the judicial reforms in Poland.
In any event—regardless of how warranted may be the outrage over the changes to the Polish judicial system adopted by the parliamentary majority—assertions of the automatic invalidity and unenforceability in other member states of judgments issued by Polish judges nominated by the National Council of the Judiciary operating under the new rules conflict with the values protected by the Polish Constitution, European law and international law (human rights and protection of foreign investments), and endanger participants in not only Polish, but also European and international legal dealings. It seems that some counterpart to the “de facto doctrine” functioning in common-law countries would be a sound method to protect these values while at the same time respecting the principle of legalism and the precedence of EU law and the European Convention on Human Rights over disputed acts of national law.
Stanisław Drozd, adwokat, Common Law Desk, Wardyński & Partners