The application of the Charter of Fundamental Rights of the EU in Poland

Agnieszka Kastelik-Smaza

doi:10.14712/23366478.2018.37

Abstract

The paper aims at summarizing the experience in application of the Charter of Fundamental Rights of the EU by Polish courts. From the perspective of the Polish Constitutional Court EU law, including the Charter, has a universally binding character on Poland and it has priority over national law with a statutory and subordinate status, but not over the Constitution. The scope of protection guaranteed by the Charter is generally consistent with that provided for in the Constitution. Due to the fact that Poland has acceded to the British and Polish Protocol, the binding force and scope of applicability of the Charter are the subject of controversy in doctrine and case law. Nevertheless, the Polish Constitutional Court as well as common and administrative courts generally do not question the validity of the Charter, referring in different ways to its provisions in their rulings. The Charter is generally applied not as the main basis for the ruling, but as an additional element justifying the position adopted on the basis of Polish law. The Polish Constitution and the Convention for the Protection of Human Rights and Fundamental Freedoms are more likely to be chosen by the parties and by the courts as sources of fundamental rights invoked in the proceedings than the Charter. References to the Charter either by parties to the proceedings or courts themselves are often inadequate due to the lack of fulfilment of the conditions specified in Article 51 (1) of the Charter. In several cases invoking the provisions of the Charter outside the scope of application of EU law led to inadmissibility of preliminary references based on the Charter addressed to the CJEU by Polish courts.

Highlights

The paper aims at summarizing the experience in application of the Charter of Fundamental Rights of the EU by Polish courts
The Polish Constitution and the Convention for the Protection of Human Rights and Fundamental Freedoms are more likely to be chosen by the parties and by the courts as sources of fundamental rights invoked in the proceedings than the Charter
In several cases invoking the provisions of the Charter outside the scope of application of EU law led to inadmissibility of preliminary references based on the Charter addressed to the Court of Justice of the EU (CJEU) by Polish courts

Summary

CHARTER AS A SOURCE OF LAW IN POLAND

According to Article 87 of the Polish Constitution the sources of universally binding law of the Republic of Poland are: the Constitution, statutes, ratified international agreements, and regulations. The Constitutional Court (Pl. Trybunał Konstytucyjny, CC) has confirmed in its case law that in Poland the Constitution has the primacy of binding force and application and EU law has no priority over the Constitution.[2]. Some rights are not explicitly provided, for example the right to human integrity (Article 3 of the Charter) or the prohibition of slavery (Article 5 of the Charter) They are still applicable in Poland, because they have been interpreted from the Constitution by the Constitutional Court, or as standards binding under international agreements.[3] An interesting example of the law provided for in the Charter and not included in the Constitution is the right to good administration (Article 41 of the Charter).[4] The Constitution in Article 7 provides that public authority bodies operate on the basis and within. This lack of right to good administration in the Constitution contributes to the fact that Article 41 is one of the Charter’s provisions most frequently referred to in Polish courts

BRITISH AND POLISH PROTOCOL

THE CHARTER IN THE JURISPRUDENCE OF THE CONSTITUTIONAL COURT

APPLICATION OF THE CHARTER BY POLISH COMMON AND ADMINISTRATIVE COURTS

PRELIMINARY REFERENCES OF THE POLISH COURTS BASED ON THE CHARTER

CONCLUSION