Tożsamość konstytucyjna jako wzorzec i kryterium kontroli w postępowaniu przed Trybunałem Konstytucyjnym (uwagi na marginesie wyroków K 32/09 i P 7/20)

Abstract

CONSTITUTIONAL IDENTITY AS A STANDARD AND CRITERION OF CONSTITUTIONAL REVIEW FOR THE CONSTITUTIONAL TRIBUNAL IN POLAND (A STUDY OF CASES NOS. K 32/09 AND P 7/20) The Polish Constitutional Tribunal used constitutional identity in the Lisbon case for the first time. Since then, identity has become an unexplored concept by the Tribunal. However, it became extensively abused by the captured and curbed Tribunal in 2021, when the Tribunal justified the unconstitutionality of the provisions of the Treaty on European Union. The nature and scale of this abuse provoke a more general question of whether the Tribunal in Poland may use constitutional identity as a point of reference in constitutional review. If the answer is affirmative, another question arises, namely which of the possible and well-known conceptions of constitutional identity could be ready to use by the Tribunal in Poland. To answer the questions, the chapter takes several issues into consideration. The first is possible and contemporary interpretations of constitutional identity. The second is an interpretation that may be doctrinally relevant for the Tribunal in view of the scope of constitutional provisions. The third is the difference with regard to references to identity in case law in 2010 and 2021. The fourth issue is the application of the concept of constitutional standard and concept criterion in constitutional review to the Tribunal’s case law concerning constitutional identity. The chapter has doctrinal and interpretive nature and discusses details of Polish constitutional law.