The International Rule Of Law In The Polish Administrative Court's Jurisprudence

The International Rule Of Law In The Polish Administrative Court's Jurisprudence Presented by: Prof. Dr. Majchrzak Date: 12 February 2025 Introduction - Cognition of the Polish administrative courts: control over the legality of public administration conduct, i.e. formulating the 'relative phrase' [a statement qualifying a specific behavior of an administrative body as compliant or non-compliant with a given legal norm] - 'Relative phrase' = 'reference norms' + 'complementary norms' [cf. Prof. J. Wróblewski] - Reference norms jurisdiction and competence of the administrative court (incl. criteria, premises and conditions for its judicial activity), types of judgments and their legal consequences - Complementary norms substantive, procedural and systemic bases for the behavior of the public administration; a pattern used by the administrative court as a criterion of control - Both of these norms may be reconstructed taking into account the 'international' rule of law [the notion interpreted on the grounds of law adopted at the supranational level, in particular in international agreements or law created by international organizations, in particular the EU] Legal Basis And Meaning Of The 'International' Rule Of Law - Art. 2 of the Treaty on European Union, usually in connection with Art. 19.1 TEU; Art. 6 and Art. 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Art. 47 of the Charter of Fundamental Rights of the European Union - 'International' rule of law [IROL] = (1) effective judicial protection, judicial independence and impartiality, duly appointed and irremovable judges - IROL = (2) reconsidering a case already concluded with a final administrative decision, taking into account the interpretation of a provision of EU law relevant to the case, later made by the CJEU - IROL = (3) procedural fairness covering an exhaustive justification of the decision which guarantees the right to challenge it effectively, as well as proper instance and judicial review 'International' VS. 'National' View Of The Rule Of Law - Issue analyzed rarely and only in connection with the right to court and effective judicial protection - According to the Supreme Administrative Court: it is impossible to perceive (any) contradiction - the above mentioned right is shaped and understood in the same way by the domestic provisions, the European Court of Human Rights, as well as in EU law, in particular since the principle of effective judicial protection of rights results mainly from the constitutional traditions common to the Member States [e.g. Judgment case ref. II GOK 2/18] Sources Of The Administrative Courts' Obligation To Implement The 'International' Rule Of Law - National law, incl. the Constitution - the constitutional concept of sources of generally applicable law (inter alia ratified international agreements), so-called integration clause (Art. 90.1 of the Constitution), pacta sunt servanda principle referring to international law (Art. 9 of the Constitution), the principle of direct application and the primacy of an international agreement ratified with prior consent expressed in a statute (Art. 91.1 and Art. 91.2 of the Constitution), the principle of direct effect and priority of application of EU law (Art. 91.3 of the Constitution) - Supranational sources Polish administrative courts are EU courts, the principles of: direct effect of EU law, primacy of EU law, effectiveness of EU law, state liability for damages 'International' Rule Of Law As An Element Of The Complementary Norm - Pattern of control of e.g.: 1) the composition of the Voivodship Administrative Court adjudicating on the case; 2) the act of the President of the Republic of Poland stating the date of retirement of a Supreme Court judge; 3) the resolution of the National Council of the Judiciary concerning the submission of an application for appointment to the office of the Supreme Court judge; 4) the administrative decision of the tax authority exhaustive factual and legal reasoning in particular if it contains - Interpretative co-application [both national regulations and sources of international or EU law indeed constituted the components of the legal norm] and 'decorative' coapplicability [in fact the national law provided a sufficient basis for settling the case] 'International' Rule Of Law As An Element Of The Reference Norm - IRoL as: A) an argument in favor of resolving doubts as to the inclusion of the order of the President of the Regional Court regarding the immediate suspension of a judge in his duties under judicial-administrative control; b) a basis for the Supreme Administrative Court's omission of a national act inconsistent with Art. 19.1 in conjunction with Art. 2 TEU, because it excluded the admissibility of judicial review of resolutions of the National Council of the Judiciary on appointment to the office of the Supreme Court judge - Interpretative co-application of both types of regulations Conclusions - According to the case law of the Polish administrative courts: • Lack of comprehensive definition of the IRoL in case law - focuses only on some of its elements • Fundamental importance is attributed to the sub-principle of effective judicial protection of the rights • Integrative, not confrontational approach of administrative courts, striving to agree on the content of the international and national meaning of the rule of law • The order to implement the 'international' rule of law results both from national sources and from EU sources • IRoL is important for determining the content of the complementary norm and the reference norm • Interpretation of national, international and EU provisions is most often coapplied • Sometimes the IRoL leads to omission of national act inconsistent with EU law