When the Constitutional Court Is No Longer a Non-Majoritarian Institution: Equality Litigation Before Common Courts in Poland

Table of contents: 1. Introduction. – 2. The Polish Constitutional Tribunal: from Non-Majoritarian to Politicized Actor. – 3. Judging Equality Away: The Constitutional Tribunal’s Role in Legitimizing an Anti-LGBT+ Agenda. – 4. Non-Majoritarianism of Common Courts: How the Dissensus within the Judiciary Arises. – 5. Conclusions.  

Abstract: The political shifts in 2015 influenced Polish Constitutional Tribunal practices and determined its argued loss of non-majoritarian functions. The politicized CT began to act as an extension of the government. Instead of limiting the power of the parliamentary majority by advocating for minority rights, it was incorporated into the majority’s decision-making mechanism, itself posing a threat to values such as freedom and equality. Simultaneously, one can observe a non-majoritarian mobilisation of the common courts, which openly question the CT’s ability to adequately protect constitutional rights. While lacking the formal competence to carry out constitutional review, common courts have independently assessed the constitutionality of statutes and even interpreted them contrary to the CT’s constitutional interpretation. Some judgments issued under equality provisions, including those concerning LGBT+ persons are an important example of the described practice. Polish common courts apply these provisions in ways that are consistent with the interpretation of the Constitution by non-governmental organisations specialising in anti-discrimination law and taking into account the content and meaning of the EU equality directives. In doing so – unlike the CT – they contribute to the strengthening of minority rights protection. The discrepancy between the two institutions is analysed in the paper as a form of dissensus within the judiciary. This paper is a contribution to a Special Section that critically analyses the role of non-majoritarian instruments and institutions with respect to three challenges that shape contemporary democracies in Europe: socio-economic inequality and discrimination, growing authoritarianism, and the pressing climate crisis.

Keywords: constitutional court – non-majoritarianism – diffused constitutional review – Poland – rule of law crisis – equality litigation. 

1.   Introduction

From 2015 to 2023 Poland experienced the retreat from liberal democracy connected with changes towards authoritarianism. After winning the general elections in 2015, all power was concentrated in the hands of the right wing, populist Law and Justice Party(PiS). According to Wojciech Sadurski, contemporary populisms take different forms, but they all have one denominator in common: ‘they abhor pluralism, minority rights, and constitutional constraints on simple majoritarian rule’.[1] As Cas Mudde notes, populism is by nature hostile to the institutions of liberal democracy, including, above all, the constitutional protection of minorities and the independent judiciary that has the power to limit the expressions of the general will.[2] The reform program called ‘The Good Change’, initiated immediately after the PiS victory, fits perfectly into populist agenda.[3] Their real goal was to subordinate the judiciary to the executive power. The very first step was the ‘court-packing’ of Constitutional Tribunal (CT).[4] Then the harmful changes covered the Supreme Court, the common courts and the National Council of Judiciary, taking the form of reorganization, staff replacement and disciplinary proceeding.[5] These actions taken by the Government and Parliament, both bodies being supported by the Polish President, have led to the repeated violations of the basic principles of the rule of law, related to the independence of the judiciary, resulting in a serious crisis in relations with the EU.[6] After the defeat of the populists in the 2023 elections, the new pro-EU coalition government committed to implementing an ‘Action Plan’ to restore judicial independence in Poland and return to the rule of law.[7] This allowed the European Commission to halt the Article 7 TEU procedure and proceed with the unblocking of EU funds. However, the reforms are still in progress and have not changed much as far as the CT is concerned. CT remains entirely composed of judges appointed by the former parliamentary majority and continues to align with the political line of that majority. The reconstruction of what was once the Polish Constitutional Tribunal – now described by some academics as a ‘fallen and degenerated body’[8] – is currently a key element of reforms aimed at restoring the rule of law. 

The article argues that the actions of the populists after 2015 concerning CT resulted in the loss of its independence and consequently its non-majoritarian character.[9] To counterbalance this loss, other non-majoritarian remedies that were not seen before are being deployed. Primarily, this concerns the activity of common courts, which, while lacking the formal competence to exercise constitutional review, have in recent years, supported by many constitutional scholars,[10] begun putting into practice the diffused constitutional review. A good example of this practice is equal treatment and the prohibition of discrimination, which is the article’s focus. In some important judgments issued in cases concerning equal rights, including LGBT+, common courts clearly dissent from the rulings of the politicized CT, which – as it will be shown later – authorized the exclusionary populism of the ruling party.[11] Primarily, this consisted in employing interpretative methods that allowed for the broad application of constitutional values as well as the content and meaning of the EU equality directives, as articulated in the judgments of the Court of Justice of the European Union (CJEU). Courts also continued to apply provisions previously declared unconstitutional by the CT. Various forms of such resistance-driven constitutional review will be subject to analysis in the subsequent sections of the article. De factoconstitutional review exercised by common courts is oriented towards broad protection of rights and freedoms, therefore, contrary to the jurisprudential line of the politicized CT.

Equality cases are particularly telling. The attitude towards sexual minorities is an issue that divides Polish society particularly deeply. The reluctance of a part of citizens to all kinds of differences provides fertile ground for populists to build an identity of exclusion:[12] while immigrants were portrayed as a threat in the 2015 populist’s election campaign, in 2019 it was LGBT+ people. Equality-rights cases not only reflects the opposition of the judicial community to the actions restricting the rights of sexual minorities by a populist government supported by a politicized CT. This [These?] cases are also authoritative in showing the fundamental disagreement among judges in terms of the attitude to the rule of law, the role of courts and the duties of judges in times of constitutional crisis. Equality case law to a large extent involves expert Non-Governmental Organizations (NGOs) specializing in anti-discrimination law that are often involved as third party interveners in court proceedings in this area. Equality case law is also a domain of ​​influence of international courts, especially the CJEU and the ECtHR, on the Polish constitutional legal order.

The aim of the article is to examine whether, in a situation where a constitutional court loses the attribute of a non-majoritarian institution, i.e., its independence and hence a core characteristic of the judiciary, common courts can be perceived as taking over this function of a constitutional court. And, further, might this discrepancy in the interpretation of equality provisions be considered a kind of dissensus in the judiciary? For this purpose, I will consider some important judgments issued in Poland under equality provisions, including those regarding LGBT+ rights, and examine how the possible dissensus has developed in recent years. 

The article is structured as follows: after this introduction, Section 2 characterizes the Polish CT against the background of the non-majoritarianism and explains the process of the CT`s loss of non-majoritarian character. Section 3 presents the political background for the retreat in Poland after 2015 from values underlying the rule of law and discussed the CT’s involvement in legal changes in anti-LGBT+ law. Section 4 addresses the activation of various forms of judicial resistance within the domain of equality law. It also attempts to characterize this discrepancy in the judiciary in the context of the concept of dissensus. The paper ends with conclusions.

2.   The Polish Constitutional Tribunal: from non-majoritarian to politicized actor

The Polish Constitutional Tribunal was established under the communist regime[13] and initially the scope of its competences was very limited. Despite this, the CT has been from the very beginning an important institution of the political transformation in Poland,[14] and the standards of human rights protection developed by it[15] were reflected in the text of the democratic Constitution of 1997.[16]

It can be stated that in the light of the political position, the scope of competences and the method of appointment of its members as established in the Polish Constitution of 1997, as well as in the context of the jurisprudential practice from the period preceding the illiberal transformations,[17] the Polish constitutional court essentially played the role of a non-majoritarian instrument, aligning with a model commonly observed in other democratic systems. When describing the Polish CT as a non-majoritarian institution, I rely on the classical understanding of such bodies as formulated by Giandomenico Majone, according to which they are not directly accountable either to the electorate or to elected representatives.[18] Their characteristic feature, compared to other non-majoritarian institutions, is that they are protectors of disfavoured minorities against oppressive legislation in majoritarian separation-of-power systems.[19]

Before 2015, the CT was a crucial player of the institutional checks and balances that shape the democratic constitutional state and protect the rights and freedoms in Poland.[20] An important part of the CT’s constitutional acquis concerned equal treatment and non-discrimination. In its extensive case law on the provision of Article 32 of the Constitution of Poland, it defined the content, nature and scope of application of the principle of equal treatment and the prohibition of discrimination, confirming the inclusive nature of the Polish Constitution.[21] Although some of CT`s rulings were subject to criticism, the activity of this institution enjoyed a general support from all important players, including state bodies and citizens.[22]

The loss of the character of the non-majoritarian body by the Polish CT is a consequence of its loss of independence, which occurred as a result of the subordination of this body to the political authority. The initial step in the dismantling of the CT’s independence was President Andrzej Duda’s refusal to swear in the judges dully elected by the previous Sejm (the lower house of the Polish Parliament), followed by the appointment of three new individuals – commonly referred to as ‘double judges’ – in their place.[23] Between November 2015 and December 2016, six legislative acts concerning the Tribunal, all introduced by the ruling PiS party, were adopted. They introduced many controversial personnel changes consisting, inter alia, of allowing so-called quasi-judges to adjudicate[24] and the changed procedures made it possible to manipulate the adjudicating panels. Once the CT had been packed with enough judges loyal to the government, the Minister of Justice threatened disciplinary sanctions against judges who refuse to follow the rulings of the ‘new’ CT, introducing in 2020 so-called ‘muzzle law’.[25]

The undermining of the independence of the CT, as well as other measures aimed at subordinating the judiciary to the executive branch, has encountered resistance not only from the judicial community (addressed in detail in Section 4) but also from a substantial segment of the public, which manifested its discontent through public protests.[26]

Moreover, international actors have consistently questioned the legality of the reforms implemented in Poland. The Venice Commission issued critical opinions on 11 March 2016 and 14 October 2016, highlighting serious concerns regarding the compliance of the changes with European standards.[27] Similarly, European judicial bodies have scrutinized these developments. In particular, the European Court of Human Rights, in its judgment of 7 May 2021 in the case of Xero Flor (Application No. 4907/18), unanimously held that the composition of the CT, as constituted in the applicant’s case, failed to meet the requirement of a ‘court established by law’.[28]Likewise, the Court of Justice of the European Union, in its ruling of 13 July 2023, affirmed that national courts retain the authority to assess whether rulings of the Constitutional Tribunal contravene European Union law and, upon finding such inconsistencies, are obliged to disapply those rulings.[29] This ruling was delivered in the context of the Constitutional Tribunal’s decision declaring Article 19 of the Treaty on European Union incompatible with the Polish Constitution (Case K 3/21).[30]

Furthermore, the European Parliament, in its resolution of 21 October 2021, asserted that the Polish Constitutional Tribunal lacks the legal authority and institutional independence necessary to legitimately interpret the Constitution of Poland. The Parliament further condemned the Tribunal as ‘a tool for legalizing unlawful actions of the authorities’.[31]

The process of delegitimizing the CT under the rule of the PiS has led to a situation in which the Tribunal is no longer able to protect the constitutional axiology, including the rights and freedoms of individuals. As a consequence of the appointment of politically aligned judges, the CT began to operate as an institutional extension of the executive.[32] In such a situation the constitutional court no longer limits the power of the actions of the parliamentary majority by advocating for minority rights: instead, it poses a threat to values ​​such as freedom and equality. However, the loss of the non-majoritarian character of the Polish CT does not mean that it has become majoritarian. We are dealing with a politicized body that has lost its basic attribute that is the independence and works as a government’s agenda. If such a court authorizes the acts of government violating the constitution, it itself also acts against the will of the majority expressed in the constitution. 

Against this background, the erosion of standards in the protection of equality rights should be examined within the broader context of the transformation of the CT into an institution that no longer offers a guarantee of independent and impartial review of violations of constitutional rights and freedoms by public authorities. In a number of significant rulings issued after 2015, the CT assumed the role not of a guardian of individual rights, but rather of a co-author of the political agenda pursued by the ruling majority. In particular, the following decisions of the CT merit attention: the judgment K 1/20 of 22 October 2020, which led to the weakening of constitutional guarantees of women’s rights through the significant restriction of access to legal abortion; the judgment Kp 1/17 of 16 March 2017, which undermined the freedom of assembly and the principle of non-discrimination by allowing differential legal protection of assemblies based on the content of the message and the views expressed by participants; the judgment K 16/17 of 26 June 2019, which eliminated a key legal instrument protecting against discrimination in access to services and will be discussed in detail in Section 3. Through these decisions, the CT has exhibited a readiness to issue controversial judgments that facilitate the systemic curtailment of rights and freedoms, particularly those that stand in marked opposition to the dominant populist narrative. The weakening of the level of protection is also affected by a general slowdown in the CT’s activities, as well as a reduction in the number of applications, complaints, and legal inquiries submitted compared to the period prior to 2015. Statistics also indicate a decline in the proportion of judgments – which constitute rulings that shape the legal order – within the total number of decisions issued.[33] A striking example of this trend is the absence of any rulings by the Tribunal regarding restrictions on human rights during the pandemic, in contrast to the activity of constitutional courts in other countries.[34] These circumstances create conditions in which the development of the constitutional acquis initiated in the period preceding the politicization of the CT has become, by its very nature, impossible.[35]

3.   Judging equality away: the Constitutional Tribunal’s role in legitimizing an anti-LGBT+ agenda

The crisis of the rule of law in Poland has had many faces. In terms of axiology, we observed a retreat from values underlying the European integration. One of them is the principle of equal treatment and non-discrimination, which is considered the foundation of EU axiology.[36] Various aspects of this principle are guaranteed in numerous provisions of primary[37] and secondary law.[38] The CJEU also recognizes that the principle in question is a fundamental norm of the EU legal order expressing both a universal value and a fundamental right.[39]

It can therefore be said that EU guarantees a wide range of protection against unequal treatment and discrimination. The same applies to the Polish Constitution of 1997. According to its Article 32: All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities (Section 1). No one shall be discriminated against in political, social or economic life for any reason whatsoever (Section 2). In the opinion of some legal scholars, this provision protects directly not only against unequal treatment by public authorities, but also against discrimination in horizontal relations,[40] regardless of the reason. In this respect, the scope of protection of the Polish Constitution is even wider than in EU directives, which protect only due to specific criteria and only in certain areas. 

The lowering of the level of protection in the field of equal treatment should be examined within the broader framework of systemic changes that have taken place in Poland since 2015. As the Helsinki Foundation for Human Rights points out, that was when the biggest regression in the protection of human rights in Poland since 1989 took place.[41] Along with the right to equal treatment, it also covered freedom of assembly, freedom of speech, women’s rights, foreigners’ rights, and the right to privacy.[42]As Wojciech Sadurski notes, although human rights violations were not drastic in nature, the gradual dismantling of institutional guarantees of human rights created conditions conducive to further attacks on them.[43]

The violations of the principle of equal treatment observed under PiS rule were an element of a systemic politics aimed at gradual exclusion from the state community of those who do not share the conservative, Christian worldview forced by those in power. According to the homophobic narrative in 2015-2023, the LGBT+ and gender movements threaten the Catholic family values, which always have been a core of Polish identity.[44] The anti-LGBT+ campaign was joined not only by politicians from the ruling party, but was actively supported by the President of Poland.[45] By taking advantage of the aversion of the conservative part of society to people with a different sexual orientation, politicians were able to deepen the ideological cleavage among citizens.[46] The homophobic atmosphere constituted a kind of consent not only for acts of discrimination, but also encouraged attacks on LGBT+ activists in equality marches, during which police officers not only failed to provide them with adequate protection, but also joined in the attacks themselves, knowing that they would not face consequences from state authorities.[47]

A spectacular example of the effectiveness of the exclusionary politics was the introduction in 2019-2020 so called ‘LGBT-free zones’ at the local government level. Municipalities and regions covering 30 percent of Poland’s territory have passed resolutions declaring themselves unwelcoming of LGBT+ rights, in order to ban equality marches and other LGBT+ events.[48] Anti-LGBT resolutions had primarily symbolic significance and did not introduce formal sanctions, but they gave homophobia official status creating space for further exclusion of sexual minorities. Ultimately, by the beginning of 2024 – as a result of social pressure and legal actions undertaken by the Polish Commissioner for Citizens` Rights[49] with the support of numerous NGOs,[50] as well as the threat of losing funds from the EU Cohesion Fund[51] – all resolutions were repealed or invalidated by administrative courts. The Supreme Administrative Court found that the municipalities do not have the competence to formulate acts of an ideological nature, and the resolutions themselves are contrary to the constitutional principle of equality before the law and the prohibition of discrimination (Article 32 of the Constitution), as well as Article 21 section 1 of the Charter of Fundamental Rights of the EU and Article 14 of the European Convention of Human Rights.[52]

PiS’s actions against sexual minorities also covered the normative sphere, which consisted in the partial elimination of Article 138 of the Code of Petty Offenses (Code of PO),[53] penalizing unjustified refusal to perform a service. As it will be presented in the next paragraph, this provision was previously an important and effective anti-discrimination tool in Polish courts. However, fearing the reaction of part of society and the EU, PiS did not decide to remove this provision through standard legislative procedure. Instead, it used the CT, which, in ruling of 26 June 2019 (K 16/17), eliminated the indicated provision from the legal system as unconstitutional.[54]

In the discussed judgment CT recognized Article 138 of the Code of Petty Offices[55] as unconstitutional, insofar as this Article provided for a fine for a service provider who ‘intentionally, without justified reasons, refuses to provide the services to which he is obliged’.[56] It ruled that the provision in question was contrary to the constitutional principles of a democratic state governed by the rule of law, freedom of conscience and religion, as well as economic freedom. The basic function of Article 138 of the Code of PO was protection against discrimination in the area of access to services. This Article implemented the so-called racial EU directive.[57] For many years, it functioned as an effective tool for protecting the rights of discriminated people in proceedings before common courts. It was, in Poland, the only antidiscrimination provision that sexual minorities could use in access to services. Moreover, unlike civil remedies available under the Equality Act[58] and the Civil Code, it protected against discrimination for any reason and thus it implemented the constitutional standard of protection of the Article 32(2). Secondly, it offered a punitive path, so it involved public authorities into the process of enforcing rights, making discrimination a significant problem in the public sphere. In the earlier case law of the common courts, on the basis of Article 138 of the Code of PO, the following persons were found guilty: the owner of a shoe store, who refused to serve a customer in a wheelchair;[59] the owner of a second-hand store who banned people with strollers from entering;[60] the club owner who refused to let a wheelchair user into a concert[61] or a trainer who refused to provide self-defence training to an organization that works to combat discrimination based on sexual orientation.[62]

The basis of the CT’s ruling K 16/17 was the earlier judgments of common courts in the famous case of a printer from the city of Łódź who – on the basis of the provision of the Article 138 of the Code of PO – was found guilty of unjustified refusal to provide a service to LGBT+ organization.[63] The refusal was supposed to be justified by the Catholic worldview, which, according to the printer, does not allow him to contribute with his work to the promotion of LGBT+. From the beginning, the Prosecutor General (that is, in Poland, Minister of Justice) was actively involved in the case on the printer’s side. After the Prosecutor General failed to challenge these judgments by way of a cassation appeal in proceeding before Supreme Court,[64] he appealed against the provision to the CT, which ruled entirely in line with the government’s position. 

The printer’s case has become a symbol: on the one hand, of the fight for the rights and dignity of LGBT people, and on the other – of the right to conscientious objection, based on the Catholic faith, which in Poland ruled by PiS was the only right one.[65] It is also authoritative for showing the formation of dissensus in the Polish judiciary over the issue of the protection against discrimination. The judgment of CT means a spectacular departure from the previously established standard of protection against discrimination in Polish judiciary. The CT completely ignored the anti-discrimination function of the Article 138 of the Code of PO. Issuing this judgment it in some way undermined the line of jurisprudence established on its basis. The reference to private autonomy, freedom of conscience and religion may not justify the refusal to provide a service due to the customer’s personal characteristics. Such an interpretation adopted in the ruling K 16/17 is contrary to the Constitution because under its Article 32(2) private autonomy as well as the exercise of rights and freedoms cannot be subject to constitutional protection if it involves discrimination against other persons.[66] Elimination of Article 138 of the Code of PO means that discrimination has become a private problem of an individual who was discriminated, and not a problem of the state, which should actually be responsible for it. 

Looking at the current CT’s case law concerning the equality and discrimination, it can be concluded that, the judgment in question reflects a general slowdown in the line of case law developing Article 32 of the Constitution. In contrast to the previous period, the CT no longer seems to distinguish between the principle of equal treatment from the first paragraph of this Article and the prohibition of discrimination from the second paragraph,[67] that has been a valuable achievement of previous acquisconstitutionnel.[68] This makes it difficult to gain protection against discrimination in the sphere of horizontal relations, that is, among others, the field of services, which is guaranteed on the basis of the rule encoded in the second paragraph of the Article 32. In the context of the case law under discussion the literature notes a clear regression in the principles of equal treatment and the prohibition of discrimination compared to earlier rulings.[69]

4.   Non-majoritarianism of common courts: how the dissensus within the judiciary arises 

Common courts in Poland do not explicitly have the competence to exercise constitutional review of national statutes, that is acts adopted by legislative procedure. The Constitution of 1997 establishes a centralized system of constitutional review and a specific institution responsible for exercising it, namely the Constitutional Tribunal.[70] In the past, Polish legal doctrine was dominated by the view of the constitutional court’s monopoly on examining the constitutionality of statutes.[71] This was among other things due to the jurisprudence of the CT itself, which, in the context of Article 193 of the Constitution,[72] stated that ‘the presumption of the conformity of the statutes with the Constitution may be overturned only by a judgment of the CT, and the binding of a judge by the statute applies for as long as that act remains in force’.[73] At the same time, part of the legal doctrine since the Constitution of 1997 came in force has allowed for incidental judicial review by judges of common and administrative courts, understood as the possibility of refusing to apply – and not repealing – statutory provisions that are, in their opinion, unconstitutional.[74] According to this, the judge should refer the issue to the CT only if there is doubt about the interpretation; but if the judge has no doubt about the unconstitutionality of a statute, he or she has the power to simply decide the case.[75]

In Polish legal literature, there are no studies directly addressing the problem of the non-majoritarianism of the constitutional court. However, considerations on the admissibility of diffused judicial review can be considered an equivalent of the discussion on this topic. So far, the focus has been on the issue of the scope of such control in the case law of common courts. Before 2015 the main argument for the admissibility of diffused constitutional review was the principle of direct application of the Constitution enshrined in its Article 8(2).[76] This provision not only authorizes but obliges the courts to directly apply the Constitution.[77] However, the refusal to apply a statutory provision on the grounds of its unconstitutionality remains controversial because it may be seen as encroaching upon the exclusive competence of the CT to perform constitutional review. For this reason, before 2015, Polish courts were generally very cautious in resorting to this type of decentralized constitutional review.[78]

The constitutional crisis that took place in Poland after this date intensified interest in the model of diffused constitutional review both in academia and in the courts.[79] According to the concept of emergency constitutionalism, an extraordinary situation may require special remedial measures.[80] When the captured CT ceased to guarantee an independent assessment of the constitutionality of law, and the legitimacy of its judges was questioned,[81] diffused constitutional review began to be seen as a possible remedy for the deepening crisis that has affected this body. The intention of the courts undertaking the constitutional review is to maintain effective means of protecting human rights in the legal system, as existing safeguards realized by the CT have been weakened.[82] In these circumstances, the view that a change to the model should be considered, whereby in which common courts would be systemically involved in exercising judicial reviews, not only incidentally, has become increasingly popular and has even taken the form of a draft amendment to the Constitution.[83]

The case law of the CJEU and the ECHR was also of great importance in the context of the scope of judges’ independence. The first one confirms that national courts do not have to comply with Constitutional Court’s rulings if they violate EU law.[84]Moreover, judges cannot be punished for such conduct.[85] In turn, the ECtHR stated in relation to the Polish CT, inter alia, that itscomposition does not meet the requirement of a ‘court established by law’.[86] The European courts’ case law constituted a powerful argument in questioning the CT’s jurisprudence, including its conformity with the Polish Constitution.

Also, the Polish Supreme Court stated in the ruling of 23 January 2020 that the courts in Poland are obliged to examine whether the defectiveness of the process of appointing CT judges leads in specific circumstances to a breach of the standard of independence and impartiality within the meaning of Article 45 of the Constitution, Article 47 of the Charter of Fundamental Rights of the EU and Article 6 of the ECHR.[87] Significantly, the CT – aiming to remove grounds for questioning the status of judges loyal and subordinated to the authorities – repealed the ruling of the Supreme Court as inconsistent with the Constitution,[88] despite the fact that its jurisdiction does not cover acts of applying the law.

Ultimately, the common courts took a position in this debate. Their response – involving both legal and extra-legal strategies aimed at safeguarding the rule of law – has aptly been described as a form of judicial resistance.[89] This occurred despite the fact that the government deployed an entire arsenal of measures to bring ‘defiant’ judges into line, including suspensions from judicial duties and the initiation of disciplinary proceedings. 

In the following remarks, I concentrate on the legal strategies of judicial resistance, a concept under which I explicitly include both the practice of diffused constitutional review and other adjudicative techniques. Unlike extra-legal or institutional forms of judicial resistance – such as expressing one’s stance through participation in marches and demonstrations – these strategies fall within the traditional canon of legal interpretation while simultaneously expressing dissent against the politicization of legal interpretation. In particular, this refers to techniques grounded in teleological and systemic interpretation, which allow the interpreter to assign a meaning to a legal norm that reflects constitutional values and objectives, while also accounting for the specific nature of the multilevel and multicentric structure of the contemporary legal system. In the context of the constitutional crisis, the application of these interpretative directives proved crucial for safeguarding the values that constitute the essence of the judiciary in a democratic state – such as independence from other branches of government and loyalty to the Constitution. This refers in particular to the constitutional provisions guaranteeing fundamental rights and freedoms, including the equal rights of minorities, as these are especially vulnerable in an illiberal system, especially when the constitutional court loses its credibility as their guarantor.

An analysis of the case law of Polish common courts in the field of the right to equal treatment enables the identification of three principal forms of resistance-driven constitutional review employed by the judiciary: the submission of preliminary questions to the Court of Justice of the European Union (CJEU); interpretations aimed at ensuring the full effectiveness of EU law; and the refusal to apply CT rulings. 

The first two forms of resistance may be analysed against the backdrop of the anti-European turn in Polish politics after 2015, which marked a departure from the liberal values underpinning the EU. As previously explained, the CT became a tool used by the governing authorities to legitimise their decisions. Through a series of anti-EU rulings, the CT developed a new line of jurisprudence that profoundly redefined the legal meaning and function of European integration in the Polish constitutional order.[90] In this context, extensive reliance on EU law and jurisprudence by common courts represented a form of judicial resistance. It served as a normative counterbalance to the CT’s rulings and as an affirmation of judicial loyalty to the principles of European legal order. The growing tendency among common courts to submit preliminary references to the CJEU, rather than to the CT, reflected a belief that European courts offer stronger guarantees for resolving constitutional issues in a manner consistent with fundamental rights and the rule of law.[91]

An illustrative example of a proceeding in which the first of the aforementioned strategies was employed is the high-profile case concerning a journalist whose contract was not renewed by the pro-government public television broadcaster following his public announcement of his sexual orientation.[92] A journalist supported by the non-governmental organization ‘Campaign Against Homophobia’ accused the television of discrimination on the basis of sexual orientation when concluding a non-employment contract. The accused referred to the content of the Polish Equality Act, which does not protect the choice of the contracting party on the basis of sexual orientation.[93] In a preliminary ruling issued at the request of a Polish court, the CJEU found that the Equality Act does not correctly implement EU Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation,[94] because under that directive sexual orientation cannot be a reason for refusing to conclude a contract with a self-employed person.[95] The judgment meant a significant strengthening of the rights of LGBT+ people in the sphere of employment and work.

A model example of a ruling in which protection against discrimination was possible thanks to the use of a pro-EU interpretation of the Polish Equality Act is the case concerning a private school that refused to admit a non-believer as a student.[96] The complainant was supported by the non-governmental organization the Polish Society of Anti-Discrimination Law. Both the first and second-instance courts found that the defendant had committed indirect discrimination in the area of ​​vocational education on grounds of religion.[97] This qualification and, as a result, awarding compensation to the complainant was possible thanks to such an interpretation of the concepts used in the Polish Equality Act, which broadly referred to the case law of the CJEU.[98] The Equality Act did not directly grant protection to the complainant, but the court interpreted its provisions in such a way as to fully achieve the purpose of the equality directives, which is the effectiveness of anti-discrimination law.[99] The verdict clearly did not fit into the government’s narrative, according to which the Catholic worldview represented by the defendant university deserves protection. In connection with this, the Prosecutor General filed an extraordinary complaint to the Supreme Court, but it ruled that the verdicts of the courts of both instances did not violate the Constitution or any statutes.[100]

The most far-reaching form of opposition by common courts to the CT is the refusal to apply its judgments. This is a direct result of the political dispute over judges adjudicating in the CT.[101] Common courts refuse to base their rulings on the judgment of the CT if a so-called quasi-judge was in the composition, because such a composition does not guarantee citizens the right to a fair trial before a court established in accordance with the law.[102] Moreover, such a situation may lead to the reversal of a judgment of a common court, which was based on a defective judgment of the CT. In order to provide the parties to the proceedings they conduct with certainty that the judgment in a given case will not be repealed, the courts do not respect judgments of the CT burdened with the above defect and omit the application of these judgments. An example of the application of this technique in the field of the right to equal treatment is a judgment of the Regional Court concerning the refusal to repair a car. The court held that, despite the aforementioned CT’s judgment K 16/17, the legal basis for sanctioning under Article 138 of the Code of PO remains in force.[103]

Recourse to the interpretative methods discussed above – as well as other, not explicitly mentioned strategies[104] – has revealed a deep and fundamental division within the judiciary regarding its stance on the rule of law, the role of courts, and the obligations of judges in times of constitutional crisis. 

5.   Conclusions

Crises tend to expose and exacerbate existing tensions. The constitutional crisis triggered by populist rule in Poland not only deepened pre-existing social divisions, but also exposed a deep disagreement within the judiciary over the very concept of judicial independence – the core element of the third branch of government. In my view, the concept of dissensus, understood as a conflict between different types of actors, either about the fundamental principles of liberal democracy and rights or about their implementation through specific policies, or both,[105] offers a valuable analytical framework for examining this phenomenon. This concept has already been employed by legal scholars to describe the post-2015 constitutional crisis in Poland.[106] The fragmentation within the judiciary is a direct consequence of the broader political breakdown. The principal actors in this dissensusare, on the one hand, the CT, and on the other, the common courts and the Supreme Court.[107] Unlike democratic politics – which inherently allows for dissent and contestation[108] – the judicial domain demands a high degree of coherence and consistency. Uniformity in adjudication is essential, as only stable and predictable case law can guarantee equality before the law and uphold the integrity of the justice system.

Following Ramona Coman’s typology, the situation in the Polish judiciary can be described as destructive dissensus.[109] This constitutes the most far-reaching form of conflict, encompassing both the ideal of democracy (the separation of powers and judicial independence versus the politicisation of the judiciary; equal protection of all individuals versus the protection of majority interests without regard for minority rights), as well as its practical dimension (the apolitical application of law versus the political instrumentalization of legal interpretation). The objectives pursued by the opposing sides in this judicially manifested conflict are highly heterogeneous and fundamentally irreconcilable.[110] Even after the populists were removed from power as a result of losing the elections in 2023, the judges they appointed, headed by judges of the CT, are hindering the introduction of necessary reforms restoring liberal democracy. At the same time, the CT continues to issue judgments that are questionable from a legal point of view. The possibility of questioning such a judgment in proceedings before common courts[111] leads to chaos and uncertainty regarding the stability of court decisions. 

The Polish case highlights the weakness of constitutional mechanisms for safeguarding liberal democracy. More broadly, it raises the question of whether the model of centralized constitutional review, as adopted across Europe, provides sufficient protection against unconstitutional and illiberal tendencies. A comprehensive answer would require more extensive research, taking into account the specific constitutional review mechanisms adopted in individual countries. Nevertheless, the Polish example already illustrates the need to consider certain modifications to the system of constitutional review – both in terms of the process for appointing constitutional judges, which should be made as politically neutral as possible, and in terms of potentially strengthening the powers of common courts to carry out constitutional review, moving closer to a decentralised model. Of course, no legal mechanism can offer absolute protection against authoritarian tendencies. The force of law will always struggle to prevail over force. Yet, the more safeguards are built into the system, the greater the chances of resisting authoritarian backsliding – by slowing down and halting its progress.

Protection against unequal treatment and unconstitutional limitation of minority rights – which in populist rhetoric are portrayed as threatening the rights of the majority – is only possible if judges are independent and impartial. As a consequence of the collapse of the CT, the enormous role and responsibility of common courts have become clearly visible. In their everyday work, they must examine whether a given CT ruling, on which they intend to base their judgment, was issued correctly or is defective. If so, such a ruling should be omitted, and the judgment issued without relying on it – or, in certain cases, the Constitution should be applied directly. 

When describing common courts as non-majoritarian in the conditions of the Polish constitutional crisis, the following factors must be taken into account. The diffused judicial review is a result of the lack of guarantees of a fair consideration of the case by the CT. Thus the formal justification for making an independent decision on the issue of constitutionality by courts is, as a rule, the flawed composition of CT related to the presence of the illegally appointed judges.[112] At the same time, however, such decisions have a strong ideological overtone and demonstrate a certain vision of the role of a judge as an active participant in the rule of law system – a vision that is fundamentally opposed to the intentions of populists. 

This is even more evident in the situation of refusal to apply a ruling which, contrary to the provisions of the Constitution which provides in Article 32 for everyone protection against discrimination on any grounds, significantly limited the scope of protection for minority rights, particularly in the context of access to services, as was the case with the elimination of Article 138 of the Code of PO discussed above. By refusing to apply such a judgement, common courts are re-establishing the Constitution’s policy commands that are particularly important in the context of protecting minorities. 

It is characteristic of equality litigation before Polish courts that the individuals most often act with the assistance of the Commissioner for Citizen’s Rights and NGOs, that is with the support of specialized bodies. These are, inter alia, the Polish Society of Anti-Discrimination Law and the Campaign Against Homophobia. In the conditions of the constitutional crisis we there was a visible increase in the activity of the organizations protecting human rights in Poland in comparison to earlier period.[113] This applies especially to those cases that are conducted in civil proceedings, that is on the basis of the Equality Act and Civil Code, because they are legally very complicated and, moreover, very expensive, and without the support of NGOs, individuals would not have a chance to get compensation. The participation of these entities means that expert bodies are included in the decision-making process in discrimination cases, which from the point of view of people affected by discrimination allows for achieving more satisfactory decisions. The interpretation provided by anti-discrimination law experts assumes a high standard of protection, referring to the case law of the ECHR, CJEU and the Polish Constitution, which protects against discrimination for any reason. 

When characterizing the non-majoritarianism of Polish courts, it is necessary to emphasize the close connection between the protection of minority rights as an important feature of a democratic state of law and its simultaneous opposition to intolerance typical of authoritarian rule. As noted in one of the judgments mentioned above: ‘Equality of people and non-discrimination on any grounds is the basis for the construction and functioning of a democratic state of law based on pluralism. A democratic state of law is based on ensuring and protecting the rights of political, social and cultural minorities, and tolerance and non-discrimination are the basis of a democratic society, while intolerance and discrimination are features of authoritarian rule’.[114]