CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 7 mai 2021

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font-size:6.67pt; vertical-align:super; color:#0069d6 } .sB853CD25 { font-family:Arial; font-size:9pt } .sD6DE1560 { font-family:Arial; font-size:9pt; font-style:italic } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }     FIRST SECTION CASE OF XERO FLOR w POLSCE sp. z o.o. v. POLAND (Application no. 4907/18)     JUDGMENT   Art 6 § 1 (civil) • Tribunal established by law • Grave irregularities vitiating election of Constitutional Court judge sitting on the panel which examined the applicant company’s constitutional complaint • Art 6 § 1 applicable as constitutional complaint proceedings directly decisive for the asserted civil right • Application of three-step test formulated in Guðmundur Andri Ástráðsson Art 6 § 1 (civil) • Fair hearing • Insufficient reasons of courts for refusal to refer a legal question to the Constitutional Court   STRASBOURG 7 May 2021 FINAL   07/08/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Xero Flor w Polsce sp. z o.o. v. Poland, The European Court of Human Rights (First Section), sitting as a   Chamber composed of:   Ksenija Turković, President,   Krzysztof Wojtyczek,   Gilberto Felici,   Erik Wennerström,   Raffaele Sabato,   Lorraine Schembri Orland,   Ioannis Ktistakis, judges, and Renata Degener, Section Registrar, Having regard to: the application (no.   4907/18) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a limited liability company, Xero Flor w Polsce sp. z o.o. (“the applicant company”), on 3   January 2018; the decision to give notice to the Polish Government (“the Government”) of the complaints concerning the alleged insufficiency of reasons for a refusal to refer a legal question to the Constitutional Court, the Constitutional Court’s lack of attributes of a “tribunal established by law” on account of the allegedly invalid election of a judge to the Constitutional Court, and the limitations on the level of compensation, and to declare inadmissible the remainder of the application; the observations submitted by the respondent Government and the observations in reply submitted by the applicant company; the comments submitted by the Commissioner for Human Rights of the Republic of Poland and the Helsinki Foundation for Human Rights, both having been granted leave to intervene by the President of the Section; the decision to grant priority to the application under Rule 41 of the Rules of Court; Having deliberated in private on 30 March 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicant company alleged, in particular, that the ordinary courts had failed to duly provide reasons for their refusal to refer a legal question to the Constitutional Court ( Trybunał Konstytucyjny ) [1] . It also complained that one of the judges on the bench of the Constitutional Court which had examined its constitutional complaint had not been elected in accordance with the domestic law. The applicant company relied on Article 6 § 1 of the Convention. THE FACTS 2.     The applicant company is a limited liability company whose registered office is in Leszno Dolne. It was represented by Mr P. Piątek, a   lawyer practising in Zielona Góra. 3.     The Government were represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs. THE BACKGROUND TO THE CASE RELATING TO THE CONSTITUTIONAL COURT The Act on the Constitutional Court of 25 June 2015 4.     On 10 July 2013 the then President of the Republic submitted a bill on the Constitutional Court to the Sejm (the   lower   house of Parliament). 5.     On 25 June 2015 the Sejm adopted the Act on the Constitutional Court. Section 19(1) of the Act provided that the right to nominate a   candidate for judge of the Constitutional Court was vested in the Presidium of the Sejm and a group of at least fifty deputies. Section 19(2) of the Act provided that nominations for the office of judge of the Constitutional Court had to be submitted to the Speaker of the Sejm no later than three months before the expiry of the term of office of an outgoing judge. 6.     Section 137 of the Act, one of the transitional provisions, provided that with regard to judges of the Constitutional Court whose term of office was to expire in 2015, the time-limit for the submission of nominations referred to in section 19(2) of the Act was thirty days from the entry into force of the Act. The Act entered into force on 30   August 2015. 7.     Section 21(1) of the Act provided that a person elected to the office of judge of the Constitutional Court had to take the relevant oath before the President of the Republic. Election of the Constitutional Court’s judges on 8 October 2015 8.     On 8 October 2015, during its last session, the seventh-term Sejm adopted resolutions on the election of five judges of the Constitutional Court: three judges (R.H., A.J. and K.Ś.) to replace judges whose term of office was to come to an end on 6 November 2015, and two judges to replace those whose term of office was due to expire on 2 and 8   December 2015 respectively. 9.     The President of the Republic, elected on 24   May 2015, did not receive the oath from any of the judges elected by the seventh-term Sejm on 8   October 2015. 10.     On 23 October 2015 a group of Sejm deputies from the Law and Justice ( Prawo i Sprawiedliwość ) Party, then in opposition, filed an application with the Constitutional Court challenging, inter alia , the constitutionality of section 137 of the Act on the Constitutional Court, arguing that it established a procedure violating the right of the incoming eighth-term Sejm to elect a judge of the Constitutional Court. That application was withdrawn on 10 November 2015 and, consequently, the Constitutional Court discontinued the proceedings. 11.     On 17 November 2015 a group of deputies from the Civic Platform ( Platforma Obywatelska ) Party filed with the Constitutional Court the same application that had been withdrawn on 10 November 2015 (case   no.   K   34/15). 12.     The new eighth-term Sejm was elected on 25   October 2015. It held its first session on 12 November 2015, which meant that, in accordance with the Constitution, the term of the previous Sejm had come to an end on the previous day. The Act of 19 November 2015 Amending the Act on the Constitutional Court 13.     On 13 November 2015 a group of deputies from the new majority formed primarily by the Law and Justice Party submitted a bill amending the Act on the Constitutional Court. 14.     On   19   November 2015, in an accelerated procedure, the Sejm adopted the Act Amending the Act on the Constitutional Court of 25 June 2015 (“the Amending Act of 19 November 2015”). On 20 November 2015 the Senate (the upper house of Parliament) adopted the Act, and the President of the Republic signed it on the same day. The Act entered into force on 5 December 2015. 15.     The Amending Act of 19 November 2015 modified section 21(1) of the Act on the Constitutional Court by providing that a person elected to the office of judge of the Constitutional Court had to take the oath before the President of the Republic “within thirty days of the date of [his or her] election”. It also introduced a new subsection 1a into section 21 which provided that “The taking of the oath shall commence the term of office of a   judge of the Constitutional Court.” 16.     The Amending Act of 19 November 2015 further repealed section   137 of the Act on the Constitutional Court and replaced it with a new section 137a. This provision fixed a new time-limit of seven days from the entry into force of the Amending Act of 19   November 2015 for the submission of nominations in respect of posts at the Constitutional Court that became vacant in 2015. 17.     On 23 November 2015 a group of deputies from the opposition lodged an application with the Constitutional Court challenging several provisions of the Amending Act of 19 November 2015 (case no. K 35/15). On the same day the Commissioner for Human Rights ( Rzecznik   Praw   Obywatelskich ) filed a similar application. Two further applications were lodged by the National Council of the Judiciary ( Krajowa   Rada Sądownictwa ) and the First President of the Supreme Court on 24 and 30 November 2015 respectively. Election of the Constitutional Court’s judges on 2 December 2015 18.     On 25 November 2015, during its second session, the eighth-term Sejm adopted five respective resolutions on “the   lack of legal effect” ( w   sprawie stwierdzenia braku mocy prawnej ) of the resolutions on the election of five judges of the Constitutional Court adopted by the previous Sejm on 8 October 2015. It also requested that the President of the Republic refrain from receiving the oath from those judges. The impugned resolutions did not cite any legal basis for their adoption. 19.     On 1 December 2015 a group of deputies from the majority submitted a list of five candidates for judges of the Constitutional Court. On 2   December 2015 the eighth-term Sejm adopted resolutions on the election of H.C., L.M., M.M., P.P. and J.P. as judges of the Constitutional Court. The resolutions on the appointment of those judges were published in the Official Gazette of the Republic of Poland on 2   December 2015. 20.     The President of the Republic received the oath from four of the judges on the night of 2-3 December, and from the fifth judge (J.P.) on 9   December 2015. 21.     On the morning of 3 December 2015 the four judges sworn in by the President of the Republic appeared at the Constitutional Court. The   President of the Constitutional Court, A.   Rzepliński, refused to admit them to the bench until it was clarified whether their election had been valid. 22.     On 4 December 2015 a group of Sejm deputies filed an application with the Constitutional Court alleging that the resolutions of the Sejm of 25   November 2015 and the resolutions on the election of five judges adopted on 2 December 2015 were unconstitutional (case no. U 8/15). Judgment of the Constitutional Court of 3 December 2015 in case no. K   34/15 23.     In its judgment of 3 December 2015 (case no. K   34/15), the Constitutional Court ruled on the application challenging the constitutionality of several provisions of the Act on the Constitutional Court of 25 June 2015. It held, inter alia , that section 137 of that Act was compatible with Article 194 § 1 of the Constitution in so far as it concerned the posts of Constitutional Court judges whose term of office had expired on 6 November 2015, and was incompatible with the same provision of the Constitution as regards the posts of judges whose term of office had expired or would expire on 2 and 8 December 2015 respectively. 24.     The Constitutional Court also held that the President’s competence to receive the oath had to be interpreted as the obligation to immediately receive the oath from a judge elected to the Constitutional Court by the Sejm , and that if section 21(1) of the Act were to be interpreted in any other way then it would be incompatible with Article 194 § 1 of the Constitution. 25.     With regard to section 137, the Constitutional Court firstly determined that this provision could be subjected to constitutional review in so far as it concerned procedures regarding the election of a judge of the Constitutional Court which had been initiated in 2015 and had not yet been terminated by the taking of the oath before the President of the Republic on the day of the adjudication by the Constitutional Court. In this context, the Constitutional Court examined the relevance of the Sejm ’s resolutions of 25   November 2015 on the lack of legal effect of the Sejm ’s resolutions of 8   October 2015 on the election of judges of the Constitutional Court by the seventh-term Sejm . The Constitutional Court found that from a legal point of view, the resolutions of 25 November 2015 contained firstly a   presentation of the Sejm ’s political stance, and secondly a legally non ‑ binding call to the President of the Republic to undertake a particular action. The impugned resolutions, by definition, had not had any legal effect on the resolutions of the seventh-term Sejm on the election of judges of the Constitutional Court. The Constitutional Court further noted that in accordance with Article 194 § 1 of the Constitution, a judge of the Constitutional Court acquired such status at the moment when the election procedure by the Sejm was completed. A   resolution of the Sejm in that regard was final and could not be challenged. The same Sejm or a   subsequent Sejm could not revoke such a   decision on an election, invalidate it, determine that it was devoid of purpose (“[lacked] legal effect”) or “rectify” it ex post facto . The   Constitutional Court also observed that the Act on the Constitutional Court did not provide for any procedural mechanism to invalidate or resume a procedure on the election of a judge of the Constitutional Court in respect of whom the Sejm had already adopted a   resolution on his or her election to office. 26.     In reviewing the constitutionality of section 137, the Constitutional Court noted that the term of office of three judges of the Constitutional Court had been due to expire on 6 November 2015, and those of two other judges had expired or would expire on 2 and 8 December 2015 respectively.       Accordingly, the end of the three judges’ term of office had been during the seventh term of the Sejm , and the remaining two judges’ term of office had come to an end during the eighth term of the Sejm . In this regard, the Constitutional Court found, in so far as relevant: “6.15. Pursuant to Article 194 § 1 of the Constitution, ‘The Constitutional Court shall be composed of fifteen judges elected individually by the Sejm for a term of office of nine years from amongst persons distinguished by their knowledge of the law. No person may be elected for more than one term of office.’ In the case of a vacant seat at the Constitutional Court, it is a constitutional obligation of the Sejm , in accordance with the established procedures, to fill the vacancy forthwith ... Article 194 § 1 of the Constitution prescribes that the term of office of a   Constitutional Court judge is a fixed period of nine years. The introduction of a   relatively long term of office [for Constitutional Court judges] confirms that, in the Polish constitutional system, there has been a breaking of any bonds between the Constitutional Court and a political composition of the Sejm during a given parliamentary term. The constitutional norms implicitly provide that the Constitutional Court’s composition may include judges elected by the Sejm during its two (and sometimes even three) consecutive parliamentary terms, which ensures sui   generis pluralism in the Constitutional Court’s composition, and facilitates the preservation of impartiality and independence in relation to changing parliamentary majorities. ... 6.17. The Constitutional Court holds that it follows from Article 194 § 1 of the Constitution that the [ Sejm ’s] obligation to elect a judge of the Constitutional Court applies to the Sejm whose term of office covers the period during which the seat of a   judge of the Constitutional Court becomes vacant. The wording [of Article 194 §   1 that] “the Constitutional Court shall be composed of fifteen judges elected individually by the Sejm ” indicates that not just any Sejm is concerned, but the one whose temporal scope of activity corresponds to the day on which the term of office of a judge of the Constitutional Court expires or is terminated. Obviously, it is possible that the Sejm will be unable to fill a judicial post at the Constitutional Court owing to various factual circumstances, such as the lack of support for a candidate, or short time-limits to carry out the election procedure owing to forthcoming parliamentary elections. In such a case, the obligation to elect a judge of the Constitutional Court passes naturally to the subsequent Sejm . ... The Constitutional Court agrees with the applicant’s allegations that section 137 of the Act on the Constitutional Court is incompatible with Article 194 § 1 of the Constitution in so far as it applies to the election of judges to replace the judges whose term of office expired [or will expire on] on 2 and 8 December 2015 (that is, the judges whose term of office expired after the start of the eighth-term Sejm ). These   judges were elected by an unauthorised body. A judge of the Constitutional Court cannot be elected ... in advance ... in respect of a judicial post which will become vacant only in the course of the term of office of the subsequent Sejm . Applying the principle of reductio ad absurdum , the mechanism provided for in section 137 of the Act on the Constitutional Court could have been used not only in respect of judges whose term of office expired in 2015, but also [those whose] posts would become vacant in the years to come. This would be a dangerous precedent.” 27.     With regard to the alleged unconstitutionality of section 21(1) of the Act, the Constitutional Court firstly made some observations on Article 194 §   1 of the Constitution. The Constitutional Court found, in so far as relevant: “8.4. The principle expressed in Article 194 § 1 of the Constitution, that the Sejm elects judges of the Constitutional Court, grants this house of Parliament exclusive competence to determine the personal composition of the Constitutional Court. ... 8.5. The contested section 21(1) of the Act on the Constitutional Court expresses a   norm relating to competence which imposes on the President an obligation to immediately receive the oath from a judge of the Constitutional Court. Adopting a different view, namely that the head of State enjoys a discretion in deciding whether or not to receive the oath from a judge elected by the Sejm , would entail the creation of a statutory norm which would make the President, in addition to the Sejm , an authority vested with the right to decide on the personal composition of the Constitutional Court. Such an interpretation of section 21(1) of the Act has no legal basis in Article 194 § 1 or any other provision of the Constitution. ... The receiving of the oath from judges of the Constitutional Court cannot be regarded as falling within the possible discretion of the head of State. The President [of the Republic] has an obligation to receive the oath from judges elected by the Sejm , on the basis of Article 194 § 1. In this regard, [the President] has no possibility to make an independent and free – based solely on his discretion – assessment of the legal bases of the election, or the correctness of the procedure that was followed by the Sejm in a given case. The President [of the Republic], as an organ of the executive, has ... no competence to determine the conformity of legal norms to the Constitution in a manner that is final and binding on other State authorities. Nor does he have the competence to assess the legality of acts by the Sejm carried out on the basis of the law. ... 8.5.1. The President [of the Republic] has an obligation to receive the oath from a   judge of the Constitutional Court elected by the Sejm . However, the President [of   the   Republic]’s competence as provided for in section 21(1) of the Act on the Constitutional Court does not consist in his participation in determining the personal composition of the Constitutional Court. This task is conferred exclusively on the Sejm on the basis of Article 194 § 1 of the Constitution. The President [of   the   Republic], by his actions, is to create conditions so that a judge elected by the Sejm can immediately commence the performance of the official duties which have been entrusted [to him or her]. Thus, in essence, the President [of the Republic]’s role is secondary and at the same time subordinate to the effect of the Sejm exercising its competence to elect judges of the Constitutional Court. The President [of   the   Republic] is not an organ that elects judges of the Constitutional Court, and he is obliged to exercise his competence to receive the oath from judges of the Constitutional Court, in accordance with the rules specified in, inter alia , the   Constitution (Article 126 § 3 of the Constitution). ... 8.5.2. As has already been emphasised, it is the President [of the Republic]’s obligation to receive the oath from a newly elected judge of the Constitutional Court. The lack of a time-limit in the provision on fulfilling the obligation to receive the oath should be construed in such a way that the obligation must be fulfilled without delay, so as to enable the Constitutional Court to act in the composition of fifteen judges. ... ... [E]xtraordinary circumstances may lead ... to the extension of a period falling within the scope of “time necessary” for the fulfilment of the obligation. However, this may not constitute a basis for creating the competence to refuse to take the oath. The Constitutional Court excludes the possibility of such an interpretation of section 21(1) of the Act, which would give the President a basis to refuse to receive the oath from a Constitutional Court judge elected by the Sejm .” 28.     The judgment included a final part which reads, in so far as relevant: “12. The consequences of the judgment. The Constitutional Court has ruled that section 137 of the Act on the Constitutional Court is unconstitutional in part. However, irrespective of the Constitutional Court’s ruling, the transitional character of this provision renders it inapplicable in any event as a basis for proposing candidates for judge[s] of the Constitutional Court in the future (after the entry into force of this judgment). ... However, the consequence of the finding that section 137 of the Act is unconstitutional in part produces significant legal effects of a systemic nature ... triggered by the Constitutional Court’s judgment. In the case of the two judges of the Constitutional Court elected [on 8 October 2015] to take the seats of judges whose term of office expired on or will expire on 2 and 8 December 2015 respectively, the legal basis for a significant step in the procedure for their election has been disqualified by the Constitutional Court as unconstitutional. Since the judicial posts have not yet been assumed, as the last legally significant act was not concluded (that   is, the judges taking the oath before the President), the repeal of the respective part of section 137 of the Act on the Constitutional Court leads to the result that the further procedure should be discontinued and closed ... This procedure cannot be completed, since the legal basis of one of the steps [in that procedure] has been declared unconstitutional by the Constitutional Court. Since, in accordance with Article 190 § 1 of the Constitution, a ruling of the Constitutional Court is universally binding and final, the entry into force of the present ruling means that no State authority has a legal basis to challenge – as unconstitutional – those provisions regulating a part of the procedure for the election of a judge of the Constitutional Court which the Constitutional Court has found to be compatible with the Constitution in this judgment. However, the legal basis of the election of three judges of the [Constitutional] Court to the seats of those judges whose term of office expired on 6 November 2015 does not raise constitutional doubts. A repeal in part of section 137 of the Act on the Constitutional Court did not affect the validity of their election. In accordance with the rule that a judge of the Constitutional Court is elected by the Sejm whose term of office covers the period during which his seat becomes vacant, the election carried out on that basis in this case was valid, and there are no obstacles to the procedure being finalised by the persons elected to the office of judge of the Constitutional Court taking the oath before the President. Due to the entry into force of this judgment, the Sejm has an obligation to elect two judges of the Constitutional Court [to replace judges] whose term of office expired or will expire on 2 and 8 December 2015 respectively.” 29.     The Government submitted that the Chancellery of the President of the Republic took the position that it was not possible to receive the oath from the judges elected by the seventh-term Sejm , since the President had already sworn in five judges elected by the eighth-term Sejm . Judgment of the Constitutional Court of 9 December 2015 in case no. K   35/15 30.     In its judgment of 9 December 2015 (case   no.   K   35/15), the Constitutional Court ruled on several applications challenging the constitutionality of the Amending Act of 19 November 2015. The   Constitutional Court held, inter alia , that section 137a of the Act on the Constitutional Court was incompatible with Article 194 § 1 taken in conjunction with Article 7 of the Constitution, in so far as it concerned proposing a candidate for judge of the Constitutional Court to replace a   judge whose term of office had expired on 6 November 2015. 31.     The Constitutional Court further found that the time-limit of thirty days which had been added to section 21(1) of the Act was incompatible with Article 194 § 1 of the Constitution. It also held that the new subsection 1a in section 21 of the Act providing that the taking of the oath by a judge of the Constitutional Court marked the beginning of his or her term of office was incompatible with Article 194 § 1 taken in conjunction with Article   10, Article 45 § 1, Article 173 and Article 180 §§ 1 and 2 of the Constitution. 32.     With regard to the alleged unconstitutionality of section 137a, the Constitutional Court referred to its earlier judgment of 3   December 2015, in which it had confirmed the presumption that section 137 of the Act on the Constitutional Court was constitutional in so far as it concerned the judges of the Constitutional Court whose term of office had expired on 6   November 2015 (see paragraph 23 above). That finding that section   137 was constitutional had been binding on all State authorities from the moment when the judgment of 3 December 2015 had been delivered. Since, in the later judgment, the Constitutional Court confirmed the constitutionality of section 137 of the Act on the Constitutional Court as the legal basis for the election of three judges to replace those judges whose term of office had expired on 6 November 2015 and who had been elected by the seventh-term Sejm , the eighth-term Sejm ’s election of judges to the same seats, on the basis of a different provision (section 137a of the Act), would have resulted in the number of Constitutional Court judges being increased to eighteen. In consequence, the Constitutional Court held that section 137a of Act on the Constitutional Court was incompatible with Article 194 § 1 taken in conjunction with Article 7 of the Constitution, in so far as it concerned proposing candidates for judges of the Constitutional Court to replace those judges whose term of office had expired on 6   November 2015. 33.     As regards the alleged unconstitutionality of the thirty-day time-limit on receiving the oath from a person elected as a judge of the Constitutional Court (section 21(1) of the Act on the Constitutional Court as amended), the Constitutional Court again referred to the findings made in its earlier judgment of 3 December 2015 in respect of the initial version of section   21(1) (see paragraph 24 above). It found that the introduction of the time-limit was incompatible with the judgment of 3 December 2015, in which it had held that section 21(1) of the Act on the Constitutional Court had to be interpreted as meaning that the President had an obligation to immediately receive the oath from a judge elected to the Constitutional Court by the Sejm . Any other interpretation would be contrary to Article   194 § 1 of the Constitution. 34.     In this context, the Constitutional Court noted that it followed from the principles of legality and the rule of law that if legal norms did not expressly provide for a State organ to have a particular competence, for example, the power to make decisions about the election of judges of the Constitutional Court by refusing to receive the oath from them, then such competence could not be presumed. In conclusion, the Constitutional Court confirmed the finding made in its judgment of 3   December 2015 that section 21(1) as amended was incompatible with Article 194 § 1 of the Constitution. It found that the legislature, when specifying the procedure for the election of a judge of the Constitutional Court, remained bound by the constitutional principles, including Article 194 § 1 of the Constitution, which provided that the Sejm had competence to elect judges of the Constitutional Court. The legislature could not confer such competence on another State organ, or introduce provisions that would allow the competence to determine the composition of the Constitutional Court to be transferred from the Sejm to another State authority. 35.     The Constitutional Court agreed with the applicants’ allegation that section 21(1a) of the Act on the Constitutional Court was unconstitutional. It noted that in accordance with the well-established practice of State organs, the term of office of a judge of the Constitutional Court commenced on the day of his election by the Sejm , unless the seat to which he was elected remained occupied, in which case the term of office commenced when the seat became vacant as a result of the expiry of the term of office of the judge occupying that seat. The Constitutional Court found that the new solution, which consisted in making the commencement of the term of office of a judge of the Constitutional Court elected by the legislative authority (the Sejm ) dependent on the taking of the oath before the President of the Republic, would result in a delay in counting the beginning of the term of office. In addition, it would also amount to indirectly including the President in the procedure of electing a judge of the Constitutional Court, even though the Constitution provided solely for the involvement of the Sejm in that procedure. The Act of 22 December 2015 Amending the Act on the Constitutional Court 36.     On 15 December 2015 a group of deputies from the majority submitted a bill amending the Act on the Constitutional Court. On 22   December 2015 the Sejm , in an accelerated procedure, adopted the Act Amending the Act on the Constitutional Court (“the Amending Act of 22   December 2015”). The Senate adopted the Act on 24 December 2015. The President of the Republic signed the Act on 28 December 2015. It   entered into force on the same date. The amendments concerned, inter   alia , the procedure before the Constitutional Court, which was considerably changed. 37.     The Amending Act of 22 December 2015 provided, inter alia , that the Constitutional Court should, in general, hear cases as a full bench in a   composition of at least thirteen out of fifteen judges, apart from constitutional complaints and requests for a preliminary ruling, which could be heard by benches of seven judges. Decisions in cases heard by a full bench required a two-thirds majority, instead of a simple majority, as had previously been the case. The Constitutional Court was also required to hear applications in the sequence in which they were lodged. 38.     The Amending Act of 22 December 2015 was challenged before the Constitutional Court by two groups of deputies of the Sejm , the First President of the Supreme Court, the Commissioner for Human Rights and the National Council of the Judiciary (case no. K 47/15). Decision of the Constitutional Court of 7 January 2016 in case no.   U 8/15 39.     In a decision of 7 January 2016, sitting as a full bench composed of ten judges, the Constitutional Court discontinued the proceedings in case no. U 8/15. It found that it had no jurisdiction to examine the case on the merits, since the Sejm ’s resolutions of 25   November 2015 on the invalidity of the resolutions of 8 October 2015 could not be regarded as normative acts in either a formal or substantive sense. It reached the same conclusion in respect of the resolutions of 2   December 2015 on the election of five judges. 40.     As regards the classification of the resolutions of 25 November 2015, the Constitutional Court fully maintained the position which it had adopted in its judgment of 3 December 2015 (see   paragraph 25 above) – i.e. that the impugned resolutions had not affected the validity of the earlier resolutions of 8 October 2015 on the election of five judges, and they had to be regarded as legally non-binding. The Constitutional Court noted that there were no legal rules providing for any State organ, including the Sejm , being able to determine that a resolution of a previous Sejm on the election of a judge of the Constitutional Court was invalid. Accordingly, the   resolutions of 25 November 2015 could not be classified as a legally binding determination that the election of judges on 8   October 2015 had been invalid. 41.     Having regard to the significance of the issues raised in the application and the fact that it could not examine the case on the merits, the Constitutional Court considered it necessary to make some observations on the election of judges of the Constitutional Court which had been held on 8   October 2015. It analysed the documents relating to that election, but did not establish that the relevant legal rules had been breached in the course of the election. The Constitutional Court found that it was even more likely that there were no grounds to establish the existence of an obvious, undisputable and manifest defect in the impugned act (the election) that would enable it to consider the act invalid. In particular, certain erroneous arguments, such as the argument that the candidates had been proposed by allegedly unauthorised entities, could not lead to the determination that the election had been invalid. The Constitutional Court noted that it was of particular significance that the explanatory notes to the draft resolutions did not indicate any specific defects in the election held on 8 October 2015, but merely mentioned some unspecified irregularities in the procedure. 42.     Following the decision in case no. U 8/15, on 12 January 2016 the President of the Constitutional Court admitted to the bench the two judges who had been elected on 2 December 2015 (P.P.   and   J.P.), who replaced the judges whose term of office had expired on 2 and 8 December 2015 respectively. Judgment of the Constitutional Court of 9 March 2016 in case no.   K 47/15 43.     In this case, the Constitutional Court examined the constitutionality of the Amending Act of 22 December 2015. It decided to consider the case on the basis of the directly applicable provisions of the Constitution and the Act on the Constitutional Court as amended by the Amending Act of 22   December 2015, excluding certain provisions of the latter Act. The   Constitutional Court excluded those challenged provisions which concerned the procedure before it and could potentially have been applied in the case. It found that the same provisions could not simultaneously be the basis of and the subject of the adjudication. 44.     In its judgment of 9 March 2016 (case no. K   47/15), sitting as a full bench composed of twelve judges, the Constitutional Court held that the entire Amending Act of 22 December 2015 was unconstitutional owing to the defective way in which it had been enacted. In addition, it declared several provisions of the Amending Act of 22 December 2015 unconstitutional. With regard to the new procedural provisions, the Constitutional Court held that they were in breach of several provisions of the Constitution, in that they rendered the efficient operation of the Constitutional Court impossible and interfered with its independence from the other branches of the Government. It noted that taken together, the impugned provisions made up a mechanism paralysing the activity of the Constitutional Court. 45.     The Constitutional Court decided not to apply, inter alia , section   44(3) of the Act on the Constitutional Court as amended. This provision required the Constitutional Court to examine the case as a full bench composed of at least thirteen judges. In this regard, the Constitutional Court made the following observations: “1.10 When determining the proper composition of the bench in the present case, the Constitutional Court took account of the following circumstances. Firstly, in the factual and legal conditions that prevail on the day of the delivery of the present judgment, the full bench of the Constitutional Court comprises twelve judges. In its judgment of 3 December 2015 (no. K 34/15), the Constitutional Court held that the two judges of the Constitutional Court elected on 8 October 2015 by the seventh-term Sejm to replace the judges whose term of office had expired [or would expire] on 2 and 8 December 2015 respectively had not been duly elected. However, the three judges of the Constitutional Court who were to take the seats which had been vacated on 6 November 2015 were elected by the Sejm on the same day [8 October 2015] on a legal basis which complied with the Constitution, but they have not yet taken the oath of office before the President of the Republic. The above-mentioned judgment, which is known to the [Constitutional] Court ex officio , is final and universally binding (Article 190 § 1 of the Constitution) on the Constitutional Court as well. Secondly, in the light of Article 194 § 1 of the Constitution, there is no doubt that a   full bench of the Constitutional Court may be composed of a maximum of fifteen judges. At the same time, those are all judges who have the constitutional legitimacy to give rulings. Thus, if the Constitutional Court gives a ruling in a situation where a   few judges are unable to adjudicate because a required act by another State organ has not been carried out (see the above-mentioned judgment no. K 34/15), and at the same time all judges who are authorised to adjudicate take part in the issuing of the relevant ruling, then the composition so determined is indeed a ‘full bench’. Having regard to the above, the Constitutional Court finds that a full bench of the [Constitutional] Court is a composition comprising all judges of the court who may adjudicate in a given case (with the possible exclusion of some judges from the bench if, in accordance with the applicable law, there are reasons justifying this). In other words, a full bench is a full composition of the Constitutional Court within the meaning of the Constitution [which is] capable of adjudicating in a case (see   Article   194 § 1 of the Constitution). Therefore, the Constitutional Court has to reject the result of the interpretation of section 44(3) of the Act on the Constitutional Court, on the basis of the assumption that the legislature, being aware of the operative part of the judgment in case no.   K   34/15 ..., adopted provisions whose implementation would result in an action contrary to [the Constitutional Court’s] own judgment, which had universally binding force, or adopted a provision which could in no way be applied. ...” 46.   &#xa0