That the 24.11.21 judgment of the Polish Constitutional Court (CC) represents a serious challenge to the ECtHR’s authority does not seem to be open to question. The CoE SG has recognised this herself by addressing, on 7.12.21, an Article-52-ECHR letter to Warsaw.  

(For those unfamiliar with the ‘Xero Flor’ saga, this is a case in which an ECtHR Chamber has found that the CC did not respect Article 6 ECHR when examining the applicant company’s ‘constitutional complaint’; not only had the CC failed to reply to Xero Flor’s arguments but it had also been unlawfully composed. The Polish authorities, instead of asking for a referral to the ECtHR’s Grand Chamber, lodged an ‘abstract-review’ application – K6/21 – with the CC; and the latter has effectively concluded that the way in which Article 6 ECHR has been interpreted in Xero Flor violates the Polish constitution.)

The CoE SG’s letter was meant to add to the pressure that Brussels applies on Warsaw to obtain the reversal of ‘judicial reforms’ found to be in breach of European law (and was followed by a formal notice issued by the EC on 22.12.21, which refers indirectly to Xero Flor). While it is hoped that such combined action will produce the intended effect, this blog post explores a related but distinct issue: What means has the ECtHR at its disposal for providing its own response to the Polish challenge? It argues that, although the case law under Articles 6 and 34 ECHR leaves little leeway, the same is not true of Article 46, as shown by Dolinska-Ficek and Ozimek.

Starting with Article 6, some positive case-law developments notwithstanding (e.g., Eminagaoglu and Bilgen), the ECtHR still interprets this provision’s conditions of applicability quite restrictively. Hence the – largely rhetorical – question: Could one credibly argue that the ‘abstract-review’ proceedings leading to the 24.11.21 judgment (different from a ‘constitutional complaint’) involve ‘the determination of … civil rights’?  And, even if they had, would Xero Flor, which was not a party to K6/21, have been able to claim to be a ‘victim’ under Article 34 ECHR? Although the ECtHR may have started regretting having to invest so much energy to escape the Article-6-applicability straitjacket it has created for itself, it would be surprising if it chose K6/21 to introduce what, in the Strasbourg microcosmos, might qualify as ‘seismic’ case-law changes.

The ECtHR has, of course, made significant progress towards abandoning another case-law straitjacket, its inability to examine Article 34 complaints concerning the ‘execution’ of its judgments. In several recent cases (e.g., Stoyanov and Tabakov (no. 2)), it has considered that actions taken by the national authorities to frustrate enforcement may result in additional ECHR violations that could form the subject matter of a fresh application (cf. Article 35(2)(b) ECHR). However, such applications usually arise out of developments in domestic proceedings involving the same ‘victims’. And, as already seen, this was not the case with K6/21 and Xero Flor.

It follows that the ECtHR, to respond to the Polish challenge, may have to look beyond Χero Flor and K6/21 to other applications concerning the problems in the CC’s composition. The examination of such cases will, most likely, result in an identical finding of violation; and then the ECtHR should provide Poland with ‘guidance’ under Article 46 ECHR on how to redress it, as it did in Dolinska-Ficek and Ozimek, which followed up on Reczkowicz (judgment now final; commented on here and here). Although the guidance in Dolinska-Ficek and Ozimek was admittedly rather general (“rapid remedial action”), it could become much more specific in the post-Xero Flor cases. This will facilitate enormously the CoE CM’s enforcement work and, if Poland does not comply, it could open the way to ‘infringement proceedings’ under Article 46(4) – recourse to which is justified in exceptional cases.

The combination of Astradsson with the above-mentioned Polish judgments has clearly shown that the ECtHR can act strategically. Assuming the role of a major player has worked to its advantage (as evidenced by M.S.S. and Delfi). There is no doubt that Xero Flor is a big achievement; and the ECtHR should capitalise –  as much as it can – on it, defending its position as the natural defender of the rule of law in Europe.