Legal defects of the motion to bring the NBP President before the State Tribunal

Each of the MPs who signed the initial motion to bring the President of the National Bank of Poland, Prof. Adam Glapiński, to face constitutional accountability should IMMEDIATELY sign up for a second-year course in constitutional law or simply read the Constitution and the 1982 Act on the State Tribunal with comprehension.

The President of the NBP is one of the organs of the central bank alongside the Executive Board and the Monetary Policy Council. He is a part of these COLLEGIAL bodies, where decisions are taken JOINTLY! On the other hand the constitutional tort and the accountability for it has an INDIVIDUAL and CULPABLE nature. Constitutional accountability “cannot be incurred jointly and severally, as it is (…) aimed at identifying the person guilty of a specific act and punishing him.” (S. Grabowska, Models of constitutional responsibility of the president in modern European states, Toruń 2012, p. 23). “In particular, there is no COLLECTIVE accountability (e.g., of members of a collegial body).” – K. Grajewski (ed.), The Tribunal of State Act. Commentary, Warsaw 2020.

According to the views presented in the doctrine, it is indeed possible to hold a member of a collegial body constitutionally responsible, but for INDIVIDUAL decisions and not those taken COLLEGIALLY. An example is given of the President and the Prime Minister countersigning an act pursuant to Article 144(2) of the Constitution (cf. W. Odrowąż-Sypniewski, Constitutional Responsibility of Members of Collegial Bodies, “Przegląd Sejmowy” 6/2006, p. 110).

There are only 2 cases in Polish law where it is possible to hold an entire body constitutionally accountable for its ACTIONS or OMISSIONS. This applies only to members of the Council of Ministers and the National Broadcasting Council. (W. Odrowąż-Sypniewski, Odpowiedzialność konstytucyjna członków organów kolegialnych (Constitutional accountability of members of collegial bodies) [in:] M. Królikowski, W. Odrowąż-Sypniewski, Postępowanie przed Komisją Odpowiedzialności Konstytucyjnej. Zagadnienia systemowe (Proceedings before the Commission of Constitutional Accountability. Systemic questions), Warsaw 2007, p. 45).

However, it is still necessary in this case to attribute responsibility individually to each member and to demonstrate their fault. The authors of the motion must have been well aware of this, because at the beginning of the memorandum containing rationale they write: “The present proposal is limited to bringing charges against Adam Glapiński alone, even though some of the acts alleged against him were committed jointly and in cooperation with some members of the Management Board and some members of the Monetary Policy Council (…). However, the law does not provide for the possibility of holding accountable members of the Management Board or the Monetary Policy Council other than the President of the NBP .”

Even if it is the political will of the Civic Coalition to take over the control of the National Bank of Poland, they should have carefully read the Constitution before deciding to include the promise to hold Adam Glapiński accountable in the “100 specifics”. In the meantime, this will result in an unbelievable embarrassment, setting at the same time a very dangerous precedent that affects the financial stability of the Polish state.

It is very likely that the European Central Bank reacts to this situation. The Bank’s President Christine Lagarde indicated in a letter to Adam Glapiński, that: “Any action affecting your ability to perform your duties as President of the NBP may, if not lawful, affect the independence of you and the General Council of the European System of Central Banks.”.

In addition, the action against the President of the NBP is an action in breach of European law. The Court of Justice of the European Union ruled on this issue following a complaint by the suspended Governor of the Central Bank of Latvia who was suspected of corruption. The CJEU stated that European law guarantees the governors of central banks of EU member states special protection of their independence in view of the high impact on the financial integrity of the union. In its judgment of 26.02.2019 in Case C-202/18, the CJEU annulled the contested decision in so far as it prohibited I. Rimšēvičs from performing his duties as Governor of the Central Bank of Latvia. (