Insight Poland

Explainer: Is Poland undermining the supremacy of EU law?

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Warsaw, Poland – On October 7, the Polish Constitutional Tribunal declared in its ruling the unconstitutionality of several articles of the Treaty of the European Union (TEU), openly rejecting the primacy of EU law over the national Constitution and opening another front in the years-long judicial battle opposing Warsaw to Brussels.

EU vs. domestic law: What are we talking about?

Since 2015, the PiS-led government has been repeatedly accused of undermining the independence of the judiciary and politicizing the courts by filling them with loyalists. Among other reforms, the establishment of a government-friendly Disciplinary Chamber of the Supreme Court and the process for the appointment of judges to that same court have been at the heart of bitter battles between Warsaw and Brussels.

The government, for its part, has always claimed the reforms were needed to modernize its courts and rid its judicial systems of the remnants of the communist era.

Many of these changes amount to a significant breach of some of the most fundamental provisions of EU law, most notably articles 1, 2 and 19 of the TEU – the same ones declared unconstitutional by the Polish Constitutional Tribunal last month. Following the ruling and the backlash it caused across EU capitals, the Polish government tried to defuse the controversy, with officials dismissing talks of a “legal Polexit” and insisting the court’s decision only applies to areas of shared competence.

The primacy of EU law over conflicting national legislation has been extensively developed in the case-law of the EU’s top court and constitutes a pillar of the bloc’s legal order.

The provision, which ensures that European law and the bloc’s founding principles are equally, fairly and unanimously applied in all member states, however never appeared in EU treaties as such, with the only attempt of the ill-fated Treaty Establishing a Constitution for Europe in 2004 eventually rejected. Its successor, the Lisbon Treaty, did not include such a clause, which was developed over the years by the ECJ through landmark rulings such as Costa v. Enel (1964) and Simmenthal (1977).

Contesting the supremacy of EU law, as the Polish Constitutional Tribunal did, evidently opens a breach in the legal order, reestablishing the primacy of national constitutions and – in countries where top constitutional institutions are feared to be under the boot of political forces – giving free rein to governments to (mis)interpret EU provisions as they see fit. The threat, both for Polish democracy and the EU, is real.

Why the Polish case matters

Over the past few years, the EU Commission and European Court of Justice have worked to protect the supremacy of EU law against numerous threats. In that regard, it is important to remember that Poland is not an isolated case, although surely it is the most concerning if we take into account the wider context and the Polish government’s repeated attacks against the independence of the judicial system and, more broadly, against the rule of law.

We may recall the case of Germany’s Constitutional Court in May 2020, in which the country’s top court questioned the legality of the European Central Bank’s extraordinary measures to tackle the financial crisis (namely, the controversial quantitative easing policy) despite the program having been declared legal under EU law by the ECJ. By doing so, the Karlsruhe-based court also undermined the primacy of EU law when in conflict with national constitutional provisions, a case which was also readily described as “a legal missile [fired] into the heart of the EU”.

But while “the German judges impugned the legality of a specific ECB program on rather narrow, technical grounds, Poland’s court has declared whole provisions of the EU treaties to be incompatible with the constitution and, therefore, invalid,” explain Stefan Auer and Nicole Scicluna in Politico.

The scope and significance of the two rulings cannot truly compare, which also explains why EU institutions reacted the way they did. The EU Commission moved to withhold €57 billion of recovery funds to Poland – a decision described as “blackmail” in Warsaw, and which led to Prime Minister Mateusz Morawiecki’s violent (and quite bizarre) threats of a “Third World War”.

On October 27, the European Court of Justice additionally ordered Poland to pay a daily fine of €1 million, a sum which could, should Poland refuse to pay, be deducted from the funds Warsaw is set to receive as part of the EU’s recovery package.

As Stefan Auer and Nicole Scicluna remind in Politico, “challenging the supremacy of EU courts is part of a long legal tradition that has only gained strength in recent years.” The Polish case is only the culmination – albeit highly worrying – of decades of judicial feud between EU and national courts. Pretending the primacy of EU law was set in stone right from the start would be misleading, while getting into a fit about an improbable Polexit is missing the point.

“The EU is an evolving, experimental polity that is neither a full-fledged federation, nor merely a community of sovereign nation states,” they aptly summarize. “Its shape and future are being decided by the member nations that constitute it, and that includes Poland, however problematic its positions may seem.”

By Francesco Miano

Francesco is a junior data analyst at Accenture in Warsaw and has recently graduated from the College of Europe, obtaining an advanced MA degree in European Interdisciplinary Studies. He also holds a double master’s degree in European Studies and Political Science from Jagiellonian University and Kobe University. He cultivates an interest in policy analysis and journalism, contributing to themes of migratory issues in Central and Eastern Europe, labour economics in the EU, and EU-Japan relations.