Poland – On Wednesday, June 9, at the same time as it initiated proceedings against Germany to assert the primacy of European law, the European Commission sent a letter to the Polish government asking it to withdraw its referral to its Constitutional Tribunal in reaction to a March 2 ruling issued by the European Court of Justice concerning one of Poland’s judicial reforms. Here, too, it is a matter of affirming the primacy of European law and the decisions of the ECJ over the legislation and constitutions of the Member States.
Last March 2, the ECJ claimed it was giving the Polish High Administrative Court (NSA) the right not to recognize judicial appointments made after a reform of the Polish law on the National Judicial Council (KRS). Under Polish law, however, only the Constitutional Tribunal can invalidate this reform.
At the same time, the Polish Constitutional Tribunal was due to rule on June 15 on the conformity with the Polish Constitution and the European treaties of the precautionary measures adopted by the ECJ with regard to the Disciplinary Chamber of the Polish Supreme Court, by virtue of which the ECJ ordered that Polish judicial supervision body to suspend its work. It was the Supreme Court itself that referred the matter to the Constitutional Tribunal last year after the ECJ decision.
Polish constitutional judges therefore have to rule whether the ECJ judges can regulate the organization and functioning of the Polish judiciary without Poland ever having transferred such a competence to the EU by virtue of an international treaty.
Indeed, for Warsaw, the mere mention, in Article 19 of the EU Treaty, of the fact that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law” does not mean, as the European Commission and the ECJ would have it, that the signatory countries have authorized the EU to regulate their national justice systems. This is all the more true since Article 4 tells us that “any competences not conferred upon the Union in the Treaties remain with the Member States.”
In its judgment of May 18, 2021, concerning Romania, the ECJ once again claimed to have the power, by virtue of the principle of primacy of European law, to authorize individual judges to disobey national law if they consider it contrary to EU law. Here too, the issue is a reform of the justice system contested by certain Romanian judges who have turned to the ECJ to have it invalidated.
In the German case, the infringement proceedings initiated on June 9 against Berlin concern the German Constitutional Court’s ruling in May 2020 questioning the ability of the ECJ to approve actions by the European Central Bank (ECB) that violate the treaties.
For the German constitutional judges, the European nations are masters of the treaties and a ruling of the ECJ, if it is not in conformity with those treaties, cannot be applied in Germany.
Indeed, the German judges argued, if national courts were to simply rubber-stamp the decisions made by EU institutions, this would undermine “the principle of democracy.”
That is also where the problem lies in Poland today: if the ECJ can declare itself the supreme body and order national judges not to apply the law in areas where Poland has never surrendered sovereignty, the very principle of democracy is called into question. Moreover, this effort by the European institutions to move towards an undemocratic federal system by means of a reinterpretation of the treaties by the ECJ is taking place at the same time as the establishment of a “rule of law mechanism” which will allow the European Commission to use blackmail to impose its views in the areas it wants, provided it can obtain the support of a majority of Member States in the Council.
See on this subject: “Towards a federal and uniform Europe with the ‘rule of law’ mechanism.”
In his letter to the Polish government, Belgian Justice Commissioner Didier Reynders warns against a ruling by the Polish Constitutional Tribunal that would call into question the principle of the primacy of European law. However,
what the Polish Constitutional Tribunal is about to rule on is actually the right of the European institutions to grant themselves new powers.
The Polish reaction to this letter was therefore quite strong.
Questioned by journalists, Prime Minister Mateusz Morawiecki promised that he would not go back on his referral to the Constitutional Tribunal, and recalled that the jurisprudence of that Tribunal is that, in the event of a collision between European law and the Polish Constitution, it is necessary to change European law or to amend the Constitution. In other words, there can be no automatic invalidation of provisions of national law and the Constitution that are considered to be contrary to European law by national judges under the direct supervision of the ECJ.
Justice Minister Zbigniew Ziobro, who was the direct addressee of Reynders’ letter, recalled that during the communist era, Moscow at least tried to create the appearance of Polish sovereignty. “Even in the days of limited state sovereignty, which was the formula for Poland’s functioning during the People’s Republic, I do not recall that a secretary from Moscow ever wrote a letter to Wojciech Jaruzelski asking him to withdraw an application to a Polish court with the power to rule on principles that were ideologically important for the [Polish] authorities,” Ziobro noted.
The President of the Polish Constitutional Tribunal, Julia Przyłębska, also expressed her astonishment at the news of the Belgian Didier Reynders’ letter, and recalled that “the Polish Constitution grants the right to entities such as the Prime Minister and other representatives of the authorities of the Republic of Poland to put questions to the Constitutional Tribunal concerning the constitutionality of specific regulations, legal provisions, including international law, which are or will be in force in the Republic of Poland. The request not to put forward a question, and thus not to exercise a constitutional right, can be seen as an attempt to interfere with the sovereignty, the independence of the organs of the state. (…)
The rule of law is based on the fact that every entity that has constitutional powers and duties can and does exercise those duties and powers, hence my surprise and amazement that such a request has been made.”
Is it not surprising, indeed, that the European Commission is urging the Polish government to let the EU institutions move the EU towards a federal system by violating the principles of democracy and the rule of law?
