Poland – The 7 October ruling by the Polish Constitutional Court has caused a stir, especially among those who would like to pursue European integration bypassing the democratically ratified treaties, and disinformation was rife in the European media in the aftermath of the ruling.
The EU “will use all the tools” at its disposal to protect the primacy of European law, which is “at the heart of the Union”, said Belgian Justice Commissioner Didier Reynders. Frenchman Clément Beaune, Secretary of State for European Affairs in the Castex government, believes that “it is extremely serious”, “it bears the risk of a de facto exit” from the EU, “it is an attack on the EU”.
The real issue
Last March, the Polish Prime Minister, Mateusz Morawiecki, submitted the question of the limits of the competence of the European Court of Justice to his country’s Constitutional Court, which he was entitled to do under the Polish constitution. The PM’s question was about whether the ECJ could impose its rulings in areas that have not been subject to a transfer of sovereignty under the EU treaties, in particular when those rulings are in contradiction with the Polish constitution. Political leaders of the calibre of Reynders and Beaune call this a challenge to the primacy of EU law over national law, but it is in fact only a challenge to the ability of the ECJ to endlessly extend its own jurisdiction and the powers of other EU institutions without a new treaty.
The Polish Constitutional Tribunal’s judgment does not call into question the primacy of EU law over Polish law or the ECJ’s jurisdiction in those areas where the treaties duly ratified by Poland provide for a transfer of powers, and where EU law has been adopted in accordance with the treaties.
Indeed, as can be read in the Polish Constitutional Tribunal’s ruling, what was found to be contrary to the country’s constitution was that (a) “the European Union’s bodies act beyond the limits of the competences delegated by the Republic of Poland in the treaties”, (b) the rulings of the ECJ are based on the principle that “the Constitution is not the supreme law of the Republic of Poland”, and (c), as a result, if these rulings are to be applied, “the Republic of Poland cannot function as a sovereign and democratic state.”
In other words, in the eyes of the Polish Constitutional Tribunal, a new transfer of sovereignty cannot, in the light of the Polish Constitution, be carried out on the initiative of the EU institutions, as any such transfer of sovereignty must be the subject of a treaty duly ratified by the Parliament and the President of the Republic.
The subject matter of the dispute
The dispute is about the way in which the European Commission and the ECJ interpret Article 19(1) of the Treaty on European Union in order to interfere with the reforms of the judiciary passed by the Polish parliament since PiS came to power. The relevant sentence in Article 19 of the EU Treaty simply states: “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”
For some years now, the thinking in Brussels (and in Luxembourg, where the ECJ has its seat) has been that, since all national courts are concerned with the application of EU law, they must comply with EU criteria under the direct supervision of the Commission and the ECJ. These criteria have, moreover, changed over time based on EU institutions’ arbitrary decisions, as seen with the post-2015 emergence of the Commission’s and ECJ’s requirement for a majority of magistrates sitting in national judicial councils to be elected by their peers.
On the basis of this reasoning, the ECJ has, at the request of the European Commission, issued several rulings against Poland this year. These rulings purported to allow national courts to disregard the constitution and laws passed by the Polish parliament if those courts considered that the constitution or a law did not comply with EU law. They also claimed to give national judges the power to decide the legitimacy of other judges. In concrete terms, the ECJ purported to give every Polish judge the right not to recognise judgments issued by judges appointed on the recommendation of the reformed National Judicial Council (KRS) after 2017, because its judges have been appointed not by their peers but by parliament (as has been the case in Spain, for example, since the 1980s!).
Such decisions of the ECJ were completely unprecedented in the history of European integration. The Polish Constitutional Tribunal noted this fact in its judgment, stating about “the European Union, consisting of equal and sovereign states and forming an ’ever closer union among the peoples of Europe’” that its “integration – achieved on the basis of European Union law and through its interpretation by the Court of Justice of the European Union – has reached a ’new stage’.”
Previous rulings by constitutional courts
The ruling of the Polish Constitutional Tribunal comes as no surprise. Whatever Mr Reynders and Mr Beaune may say, this constitutional court is not the first to oppose the usurpation of national competences by the ECJ. The Romanian Constitutional Court has already issued a similar ruling this year in a similar case where the ECJ purported to give Romanian courts the right to disregard the constitution and national laws if they consider them to be contrary to EU law. Last year, the German Constitutional Court also challenged a ruling of the ECJ on the ECB’s sovereign debt purchases because, in the opinion of the Karlsruhe judges, the ECJ had arbitrarily disregarded certain provisions of the EU treaties in its ruling. The German judges recalled on that occasion that the EU member countries remain masters of the treaties. In France, the Council of State has opposed ECJ rulings several times in the past and, in a case from July this year, the Ministry of the Armed Forces explained, as it reiterated in mid-September, that it does not intend to apply the ECJ ruling on military working time, as defence is a national competence.
In Poland, there was little doubt as to the direction the Constitutional Tribunal’s ruling would take, since it merely confirmed a legal doctrine already established by the same court before PiS came to power, according to which the national constitution remains the supreme law of the Republic of Poland.
A real issue of democracy and rule of law at EU level
Therefore, any surrender of sovereignty must be done in accordance with the procedure laid down in the constitution and not by decision of the judges in Luxembourg. This is what we call democracy and the rule of law as opposed to arbitrary government by unelected judges.
It is therefore wrong to say that the ruling of the Polish Constitutional Court is the beginning of Poland’s exit from the EU. The Polish Prime Minister reiterated Poland’s attachment to the EU after the publication of the judgment, but he also said: “Constitutional law is superior to other sources of law. This has also been confirmed in recent years by the constitutional courts of many member states. (…) We have the same rights as other countries. We want these rights to be respected. (…) And that is why we do not accept being treated as a second-class country. (…) We want a community of respect, not an association with equal members and others more equal than the former. ”
Will he be heard by the European Commission, which seems to have a very particular conception of the rule of law and judicial independence? The Commission has indeed been unlawfully blocking the Next Generation EU recovery plan funds for Poland for several months now, as it openly hoped to influence the decision of the Polish Constitutional Tribunal on the limits of the ECJ’s jurisdiction.