Poland/European Union – The 7 October ruling by the Polish Constitutional Tribunal, which was issued in response to a question put by Prime Minister Mateusz Morawiecki, is a reminder that EU law can only take precedence over the national law of the member states – in this case Poland – in those areas in which those member states have explicitly delegated their sovereignty to the European Union. Yet the leaders of the EU and of some Western European member states continue to strike hysterical notes and to make very strongly worded declarations against Poland, while something different is being heard in Central Europe.
Serious problems in relation to the primacy of EU law, according to Von der Leyen
The President of the European Commission, Ursula von der Leyen, is already threatening to initiate treaty infringement proceedings under the now famous Article 7. Energy Commissioner Kadri Simson summarised von der Leyen’s view in the following words, as quoted by wPolityce.pl: “The President [of the Commission] emphasised that
our goal must be to ensure that the rights of Polish citizens are protected and that everyone should be able to enjoy the benefits of the European Union, like all other citizens.
She explained that an in-depth analysis of this judgment was still ongoing, but after a preliminary assessment, serious problems related to the primacy of European law could be seen.”
Barley: “The European Commission must initiate proceedings”
For her part, the 4th Vice President of the European Parliament, Katarina Barley of Germany (SPD), who had already made headlines recently by saying that she wanted to “starve” Poland and Hungary financially, is now trying to hammer the nail into the coffin: “The European Commission must initiate anti-infringement proceedings in this case.
I cannot imagine Poland receiving money from the Recovery Fund in this situation. If EU countries start to deal with the treaty as they wish, the EU will lose its foundations.
The internal market will not work under such conditions. The EU will cease to function.”, she explained in an interview with the Polish daily Gazeta Wyborcza, going on to say that she hoped that the future German government – expected to be led by the Social Democrat Olaf Scholz – “will take a very clear position on the rule of law and democracy in Poland.”
Mark Rutte to argue for rejection of Polish recovery plan
This view is fully shared by the liberal Dutch Prime Minister Mark Rutte (VVD) who – in addition to informing his people that the Dutch Crown Princess would be allowed to marry another woman – has obtained the support of the Chamber of Deputies (Tweede Kamer) for a “hard line” towards gay-unfriendly Poland. Dutch Green MEP Tom van der Lee (GroenLinks) said the European Commission should “act as strongly as possible” in this case, while Christian Democrat Mustafa Amhaouch (CDA) said that
“when you belong to a club, you follow the rules of that club.”
Rutte will therefore argue at the next EU summit for the rejection of the Polish recovery plan in order to deprive Poland of the €36 billion it was supposed to receive (€24 billion in grants and €12 billion in loans).
Sovereignty, democratic legitimacy and constitutional order of the member states
It should be noted, however, that not all in the EU are opposed to the position adopted by the Polish Constitutional Tribunal, far from it. As could be expected, Hungary immediately sided with Poland, confirming once again that Poles and Hungarians are good friends (Polak, Węgier, dwa bratanki / Lengyel, magyar – két jó barát, as the saying goes in the two countries’ respective languages). Hungarian MEP László Trócsányi (Fidesz), a former justice minister (2014–2019), said that “the EU institutions have launched a political attack on last week’s decision of the Polish constitutional court”, even though
“the Polish constitutional court is not questioning the primacy of EU law in cases where the EU has jurisdiction, but is stating that the national constitution is at the forefront of the legal system.
(…) The Polish Constitutional Tribunal has defended the position that the sovereignty, democratic legitimacy and constitutional order of the member states are the basis of the national constitutions which constitute the framework for the application of EU law.” That view is logically shared by the incumbent minister of justice, Judit Varga, who has said:
“For us, this is a very important step […] in the history of the EU. It must be said openly that there are areas in which the EU cannot interfere and that it must always respect the constitutional identities of the member states, their own cultural traditions and their constitutional systems.
(…) The treaty also states that there are areas in which the states have never relinquished their sovereignty, which logically implies the distribution of competences between the Union and its member states. Thus, one can only speak of the supremacy of EU law in those areas where powers have been transferred. (…) It can be said that in these jointly exercised competences, EU law has primacy. However,
in areas where member states have never empowered the EU institutions to interfere in their affairs, there can be no question of the primacy of EU law.”
Some German and French legal experts share the Polish view too.
A former professor of political economy at the University of Mannheim, Roland Vaubel also supports this position:
“I share the position of the German and Polish constitutional courts that the interpretation of EU competences cannot be judged by the Court of Justice of the EU, but only by the member states’ competent courts.
This is logical and it is a consequence of the fact that competences have been transferred to the EU level precisely by the member states, in accordance with the principle of conferral.” Former Secretary General of the French Constitutional Council, Jean-Eric Schoettl, as quoted by wPolityce.pl, basically says the same thing.
In a number of Western European countries, opposition parties on the right, and sometimes also on the left, are also of the opinion that the ECJ’s interpretation of the treaties and of EU law should not take precedence over national constitutions.
This is the case in France, for example, where all of the right-wing and centre-right candidates in next year’s presidential election are promising to recover part of the sovereignty confiscated by the ECJ’s reckless rulings and to reaffirm the primacy of the French Constitution on French territory.
Even Arnaud Montebourg, François Hollande’s former economy minister and one of the French left’s presidential candidates, said after the Polish Constitutional Tribunal’s decision that “the defence of the member states’ national sovereignty is fundamental”, even if he does not approve of “the clerical and reactionary government of Poland” (sic). In Italy, the two largest right-wing parties, the League and Brothers of Italy, have also taken Poland’s side in this conflict of jurisdiction, as has the conservative Vox party in Spain.