Using financial blackmail against the net beneficiaries of the EU budget in former Eastern Europe, EU institutions are gradually imposing the principle of primacy of European Court of Justice rulings over the EU-27’s national constitutions.
On June 5, 2023, the Court of Justice of the European Union once again affirmed in a ruling against a former Eastern Bloc country that any of that country’s judges should be allowed to assess the compliance of any national law with EU law, with general principles of the rule of law, and with the requirement to “provide effective legal protection in the fields covered by Union law” (article 19 of the Treaty on European Union). Such a power, according to recent CJEU case law, should be exercised by judges under the direct supervision of the CJEU and should take precedence over a country’s national constitution and constitutional court.
This new principle of EU case law first appeared in a November 2019 ruling against Poland and was stated explicitly for the first time in a December 2021 ruling against Romania: “The primacy of EU law is to be interpreted as precluding national rules or a national practice under which national ordinary courts are bound by the decisions of the national constitutional court.”
This major attack by the CJEU judges sitting in Luxembourg on the sovereignty of the 27 member states has been largely ignored by the media in Western European countries whose constitutional courts have in the past affirmed the supremacy of the national constitution and their own interpretation thereof. EU institutions have so far avoided a frontal clash with these countries, as they do not enjoy the financial blackmailing power they have over the big net beneficiaries of the EU budget in the eastern part of the block.
In the Polish case, there are two main issues at stake: the first is about the validity of judicial appointments made by President Andrzej Duda among candidates put forward by the country’s National Judicial Council (KRS) after the 2017 reform of that body in charge of supervising the judiciary; the second concerns the creation of a Disciplinary Chamber within the Polish Supreme Court as part of the reform of that court, which was also passed in 2017.
With the support of the European Commission, and in spite of the Polish Constitutional Tribunal having confirmed the reform’s compliance with the Polish constitution in April 2020, some Polish judges questioned the validity of that reform, and used the EU’s preliminary ruling proceedings repeatedly to refer the reform to the Court of Justice of the European Union.
In training sessions organized by the Warsaw Bar Association (Okręgowa Rada Adwokacka, ORA), the Iustitia association of judges (which has been fiercely engaged against the 2017 judicial reforms), and the Helsinki Foundation for human rights (which is partly financed by George Soros’ Open Society Foundation), judges have been encouraged to systematically send general preliminary questions to the CJEU on their ability to rule on all sort of cases when, in their view, their independence as judges is no longer assured in light of the reforms passed by parliament. Normally, preliminary questions referred to the CJEU should be linked to the application of EU law in the specific case on which a court has to rule, and the EU court should reject any such question put in general terms with no clear link to a given case, but in the case of Poland, the Luxembourg judges have now changed their practice and admit most such referrals.