Poland’s Challenge to the Primacy of EU Law: Who is Right and Who is Wrong?

On October 7, 2021, Poland’s Constitutional Tribunal (the “Constitutional Court”) issued a ruling declaring that the country’s constitution (the “Constitution”) is a supreme law relative to certain interpretations of article 1 (first and second subparagraphs), article 2, article 4(3), and article 19(1) (second subparagraph) of the Treaty on European Union (the “TEU”).[1] A twelve-judge panel noted that these provisions are inconsistent with the Constitution insofar they 1) mandate Polish courts to bypass the domestic law in matters outside the competence of the European Union, 2) require domestic courts to apply provisions that are in conflict with the Constitution, and 3) impose different processes for evaluating the independence of Polish judiciary.[2]

This ruling represents the latest row between the two parties, which have been at odds for quite some time. The strained relationship escalated in July of this year when the Court of Justice of the European Union (“Court of Justice”) ordered Poland to effectively dismantle the Disciplinary Chamber of the Polish Supreme Court.[3] The EU is alleging that the country’s right-wing government has been using the Disciplinary Chamber to interfere with judicial independence.[4] By issuing the October 7thruling, the Constitutional Court effectively legitimatized the government’s defiance in implementing the order of the Court of Justice.[5] Considering the current state of Polish judiciary, the Constitutional Court may have had perverse motives for issuing the ruling. However, that does not alter the fact that constitutional courts of other member states have also challenged the primacy of EU law.[6]

The principle of primacy of EU law is based on the idea that where a conflict arises between an aspect of EU law and an aspect of national law of a member state, the EU law prevails.[7] Although a brief declaration regarding primacy of EU law is annexed to the Treaty on the Functioning of the European Union (“TFEU”), the principle is not incorporated in the legal text of any EU treaty.[8] Rather, the principle is a product of a long-standing jurisprudence of the Court of Justice.[9] That jurisprudence started in 1964 with Costa v. Enel, where the court held that domestic law may not override the law stemming from the treaties.[10] In the following decades, the Court of Justice reinforced this principle in other cases.[11]

However, the principle of primacy of EU law has not been uniformly followed across the board. As mentioned, constitutional courts of several member states have challenged the principle at various points in the last fifty years. For example, the German Constitutional Court held that the primacy of EU law does not extend to interpretations of German constitutional provisions that are beyond the reach of both constitutional amendment and European integration.[12] In 2020, the same court refused to follow a preliminary ruling of the Court of Justice addressing the legality of the Public Sector Purchase Program of the European Central Bank.[13] The German Constitutional Court held that the preliminary ruling was an ultra vires act, because the Court of Justice failed to apply principles of proportionality and conferral when determining whether the challenged program was within the European Central Bank’s competence.[14] These two cases seem to suggest that the primacy of EU law is limited to areas in which the EU has competence and it does not extend to areas that are beyond European integration.

The present dispute between EU and Poland bears some resemblance to the cases in which the German Constitutional Court declined to afford precedence to EU law. It is undisputed that organization of justice is within the competence of the member states and not the EU.[15] That said, the Court of Justice may have acted ultra vires when it issued the judgment ordering Poland to dismantle the Disciplinary Chamber. Furthermore, the ultra vires act and the EU’s action in the area that is admittedly outside its competence, may have justified Poland’s defiance in implementing the order and the Constitutional Court’s involvement.

On the other hand, there is also merit to EU’s assertion that Poland must refrain from interfering with judicial independence. Articles 2 and 19(1) of the TEU, as well as article 47 of the Charter of Fundamental Rights of the European Union, impose upon member states a duty to safeguard the rule of law, provide access to effective remedies before domestic courts, and afford a fair and public hearing before an independent and impartial tribunal.[16] Since 2016, the Court of Justice has used these three provisions to develop jurisprudence in the area of judicial independence.[17] The court’s approach has been sensible because there is a good argument that a member state cannot safeguard the rule of law and access to effective remedy, while also continuing to undermine judicial independence.

Because there is some truth to what both Poland and EU are asserting, any conclusion as to who is right and who is wrong, is unwarranted. This reality is likely a reason why both parties have refused to back down. However, it is also a reality that Poland requested from EU €23 billion in grants and €34 billion in cheap loans, and that the request is still being weighed by the European Commission.[18] Poland is aware of EU’s upper hand and by promising to dismantle the Disciplinary Chamber by the year’s end, it has already started making some significant concessions.[19] It remains to be seen whether Poland will follow through on this promise.

[1] Assessment of the conformity to the Polish Constitution of selected provisions of the Treaty on European Union, TRYBUNAL.GOV.PL. (Oct. 7, 2021), https://trybunal.gov.pl/en/hearings/judgments/art/11662-ocena-zgodnosci-z-konstytucja-rp-wybranych-przepisow-traktatu-o-unii-europejskiej.

[2] Id.

[3] Steven Erlanger, Why is Poland Fighting the Supremacy of European Union Courts?, N.Y. Times (Oct. 8, 2021), https://www.nytimes.com/2021/10/08/world/europe/poland-opposes-european-union-laws.html?searchResultPosition=1.

[4] Id.

[5] Id.

[6] Pieter Cleppe, An overview of national top courts challenging the supremacy of EU law, brussels rep. (Oct. 12, 2021), https://www.brusselsreport.eu/2021/10/12/an-overview-of-national-top-courts-challenging-the-supremacy-of-eu-law/.

[7] PRIMACY OF EU LAW, EUR-Lex, https://eur-lex.europa.eu/summary/glossary/primacy_of_eu_law.html (last visited Oct. 24, 2021).

[8] Id.

[9] Id.

[10] Case 6/64, Costa v. Enel, 1964 E.C.R. 587.

[11] EUR-Lex, supra note 7.

[12] Bundesverfassungsgericht [BVerfG] [Fed. Const. Court] 2 BvR 2735/14- paras. 1-126, Dec. 15, 2015,https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2015/12/rs20151215_2bvr273514en.html.

[13] Bundesverfassungsgericht [BVerfG] [Fed. Const. Court], 2 BvR 859/15, May 5, 2020, https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2020/bvg20-032.html.

[14] Id.

[15] Rafal Manko, European Court of Justice case law on judicial independence, Eur. Parl., https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/696173/EPRS_BRI(2021)696173_EN.pdf (last visited Oct. 24, 2021).

[16] Consolidated Version of the Treaty on European Union arts. 2, 19(1), Oct. 26, 2012, 2012 O.J. (C 326) 13; Charter of Fundamental Rights of the European Union art. 47, Oct. 26, 2012, 2012 O.J. (C 326) 391.

[17] Manko, supra note 15.

[18] Polish PM accuses EU of ‘blackmail’ in escalating dispute over rule of law, Fr. 24 (Oct. 19, 2021), https://www.france24.com/en/europe/20211019-polish-pm-accuses-eu-of-blackmail-in-clash-with-von-der-leyen.

[19] Henry Foy & Sam Fleming, Poland’s prime minister accuses EU of making demands with ‘gun to our head,’ Fin. Times (Oct. 24, 2021), https://www.ft.com/content/ac57409d-20c9-4d65-9a5d-6661277cd9af.