[Editor’s Note: I-CONnect is pleased to feature a five-part symposium on the recent decision by the Polish Constitutional Tribunal on the primacy of EU law. This is the third entry of the symposium, which was kindly organized by Antonia Baraggia and Giada Ragone. Their introduction is available here].
—Julian Scholtes, Newcastle University
On Thursday, 7 October 2021, the Polish Constitutional Tribunal, which is politically captured by the governing parties and can no longer be considered independent, issued a judgment holding certain interpretations of core articles of the Treaty on European Union to violate the Polish constitution. At the core of the judgment lies an assertion of the supremacy of the Polish constitution and the declaration of the CJEU’s recent rule of law jurisprudence as in violation of that constitution.
In this blogpost, I will argue that this judgment clearly turns its back on the ‘constitutional pluralism’ the Polish government claims to be engaged in. Rather than constitutional pluralism, this judgment is an expression of constitutional solipsism. It abuses constitutional pluralism and its conceptual arsenal as a means of disengaging from, rather than engaging with, the EU constitutional order. I will then consider the implications of the judgment for constitutional pluralism and address its critiques, which have rekindled in the light of the judgment. While the judgment shows that the past idealisations of constitutional pluralism no longer hold, the disordered reality that constitutional pluralism tries to make sense of is likely to persist and will continue to have to be dealt with.
Constitutional pluralism, as a theory of the European constitutional order, observes that the question of ultimate authority in the European constitutional space is not, and possibly cannot be, conclusively settled. While the CJEU claims to have the last word its domain, many national constitutional courts insist on policing their constitutional boundaries to guard against violations of national constitutional identity and competence transgressions. Normatively, constitutional pluralism argues that the best, and possibly only, way to come to terms with this is through a spirit of mutual recognition and dialogue that enables legal officials of national and European constitutional orders to accommodate each other’s differences. The fact that both sides assert ultimate authority means that, in practice, they must treat each other’s authority as relative to one another. Only in exceptional circumstances will the best relation between national and EU authority be one of tolerating open conflict.
As has been widely discussed, Polish government has long sought to portray its actions in the spirit of constitutional pluralism. Already in a White Paper published in 2018 has the Polish government sought to present its violations of the rule of law as a matter of constitutional identity: Any European reproaches against the Polish government’s judicial reforms, it argued, would miss the necessary respect for constitutional diversity and national identity. The White Paper pays ample reference to the German line of case law from Maastricht to Lisbon. The government had even specifically invoked theories of constitutional pluralism, going back to Neil MacCormick, in its defence against criticism of its assaults on judicial independence. The same arguments were raised in the context of this judgment. In its press release, the Constitutional Tribunal invokes the importance of the organisation of courts as a matter of Polish constitutional identity.
Internal monologue instead of judicial dialogue
But rather than having anything to do with constitutional pluralism, this judgment is a form of constitutional solipsism. Its point was not to start an engagement with the Court of Justice on points of contention about its interpretation of EU law. The point of the judgment, from the outset, was to disengage from the European Court’s authority. Rather than initiating a judicial dialogue between overlapping authorities, the Tribunal’s judgment is itself the result of an internal monologue inside Polish state institutions about how to best leverage the Polish constitution against the reach of EU law.
There is, of course, nothing new about this – we already saw the same thing happen in 2016, when the Hungarian Constitutional Court issued its infamous ‘constitutional identity’ judgment. In that case, the invocation of constitutional identity by the Constitutional Court was never intended to result in any meaningful constitutional dialogue. Instead, the judgment was leveraged by Viktor Orbán – who, in his own words, “threw his hat in the air” when he heard of it – as an argument for not implementing the Refugee Relocation Decision adopted by the Council. Rather than providing a frame for judicial dialogue about constitutional identity, the judgment was part of an internal conversation between the government and its captured constitutional court about how to leverage constitutional authority in service of politically disengaging from the implementation of EU law.
The Polish example had fit the pattern already before this judgment was issued. The ‘muzzle law’, passed in early 2020, fended off European challenges to the judicial reforms by politically mandating a complete disengagement from European standards regarding the rule of law. It plotted out a constitutional space to which the shared standards of legitimacy that facilitate European integration are entirely unwelcome. Now, like its Hungarian counterpart, the Polish government solicited a judgment from the captured Constitutional Tribunal, to have its back in keeping its solipsistic little constitutional bubble intact, and it delivered.
Such is the constitutional logic of authoritarianism: Governments that deny the relativity of their own authority domestically – for instance, by disciplining and firing judges who make unfavourable decisions – are also unlikely to acknowledge the relativity of their own authority externally. Authorities that do not respect pluralism within their own society will not respect constitutional pluralism, either.
This does not compare to what the German Constitutional Court did in its PSPP judgment. The German Constitutional Court had sought the conversation with the CJEU about how to best secure the legitimacy and proportionality of the Public Sector Purchase Programme, making its second ever reference to the CJEU. That it ended up dismissing Luxembourg’s response by declaring it ultra vires, rather than seeking another response from Luxembourg, was a mistake. It disregarded the limits it set for itself in engaging with the CJEU, such as a particularly high level of severity of any ultra vires transgression, and, importantly, the necessity of granting a margin of error to its European interlocutor. However, even as it pursued conflict rather than dialogue, the PSPP judgment was the result of a flawed way of relating, not a way of entirely disengaging from, European authority.
What’s left of constitutional pluralism?
The Polish CT’s judgment poses a form of constitutional solipsism that does not live up to the normative standards and requirements of constitutional pluralism. However, this will, of course, not assuage the many critiques of the latter. The problem, in the eyes of the critics, is that constitutional pluralism begets constitutional solipsism. They rightly observe that pluralistic constitutional engagement relies on the same normative and conceptual arsenal as its solipsistic antipode: Concepts like sovereignty and constitutional identity as well as the possibility to use these concepts to declare EU law inapplicable or unconstitutional. If the German Constitutional Court can do what it did in the PSPP judgment, then so can the Polish Constitutional Tribunal. There is, in other words, no way of telling the firefighter from the arsonist: Both are in the fire business, after all. Accordingly, even just theoretically considering this possibility means to inadvertently embolden those who wish to abuse it. The solution, many critics argue, is clear: If a conflict with the national constitution exists that cannot be solved politically, the country in question should leave the EU rather than override EU law while remaining a member.
But while the abusive invocations of constitutional pluralism clearly upset the optimism that constitutional pluralists have tried to project onto the heterarchical configuration of constitutional authority, that heterarchy itself will not simply vanish. It does not seem plausible that all national constitutional courts would simply stop policing their national constitutional boundaries as they have been doing, without a firm political settlement of the boundary question, and whether they should indeed stop doing so is a question that hinges on wider considerations than merely the autocratic developments in Poland and Hungary. After all, whether such a shift could indeed deter bad faith actors from continuing their trajectory regardless is a matter of speculation.
Pointing to the exit door as the ultimate valve for the resolution of constitutional conflicts undersells the EU as a ‘mere’ international organisation rather than a legal order of constitutional pedigree – its legitimacy and the legitimacy of its member states are deeply intertwined. Whether the toleration of conflict will always be an inferior option to tearing a Member State out of the European constitutional fabric is, to say the very least, questionable.
The problem, then, is that the genies of sovereignty and constitutional identity will not simply return into their bottles. Beyond celebrating or vilifying constitutional pluralism as a normative theory, the challenges that the latter tries to address will persist. The proliferating constitutional solipsism, which abuses the concepts of constitutional pluralism and constitutional identity, only amplifies these challenges. But rather than continually debating these abuses within the judicial space into which they have lured us, we should seek to chase them back into the realm of politics that they seek to escape.
Suggested citation: Julian Scholtes, Symposium — Part II — From Constitutional Pluralism to Constitutional Solipsism , Int’l J. Const. L. Blog, Oct. 16, 2021, at: http://www.iconnectblog.com/2021/10/symposium–part-ii–from-constitutional-pluralism-to-constitutional-solipsism/
 See also Neil Walker, Constitutional Pluralism Revisited 22 European Law Journal 333, at 354.