[Editor’s Note: I-CONnect is pleased to feature a symposium on the recent decision by the Polish Constitutional Tribunal on the primacy of EU law. This introduction will be followed by four posts exploring different aspects of the decision and its impact.]
On October 7, 2021 the captured Polish Constitutional Tribunal (CT) made an unprecedented move in the long-lasting arm-wrestling between Poland and the EU: it openly challenged the primacy of EU law and its interpretation by the Court of Justice of the European Union.
As is well-known, since 2015, the Polish government has been repeatedly warned by the EU that the reforms of the judiciary implemented in Poland jeopardize the principles descending from the rule of law, in particular the independence of the judiciary. Other grounds for clashes came with the management of the migratory crisis and Poland’s refusal to implement the EU emergency relocation plan, the introduction – following a decision by the CT – of a near total ban on abortion and the declarations by many local authorities of being free from “LGBT ideology”.
Judgement K 3/21 is the culmination of this enduring battle over respect for the EU’s values and principles but also over state sovereignty, and it shows how far apart the EU and Polish authorities are. In the ruling, the majority of the CT stated that Article 1, first and second paragraphs, in conjunction with Article 4(3), Article 2 and Article 19(1), second subparagraph of the Treaty on European Union are inconsistent with the 1997 Constitution.
Among the other reasons, the Court affirmed that under the provisions mentioned: a) the European Union authorities act outside the scope of the competences conferred upon them by the Republic of Poland in the Treaties; b) the Constitution is not the supreme law of the Republic of Poland, which takes precedence as regards its binding force and application; c) the Republic of Poland may not function as a sovereign and democratic state. As Agnieszka Bień-Kacała notes in this Symposium, the ruling contrasts with the previous Polish constitutional case-law on EU law: indeed, back in 2010, the Constitutional Tribunal recognized the unique position of the Lisbon Treaty and its compliance with the Constitution.
To properly understand what this decision means for the EU, it must be read in context and it is a multifaceted context characterized by contrasting tensions: on one side the growing narrative advanced by Poland and Hungary, which challenge the EU authority in several areas and see EU interference as a constraint over the expression of national sovereignty and identity; on the other, what has been defined as a Hamiltonian moment for the EU, marked by the establishment of the NextGenEU program, which provides economic support for Member States that have been severely hit by the Covid-19 pandemic and paves the way for a new step in the EU integration process.Read the rest of this entry…