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EU law or Polish constitution – which takes precedence?

Constitutional Tribunal of Poland, credit: Wikipedia

European Commission President Ursula von der Leyen expressed in a statement on Friday her deep concern by the ruling of the Polish Constitutional Tribunal according to which articles in the EU treaty might be inconsistent with the Polish constitution if interpreted in a certain way.

She has instructed the Commission’s services to analyse the ruling thoroughly and swiftly. On this basis, the Commission will decide on next steps.

“The EU is a community of values and laws,” she says in the statement. “This is what binds our Union together and makes it strong. We will uphold the founding principles of our Union’s legal order. Our 450 million Europeans rely on this.”

“Our Treaties are very clear,” she added. “All rulings by the European Court of Justice are binding on all Member States’ authorities, including national courts. EU law has primacy over national law, including constitutional provisions. This is what all EU Member States have signed up to as members of the European Union. We will use all the powers that we have under the Treaties to ensure this.”

The chief spokesperson of the Commission explained at today’s press conference (8 September) that it was important to understand and analyse the ruling before any decision was taken. Depending on the result, he did not exclude that it might have implications for the Commission’s assessment of the Recovery and Resilience Plan for Poland. In the meantime, the Commission is continuing with its assessment of the plan.

The Commission has been claiming for some years that there is a clear risk of a serious breach of the rule of law in Poland but it has not been able to halt the enactment of new laws that threaten basic legal principles and the independence of the judiciary in the country.

For EU member states, EU law takes precedence over national law – something Poland challenged in a reply to the Commission last August. In a rare move in September, the Commission decided to request the European Court of Justice to impose penalties on Poland to ensure compliance with its rulings concerning judicial independence in the country.

The ruling yesterday (7 October) by Poland’s Constitutional Tribunal, by a majority of 10 judges against two dissenting opinions, can be seen as another challenge for the Commission. The ruling followed a application by Polish Prime Minister Mateusz Morawiecki to the Tribunal to assess the conformity of certain articles (articles 1, 4 and 19) in the Treaty on European Union (TEU) with articles in the Polish constitution.

The Commission spokesperson did not see it as challenge but rather as matter of applying the correct legal framework and asserted that it has put into place tools and reporting systems to ensure the compliance by the member states with EU law.

Basically, the questions the Tribunal was asked to consider was whether the EU treaty was construed in such a way that it enabled or compelled law authorities in Poland from refraining from applying the Polish constitution or applying it in a way that was inconsistent with it. Another question was whether the EU treaty could be used to authorise a Polish court to review the independence of judges appointed by the Polish President.

The Tribunal does not say explicitly that the Polish constitution always takes precedence but concludes that the EU treaty is inconsistent with the constitution “insofar the EU creates ‘an ever-closer union among the peoples of Europe’ (article 1 in the EU Treaty), the integration of whom – happening on the basis of EU law and through the interpretation of EU law by the Court of Justice of the European Union – enters ‘a new stage’”.

In such a case, the EU might act not only outside the scope of the competences conferred upon them by Poland in the Treaties but also cause Poland not to function as “a sovereign and democratic state”.

At the face of it, this appears as a legal opinion that requires a thorough analysis, as the Commission President statement said in her statement, but the matter becomes more complicated if the Commission considers that the Polish Constitutional Tribunal is not independent of the government.

M. Apelblat
The Brussels Times

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