On Thursday, the Polish Constitutional Court ruled that several provisions contained by the Treaty of the European Union were incompatible with the Polish constitution, if a certain interpretation is followed.
According to the Polish judges, to the extent that the phrases setting out “an ever closer union” and the principle of “sincere cooperation” allow the EU to “act outside the scope of the competences conferred upon them by the Republic of Poland in the Treaties”, the Polish Constitution is violated. They also ruled that it is a violation of Poland’s Constitution to allow the European Court of Justice (ECJ) to “grant domestic courts (…) the competence to (…) review the legality of the procedure for appointing a judge” in Poland.
This has made the relationship between the Polish government and the European Commission even more tense, as it represents yet another dispute between the two since the conservative PiS party regained power in 2015. The government refuses to implement ECJ rulings ordering it to scrap changes to the judiciary and to pay large daily fines to the Czech Republic in an environmental dispute. The EU’s so-called Article 7 procedure, which the Commission triggered against Poland in 2017, and which could involve Poland being stripped from its voting rights, is also going nowhere, given how Hungary and Poland are simply able to veto any attempt to go after one or the other.
The Polish Constitutional Court responded to a question raised by the Polish government on whether EU law is actually superior to the Polish Constitution. Some EU officials claim that the Polish government intends to use this ruling as a legal excuse to ignore the ECJ.
1/3 In its judgment, the Polish Constitutional Court has confirmed that EU law has primacy over national law only in areas of delegated competence. It therefore has shared the views of the @BVerfG and @Conseil_constit courts.
The EU is the common good of the Member States
— Zbigniew Rau (@RauZbigniew) October 11, 2021
🇵🇱 More than 100,000 Poles demonstrated on Sunday in support of #EU membership after a court ruling that parts of EU law are incompatible with the constitution raised concerns the country could eventually leave the bloc.
— FRANCE 24 English (@France24_en) October 11, 2021
The European Commission may now launch an ‘infringement procedure’ against Poland at the ECJ, to force it to accept the supremacy of EU law. Ultimately, also here, the outcome could be a fine imposed on Poland, which is due to receive 121 billion euro in EU transfers by 2027. One effect of the ruling is also that the European Commission will not proceed with its plans to release some of the “recovery fund” cash destined for Poland.
Does this mean “Polexit”?
French European Affairs Minister Clément Beaune even stated there’s now “the risk of a de facto exit” from the EU. However, as I’ll discuss hereunder, over the years, there have been several other EU member states where top courts have challenged the superiority of EU law. Moreover, a large majority of Polish citizens, from 65 to more than 80% in the polls, support EU membership. The government also does not support “Polexit”, even if perhaps the junior coalition party, the United Poland party, has toyed with the idea, stating that EU membership “should not come at any cost”.
If it were the strategy of the Polish government to “have its cake and eat it”, by no longer supporting the supremacy of EU law while however securing as much EU cash as it can, it is true that legally, no EU member state can be kicked out of the EU against its own will. However, as said, there’s the article 7 procedure which allows to take Poland’s voting rights and there are other procedures. That’s the theory. Politically and diplomatically, this path is unlikely to be a sustainable course of action among allies. Without a doubt, the Polish government is aware of all that.
Many in the opposition claim that the Polish Constitutional Court has been composed un-Constitutionally while describing the ruling as “a political hit job dressed up as a court case” and suspecting the Polish government to try to use this as a bargaining chip. Twenty-six former judges of Polish Constitutional Tribunal issued a joint statement responding to the ruling, claiming that the judgment does not fit into the competencies of the Tribunal and is by itself incompatible with the Constitution. In other words, apart from a legal clash between the EU and Poland, this also involves a legal controversy within Poland.
Precedents of top national courts challenging the superiority of EU law
Whatever one thinks of the Polish ruling and the developments in Poland when it comes to the rule of law, it is a fact that in the past, the superiority of EU law has been challenged by top courts in various EU member states.
Already before 2015, when the current Polish government entered power, the Polish Constitutional Court had been questioning the superiority of EU law.
At a seminar in 2017, Judges Magdalena Ṥwietlik and Dagmara Dominik-Ogińska recalled the ruling by the Polish Constitutional Court of 11 May 2005, with case number case K 18/04. They explained that the ruling stated that “while EU law may override national statutes, however, it does not override the Constitution. (…)In cases of a conflict between EU law and the Constitution, such conflict cannot be solved by recognising the supremacy of the EU law norms. Poland can make a sovereign decision as to how this conflict should be resolved (i.e. by changing the Constitution, leaving the EU or seeking to change the EU law).”
This ruling considered the compliance of Poland’s EU accession with the Polish Constitution. Judges Ṥwietlik and Dominik however note there is yet “another important case of the Constitutional Court – judgment of 24 November 2010 (K32/09 concerning the consistence of the Lisbon Treaty with the Constitution), where the Constitutional Court has clearly pointed out that the normative limit of transferring competences to International Organisation is set by the factors determining the constitutional identity of the Republic of Poland, such transfer can in no way threaten the constitutional foundations of the State’s system.”
The most well-known example of a Constitutional Court challenging the supremacy of EU law is of course the German case, with the judges of the “Bundesverfassungsgericht” having raised doubts about this since the 1970s. They outlined the superiority of the German Constitution (or “Basic law”) over European law in their so-called “Solange” rulings, dating back to 1974 and 1986. More recently, there was the 2015 “Gauweiler” – ruling, which basically repeated this principle.
Earlier this, year, in June 2021, the whole thing escalated, as the European Commission opened an infringement procedure against Germany over a ruling by the German Constitutional Court, with the Commission accusing Germany of violating “the principle of the primacy of EU law”.
This was in response to a bombshell ruling by the German top Court in May 2020, whereby it declared that the ECB had overstepped its mandate with its bond purchases, while also scolding the European Court of Justice (ECJ) for not doing a thorough enough job reviewing the ECB’s activities. It thereby accused the ECJ in Luxembourg to have acted “ultra vires”, adding that the ECJ’s ruling was “simply not comprehensible” and, as such, had been “objectively arbitrary.” For the first time, Germany’s Federal Constitutional Court had declared an ECJ decision to be non-binding.
Later on, the German constitutional court ruled that the bond-buying could continue, but this did not stop the European Commission from initiating an infringement procedure, with the Commission arguing that the initial ruling set “a dangerous precedent for [European] Union law, both for the practice of the German constitutional court itself, and for the supreme and constitutional courts and tribunals of other member states”. It clearly had the upcoming Polish Constitutional Court ruling in mind.
In August, the German government then sent a “communication” to the European Commission, in response. This was done, according to Der Spiegel, as “the government in Berlin is desperately trying to play down the severity of the conflict”. The newspaper notes that “the letter ignores the fact that, from the perspective of the Constitutional Court in Karlsruhe, the primacy of European law is by no means unlimited”, adding that “the justices in Karlsruhe, however, are not pleased with the contents of the letter, which they view as a snub of the Constitutional Court.”
To be fair, there still are many differences between the Polish and German Constitutional Court ruling, if only because the German government was anything but instigating it and because the German Constitutional Court never declared parts of the Treaties as unconstitutional.
For a long time, the French supreme administrative court, the Conseil d’Etat, declined to recognize EU law as superior, maintaining it was not able to do so, given the fact that French administrative courts do not possess the power of judicial review over legislation – only over executive decisions. At long last, in 1989, the Conseil d’Etat changed its doctrine.
In 2006, the French Constitutional Council, the highest constitutional authority in France, then ruled that it expressly reserves itself the right to conduct a constitutional identity review, stating that the “transposition of a Directive cannot run counter to a rule or principle inherent in the constitutional identity of France unless the Constituent power had agreed to the same.”
Then, in April 2021, also the Conseil d’Etat once again raised some doubts on the supremacy of EU law, arguing that it has the power to ensure that the application of EU law, as specified by the ECJ, “does not in practice jeopardise French constitutional requirements which are not guaranteed in an equivalent manner by EU law”.
As French law Professor Theodore Christakis puts it, the Council of State hereby basically “recalls (…) that the French Constitution remains the supreme norm within the French national legal system.”
In 2016, some doubts were inserted on the supremacy of EU law in the Belgian legal order, after this had been established as a firm principle since at least 1971.
Then, the Belgian Constitutional Court ruled that there is a limit to the primacy of EU law over the Belgian Constitution, stating that “article 34”, which allows the transfer of powers to international institutions, doesn’t mean that the Constitutional protection of the fundamental rights of Belgian citizens would no longer apply:
“In no case does article 34 of the Constitution permit that the national identity included in the political and constitutional basic structures or the core values of the protection awarded by the Constitution to legal subjects can be eroded in a discriminatory manner”
In a summary of a seminar discussing the issue, Professor Dr. Danutė Jociene, judge at the Constitutional Court of Lithuania, recalls a 2006 Lithuanian Constututional Court ruling which “consolidates the priority of application of European Union legal acts in the cases where the provisions of the European Union arising out of the founding Treaties of the European Union compete with the legal regulation established in Lithuanian national legal acts (regardless of what their legal force is), save the Constitution itself.”
Jociene explains that “the statement ‘save the Constitution itself’ should be regarded as a constitutional clause which means that the Constitution is above all other legal acts, including EU [all] acts”.
Also in Hungary, the Constitutional Court has ruled that the Hungarian Constitution still prevails over EU law. The “Constitutional identity cannot be waived by way of an international treaty”, according to the Constitutional Court, Hungarian legal scholar Dr. Dzsula Marianna explains.
This because in 2016, that Constitutional Court ruled that there is a “presumption of reserved sovereignty” in relation to judging the common exercise of other competences that have already been conferred to the EU. According to the Court, “constitutional identity equals with the constitutional (self-) identity of Hungary”.
The Italian Constitutional Court now broadly accepts the supremacy of EU law, despite initially resisting to do so, but this comes with some reservations, as it has developed its so-called ‘counter-limits’ doctrine to limitations on national sovereignty, which is largely theoretical, as it has only once threatened to apply it.
In 1973, it ruled that the institutions of the EC should not be entitled “to violate the fundamental principles of our constitutional order, or the inviolable rights of the human person.”
More recently, there were the so-called Taricco cases – on statutory limitation for VAT fraud – which provoked extensive legal debate on the issue, notably as the Italian Constitutional Court took issue with retroactive enforcement sought by the ECJ.
As Judge Federico Paciolla put it in 2017, in Italy, “the Constitutional Court made it clear that, if such interpretation does not comply with fundamental principles of constitutional order or human rights protection, as recognized by the Italian Constitution, it will reject European law implementation or declare void domestic provisions stemming from such European law.
This doctrine applies both to European law and International law in general.
It means that EU law prevails over the Italian Constitution, but not over the fundamental principles of the Italian constitutional order or human rights protection (2 exceptions possible)”.
In 2004, the Spanish Constitutional Court issued “Declaration 1/2004” scrutinising the constitutionality of the EU’s Draft Constitutional Treaty, which according to Spanish legal scholar Mario García “seems equally applicable to the Lisbon Treaty, given their similarity.” The declaration permits Spain to transfer the exercise of powers to a supranational organisation, as long as this transfer respects some inherent characteristics of the Spanish legal system, such as the sovereignty of the State, its basic constitutional structures, and the fundamental values and principles guaranteed under the Constitution.
In the Declaration, the Spanish Constitutional Court maintained that the primacy of EU law does not go against the supremacy of the Constitution, however warning:
“In the unlikely case where, in the ulterior dynamics of the legislation of the European Union, said law is considered irreconcilable with the Spanish Constitution, (…), the conservation of the sovereignty of the Spanish people and the given supremacy of the Constitution could lead this Court to approach the problems which, in such a case, would arise.”
It does add that “under current circumstances, said problems are considered inexistent”, but clearly, an exception on the superiority of EU law has been established.
The Czech Republic
According to Czech Judge Jaroslav Vavra, “the Czech Constitutional Court, in general, accepts the primacy of EU Law, however not absolutely”, noting that “the protection of fundamental rights within the EU cannot give rise to the assumption that this standard is of a lower quality than the protection accorded in the Czech Republic” and “the application of EU law may not interfere with fundamental principles of the State sovereignty of the Czech Republic and with the principle of the material rule of law.”
In 2012, the Czech Constitutional Court (CCC) declared in its Holubec ruling the ECJ’s “Landtova” ruling to be “ultra vires”, in the context of a judicial dispute related to pension rights. The case was eventually settled outside of court, but commentators then spoke of “Nuclear War between the Court of Justice and Czech Constitutional Court”.
Open challenges of the supremacy of EU law in a specific case, whereby the national top court declares an EU act to be “ultra vires”, have really only happened three times: by the Czech Constitutional Court in Landtova, by the German Constitutional Court in 2020, on ECB QE, and by the Danish Supreme Court in its Ajos ruling, in 2016, which was about age discrimination, and whereby the Danish Supreme Court defied the ECJ, doing the opposite of what the ECJ had held it was obliged to do.
In its ruling, the Danish Supreme Court maintained that the judge-made principles of EU law such as the general principle of non-discrimination on grounds of age, were not binding because this particular principle did not have its origin in a specific Treaty provision, something the Danish Supreme Court tends to find very important.
Other EU member states:
In Greece and Bulgaria, the superiority of EU law is acknowledged or regarded as the main doctrinal constitutional principle. It is however not explicitly codified. Instead, a principle of “harmonious interpretation” of the national Constitution and EU law is being maintained.
In Romania, the Constitution provides for the supremacy of EU law, but in case of collision with national law, the Constitution or national law may still be superior in case it contains more favourable provisions when it comes to fundamental rights.
The decision by the Romanian Constitutional Court in 2018 to force the Romanian President to dismiss Laura Kövesi, the first European Chief Prosecutor, but then the Chief Prosecutor of the National Anticorruption Directorate, has also raised doubts over the commitment of Romania’s top judiciary to respect the superiority of EU law. This not so much because the deliberations may have taken place in a toilet of the Constitutional Court, according to media rumours, but due to the 2020 ruling by European Court of Human Rights that this had entailed a violation of Article 6 § 1 – the right to a fair trial – of the European Convention on Human Rights. this is at least the view of Dragoș Călin, a Judge at the Bucharest Court of Appeal and co-president of the Romanian Judges’ Forum Association.
The UK during the last stages of its EU membership:
When it was an EU member state, the UK did consider EU law to be superior, following the Factortame case, but in 2017, the UK Supreme Court ruled in “Miller v Secretary of State for Exiting the EU”, that a British court’s duty to disapply domestic legislation did not apply to legislation that alters the constitutional status of EU institutions or EU law, meaning the duty to disapply national law when in violation of EU law is not absolute.
An Intergovernmental “Subsidiarity Court” as a solution?
As Belgian Law Professor Marc De Vos has argued on Brussels Report, the superiority of the EU’s top court has not been enshrined in any Treaty, but is voluntarily accepted by national top Courts, a situation which he rightly considers to be unsustainable, as he wrote:
“One thing is missing, however: the anchoring of a clear choice in the constitutional treaties of the Union about the hierarchical relationship between the EU and its member states.”
"As Law Professor Marc De Vos stressed on Brussels Report, the superiority of the EU’s top court has not been enshrined in any Treaty, but is voluntarily accepted by national top Courts, which he rightly considers to be unsustainable"https://t.co/x7dJqhPgXc#Poland https://t.co/dvUVRB3pX5
— BrusselsReport.EU (@brussels_report) October 8, 2021
Perhaps some may argue that a “Declaration concerning primacy”, inserted into the Lisbon Treaty, signed in 2007, can serve as a legal Treaty basis for the primacy of EU law, but the Intergovernmental Conference which adopted the Treaty of Lisbon also attached an Opinion of the Council Legal Service on the primacy of EC law, which stressed that “the fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.”
In other words: the legal basis for the principle of primacy of EU law is not a Treaty, but the jurisprudence of the EU’s top court in Luxembourg.
As Professor De Vos notes, referring to an earlier ruling by the Polish court:
“There are now cracks emerging in the collective discipline among the courts of the 27 member countries. Both in France and Germany, top courts have questioned the functioning of the European Court of Justice. This was already unseen. The Polish top court has now gone one step further in contesting the legal force of EU law altogether”
In other words, some kind of settlement, perhaps an addendum to the EU Treaty, detailing the conditions under which EU law is superior, to be ratified by all EU27 member states, to settle the matter, may not be a bad idea.
In response to the ruling, Hungarian Prime Minister Viktor Orban signed a Hungarian government decree on Saturday, setting out that “The primacy of EU law can only apply in those areas where the EU has powers”.
Would the implementation of this principle be so unreasonable? Then, the ECJ will simply argue that it is already respecting this principle.
As former German President Roman Herzog has pointed out and documented, back in 2008:
“Judicial decision-making in Europe is in deep trouble. The reason is to be found in the European Court of Justice (ECJ), whose justifications for depriving Member States of their very own fundamental competences and interfering heavily in their legal systems are becoming increasingly astonishing. In so doing, it has squandered away a large part of the trust it used to enjoy.”
More recently, former German Constitutional Court judges have made similar complaints. One of them, Dieter Grimm, has complained that the EU often extends “the transferred powers extremely far, so that that area of competence of the member states and thus also the field of application of the national constitution and national democracy is undermined.”
In my view, the best guarantee to stop ECJ overreach – which is the reason for top national courts challenging the superiority of EU law – is the creation of a “Subsidiarity Court”, a new intergovernmental institution superior to the EU legal order and manned by representatives of the judicial branches of EU member states, exclusively tasked to stop the European Court of Justice from adopting unacceptably extensive interpretations. I discuss this idea here, while admitting it isn’t perfect.
Polish legal scholar Jakub Jaraczewski, the Research Coordinator at Berlin-based Democracy Reporting International, has argued the following in response to the Polish Constitutional Court ruling:
“The “Polexit judgment” will fulfil the role the Prime Minister intended it to have – it will provide a constitutional cover justifying the continuing harassment and punishment of Polish judges who apply EU law regarding judicial independence.”
Staying out of the domestic Polish debate, or even if one is fully on board with his analysis on the state of Polish democracy, it cannot be denied that in a majority of EU member states, the supremacy of EU law has been challenged by top judicial bodies.
In itself, it is not a bad thing not to enshrine the principle of EU law in a Treaty, as long as there is a willingness among top national courts to accept this principle. However, it is clear that – partially due to continuous transfers of powers to the EU level, aided by the ECJ – this consensus has eroded over the years.
Therefore, whether one is annoyed about ECJ overreach, or whether one does not want the likes of the Polish government to use this as a so-called “constitutional cover” to fight Brussels, the response should be the same. In both cases, it may be a good idea for the 27 member states of the EU to cofidy in a Treaty when precisely EU law is superior and more importantly, to set up an intergovernmental Subsidiarity Court to police this.