Trouble on the Horizon: How the Polish Constitutional Tribunal’s Recent Decision Undermines EU Law
About the author: Xiangyu Ma is a contributor to Travaux. Prior to joining Berkeley Law, he obtained his LL.B. degree from Wuhan University in China. Previously, he had worked with public and private stakeholders across different legal sectors such as PE, bankruptcy, dispute resolution, and infrastructure construction. He is particularly interested in the topics of comparative law, alternative dispute resolution, and European integration.
Photo by Andrew Fackler, available here.
On October 7, Poland’s Constitutional Tribunal concluded that the Polish Constitution takes precedence over some European Union (EU) laws. While this is not the first time that EU laws have been called into question by the courts of its member states, this decision is remarkable in its explicit challenge to the primacy of EU law and the Court of Justice of the European Union (CJEU), both of which serve as legal foundations for European integration. The ruling came about as a result of a request from Polish Prime Minister Mateusz Morowiecki in March 2021 to rule on the conflicts between EU law and the Polish Constitution. In its ruling, the Tribunal held that EU legislation and interpretations by the CJEU may cause Poland to “not function as a sovereign and democratic state” and that the Polish Constitution takes precedence “in terms of binding force and application.” In response, the European Commission reaffirmed that EU law takes precedence over national constitutional provisions and that national courts should accept the CJEU's authority regarding its interpretation of EU law.
This controversial decision comes after Poland’s ruling Law and Justice Party (PiS) crippled Warsaw’s supreme judicial body through court cramming, legislative bombardment, and even refusal to publish judgments. However, despite these facts, EU law’s significant internal issues, including a striking competence dilemma and lack of democratic legitimacy, also contributed to the Polish Constitutional Tribunal’s decision.
The Holding of the Polish Constitutional Tribunal
The Polish Court’s ruling called into question the constitutionality of EU law primarily under two categories. The first is the validity of EU primary legislation. The Tribunal determined that Article 1 and Article 4(3) (commonly referred to as EU member states’ "duty of sincere cooperation") of the Treaty on European Union (TEU) are incompatible with the Polish Constitution, holding violate Poland's constitution and the established precedents of the Tribunal. In making its decision, the Tribunal disregarded Article 9 of the Polish Constitution, which states that Poland "shall respect international law binding upon it," Article 90(1), which delegates part of Polish authorities' competence to international organizations and institutions, and Article 91(2), which provides that international agreements, including EU treaties, take precedence over Polish statutes in the event of a conflict. Furthermore, the Tribunal disregarded its established case law resolving disputes between the Polish constitution and EU legislation. This includes K 18/04, which affirmed "the 2004 [EU] Accession Treaty’s compliance with the Polish [C]onstitution." As a result, this judgment lacks the legal rationale of a true judicial opinion and bears more resemblance to a political decision targeting the EU’s influence over Poland.
Second, the Tribunal sought to invalidate the CJEU’s interpretation of EU law. The Tribunal disputed Article 19(1) of the TEU, which vests the CJEU with the authority to implement “uniform interpretation and application of EU legislation.” In Judge Piotr Pszczókowski's dissenting opinion, he claimed that the purpose of the Polish Prime Minister's request was to undermine the effects of specific CJEU rulings rather than to invalidate EU primary legislation. However, such a distinction between repealing EU primary law and the CJEU's ruling makes no difference, as both rationales undermine the very foundations of the EU legal order. The EU is founded on member states’ “shared values” and seeks to create “an ever closer union.” Given EU member states' diverse traditions, histories, and cultures, the CJEU is the central legal mechanism for accomplishing that goal. Preventing the implications of the CJEU’s ruling will likely cause the European integration process to stall, if not reverse itself.
The Aftermath: Polexit and EU 2.0?
Regarding the dilemma caused by the Polish Constitutional Tribunal’s judgment, Daniel Sarmiento argues that it is de facto “legal Polexit” to the extent that the PiS government implements it, resulting in “no integration through law, no reference to CJEU, and no judicial cooperation.” By contrast, Maximilian Steinbeis maintains that Poland will remain an EU member until the Polish government “pushes the TEU Article 50 button.” Merijn Chamon and Tom Theuns proposed a bolder approach, considering the possibility of a “collective withdraw[al] by the liberal democracies from the EU” under Article 50 of the TEU and establishing an EU 2.0 composed of states that abide by TEU Article 2. On the other hand, Maciej Krogel urges the public to “not evoke the ghosts of European disintegration by invoking the legal exit as a welcome solution,” particularly given that TEU Article 3(1) states that the aims of EU are “not only promote its values but also promote peace and wellbeing of its people.” And in times like these, the defense of the latter is critical if Europe is to avoid a new Cold War.
Krogel’s assessment is wise. Allowing “Polexit” or creating an EU 2.0 at first appears to be an effective solution that severs troubled ties, but ignores the potential of a new Iron Curtain across the Continent. Such an outlook places unrealistic optimism in insulating authoritarian Member States in order to persuade or even compel them to recommit to EU core values. This strategy ignores the fact that isolation may also infuriate these countries, causing them to embrace authoritarianism even more recklessly. More importantly, it misses more fundamental questions: what is the EU legal order in nature, what problems arose from it, and can Polexit or EU 2.0 address them?
A Castle in the Air: EU Law as International Law with Constitutional Characteristics
The EU is an international organization by birth but has become highly constitutionalized through evolution. This reflects itself in the EU legal order, which is primarily based on two principles: the direct effect and primacy of EU law. The European Court of Justice (ECJ) held in Van Gend en Loos that the European Economic Community (EEC), the EU’s predecessor, constituted a new legal order of international law “the subject of which comprises not only the Member States but also their nationals.” This epoch-making decision retrospectively laid the foundation of the EU legal order on both states and their citizens, distinguishing it from international law which is based on agreements between sovereign states. Therefore, constitutionally, the legitimacy of the EU is founded in part on the democratic will of member states’ citizens and not just member states’ governments. Furthermore, in Costa v. ENEL, the ECJ held that EU laws could not be “overridden by domestic legal provisions.” However, as the effect of EU law permeates into domestic domains, jurisdictions between the CJEU and domestic courts, especially the constitutional courts, begin to overlap. This situation is often referred to as “Kompetenz-Kompentenz.” For instance, Poland’s Constitutional Tribunal had previously ruled that the CJEU had performed the same functions and wielded the same powers as the constitutional court.
To address such a problem, the preliminary ruling procedure was established through TFEU Article 267. However, this procedure cannot resolve this conflict because of its theoretical and procedural flaws. TFEU Article 267 states that member states’ courts shall bring their cases before the CJEU if the interpretation of EU primary and secondary legislation is necessary for their judgment. First, this procedure draws no distinction between the constitutional and lower courts of member states in terms of their obligation of reference. As a result, lower courts may directly refer their cases to the CJEU without consulting national constitutional courts first, despite these constitutional courts’ higher rank in domestic legal orders. As a result, the preliminary ruling procedure vests the CJEU with powers subject to little domestic constitutional scrutiny. Second, the preliminary ruling procedure lacks an appeal mechanism. This leaves the requesting court of the member states with no option but to apply the ruling. Third, the CJEU has been greatly criticized in practice as it occasionally endangers member states’ constitutional structure. For instance, France in 2010 completed a constitutional reform aimed at putting the French Constitutional Council at the center of constitutional adjudication, excluding treaty review (including European Convention) by ordinary and administrative judges. However, the CJEU held that all national courts remain free to refer their cases to it, which diffused the French Constitutional Council’s assertion to first review the cases of ordinary courts.
In response to the CJEU's constitutional threats, member states’ constitutional courts adopted the "Constitutional Identity Test." This test is more frequently used by several Member States as a veil for nationalist moves, particularly Hungary and Poland. The CJEU in Tarrico responded by reiterating “common constitutional traditions common to the member states.” As CJEU’s former Advocate General Poiares Maduro stated, the EU’s absolute respect for the constitutional identity of the member states “could lead to discrimination between the member states based on the contents of their respective national constitutions.” Combating nationalistic moves through “common constitutional traditions” is a manifestation of constitutional patriotism, a theory that aims to subscribe the identity of the individual living in liberal constitutional polities to the constitution rather than ethnicity through constitutional participation. However, the Polish Constitutional Tribunal’s ruling on October 7 explicitly demonstrates constitutional patriotism’s flaws. In recent years, the EU has done little to act on violations of EU fundamental principles (articulated by Article 2 TEU) by Hungary and Poland primarily because of its insufficient democratic legitimacy. The current competence crisis between the EU and some of its nationalist member states demonstrates that nationalism sometimes possesses greater power than universal values in terms of political mobilization and legitimacy. The EU legal order, which is built on a heterogeneous society, will undoubtedly face competence conflicts in the long run, and member states’ constitutional courts will continue to police their constitutional boundaries at their own discretion. Despite some constitutional courts preferring a more EU-friendly approach without striking down EU primary law, these courts’ legal rationales may still be abusively used by their colleagues in nationalist member states to further jeopardize the EU’s shared foundational values.
The EU is a major achievement not only for Europe, but also for human society, in establishing supranational political and economic unions. The EU legal order, in turn, serves as a valuable case study of legal pluralism. However, the Polish Constitutional Tribunal’s judgment casts a shadow over its future. This case is part of a growing trend for Member States’ national constitutional courts to resist the influence of EU law and the CJEU’s rulings. If the CJEU does not take radical steps to protect the EU’s shared founding values and the EU does not make sweeping reforms, the constitutional characteristics of the EU legal order will be damaged and diminished.