Poland’s unconstitutional Constitutional Tribunal upends EU law

Poland’s unconstitutionally composed Constitutional Tribunal has ruled (8 October) that the EU’s Court of Justice has acted beyond its limits and that Poland’s constitution has primacy over EU law on matters linked to the composition of its judiciary. 

The judgement has been described as a Polexit by some, but Poland appears to want to remain in the EU, while ignoring its legal order. 

The European Commission was quick to react, issuing a statement reaffirmining the primacy of EU law as a founding principle of the Union’s legal order and reminding the Polish government that the European Court of Justice’s rulings are binding on all member states' authorities, including national courts.” The primacy of EU law is a well-established part of the EU’s legal order well before Poland chose to become an EU member. 

The Commission stated that it will analyse the ruling of the Polish Constitutional Tribunal in detail and will decide on the next steps to take: “The Commission will not hesitate to make use of its powers under the Treaties to safeguard the uniform application and integrity of Union law.

“The European Union is a community of values and of law, which must be upheld in all member states. The rights of Europeans under the Treaties must be protected, no matter where they live in the European Union.

“The European Commission has the task of safeguarding the proper functioning of the Union's legal order and it will continue to ensure that.”

The Law and Justice (Prawo i Sprawiedliwość) led Polish government, introduced changes to the judiciary when it came into power. In a landmark judgement earlier in the year, the European Court of Human Rights in Strasbourg ruled that the composition of the Constitutional Tribunal did not meet the conditions necessary to be described as a ‘court established by law’. It found that it could therefore not protect the right to a fair trial. 

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The EU’s court of justice has also had to deal with an ever increasing number of disputes related to the rule of law in Poland. Both Dutch and Irish courts, for example, have asked for guidance from the EU’s top court on whether they can issue a European arrest warrant surrendering a Polish national to Poland given that the ECJ had found that the National Judiciary Council (KRS, which selects judges) was no longer an impartial body independent of government. This is just one example, but if companies and individuals, Polish or otherwise, cannot trust the independence of Polish courts then this is a crisis that goes well beyond Poland’s borders.

In a statement European Commission President Ursula von der Leyen said: "Our Treaties are very clear. 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."

MEPs also reacted angrily to the ruling and are urging the Commission to activate the rule of law conditionality mechanism. Chair of the Budgetary Control committee Monika Hohlmeier (EPP, DE), said: "With this ruling, Poland is unfortunately saying goodbye to our European legal order. If European legal acts are no longer accepted, it is questionable whether Poland can still profit from the enormous amounts of EU funding it currently receives. Poland is the top recipient of EU cohesion funds and the fourth largest recipient of NextGenerationEU funding. Poland has made its own case for the triggering of the rule of law conditionality mechanism. I wonder if this is a consequence Polish authorities were willing to risk."

"The seriousness of the situation demands swift action from the EU institutions and it is now more urgent than ever to activate the Conditionality Regulation. Enough gestures, time for action," said Adrián Vázquez Lázara (Renew, ES), Chair of the Legal Affairs committee.

Chair of the Civil Liberties committee, Juan Fernando López Aguilar (S&D, ES), added his voice saying: “This decision of a Constitutional Tribunal that is subordinate to the PiS Government crosses the final border of EU membership and violates the founding principles of EU Law. We demand that the Commission implements the rule of law conditionality mechanism with immediate effect and launches infringement proceedings before the CJEU against Poland for breaching the Treaties and challenging the primacy of EU law.”

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