Wednesday

8th Dec 2021

Poland questions EU legal primacy in court ruling

  • Polish premier Mateusz Morawiecki (c) with European Council president Charles Michel (l) and Slovenian prime minister Janez Janša at the Western Balkan summit in Slovenia this week (Photo: Council of the European Union)
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Poland's controversial Constitutional Tribunal ruled on Thursday (7 October) that parts of EU treaties are incompatible with the Polish constitution, in a major escalation of the rule-of-law dispute between Warsaw and the EU, which could shake the bloc's legal foundation.

"The EU Treaty is subordinate to the constitution in the Polish legal system ... and, like any part of the Polish legal system, it must comply with the constitution," judge Bartłomiej Sochański said, according to Reuters.

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"In Poland the highest legal act is the constitution and all European regulations that are in force in Poland ... must comply with the constitution," Jarosław Kaczyński, the leader of the ruling Law and Justice (PiS) party said after the verdict was announced.

"This also applies to the judiciary and the European Union has nothing to say here," he told reporters.

EU institutions have said, for years, that PiS was undermining judicial independence, including of the Constitutional Tribunal itself, by installing loyalists in judicial posts and by creating PiS-controlled judicial disciplinary bodies to keep others in line.

PiS says the reforms are needed to purge communist-era influence in the courts.

The EU Commission launched a sanctions procedure against Poland in 2017.

The European Court of Justice (ECJ) has also issued rulings against the Polish measures, many of which went ignored.

In a verdict on Wednesday, it said Poland unfairly dismissed a judge from Kraków, called Waldemar Żurek, and said he should get his job back.

And some member states, such as Ireland and the Netherlands, have paused extraditions to Poland on grounds suspects would not get fair trials.

But Polish prime minister Mateusz Morawiecki asked Poland's Constitutional Court in March whether the ECJ or other EU bodies had the right to stop Poland's reform process, brining the matter to its current head.

In its ruling, the Polish tribunal said it had a right not just to check the constitutionality of EU law, but also individual rulings of the ECJ, and could strike down its rulings if need be.

But challenging the primacy of EU law, which is one of the pillars of EU integration, raises questions about Poland's future place in the 27-member club, even though the Polish government has said it does not want to leave the bloc and the vast majority of Polish people have told pollsters they do not want to leave either.

EU laws are meant to be either directly effective and enforceable in member states (so-called 'regulations'), or transposed into national legislation ('directives').

The EU Commission said that Thursday's ruling "raises serious concerns in relation to the primacy of EU law and the authority" of the ECJ.

The commission, in a statement, "reaffirmed" the founding principles of the EU's legal order: EU law has primacy over national law, including constitutional provisions, and all rulings by the EU's top court are binding on all member states' authorities, including national courts, it said.

"The commission will not hesitate to make use of its powers under the Treaties to safeguard the uniform application and integrity of union law," it added.

'Legal Polexit'

The ruling will become legally binding once it is officially published by the Polish government.

"Poland just took a legal step towards the abyss of 'legal Polexit'," Jakub Jaraczewski, from the Berlin-based NGO Democracy Reporting International, said.

But Polish government spokesperson Piotr Müller tweeted that: "Poland (on the principles set out in the Constitution of the Republic of Poland) respects the applicable norms of EU law to the extent that they have been established in areas explicitly and expressly provided for in EU treaties".

Meanwhile, the bombshell ruling came as the EU Commission was assessing Poland's Covid-19 recovery plan, amid suggestions the pay-outs will not be approved until Warsaw respected ECJ rulings.

It is yet to be seen where the verdict leaves Poland's almost €40bn of EU recovery money, but some MEPs have called for the planned subsidies to be scrapped.

"With this judgment, Poland is saying goodbye to the European legal order. As soon as the judgment becomes legally binding, there must be financial consequences. Without European legal order, there can be no payment of EU subsidies. European money can only be spent in line with European rules!," German Green MEP Daniel Freund, who is a member of the European Parliament's budget committee, said.

"It's hard to believe the Polish authorities and the PiS Party when they claim that they don't want to put an end to Poland's membership of the EU," centre-right Dutch MEP Jeroen Lenaers also said.

"Their actions go in the opposite direction. Enough is enough. The Polish government has lost its credibility. This is an attack on the EU as a whole," he added.

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