Constitutional Court decides: does Poland place national law above that of the EU?

The Polish Constitutional Court started its deliberations on Tuesday on whether national law should ultimately take precedence over EU law.

Specifically, it is a question of whether a number of provisions in the EU treaties are compatible with the Polish constitution.

This concerns, among other things, the question of whether Polish courts are allowed to have the ECJ examine whether a judge appointed by the Polish President is “independent” within the meaning of EU law.

It is also a question of whether the European Court of Justice (ECJ) can force the country to repeal part of the controversial judicial reforms promoted by the right-wing ruling party PiS.

A judgment in the interests of the government was expected.

Gerhard Gnauck

Political correspondent for Poland, Ukraine, Estonia, Latvia and Lithuania based in Warsaw.

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Thomas Gutschker

Political correspondent for the European Union, NATO and the Benelux countries based in Brussels.

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Its critics see in the possible confirmation of a priority of national law over EU law a step towards Polexit - a development, the result of which could be Poland's exit from the EU or its legal system.

Prime Minister Mateusz Morawiecki called the Constitutional Court at the end of March 2020 to determine the primacy of the Polish constitution.

Morawiecki said he assumed that the court would confirm this.

At the beginning of June, EU Justice Commissioner Didier Reynders asked Warsaw to withdraw the application.

On Tuesday, a handful of demonstrators with EU flags waited in front of the Constitutional Court in Warsaw.

But in the afternoon the court interrupted the session until Thursday.

This was preceded by a four-hour debate in which Adam Bodnar, Poland's outgoing ombudsman (civil rights representative), probably made his last major appearance.

Together with two employees, he took about two hours of speaking time and made three motions.

Only one five judge not on government line

In one, he called for the court to judge with a full cast due to the weight of the question under discussion - and not just, as planned, with five judges. The chairman of the Constitutional Court, Julia Przylebska, became nervous at times, interrupted him and rejected his applications. The court is now clearly dominated by judges close to the government, including Przylebska. In the ruling chamber, which is now judging, only one in five judges is considered independent of the government camp.

The lawyer Krzysztof Szczucki spoke for the applicant Morawiecki. He spoke in accordance with the primacy of state law. According to the European Treaties, the ECJ does not have the competence to assign powers to courts of the member states - for example in the sense of reviewing appointed judges. That is also evident from the constitution. “A constitution that is not the supreme legal act of the state would make no sense. On the basis of this constitution, a foreign body could not be granted powers to make decisions that undermine the constitution itself or decisions made on the basis of it. It would be different if the EU, unlike today, were a federation, a supranational state. ”However, there is“ no political, social or legal approval in the European Union ”.

However, the latest case law of the ECJ aims to expand its competences and those of some EU organs "contrary to the treaties and contrary to the idea of ​​European integration".

“The member states are the masters of the treaties, there is no doubt about this.” This principle is also reflected in the case law of the constitutional courts of several member states.

Critics are calling for a fine

EU Justice Commissioner Reynders told the Financial Times on Tuesday, with a view to the decision in Poland, that there was a risk of "a real threat to the entire architecture of our Union". He also referred to the ECB ruling in Germany, with which the Federal Constitutional Court disregarded a decision by the European Court of Justice. "If you don't stop that, there will be more and more opportunities for different member states to challenge the primacy of EU law and the powers of the European Court of Justice," warned Reynders.

A wink with the fence post: If the court follows the request of the Polish government and subordinates EU law to the Polish constitution, Brussels will definitely initiate infringement proceedings. In addition, there will be growing pressure - in Parliament and on the part of several member states - to introduce financial sanctions against Warsaw for the first time.

The previous procedure against violations of the rule of law in Poland has not brought about any fundamental changes. This applies to both the Article 7 procedure for reviewing the rule of law and several infringement proceedings, all of which the Commission won before the ECJ. Critics accuse the EU Commission that it has not yet made use of the option to apply for fines from the ECJ if Poland does not comply with its decisions. That would be possible in the case of the Disciplinary Chamber at the Supreme Court, which the court declared unlawful in an interim order in April 2020. In this case, the final judgment of the Grand Chamber of the ECJ will be issued on Thursday of this week.