With its entry into the European Union in 2004, Poland accepted the Acquis Communautaire in its entirety. However, recognizing the body of common rights and obligations that are binding on all EU Member States, dose not only indicate the mere acceptance of the EU’s legal foundations, but it implies that Member States become committed to the application as well as the safeguard of the fundamental values of the Union. Yet, this presupposes that Member States recognize the primauté of European law over national legal orders, which represents one of the major tenets of European integration. Exactly on this last fundamental aspect, relations between Brussels and Warsaw – which have already hit a low point since 2015 – have lately been straining. “We don’t want to have ‘a master and customer’ relationship with the European Commission”. “Poland doesn’t have any master. This is not a vassal relationship […]” – so the Polish Prime, Mateusz Morawiecki (Wanat and Tamma, 2021). With his words, Morawiecki accused the EU of having acted beyond the scope of its competences for too long and, thus, aimed at denouncing the creeping expansion of EU powers which –according to him – led to the undermining of Poland’s national sovereignty. He clearly affirmed that Member States remain sovereign and that, therefore, the Polish constitution takes undisputed precedence over EU law. This is what has been previously affirmed this month by the Polish Constitutional Tribunal. More specifically, it claimed the incompatibility of some parts of EU treaties with the Polish constitution – hence, the latter’s superiority. This represents only the last of the numerous defensive actions that made Poland the prior concern of EU institutions over the past years. Indeed, from threatening the foundations of the EU to directly challenging the unity of the European legal order, Poland has increasingly drifted away from the EU and its values steering towards a structural breakdown of the Rule of Law.
EU law supremacy is still a disputed concept
The firm stance of the Polish Prime Minister regarding the supremacy of the country’s constitution over EU legislation can be seen as an even more hazardous move which goes beyond the government’s actions of recent years aimed at suffocating the country’s Rule of Law. However, Poland’s claim of constitutional primacy is not a sudden burst in national sovereignity. Indeed, issues around the relationship between EU and national legal orders and, thus, around the precedence of EU jurisprudence have been accompanying the EU ever since its founding, with Germany representing the most meaningful example of a Member State imposing constitutional boundaries to the unconditional unfolding of EU law supremacy so as envisaged by the European Court of Justice (ECJ). The supremacy principle of EU law – which was crystallised in ECJ case law in several progressive stages – is crucial as it shapes the relationship between domestic and EU law and, thus, between national courts and the ECJ, thereby ensuring the proper functioning of the EU. If a Member State had the power to either annul EU laws by adopting a new domestic legislation that clashes with the EU primary or secondary legislation, or could simply give precedence to national law, then the fundamentals and the wider aim of the Union would be hampered.
The sui generis nature of the EU has inevitably raised doubts about the relation between the EU and the Member States and, hence, about the latter’s unwillingness of a peaceful subordination to a supranational organization which is perceived to “rule from above” without sufficient legitimacy. Besides the rejection of the 2007 Constitutional Treaty, Member States’ historical refusal of entirely surrendering their state sovereignity to a European Federal State is exemplified by their disavowal of the primauté doctrine of EU jurisprudence as interpreted by the European Court of Justice. This rejection grounds in the discordance regarding the origin of the supremacy doctrine, which largely steams from the EU and the Member States’ antagonist standpoints concerning the nature of their relationship. This disagreement – which led them to a hostile coexistence – has been at the heart of the judicial debate between the ECJ and national constitutional courts.
Following the ECJ’s perspective, the essence of the EU legal system stems from its own sources, which renders the latter “independent from the Member States and their national law” and, therefore, “self-referential and constitutional [in] nature” (Stone, 2016, p.152). Accordingly, the autonomous character on the Union and, hence, its supremacy is “self-explanatory and exists without reference to national legal systems” (Stone, 2016 p.152). Accordingly, also relying on the fact that – when joining the European Union – Member States’ agreed
on surrendering part of their sovereignity to a supranational institution, the ECJ did not hesitate to define the law originating from the Treaties as an autonomous, directly effective, and supreme source of law. In turn, this would prevail over any national act in case of conflict, regardless of whether the latter pre-dated or post-dated the EU provision in question (Simmenthal, 1977). As such, the ECJ claimed its sole prerogative to define the remit of its competencies by extending its absolute primacy to national constitutional law, since the goal of creating a single market would have been jeopardized if Member States could “unilaterally nullify EU provisions by means of a legislative measure which could prevail over Community law” (Craig and De Búrca, 2015, p.267). This is called the “European law approach” (Bumke and Voβkuhle, 2019, p.388), which asserts the limitless primacy of application of EU jurisprudence over domestic provisions of legislative rank as well as over national constitutional acts. In other words, EU law does not only enjoy “ordinary primuaté” over domestic provisions of legislative rank, but also “constitutional primauté”, thus being able to invalidate any constitutional act infringing upon EU jurisprudence, including those representing constitutional identity.
However, Member States’ claims of Kompetenz-Kompetenz clearly show that this conception of absolute authority of the EU Acquis Communautaire has not been accepted. Indeed, by claiming their role as “Masters of the Treaties”, Member States interpret their relationship with the EU in terms of the “agent-principal” relation (Brewer, 2011, p.575). According to this view, EU institutions must operate on behalf of the Member States or, in other words, according to the Treaties which legal basis is anchored in the provisions of national constitutions. As such, the European legal order is a mere “derivative source of law” which lacks the authority of Member States’ national constitutions and, as such, cannot “claim to possess the authority (…) for supreme law” (Brewer, 2011 p.575). Accordingly, the conceptual foundation for the acceptance of EU primauté does not ground in the peculiar nature of EU jurisprudence, but in “the voluntary assent of the national implementing legislation” (Stone, 2016, p.153). The authority of EU law is an expression of and is regulated by the national legal systems which means that the priority of application of EU acts dwells in national constitutional law and is, therefore, limited by it.
Accordingly, Member States hold the so-called Kompetenz-Kompetenz to decide over the remit of EU jurisprudence, that is, delimiting those areas in which EU institutions may unfold their powers, and eventually their supremacy. This implies EU off-limits fields, the infringement of which would mean trumping the Treaties’ guidelines and, hence, their legal basis, that is, Member States’ implementing constitutions. In other words, EU jurisprudence does not take precedence over the entirety of Member States’ national constitutional law but exclusively within those constitutional barriers – of different nature and aim – outlined by the members. These deep divergencies over the nature of the supremacy doctrine proves that the relationship between the EU and the Member States is a controversial one that displays as the only point of agreement the fact that the “(…) secondary Community law form[s] an independent legal system whose norms constitute neither the national law of the Member States nor international law” (Bumke and Voβkuhle, 2019, p.388).
One of these major barriers to the limitless unfolding of EU jurisprudence is the principle of national constitutional identity. This concept underwent a rapid spread within the EU in the last decades due to both the current “Zeitgeist of increasing scepticism towards the EU” and Member States’ concern over a possible rise of a European super-state (Fabbrini and Sajó, 2019, p.458). When Member States are defending their constitutional identity against an intrusive EU supranationalism, it implies that they are safeguarding the “identity as the individuality or essence” of their legal orders (Van der Schyff, 2016, p.169). Hence, “constitutional identity” refers to that core of fundamental principles or values without which “the constitution would not be the same in an essential way” (Van der Schyff, 2016, p.169). It depicts a form of “national self-expression” (Calliess and Van der Schyff, 2020, p.5) of sovereign statehood defining the nation’s functional existence in its most intrinsic “being”.
As such, the notion of constitutional identity has been enforced as a the main “weapon in the armoury of apex national courts to resist the application of EU law” (Fabbrini and Sajó, 2019, p.472) in those areas of national legal systems considered fundamental of Member States’ constitutional foundation. Thus, national core identity represents a “hard shield” (Faraguna, 2017, p.1627) against the ultra vires behaviour of the EU, which occurs every time the Union acts beyond its powers and threatens to breach the hard core of national constitutional principles. It follows that a “great potential for conflict inheres in the Member States’ expression of
constitutional identity, especially insofar as it claims to qualify or reject the primacy of EU law” (Calliess and Van der Schyff, 2020, p.5).
The key role that constitutional identity has acquired in the last decades within the EU may be a direct consequence of the European supranational system based on “power conferral” from the Member States to the Union. Through this mechanism, the latter obtains the authority to unfold its jurisprudence within the 27 Member States. Thus, both EU law and domestic legal orders unfold their normative powers within the same judicial space (i.e., within the Member States) (Arnold, 2014, p.149). Hence, power conferral introduces the concept with which scholars have been describing the European legal sphere, namely that of “European multilevel constitutionalism”, that is, a plurality of constitutional orders within a shared legal context which are forced to a “judicial coexistence” (Barents, 2012, p.153-154). Given this two-fold European jurisprudential space, Member States were concerned about the EU legal order taking the upper hand on national jurisprudence, and especially on their constitutional principles. Therefore, the concept of “constitutional identity” started to be enforced as an absolute limit to the reach of EU jurisprudence in order to preserve the states’ hard core of fundamental constitutional principles.
The fact that the EU is not willing to give absolute pre-emption to the protection of Member States’ constitutional idenity at the cost of the principle of EU law primauté largely steams from the fact that it has a laxer understanding of “constitutional identity” compared to the Member States. Indeed, while the latter claim absolute pre-eminence of constitutional identity since it represents a nation’s essence, the EU is careful not to interpret the concept to broadly not to override the supremacy doctrine and thus not to jeopardize the principle of uniform application of EU jurisprudence.
Given these antagonistic standpoints, not only did constitutional identity become the bulwark of Member States’ legal position within the EU, but it also represents one of the major breaking points between the EU and the 27 states thereby shaping the national courts and the ECJ’s “judicial dialogue”. It symbolizes the cornerstone of the legal relationship between the EU and its Member States within a multi-layered constitutional system. Only through the understanding of the importance of constitutional identity, the acknowledgment of its position within the system of “European Constitutions”, and its relationship with the primauté doctrine, is it possible to comprehend the contours of the legal relationship between the EU and its Member States within the broader context of European integration (Calliess and Van der Schyff, 2020, p.4).
Polish supremacy claims as a continuum of the years-long feud with the EU
Against this background, the assertion made this month by the Polish Constitutional Tribunal and firmly reaffirmed by the Prime Minister can be interpreted through the words of the Polish prime Minister: “The Polish constitution is the country’s highest legal act and therefore must be protected against the “unacceptable” expansion of EU competencies. In his view, the European Union has exceeded the powers granted by member states in the original treaties and countries should be entitled to react to this abuse” (Euronews, 2021). In other words, Poland’s “core identity” constitutes the essence of the country’s constitutional order and is, therefore, inviolable. Polish constitutional identity is the yardstick of the county’s integration in the EU, meaning that it reserves itself the absolute right to restrain European jurisprudence. This is the most powerful and threatening statement of national sovereignty with which a Member State could ever endanger the unity of the European legal order.
More specifically, by reiterating the Court’s verdict, the Polish government aimed at clarifying that there was one specific fundamental of the Union which application could be constrained in light of Polish constitutional supremacy: the principle of the Rule of Law. Both the Court and the government intended to convey that the EU was prohibited to interfere with the Polish judicial systems as well as with national matters, especially referring to those concerning the country’s Rule of Law. Thus, according to the right-wing government, the EU should take a step back in its feud with Poland over the alleged dying Rule of Law in the country and let the latter unfold its legitimate powers deriving from its national sovereignty.
Until the present day, Poland has rejected every accusation made by the EU of violation on questions ranging from judicial reforms and media freedoms to LGBT rights. It affirmed that the government’s reforms were aimed to eradicate persisting influences of the communist era. Moreover, Warsaw denies having any influence over court decisions and denounces the allegations of being responsible for the alleged dying Rule of Law in the country. However, it is evident that ever since 2015 the ultra-conservative Law and Justice party (PiS) has been responsible for the backsliding of democracy in the country through the destruction of the European legal system. By threatening the Polish judiciary with numerous measures aimed at undermining its independence, the Polish government has been thoroughly defying the democratic values upheld by EU law (Henley and Rankin, 2021).
Already before 2020, the government has legalized the systemic violation of EU and ECHR judicial independence requirements, along with deliberately infringing the Polish Constitution as well as EU legislation in order to restore a Soviet-style justice system at the core of the EU legal order through the so-called “muzzle law” (Pech, Wachowiec, Mazur, 2021). This law “aims to neutralis[ing] the application of EU judicial independence requirements by introducing new types of disciplinary offences for judges; politicising criminal proceedings even further by granting the “Disciplinary Chamber” (DC) exclusive competence to lift a judge’s immunity; granting the exclusive right to assess whether a judge is independent to the new Extraordinary Control and Public Affairs Chamber (ECPAC), which itself lacks independence” – so the authors.
The appointment, promotion and disciplining of judges and prosecutors had been shifted under the control of the Polish government. Changes to the judicial system were enforced to hollow out specific institutions – e.g., the Constitutional Tribunal, the National Council of the Judiciary, the common and administrative courts, and the Supreme Court – of their powers. National judges were even punished for turning to the ECJ for guidance on how to apply EU law. Already in 2017, the Council of Europe’s Venice Commission warned that such changes “bore a striking resemblance with the institutions which existed in the Soviet Union and its satellites” (European Stability Initiative, n.d.). As a result, following years of sustained attacks on Polish courts, judges, and prosecutors, Poland can now be considered the first EU Member State lacking an independent judicial branch (Pech, Wachowiec, Mazur, 2021).
The restriction of the judiciary powers was only the initial move towards an open declaration of Polish constitutional sovereignty and the restraint of EU jurisdiction within the country which ultimately happened this month after years of tension with the EU. Thus, Polish supremacy claims are not only a continuum of the years-long feud with the Commission, but also the extremization of Poland’s assertiveness to establish national sovereignty which already initiated with the reform of the judicial apparatus. Accordingly, the government’s claim of constitutional supremacy can be portrayed as a major further step of the government in the process of establishing Polish national sovereignty. At the same time, however, it represents a nuclear downturn in the already unstable relations between Warsaw and Brussels. As the German Chancellor, Angela Merkel, said “[…] we have to find ways of coming back together, because a cascade of cases at the European Court is not a solution” (BBC News, 2021). A lack of agreement between the two parties will only generate major instability within the Union.
Conclusion
The hard stance adopted by the Polish government heightened preoccupation among Member States but was largely seen as unsurprising. Throughout the years, however, Poland intensified its position against the EU. From a gradual but forceful limitation of the power of the judiciary branch, the Polish government endorsed a defiant judgment of the country’s constitutional court that denounced the creeping expansion of powers of EU institutions as well as the transfer of sovereignty from Poland to the Union. The rejection of the supreme legal authority of the EU’s Court of Justice vowing to defend the country’s sovereign independence takes the restriction of the Rule of Law in the country a step further, thereby indicating Poland’s intention not to take a step back in its process of reforming the judiciary and, thus, in its feud with the Commission. The Polish government made it clear: the EU does not have any right to interfere in the country’s internal matters and, thus, with the county’s reform of the judiciary. This represents the most extreme step towards a legal exit
from the EU ever taken by a national court. Never had a Member State directly and openly challenged the unity of the European legal order in such an assertive manner.
Polish citizens are the ones who are seeing their future and rights at stake. Von der Leyen, who clearly affirmed that the Commission will not permit the foundations of the European Union to be called into question, stated that Poland’s behaviour “has serious consequences for the Polish people. Because the ruling has a direct impact on the protection of the judiciary, without independent courts, people have less protection and consequently their rights are at stake” (Euronews, 2021). The European institutions must protect the European narrative in Poland. This is what most Poles expect. When joining the EU, the Polish people put their trust in the European Union, and they now expect the EU to defend their rights. However, frustration and discouragement become more overwhelming every day as people see nothing tangible happening. This could most likely lead them to lose faith in the EU, as well as to doubt the powers of EU institutions to be able to face the Polish government. Europe cannot afford to lose the support of Polish citizens. At the same time, liberal Poland and people in the county need the Union. Brussels must stop underestimating Poland’s assertiveness. The Polish situation does not represent a mere problem of bad governance of yet another incompliant member state trying to establish its superiority in the European landscape (Koncewicz, 2021).
The Commission is the guardian of the Treaties and the guarantor of its citizen’s rights. The Rule of Law is what binds the Union together and must therefore be safeguard. The political process at the domestic level must be supervised by the independent supranational mechanisms and institutions allowing the respect of a common legal order enabling equal rights, legal certainty, mutual trust between member states and thus common policies. This has always been a true founding major principle of European integration. After all, the EU was founded to fight arbitrariness and authoritarianism. European leaders are urgently required to acknowledge the constitutional stakes involved and accept that a definitive collapse of Rule of Law in Poland would have devastating consequence not only for Poland and its citizens, but also for entirety of the Union. Those fundamentals on which the Union had once been grounded would be shredded and its future jeopardized.
EU leaders must urgently take actions to realign the Polish legal system with European standards. Member States must remind Poland’s government about the severe repercussions of eroding judicial independence. A united front from EU member states would also aid the ECJ in its fight against the erosion of the rule of law in Poland. All European political parties who care about the rule of law’s integrity in the European Union should embrace this as a subject of enormous importance that transcends party politics. Today, the future of the EU as a project founded on the rule of law, separation of powers, and human rights is at stake in Poland (European Stability Initiative, n.d.). As the President of the European Court of Justice, Koen Lenaerts, stated it in early 2020, “Today, Europeans are facing a defining moment in the history of integration … the principle of judicial independence must be preserved so that the EU remains a “Union of democracies,” a “Union of rights,” and a “Union of justice.” If the next generation of Europeans is to explore new horizons for an ever-closer Union where citizens may continue to enjoy a sphere of individual liberty free from public interferences, integration through the rule of law is the only way forward”(Knaus, 2021).
Bibliography
Arnold, R. (2014). L’idenità Costrituzionale: un concetto conflittuale [online]. In A. di Blasé (Ed.), Convenzioni sui diritti umani e corti nazionali, (pp.149). Italy: Romatre-Pres
Barents, R. (2012). The Fallacy of European Multilevel Constitutionalism. In M. Avbelj & J. Komárek (Eds.): Constitutional Pluralism in the European Union and Beyond (1 st ed., pp.153-154). UK: Hart Publishing.
Brewer, M.K. (2001). The European Union and Legitimacy: Time for a European Constitution. Cornell International Law Journal, 34(3), pp.575.
Bumke, C., & Voβkuhle, A. (2019). German Constitutional Law (1st Ed.). UK: Oxford University Press, pp.388.
Calliess, C., & Van der Schyff, G. (2020). Constitutional Identity introduced. In C. Calliess & G. Van der Schyff (Eds.): Constitutional Identity in a Europe of Multilevel Constitutionalism (1st Ed., pp. 4-5), Cambridge: Cambridge University Press.
Craig, P., & De Búrca, G. (2015). EU law, Text, Cases and Materials (6th ed.). UK: Oxford University Presspp. 267.
5 billion to save the EU – Poland, Penguins and the Rule of Law | ESI. (2021, August 6). European Stability Initiative. Available at: https://www.esiweb.org/newsletter/5-billion-save-eu-poland-penguins-and-rule-law
EU summit: Respect the club rules, Poland told. (2021, October 22). BBC News. Available at: https://www.bbc.com/news/world-europe-58999963
Euronews. (2021, October 21). “Poland will not be intimidated,” says PM Morawiecki as EU law row brought before MEPs. Available at: https://www.euronews.com/2021/10/19/watch-live-meps-debate-eu-poland-legal-crisis
Fabbrini, F. & Sajó, A. (2019). The Dangers of Constitutional Identity. European Law Journal, 25(4), pp.458, 472. Available at: https://doi.org/10.1111/eulj.12332
Faraguna, P. (2017). Constitutional Identity in the Age of Global Migration: Constitutional Identity in the EU – A Shield or a Sward? The German Law Journal, 18(7), pp.1627. Available at: https://doi.org/10.1017/S207183220002246X
Henley, J., & Rankin, J. (2021, October 7). Polish court rules EU laws incompatible with its constitution. The Guardian. Available at: https://www.theguardian.com/world/2021/oct/07/polish-court-rules-that-eu-laws-incompatible-with-its-constitution
How the rule of law dies in Poland | ESI. (n.d.). European Stability Service. Available at: https://www.esiweb.org/proposals/how-rule-law-dies-poland
Koncewicz, T. T. (2021, August 16). Poland and Europe at a Critical Juncture. What has happened? What is happening? What’s next? Verfassungsblog. Available at: https://verfassungsblog.de/poland-and-europe-at-a-critical-juncture-what-has-happened-what-is-happening-whats-next/
Pech, L., Wachowiec, P., & Mazur, D. (2021, January 13). 1825 Days Later: The End of the Rule of Law in Poland (Part I). Verfassungsblog. Available at: https://verfassungsblog.de/1825-days-later-the-end-of-the-rule-of-law-in-poland-part-i/
Stone, J.H.D. (2016). Agreeing to disagree: The Primacy Debate Between the General Federal Constitutional Court and the European Court of Justice. Minnesota Journal of International Law, 25(1), pp.152-153.
Van der Schyff, G. (2016). EU Member State Constitutional Identity: A Comparison of Germany and the Netherlands as Polar Opposites. Zeitschrift fϋr ausländisches öffentliches Recht und Völkerrecht. 76(1), pp.169.
Wanat, Z., & Tamma, P. (2021, September 7). Brussels ups the ante in rule-of-law dispute with Poland. POLITICO. Available at: https://www.politico.eu/article/brussels-eu-increases-pressure-rule-of-law-dispute-poland/
By The European Institute for International Law and International Relations.
