Poland enters minefield over EU order

The primacy of EU law is no longer unconditional in Poland. [Shutterstock/Alexandros Michailidis]

In a groundbreaking ruling, the Polish Constitutional Tribunal declared the ultimate supremacy of the country’s constitution over EU treaties, in what some say could mark the start of “the countdown to Polexit.”

The primacy of EU law is no longer unconditional in Poland and strictly limited to the competencies delegated to the EU. While the government celebrates the decision, according to the opposition, this is means “entering a minefield”.

The Constitutional Tribunal considered the issue of supremacy of EU law over four meetings since spring at the request of Prime Minister Mateusz Morawiecki. The final decision has been constantly delayed.

In its ruling, Warsaw’s top court said several Treaty articles were considered unconstitutional, and multiple CJEU rulings were found to violate Polish law.

The primacy of EU law is no longer unconditional in Poland and strictly limited to the competencies delegated to the EU. At the same time, the Polish Tribunal challenged the principle of loyal and sincere cooperation.

It considered a structure in which the entire EU legal system, decisions, directives and regulations could be subject to constitutional control by the Polish Constitutional Tribunal.

“In the spirit of sincere cooperation, dialogue, mutual respect and support, the Tribunal refrains from executing those constitutional competences”, the ruling reads.

“However”, the Tribunal warned, “should the practice of progressive activism of CJEU not stop, the Tribunal does not exclude the possibility to use the said competence to verify the CJEU’s rulings alignment with the Polish Constitution, including the possibility of removal of the rulings from the Polish legal order”.

The “progressive activism” is described as being when the Luxembourg Court “enters into the exclusive competences of the Polish state organs; undermines the primacy of the Constitution as the highest-ranked legal act of the Polish legal system; questions the universal validity and finality of the judgments of the Tribunal; finally when it questions the status of the Tribunal’s judges”.

Warsaw’s highest court also ruled that some of the CJEU interpretations of the Treaties were wrong as “among the competences transferred by Poland to the EU there is no competence related to the creation or organisation or system of the judiciary”.

Therefore, according to the Warsaw Tribunal, the EU’s top court has no say in the organisation of the Polish judiciary.

The Commission’s initial reaction was to state that “EU law has primacy over national law, including constitutional provisions”.

The official statement also reads that “all rulings by the European Court of Justice are binding on all member states’ authorities, including national courts”.

According to the Minister of Justice and the leader of Solidarity Poland, Zbigniew Ziobro, “the Constitutional Tribunal set a barrier to the anarchisation of the judiciary and the entire state”.

“It confirmed the primacy of the Polish Constitution over EU law and political judgments of the CJEU,” he said, adding that it had “set the constitutional limits of European integration and permissible EU interference in Polish cases.”

According to the opposition, the step is a “countdown to Polexit” and “entering a minefield”.

Polish opposition leader and former European Council President Donald Tusk called “on all those who want to defend European Poland” to a mass protest in Warsaw on Sunday later this week.

Deputy Speaker of the Sejm, Małgorzata Kidawa-Błońska (PO, EPP), said PiS party leader “Jarosław Kaczyński’s dream about Poland outside the European Union is coming true”.

According to Polish People’s Party (PSL, EPP) leader Władysław Kosiniak-Kamysz, “the constitution is the most important act in Poland, but this does not create a contradiction between its application and respect for international law.”

“We adopted all the treaties in accordance with the Constitution. Let the government observe the law and not undermine it,” he said.

Adam Bodnar, a former spokesperson for human rights and a leading legal voice on constitutional matters, commented in a conversation with EURACTIV: “This is an example of extreme politicisation of the Constitutional Tribunal; as its ruling is ideal for reaching the political goals of the ruling party”.

Michał Wawrynkiewicz, a well-known lawyer opposing the government, argues that “without respecting those two values, Poland cannot remain a full member of the European Union”.

“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. Their actions go in the opposite direction”, Jeroen Lenaers, MEP, tweeted on behalf of EPP, while a party statement is entitled, “PiS pushing Poland onto the road to Polexit”.

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