Polexit? The Legal Implications of the Recent Ruling of the Polish Constitutional Tribunal
On the 7th of October 2021, the Polish Constitutional Tribunal declared that the Polish Constitution takes precedence over EU law. In response to a motion by the Prime Minister, Mateusz Morawiecki, the Court ruled that European regulations authorising national courts to bypass provisions of the constitution or adjudicate on the basis of annulled norms are inconsistent with the Polish Constitution. Furthermore, the Tribunal determined that it is beyond the mandate of EU law to award national courts the authority to question the appointment of judges by the President as well as resolutions of the National Council of the Judiciary on this matter. According to the judges, EU law reigns supreme over Polish law regarding only the delegated powers, which does not include issues pertaining to the appointment of judges. As a result, Poland would risk losing its sovereignty by permitting the EU to set norms regarding matters that are beyond its remit.[1]
This ruling may lead to very far-reaching and severe implications regarding Poland’s continued membership of the EU. As stated by the Guardian, through this judgment the country has taken ‘a major step towards a “legal Polexit”’.[2] According to Maciej Gutkowski, this ruling is an attempt at legitimising the unconstitutional changes introduced by the ruling party to the composition of the Constitutional Tribunal.[3] The legal validity of the Polish Constitutional Tribunal has been contested ever since the appointment of multiple judges loyal to the ruling Law and Justice (PiS) Party[4] in 2015, which led to mass protests all over the country. The Court of Justice of the European Union (CJEU) has previously contested these changes to no avail. Regarding the recent decision, great concern has been expressed by the President of the European Commission, Ursula von der Leyen, who ordered an immediate in-depth analysis of the legal implications of the ruling.[5]
However, it ought to be noted that a national court challenging the supremacy of EU law is not a novel matter. Last year the German Constitutional Court was accused of undermining “the very foundations of the EU legal order” because of a decision questioning the legality of the European Central Bank’s quantitative easing program.[6] Morawiecki has pointed out that similar decisions have been handed down in France, Denmark, Italy, the Czech Republic, Spain, and Romania.[7] As regards the German ruling, what separates it from the situation in Poland is the fact that it concerned a proper legal case adjudicated by an independent court. By contrast, the situation in Poland is simply yet another politically driven jab at the EU, which has been branded as a travesty by the dissenting judges, further exemplifying its ridiculous nature.[8]
Furthermore, the decision of the Polish Constitutional Tribunal has exposed significant weaknesses underpinning the fundamental values of EU law. Not only is the supremacy of EU law not guaranteed by any of the Treaties, but it also hinges solely on Member States’ continuous respect of the CJEU’s decision in the 1964 Costa vs ENEL decision.[9] Clearly, the legal basis for ensuring that countries strictly abide by this element of EU law is not strong enough, and the crisis in Poland has exemplified this. All in all, it remains to be seen whether this situation leads to further consequences for Poland and its membership of the EU. Still, steps must be taken to create better mechanisms to prevent such situations from arising in the future.
[1] ‘Wyrok TK w sprawie wyższości konstytucji nad prawem unijnym został opublikowany w Dzienniku Ustaw’ (Dziennik Gazeta Prawna, 12 October 2021) <https://serwisy.gazetaprawna.pl/orzeczenia/artykuly/8269780,wyrok-tk-wyzszosc-prawa-krajowego-konstytucja-prawo-ue-dziennik-ustaw.html> accessed 9 November 2021
[2] Jon Henley and Jennifer Rankin, ‘Polish court rules EU law incompatible with its constitution’ (The Guardian, 7 October 2021) <https://www.theguardian.com/world/2021/oct/07/polish-court-rules-that-eu-laws-incompatible-with-its-constitution> accessed 8 November 2021
[3] Małgorzata Kryszkiewicz, ‘Negatywne skutki Wyroku TK’ (Dziennik Gazeta Prawna, 11 October 2021) <https://serwisy.gazetaprawna.pl/orzeczenia/artykuly/8268229,prawo-krajowe-prawo-unijne-wyrok-tk-negatywne-skutki.html > accessed 9 November 2021
[4] Henley and Rankin (n 2)
[5] Dziennik Gazeta Prawna (n 1)
[6] Stefan Auer and Nicole Scicluna, ‘Poland has a point about the EU’s legal supremacy’ (Politico, 19 October 2021) <https://www.politico.eu/article/poland-court-eu-legal-supremacy/> accessed 8 November 2021
[7] Dziennik Gazeta Prawna (n 1)
[8] The editorial board, ‘A legal secession from the EU will cost Poland dearly’ (Financial Times, 10 October 2021) <https://www.ft.com/content/629fbc8c-a950-478d-8403-a3f8b8b7e24a> accessed 8 November 2021
[9] Auer and Scicluna (n 6)
