Primacy of EU law and Poland’s Constitutional Court

Contrary to the principle of primacy of EU law, Poland’s Constitutional Court judgment of October 7, 2021 (case K 3/21) found various articles of the Treaty on European Union (TEU) unconstitutional. The judgment is yet another obstacle in EU-Poland relations. In this context, Poland could face new EU fines and jeopardize the financial aid related to the COVID-19 crisis.

March 2, 2021: CJEU judgment

On March 2, 2021, the Court of Justice of the European Union (CJEU) ruled on a request for a preliminary ruling from the Judicial Administrative Chamber of Poland’s Supreme Court (case C-824/18)on the interpretation of Article 267 of the Treaty on the Functioning of the European Union (TFEU) and Articles 4(3) and 19(1) of the Treaty on European Union.

In this judgment, the CJEU found that the amendments to the Polish Law on the National Council of the Judiciary, regarding the appointment of Supreme Court judges and the effective judicial review of these appointments, could be contrary to EU law. The CJEU questioned the appointment process for Polish judges, the independence of the judiciary and, therefore, its legitimacy altogether.

March 8, 2021: Request by Poland’s Prime Minister

After the CJEU questioned the independence of Polish judges based on how they were appointed, Poland’s Prime Minister (PM), Mateusz Morawiecki, challenged the CJEU’s judgment and submitted a written request to Poland’s Constitutional Court for it to rule on (i) the compatibility of EU law with the Polish constitutional order; and (ii) whether Poland’s domestic courts were bound by CJEU judgments.

In particular, Poland’s PM requested the Constitutional Court to determine whether article 1 TEU should be interpreted as enabling or requiring national authorities not to apply the Polish Constitution, or otherwise as requiring national authorities to apply EU provisions contrarily to Poland’s Constitution.

The PM, with the aim of guaranteeing the right to an effective judicial remedy, also requested the Constitutional Court to rule on whether (i) a domestic court must apply legal provisions that are contrary to the Polish Constitution, including a provision that has been declared unconstitutional by the Constitutional Court thus becoming ineffective; or (ii) the application of Poland’s Constitution must prevail.

October 7, 2021: Poland’s Constitutional Court judgment

In this judgment, with 10 votes in favor and 2 against, Poland’s Constitutional Court (i) examined the compatibility of articles 1, 2, 4(3) and 19(1) TEU with the Constitution; and (ii) ruled on the matters raised by the PM.

First, the Constitutional Court found that articles 1 and 4(3) TEU are “incompatible” with the Polish Constitution, since they allow the EU to overstep the powers transferred by the Republic of Poland under the treaties.

Second, the Constitutional Court considered the second paragraph of article 19(1) “incompatible” with the Constitution because it allows for (i) the disapplication of the Polish Constitution; and (ii) the overturning of Constitutional Court judgments that invalidate EU law provisions.

Finally, the Constitutional Court found that articles 19(1) and (2) TEU were “incompatible” with Poland’s Constitution because they allow EU courts to unlawfully invalidate Poland’s constitutional provisions, and even review the judge appointment process.

October 27, 2021: another CJEU judgment against Poland (in an earlier case)

Also, regarding the November 2019 proceedings (joined cases C 585/18, C 624/18 and C 625/18), the CJEU delivered a judgment on October 27, 2021, ordering Poland to pay a periodic penalty payment of €1,000,000 to the European Commission (EC) (case C-204/21 R Commission v Poland) for not suspending the application of the national provisions on the Supreme Court’s Disciplinary Chamber. If Poland does not pay the fine, the EU could withhold Poland’s COVID recovery funds for the unpaid amount.

December 22, 2021: infringement procedure against Poland

After this Polish Constitutional Court judgment, Poland faces additional penalties by the EU, since the judgment is another frontal attack to the primacy of EU law, and is therefore liable to be subject to sanctions.

Leaving aside the differences between this and other similar cases, it is not the first time that a domestic court rules on the compatibility of EU treaties with national provisions. Note that the German Constitutional Court ruled against a CJEU judgment, as well as the Czech and Romanian constitutional courts in 2006 and 2021, respectively.

However, Poland is probably having the most open confrontation with the EU, and Poland’s Constitutional Court judgment has caused major upheaval in EU institutions. As a result, on December 22, 2021, the EC issued a press release (available here) announcing that it would launch an infringement procedure against Poland for violations of EU law by the Polish Constitutional Court.

Afterword: the ECtHR’s opinion

Although it is not within the EU legal system, on February 3, 2022, the European Court of Human Rights (ECtHR) declared in Advance Pharma that the Civil Chamber of the Polish Supreme Court was not an “independent and impartial tribunal established by law.” In particular, the ECtHR found that the appointment of judges to the Supreme Court’s Civil Chamber had been unduly influenced by the legislative and executive branches of power, giving rise to major irregularities and thus compromising the legitimacy of the Court.