Alicja Slowik , 20 octobre 2021

On 7 October 2021 the Polish Constitutional Tribunal (Trybunał Konstytucyjny), ruling on the application lodged by the Polish Prime Minister, stated that several provisions of the Treaty on European Union are inconsistent with the Polish Constitution. By proclaiming the supremacy of the Constitution over the EU Treaties, the Tribunal revived the heated debate over the doctrine of primacy of EU law.

The Tribunal was asked to assess the constitutionality of Articles 1 and 19(1) TEU in conjunction with Articles 4(3) and 2 TEU. It stated, in particular, that the cited provisions are inconsistent with the Polish Constitution in so far as they grant domestic courts the competence to review the legality of the procedure for appointing judges in Poland. It affirmed in clear terms that the Constitution is the supreme law of Poland, which takes precedence as regards its binding force and application. In the oral justification to the decision one of the judges emphasised that if the CJEU did not cease to undermine the position of the Constitutional Tribunal, the latter would be ready to exercise a constitutional review of the CJEU’s judgements. The ruling was adopted by majority vote with two dissenting opinions.

Unsurprisingly, the proclamation of the judgement was followed by a strong reaction of both public authorities and Polish civil society all over Europe. Without directly questioning the legitimacy of the Tribunal[1], the President of the European Commission, expressed her “deep concern” in relation to its recent ruling. The Commission immediately issued a statement reaffirming the primacy of EU law. It underlined in particular that it “will not hesitate to make use of its powers under the Treaties to safeguard the uniform application and integrity of Union law”.

In the same vein, on 8October the Polish Senate (Senat) adopted a resolution on Poland's presence in EU revealing its disapproval for the findings of the Constitutional Tribunal. The Upper House of the Parliament considers that the judgement of 7October is inconsistent with the basic principles of the Polish Constitution and contrary to the national interest. It expressed its fear that the ruling may constitute a “legal introduction” to Poland’s withdrawal from the EU. It is also the fear of legal “Polexit” that has motivated thousands of Poles to take part in mass protests organised in many cities on Sunday 10 October. Whereas at present 88 percent of the Polish society declares its willingness to remain in the EU, almost 50 percent of the population believes that the current Government’s policy may indeed lead to the “Polexit”. The Polish Government’s spokesperson firmly denied the existence of any plans to leave the EU. Despite the scale of the political and societal reactions, the Government decided to publish the judgement in the Journal of Laws (Dziennik Ustaw), thus turning it into a legally binding act. 

It is worth noticing that the judgement of the Constitutional Tribunal was rendered just one day after the publication of the CJEU’s order in the case Commission v. Poland relating to the disciplinary regime applicable to Polish judges (see case C-204/21 and the related news note published on the CEJE website). The order of 6 October concerned Poland’s application for cancellation of an order on interim measures of 14 July 2021. In its argumentation, Poland relied, in essence, on the change of circumstances resulting from the judgement of the Polish Constitutional Tribunal of 14 July 2021 in which the latter stated that the CJEU acted ultra vires in having prescribed to Poland interim measures regarding the organisation and jurisdiction of the Polish courts. Invoking the absolute nature of the principle of primacy of EU law, the Vice-President dismissed the application. The judge underlined that “by virtue of the principle of the primacy of EU law, a Member State’s reliance on rules of national law, even of a constitutional order, cannot be allowed to undermine the unity and effectiveness of EU law” (point 24).

Positioned in this context and timeframe, the Constitutional Tribunal’s judgement of 7 October could be seen as a deliberate and so far, seemingly successful attempt to escalate the political tensions on the line Warsaw-Brussels. The legal consequences of the bold statement on the supremacy of the Polish Constitution remain uncertain and will depend to large extent on the attitude of Polish ordinary judges. In recent years, the latter have not hesitated to express their opposition to the reforms of the Polish judiciary system by entering into dialogue with the CJEU via the preliminary reference procedure and denouncing the incompatibility of the new legislation with EU law (see for example joined cases C‑558/18 and C‑563/18). Having once openly expressed their disapproval to the Government’s measures aiming at undermining judicial independence, it cannot be excluded that the ordinary judges would be brave enough this time to disregard the “supremacy statement” of the Constitutional Tribunal and to continue applying EU Treaties in conformity with the principle of primacy. 

Alicja Słowik, Polish Constitutional Tribunal’s ruling on the supremacy of the Polish Constitution over the EU Treaties, actualité du CEJE n° 35/2021, disponible sur www.ceje.ch