European Parliament declares Polish Constitutional Tribunal illegitimate in the face of threat to the

primacy of EU law

In a resolution adopted on 21 October, the European Parliament declared the Constitutional Tribunal
of Poland as not only “lacking legal validity and independence” but also “unqualified to interpret the
Constitution of Poland”. This scathing denunciation comes as an answer to the 7 October decision of
the Constitutional Tribunal that found the provisions of the Treaty on European Union (TEU)
incompatible with the Polish Constitution on multiple grounds, thus posing a direct challenge to the
established principle of the primacy of EU law.

The contested decision of the Constitutional Tribunal is the final verdict in the proceedings initiated
by Mateusz Morawiecki, the Prime Minister of Poland, in response to the Court of Justice of the
European Union (CJEU) ruling earlier this year that amendments to the Polish law concerning the
appointment of judges to the Polish Supreme Court were likely to be in breach of EU law. The
amendments in question made it possible for the Polish Parliament – where Morawiecki’s Law and
Justice (PiS) party has a ruling majority – to handpick the members of the National Council of the
Judiciary – the body responsible for the nomination of judges to be appointed to the Supreme Court
– who were formerly directly elected by the judiciary. Thus politicized, the independence of the
National Council’s nominations – particularly with regard to the newly established disciplinary
chamber of the Supreme Court, where former prosecutors were appointed to rule over disciplinary
and criminal cases against judges – was called into question by the Supreme Court itself, which took
the position that the disciplinary body could not be considered a court, as it was not nominated by an
independent body, then applied to the CJEU for a preliminary ruling on the issues concerning the loss
of independence of the National Council.

This preliminary ruling – in which the CJEU found that national provisions like the amendments in
question, which have the effect of removing effective judicial review of the decisions of the National
Council, are liable to infringe EU law and emphasized that “the effects of the principle of primacy of
EU law were binding on all bodies of a Member State” was followed up by the European Commission
bringing an action for failure to fulfil obligations before the CJEU against Poland on 1 April 2021.
Pending the final judgment of the Court in the case, the Commission asked the Court to adopt the
necessary interim measures to avoid further “serious and irreparable harm to the legal order of the
European Union and, consequently, to the rights which individuals derive from EU law and the values
8 on which that Union is founded, in particular that of the rule of law”. The CJEU complied with this
request and in its judgment issued on 14 July 2021, ordered Poland to immediately suspend the
provisions allowing the disciplinary chamber of the Supreme Court to decide on requests for the
lifting of judicial immunity, suspend the effects of decisions already taken by the disciplinary chamber
on the lifting of judicial immunity and suspend the provisions preventing Polish judges from directly
applying EU law protecting judicial independence, and from applying for preliminary ruling on such
questions to the CJEU. Poland did not comply with these interim orders.

It is against this legal backdrop that Morawiecki submitted a 129-page petition to the Constitutional
Tribunal of Poland concerning the resolution of a potential conflict between EU law and the Polish
Constitution. In a decision published on 7 October, the Constitutional Tribunal challenged the
jurisdiction of the CJEU, the principle of the primacy of EU law and the constitutionality of the EU
Treaties, arguing that several provisions of the TEU – specifically, the first and second subparagraphs
of Article 1 in conjunction with Article 4(3) and the second subparagraph of Article 19(1) – are
inconsistent with the Polish Constitution. The Tribunal expressed particular concern about the
second subparagraph of Article 1 which describes the TEU as marking “a new stage in the process of
creating an ever closer union among the peoples of Europe” and which, in the view of the Tribunal,
represents the threat of EU institutions – and the CJEU in particular – acting beyond the competences
willingly transferred by Poland under Article 90 of its Constitution.

On the one hand, this Polish case is far from being the first time that the constitutional court of a
Member State has challenged the principle of primacy and its potential to trigger ‘ultra vires’ acts by
the EU institutions: the Federal Constitutional Court of Germany has famously scrutinized the limits
of the principle with reference to the Grundgesetz in a long line of cases starting from the Solange
judgments, through the Maastricht and Lisbon decisions, up to its most recent judgment – adopted
last year – on disapplying the European Central Bank’s decision on the EU’s Public Sector Purchase
Programme; nor is it without precedent in the practice of the Constitutional Tribunal of Poland,
which, as commentators have pointed out, has never explicitly recognized the primacy of EU law over
the Polish Constitution. On the other hand, this verdict goes a step further than the previous cases in
that it does not only call the principle of primacy into question, but launches a broader attack on the
EU Treaties, claiming the incompatibility with the Polish Constitution of the interpretation by the
CJEU of several key TEU provisions (including Articles 1, 2 and 19).

Considering the directness of this attack, it should come as no surprise that the plenary debate with
Morawiecki and European Commission President Ursula von der Leyen, taking place during the 18-21
October session of the European Parliament was heated. The culminated in the adoption of the
harshly-worded resolution, in which the Parliament expressed its concerns that the Polish
Constitutional Tribunal has been transformed “into a tool for legalising the illegal activities of the
authorities”, and as such it “lacks legal validity and independence” and is “unqualified to interpret
the Constitution of Poland”; expressing that it “deeply deplores” the decision of 7 October “as an
attack on the European community of values and laws as a whole”.

These strong words, however, are not the only negative consequence Poland has found itself facing.
On 27 October, the CJEU ruled that the continued refusal of Poland to comply with its interim orders
on the suspension of the national legislation on the jurisdiction of the disciplinary chamber of the
Supreme Court represents serious and irreparable harm to the legal order of the European Union,
and as such, Poland is to pay the Commission a penalty of €1 million per day until it complies with
the obligations arising from the interim orders or, if it fails to do so, until the date of delivery of the
final judgment.

Further reading:

Press release of the CJEU on the judgment of 2 March

Press release of the CJEU on the judgment of 27 October