Yesterday the European Parliament was the latest venue in the war of words between the EU Commission and Poland that broke out after the October 7 decision of Poland’s Constitutional Tribunal that several articles of the Treaty on European Union (TEU) are inconsistent with articles in the Polish Constitution. Commission President Ursula von der Leyen and Polish Prime Minister Mateusz Morawiecki presented their contrasting positions, and both will no doubt reprise their arguments at the meeting of the European Council, which consists of the heads of state or government of the 27 member states of the EU, in Brussels tomorrow and Friday.
The Tribunal’s decision responded to a 129-page petition Morawiecki submitted to the court in March requesting a comprehensive resolution of the potential conflict between EU law—specifically, provisions in the TEU—and the Polish Constitution. He submitted the petition after the Court of Justice of the European Union (CJEU, more commonly ECJ) issued a preliminary ruling, in response to a request from Poland’s Supreme Administrative Court, that successive amendments to Poland’s Act on the National Council of the Judiciary that abolished effective judicial control of Council decisions in regard to the nomination of candidates for Poland’s Supreme Court could be in breach of EU law and that, if a national court acknowledged the amendments breached EU law, it couldn’t apply them.
On October 7, the Tribunal concluded in a 12-2 decision, that, “The attempt by the European Court of Justice to involve itself with Polish legal mechanisms violates…the rules that give priority to the Constitution and rules that respect sovereignty amid the process of European integration.” Specifically, it ruled that the first and second subparagraphs of Article 1 of the TEU, in conjunction with Article 4(3) of the TEU, are inconsistent with Articles 2, 8, and 90(1) of the Polish Constitution, and the second subparagraph of Article 19(1) of the TEU is inconsistent with Articles 2, 7, 8(1), 90(1), 178(1) and 190(1) of the Polish Constitution.
Article 1 of the TEU speaks of the member states conferring competences on the Union in order to attain objectives they have in common and a “new stage in the process of creating an ever closer union…in which decisions are taken as openly as possible and as closely as possible to the citizen.” Article 4(3) of the TEU states that the EU and the member states “shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties…and shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.” The second subparagraph of Article 19(1) of the TEU states, “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”
Article 2 of the Polish Constitution states “The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice.” Article 7 states, “The organs of public authority shall function on the basis of, and within the limits of, the law.” Article 8 states, “1. The Constitution shall be the supreme law of the Republic of Poland. 2. The provisions of the Constitution shall apply directly unless the constitution provides otherwise.” Article 90(1) states, “The Republic of Poland may, by virtue of international agreements, delegate to an international organization or international institution the competence of organs of State authority in relation to certain matters.” Article 178(1) states, “Judges, within the exercise of their office, shall be independent and subject only to the Constitution and statutes.” And Article 190(1) states, “Judgments of the Constitutional Tribunal shall be of universally binding application and shall be final.”
The Commission immediately expressed its serious concern about the Tribunal’s ruling. In a statement issued hours later, it said, “Today’s oral presentation of the ruling by the Polish Constitutional Tribunal raises serious concerns in relation to the primacy of EU law and the authority of the Court of Justice of the European Union.” It underscored the primacy of EU law over national law, including constitutional provisions, and the fact that all rulings of the ECJ are binding on all member state authorities, including national courts. It said it will analyze the Tribunal’s ruling in detail and decide on the next steps, and “will not hesitate to make use of its powers under the Treaties to safeguard the uniform application and integrity of Union law.”
In her speech to the European Parliament yesterday, von der Leyen said that, while the Commission is still assessing the Tribunal’s decision, she is deeply concerned about it. The ruling, she said, “calls into question the foundations of the European Union. It is a direct challenge to the unity of the European legal order….This is the first time ever that a court of a Member State finds that the EU Treaties are incompatible with the national constitution…The ruling undermines the protection of the judicial independence as guaranteed by Article 19 of the Treaty and as interpreted by the European Court of Justice…The rule of law is the glue that binds our Union together. It is the foundation of our unity. It is essential for the protection of the values, on which our Union is founded…We cannot and we will not allow our common values to be put at risk. The Commission will act. And the options are all known.” The first option, she said, is an infringement proceeding in which the Commission legally challenges the Tribunal’s ruling before the ECJ. The second option, strongly supported by many in the European Parliament, involves making use of the EU’s new conditionality mechanism “and other financial tools.” The conditionality mechanism would make the disbursement of EU funds conditional on Poland’s adherence to the rule of law. And although von der Leyen didn’t elaborate, the “other financial tools” would undoubtedly include continued refusal to approve Poland’s request, submitted in May, for €36 billion in grants and loans from the EU’s new Recovery and Resilience Facility. The third option involves initiating again the EU’s Article 7 rule of law procedure that could, in theory (and in an EU without Viktor Orbán, who would undoubtedly block the required unanimous consent), deprive Poland of its vote in EU Council meetings.
Morawiecki then presented the Polish government’s position, summarizing the argument he elaborated in greater detail in a long letter he sent Monday to the heads of government of the other 26 member states and the presidents of the European Council, Commission, and Parliament on “relations between national law and European law.” In the letter, which was released to the public, Morawiecki reassured the leaders that Poland “respects European law and recognizes its primacy over national laws, pursuant to all our obligations under the Treaty on European Union….Poland fully respects European law, as well as the judgments of the Court of Justice, like any other Member State. The obligation for each member State to respect EU law derives directly from the Treaties—we are obliged to do so to the extent required in the Treaties. Not one iota less – and not one iota more.” But, he noted, “The principle of the primacy of EU law covers all legal acts up to the level of statutory rank in the areas of Union competence. This principle, however, is not unlimited. In every country, the Constitution retains its primacy. The assessment of where the border lies can only be made by the courts—both the Court of Justice of the European Union and our national constitutional courts.” And, he said, “The Constitutional Tribunal of the Republic of Poland has the same rights as courts and tribunals in any other EU country. They can verify the compliance of EU primary law with their own constitutions, and they have been doing so consistently for many years, even decades. Individual judgments deal with broader or narrower issues, but their essence remains unchanged—the primacy of EU law over national law exists and although it is wide in scope it has its clear limits. These boundaries are determined not only by the constitutional and statutory nature of national legal norms but also by the subject matter covered by EU law. The principle of conferral, as defined in Article 4 and 5 of the TEU, is the guiding principle of the Union. It means that the competences of the EU bodies extend only to matters which we have entrusted to them within the Treaties. Attempts to expand these competences cannot be accepted. Any such action should be considered ultra vires, and by its very nature contrary to the treaty principle of the rule of law. No EU body should take action that is not authorized to by the Treaties.”
Morawiecki noted that a number of tribunals and constitutional courts in the EU have ruled that some action of an EU institution, including the ECJ, exceeded the powers granted by the Treaties and therefore was ultra vires: “The Polish Constitutional Court does nothing today that the courts and tribunals in Germany, France, Italy, Spain, Denmark, Romania, the Czech Republic or other EU countries have not done in the past. It is a well-trodden path of jurisprudence, which is by no means a novelty.” And then, turning to the specific issue addressed by the Constitutional Tribunal, he said: “It is also worth emphasizing that the Polish Constitutional Tribunal does not state that the provisions of the TEU are entirely inconsistent with the Polish Constitution. It only declares that one, very specific interpretation of certain provisions of the Treaty (the result of the recent case-law of the Court of Justice) is inconsistent with the Polish Constitution. According to this interpretation, judges of Polish courts would be obliged to apply the principle of the primacy of European law not only over national laws of statutory rank—which does not raise any doubts—but also to violate their own Constitution and judgments of their own Constitutional Tribunal… No sovereign state can agree to such an interpretation…This is not what we agreed to in the Treaties. Poland fully complies with EU law. Like every other Member State, this right gives our country specific obligations and rights. One is the right to demand that EU bodies act only in matters for which they are entrusted, and not in ones beyond their competences. Unfortunately, today we are dealing with a very dangerous phenomenon whereby various EU institutions usurp powers they do not have under the Treaties and impose their will on Member States. This is particularly evident today as financial tools ae being used for such a purpose. Without any legal basis, there is an attempt to force Member States to do what the institutions of the Union tell them to do—irrespective of any legal basis to impose such demands.”
Morawiecki reiterated the point about the single, very specific interpretation of certain provisions in the TEU that is inconsistent with the Constitution in his comments to the Parliament yesterday: “I will repeat once again: the supreme law of the Republic of Poland is the Constitution. It precedes other sources of law. No Polish court, no Polish parliament and no Polish government can depart from this principle. However, it is also worth emphasizing that the Polish Tribunal, also in the recent ruling, has never stated that the provisions of the Treaty on the Union are wholly inconsistent with the Polish Constitution. On the contrary! Poland fully respects the Treaties. [The bold fonts appear in the Polish government’s transcript of his comments.] That is why the Polish Tribunal stated that one very specific interpretation of certain provisions of the Treaty, resulting from recent case law of the Court of Justice, was incompatible with the Constitution.” Were that interpretation to be followed, he said, “judges in Polish courts would be obliged to apply the principle of the primacy of European law not only over national statutory regulations—which is not in doubt—but also to violate the Constitution and the verdicts of their own Constitutional Tribunal…The consequence would be a fundamental lowering of the constitutional standard of judicial protection of Polish citizens and unimaginable legal chaos. No sovereign state can agree to such an interpretation …This is not what we agreed to in the Treaties.”
In concluding, Morawiecki argued, “The EU is not and should not be a collection of better and worse countries. It does not and should not serve to pursue the interests of some Member States at the expense of others; nor should it become a centrally-managed organism without democratic control of the sovereign…It is necessary that we start working together again in the imperative of understanding. The language of financial blackmail, punishment, “starving” of unsubordinated states, undemocratic and centralist pressures do not have a place in European politics. Such language strikes not only at individual states but the entire Community…Poland is ready for dialogue. We look forward to talking – in the spirit of mutual respect, and respect of our sovereignty, without pushing us to give up our national competences.”
How this standoff between the EU and Poland will be resolved is not at all clear at this point. The Polish Tribunal’s decision is not on the agenda of the two-day meeting of the European Council that starts tomorrow. But the issue will no doubt be discussed at some length informally by the leaders. There will no doubt be some leaders—Mark Rutte of the Netherlands comes to mind—who will want their colleagues to take a hard line and urge, if not direct, the Commission to prepare to implement one or more of the three options von der Leyen mentioned in the Parliament yesterday. But there will undoubtedly be others—most notably, perhaps, German Chancellor Angela Merkel, who will in all likelihood be attending her last European Council meeting—who will point out that Poland has not yet refused, in the wake of the Tribunal’s decision, to implement an EU law on the grounds of inconsistency with the Constitution and, until it does so, the Commission should not act. Morawiecki, supported by Orbán, will of course strongly oppose any European Council decision to urge or direct the Commission to pursue one or more of the three options set out by von der Leyen at this point. He will also discuss with the other leaders the proposal he sent them Monday with his letter to create a new chamber of the ECJ, consisting of judges nominated by the constitutional courts of the member states, to facilitate a permanent dialogue on the issues raised by the Tribunal’s decision and those of other constitutional courts in the EU.
David R. Cameron is a professor emeritus of political science and the former director of the MacMillan Center’s Program in European Union Studies.