Current Events | Poland and the EU: Legal Supremacy and Fragmentation

On October 7, 2021, the Polish Constitutional Tribunal issued a judgment that threatens to fragment existing frameworks of European law, challenging the legitimacy of international agreements over state sovereignty. In a 10-2 majority, its K 3/21 judgment claimed that select provisions of the Treaty of the European Union (TEU) were “inconsistent” with the Polish Constitution, ultimately placing European Union primary law below the Polish Constitution in the hierarchy of legal authority in the state. [1]

The TEU serves as the foundational document for the European Union (EU), setting up a framework to promote the integration of the European continent, the consolidation of values such as the rule of law and fundamental freedoms, and the strengthening of member states’ economic union. [2] The political and economic integration of the EU’s twenty-seven member states rests on the basis of EU law as specified in the Treaty, and over time, in the Court of Justice of the European Union’s (CJEU) interpretation of EU law. To enforce this framework, the CJEU has held that EU law takes precedence over member states’ national laws, and that individuals can hold national governments accountable for breaching EU law. [3] Yet on October 7, a majority of the Trybunał Konstytucyjny [Constitutional Tribunal] of Poland, an EU member state, ruled in their K 3/21 judgment that not only were TEU laws in conflict with those of the Constitution of the Republic of Poland, but also that the latter ought to reign supreme over the former. [4]

Following Polish Prime Minister Mateusz Morawiecki’s statement in support of the Tribunal’s ruling, the head of the European Commission, Ursula von der Leyen, warned that Poland’s stance posed a “direct challenge to the unity of the European legal order.” [5] Indeed, the K 3/21 ruling directly challenges the supremacy of the EU’s laws over Polish national laws, raising questions concerning Poland’s lack of an independent judiciary and rule of law. This comes after a series of EU attempts to “address illiberalism and rule of law backsliding across Europe,” an issue particularly relevant to Poland: in 2017, the European Commission set in motion Article 7 TEU procedures to address Poland’s noncompliance with the rule of law. [6] The Constitutional Tribunal’s ruling contests the jurisdiction of the CJEU, placing pressure on the EU’s integration of Eastern Europe and reinforcing a history of conflict between Poland and the EU. To examine the issues raised by this judgment, this article will discuss the EU-Poland legal supremacy conflict, its relevance to the clash over the independence of Polish judicial institutions, and the historic disagreements between the EU and Poland, weaving in implications for the potential fragmentation of EU unity.

The Legal Clash

In its K 3/21 ruling, the Constitutional Tribunal specifically characterized Articles 1, 2, 4, and 19 of the TEU as being in conflict with the Polish Constitution. The justices challenged Article 1 and Article 4(3) TEU, which stipulate EU integration into “an ever closer union among the peoples of Europe,” on three grounds: that the “new stage” through which the EU integrates clashes with the sovereignty of Poland as a “sovereign and democratic state,” disputes the supremacy of the Polish Constitution, and extends beyond the “competences conferred” by Poland in the TEU. [7] Article 2 TEU, which contains the EU’s foundational values, was contested in conjunction with Article 19 TEU for allowing national courts to “bypass the provisions of the [Polish] Constitution” by citing international treaty law over national law when ruling on decisions, thus undermining the supremacy of the Constitution. Articles 2 and 19 TEU also allow Polish courts to “review the legality of the procedure for appointing a judge” that is specified in the Constitution, which is, among other competences, prohibited by the Polish Constitution itself. [8]

The primacy of EU law over national laws is a legal principle first affirmed in Van Gend en Loos v. Nederlandse Administratie der Belastingen, a landmark 1963 decision issued by the CJEU. The judgment stated that member states’ “national courts are bound to apply directly the rules of Community law,” and “the rules of Community law prevail over the conflicting national laws even if they are passed later.” [9] Subsequent CJEU rulings, such as the European Court of Justice (ECJ)’s 1990 Marleasing SA v. La Comercial Internacional de Alimentación SA judgment, have upheld national courts’ duty to interpret national law in compliance with EU treaty law. [10] However, recent judgments like that of No. 26/2016 (2016) issued by the Belgian Constitution Court, which follows the Bundesverfassungsgericht’s [Federal Constitutional Court of Germany] 1986 ruling in Solange II, indicate a growing, continent-wide shift towards limiting EU primacy. [11] The grounds for this shift vary by case, ranging from national identity in the Belgian case to fundamental rights in the German case. Poland’s confrontation with the primacy of EU law in the K 3/21 ruling presents yet another challenge to EU legal compliance and integration.

Independent Judiciaries?

The EU’s critical response to the K 3/21 ruling bears resemblance to its responses to the Constitutional Tribunal’s other recent decisions, drawing on more a fundamental condemnation of Poland’s perceived lack of an independent judiciary. The rise of Poland’s far-right Prawo i Sprawiedliwość [Law and Justice] political party in 2015 signaled the beginning of a series of efforts to politically control the appointment of judges, eroding the independence and legitimacy of the Polish judiciary. Statutes passed by the ruling Law and Justice party since 2017 have heightened the influence of Polish legislative and executive powers on the Constitutional Tribunal, with the power of judicial appointment now delegated to the Sejm [Parliament] and judicial “reforms” being used as a means of adjusting and politicizing the composition of the courts. [12]

This trend has become the subject of growing criticism within the EU. In May 2021, the party’s court-packing efforts were censured by the European Court of Human Rights. [13] Moreover, in July 2021, a Grand Chamber of the CJEU found Poland to be in violation of Article 19(1) TEU for “failing to guarantee the independence and impartiality of the Izba Dyscyplinarna [Disciplinary Chamber] of the Sąd Najwyższy [Supreme Court, Poland]” and the examination of disciplinary cases “by a tribunal ‘established by law,’” reiterating the diminished confidence of EU leadership in the independence of Polish courts. [14] Furthermore, in response to Poland’s continued refusal to dismantle its Supreme Court’s disciplinary chamber, which has been scrutinized for being neither independent nor impartial, the ECJ has ordered Poland to pay €1 million per day, essentially until the chamber’s suspension. [15] Taken together, these recent legal actions against Poland reflect growing European condemnation of Polish courts’ subjugation to political influence. This EU concern has been further augmented by the K 3/21 ruling, which has been cited by EU leaders as additional evidence against the independence of Poland’s judiciary.

A History of Tensions

These criticisms are also situated in a history of disagreements over shared European values—including those outlined in Article 2 of the TEU—that have emerged between Poland and other primarily Western European states since Poland’s accession into the EU in 2004. The European Parliament, a legislative body of the EU, condemned the dwindling of Polish media freedom in September of this year, after having previously criticized the Sejm’s Lex TVN bill as a “direct attack on media pluralism,” violating EU and international law. [16] In a similar vein, the European Commission, which acts as the executive branch of the EU, has launched infringement policies against Poland for its regional and municipal adoption of “LGBT-ideology free zones,” asserting that this violates the fundamental right to equality before the law by discriminating on the grounds of sexual orientation. [17] 

The issue of abortion law presents another such conflict between Poland and the EU. Poland’s 1993 abortion law, which practically outlawed abortion in the nation, was recently made even more strict by the Constitutional Tribunal’s October 2020 ruling in K 1/20, which asserted that making an exception to the abortion ban for fetal abnormalities was unconstitutional. [18] This places Poland as one of only two EU member states with highly restrictive abortion laws, a position that has become even more scrutinized after the European Parliament’s June 2021 resolution, albeit non-binding, which declared abortion access a human right. [19] Between Poland’s heavily Catholic-influenced traditions and historically Eastern European influences, the stark contrast between Poland and other EU member states’ values places pressure on Polish cooperation and compliance with “Community law.” The K 3/21 ruling—especially in its challenge to Article 2 TEU amid a divergence of values—further undermines the possibility of European integration.

Moving Forward

Member states’ adherence to TEU laws and EU institutions forms the backbone of EU cooperation in advancing economic goals and protecting social ideals. Fragmented political compliance, as demonstrated by the Constitutional Tribunal’s K 3/21 challenge against EU legal primacy, not only subverts the realization of those objectives but also undermines the binding nature of the TEU, the future jurisdiction of the CJEU, and the enforcement of international legal agreements. This exposes the Union to weakened rule of law, leaves states vulnerable to a shift toward authoritarianism, and paves the way for further fragmentation by countries that follow suit. 

Considering the EU and Poland’s mutually vested interests in one another, the deliberations for proceeding steps to counter EU-Poland legal fragmentation have, ironically, become rather divisive. While France and Germany have opted for dialogic attempts at reconciling differences, other member states, such as the Netherlands and Belgium, have preferred the route of more tangible, direct action. [20] Although the immense turnout of over 100,000 Polish demonstrators in support of EU membership suggests little domestic support for a British-fashioned “Polexit,” the weakening of EU unity poses cooperation challenges for progressing on critical joint European initiatives, such as the European Green Deal and European Digital Decade targets. [21] Fundamentally, the lack of a unified strategy between the European Commission and EU member states creates an opening for other countries like Bulgaria, Hungary, and Slovenia to exploit similar legal weaknesses. [22] Thus, the legacy of K 3/21—and responses to this growing EU-Poland legal supremacy friction—can advance or jeopardize the integration of the TEU’s “closer union among the peoples of Europe” as a whole.

Edited by Mrinalini Sisodia Wadhwa

Sources:

[1] Ocena zgodności z Konstytucją RP wybranych przepisów Traktatu o Unii Europejskiej [Assessment of the conformity to the Polish Constitution of selected provisions of the Treaty on European Union], no. K 3/21, (Trybunał Konstytucyjny [Constitutional Tribunal], 7 October 2021).

[2] Consolidated Version of the Treaty on European Union [2016] OJ C202/15, p. 15–16.

[3] Damian Chalmers, The Court of Justice, UK in a Changing Europe (18 May 2016), https://ukandeu.ac.uk/explainers/the-court-of-justice (accessed 30 October 2021).

[4] Ocena.

[5] James Shotter and Henry Foy, How Poland Became Europe’s Biggest Rebel, The Financial Times (22 October 2021), https://www.ft.com/content/d59e9054-95ba-4093-b1cf-3ead1bae0982 (accessed 27 October 2021).

[6] John Morijn, Responding to "populist" politics at EU level: Regulation 1141/2014 and beyond, International Journal of Constitutional Law, (1 April 2019). https://advance.lexis.com/api/document?collection=analytical-materials&id=urn:contentItem:5WTW-4BD1-K054-G3JG-00000-00&context=1516831; European Commission, Reasoned Proposal in Accordance with Article 7(1) of the TEU regarding the Rule of Law in Poland, COM(2017) 835, (Brussels: 20 December 2017).

[7] Ocena.

[8] Ocena.

[9] Judgment of 5 February 1963, Van Gend en Loos v. Nederlandse Administratie der Belastingen, C-26/62, ECLI:EU:C:1963:1, p. 6.

[10] Judgment of the Court (Sixth Chamber) of 13 November 1990, Marleasing SA v La Comercial Internacional de Alimentación SA, C-106/89, ECLI:EU:C:1990:395, p. 2.

[11] Philippe Gérard and Willem Verrijdt, Belgian Constitutional Court Adopts National Identity Discourse, European Constitutional Law Review 13, no. 1 (March 2017): 182-205. doi:10.1017/S1574019616000444.

[12] Stanisław Biernat, How Far Is It from Warsaw to Luxembourg and Karlsruhe: The Impact of the PSPP Judgment on Poland, German Law Journal 21, no. 5 (July 2020): 1104-1115. doi:10.1017/glj.2020.53.

[13] Xero Flor w Polsce sp. z o.o. v. Poland, no. 4907/18, (European Court of Human Rights, 7 May 2021).

[14] Judgment of 15 July 2021, European Commission v. Poland, C‑791/19, ECLI:EU:C:2021:596.

[15] Poland told to pay €1m a day in legal row with EU, BBC News (27 October 2021), https://www.bbc.com/news/world-europe-59064883 (accessed 27 October 2021).

[16] Poland: attacks on media freedom and the EU legal order need to stop, European Parliament News (16 September 2021).

[17] EU founding values: Commission starts legal action against Hungary and Poland for violations of fundamental rights of LGBTIQ people, European Commission (Brussels: 15 July 2021).

[18] Act of 7 January 1993 on Family Planning, the Protection of Foetuses, and Grounds for Permitting the Termination of a Pregnancy (Poland); Planowanie rodziny, ochrona płodu ludzkiego i warunki dopuszczalności przerywania ciąży [Family planning, the protection of foetuses, and grounds for permitting the termination of a pregnancy], no. K 1/20, (Trybunał Konstytucyjny [Constitutional Tribunal], 22 October 2021).

[19] European Abortion Laws: A Comparative Overview, Center for Reproductive Rights (December 2020); Maïa de la Baume, European Parliament declares abortion access a human right, Politico (24 June 2021), https://www.politico.eu/article/meps-adopt-divisive-text-on-abortion (accessed 1 November 2021).

[20] Elian Peltier and Monika Pronczuk, Poland's Attacks on Rule of Law Leave Europe at Odds with Itself, The New York Times (22 October 2021), https://www.nytimes.com/2021/10/22/world/europe/eu-poland-rule-of-law.html (accessed 25 October 2021). 

[21] ‘We are staying!’: Poles demonstrate in support of EU membership, The Guardian (11 October 2021), https://www.theguardian.com/world/2021/oct/11/poland-demonstrate-support-eu-membership-polexit (accessed 25 October 2021).

[22] Judy Dempsey, Poland Tests the EU’s Future, Carnegie Europe (14 October 2021), https://carnegieeurope.eu/2021/10/14/poland-tests-eu-s-future-pub-85565 (accessed 28 October 2021).