Poland’s Constitutional Tribunal declared that three articles of the Treaty on the European Union (TEU) are incompatible with the Polish Constitution. One of the articles ruled as unconstitutional is Article 19, which establishes the role of the Court of Justice of the European Union (CJEU). This means that Poland disregards the primacy that the CJEU takes over the national courts, which was agreed upon when it joined the EU in 2004. The validity of the Polish Constitutional Tribunal has been questioned, not least because it is composed of judges appointed by the ruling Law and Justice party in 2015 in violation of the established procedure. Since then, the rulings handed down by the CJEU, in an attempt to make sure the EU law is applied, have been interfering with the Polish government’s takeover of the judiciary, hence the government’s action to neutralize the authority of the CJEU in Poland.
The EU laws established in the TEU and the Treaty on the Functioning of the European Union (TFEU) protect citizens’ fundamental rights and freedoms. According to the Charter of Fundamental Rights of the European Union, the Union is founded on the indivisible, universal values of human dignity, freedom, equality, solidarity, and based on the principles of democracy and the rule of law. In accordance with the TEU, the CJEU shall ensure that the law is observed in the interpretation and application of the treaties, while Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law. This means that Member States of the European Union are required to ensure that their judicial systems effectively apply EU law and are requested to have independent national judiciaries, which Poland fails to do.
The European Parliament insists that no EU taxpayers’ money shall be granted to governments that “flagrantly, purposefully and systematically” undermine European values and do not respect the rule of law, and has been repeatedly calling on the Commission and the Council to take action. Among other things, the European Parliament has proposed: launching infringement procedures and requesting interim measures from the CJEU; triggering the Rule of Law Conditionality Regulation; refraining from approving the recovery and resilience plan for Poland; declaring there is a clear risk of a serious breach of the rule of law by Poland in accordance with Article 7(1) of the Treaty; and interrupting or suspending payments, given the risk of serious deficiencies in control systems.
Recently, the European Council concluded that the Commission shall ensure an immediate and appropriate response in line with EU law and international obligations, including securing fundamental rights. Meanwhile, the CJEU has ordered Poland to pay the European Commission penalty payment in an amount of €1.000.000 per day, as it has not suspended the application of the national legislation relating, particularly, to the areas of jurisdiction of the Disciplinary Chamber of the Supreme Court.
The European Movement International position
As we argue in our policy position, the rule of law is one of the founding principles of our Union and a cornerstone of European construction. The European Movement International (EMI) strongly believes that compliance with the rule of law is essential to protecting and fostering democracy in the European Union. Maintaining the coherence and consistency of internal practices and the external promotion of democracy, the rule of law and fundamental rights are key to the functioning of the Union.
For the European Union to maintain its basis of rule of law, existing mechanisms should be enforced, evaluated, and complemented in the framework of a fully-fledged rule of law mechanism. This could be done by institutionalising the rule of law dialogue to enable Member States to respond without delay to the Commission’s recommendations. Furthermore, the EMI supports the application of the Rule of Law Conditionality Regulation. In this respect, a ‘systemic infringement action’ is desirable. This could be done by confirming individual breaches of a systemic infringement action along with a breach of Article 2 TEU. Alternatively, systemic infringement proceedings could also be grouped under Article 4(3) TEU by providing evidence that a Member State government is hindering the achievement of the EU objectives. If a systemic breach is confirmed by the Court, corrective action would have to be applied, to the extent of sanctions in the form of withholding EU funds or levying a fee. To this end, the EMI welcomes CJEU’s ruling to impose a daily penalty payment on Poland.
Here’s an excellent Twitter thread from Prof Piet Eeckhout:
The EU rule-of-law issue continues to elicit feverish debates. I think it’s important to say a few things about the supremacy of EU law – or actually its primacy, which is the better term. And about the ECJ.
The ECJ confirmed the primacy of EU law over member state (“domestic”) law as far back as 1964. It should actually be a completely non-controversial principle, as it aligns with long-established international law: treaties are binding.
International law permits hardly any exceptions to this principle. So does EU law.
There is one crucial difference, but it’s a contingent, procedural one: the ECJ speaks directly to domestic courts, through the reference system. They refer questions of EU law to the ECJ, and are bound by its answers.
EU primacy is therefore immediate and direct, whereas international rulings on the binding nature of treaties orbit States without touching domestic legal ground.
But it’s important to see the limitations of EU law primacy. It’s never an overall supremacy over domestic law, let alone national constitutions. You will look in vain for ECJ case law that replaces whole areas or concepts of domestic law by sections of EU law.
Let alone a national constitution. EU law primacy is invariably specific, limited to the issue before the ECJ. F.i. judicial independence and Poland. It’s for Poland to decide how to organise its judiciary. But the ECJ requires that it’s independent, and lays down criteria.
In other words, EU law doesn’t substitute itself for domestic law. It doesn’t replace it. It is just a conflict rule, with the effect that any inconsistent domestic law cannot be applied. No more than that.
There’s no annulment of domestic law. Primacy just means that domestic courts have to give effect to EU law. And this is of course what member states signed up to, themselves, solemnly.
Still, how can this be? Is the national constitution not, by definition, supreme, because it’s the basis for a state joining the EU? Here we’re entering difficult conceptual legal territory. Basically, both are true: EU law primacy and constitutional supremacy.
For what it’s worth, in exceptional cases national courts (particularly supreme/constitutional courts) should be able to rule that the ECJ has exceeded its jurisdiction (has gone beyond the treaties). But then they really need to show this.
The German constitutional court tried to do so in Weiss (on the powers of the ECB). It didn’t convince me at all, but at least it really engaged with the issues, and sought the ECJ’s view.@PietEeckhout, https://threader.app/thread/1453047578707349508
Image of Poland’s Constitutional Tribunal by Lukas Plewnia via www.polen-heute.de /Wikimedia Commons CC BY-SA 2.0