Will the Court of Justice of the European Union (CJEU) find that Poland has violated its obligations as a Member State?
This case goes back to 2023, when the European Commission challenged Poland in the CJEU for allegedly violating European law in connection with two 2021 Constitutional Tribunal (CT) judgments. This topic might appear outdated given that Poland has already amended those regulations, besides the fact that our country’s political authorities have since changed. There is therefore no “threat to the rule of law,” as was likewise noted by the European Commission, which in May of last year terminated the Article 7 Treaty on European Union (TEU) procedure against Poland. According to Prime Minister Donald Tusk, the Republic is now back on track and the law is being applied, at least as they understand it. Let’s nevertheless put this aside and turn our attention to some strictly legal issues, looking first and foremost at what the basis of the EC’s complaint to the Court of Justice of the European Union was to begin with.
Poland under fire
As pointed out by CJEU Advocate General Dean Spielmann, the European Commission demanded that the court find that Poland had failed to comply with its obligations to the European Union by issuing judgments that undermine the primacy of European Union law. It was specifically referring to the Constitutional Court’s judgments of July 14 and October 7, 2021 regarding those regulations resulting from changes to the Polish judiciary’s reform process. On the occasion of statement from the previous day, the CJEU’s spokesman likewise subjected the Constitutional Court to criticism, stating that its actions “constitute an unprecedented attack” given that they violate the primacy, autonomy, and effectiveness of EU law. I don’t think it’s worth commenting further on this statement, but it certainly must be said that it demonstrates an unprecedented violation of the TEU’s norms. This is because the TEU clearly sets the limits of the European Union’s competencies, which are based on the principle of attribution.
According to Article 5 of the Treaty on European Union, the EU is entitled to exercise only those competencies that have been granted to it. Furthermore, it is understood that Article 5 should be applied by taking into account the principle of respect for the Member States’ national identities (Article 4(2) TEU) as well as the principle of loyal cooperation (Article 4(3) TEU). Powers not conferred on the Union by these Treaties belong to the Member States (Article 4(1) TEU). Moreover, every EU institution must act within the limits of the powers granted to it under the Treaties (Article 13(2) TEU). Thus, any actions by the EU that have no basis in the Treaties are not allowed. From the point of view of the EU’s legal system, the matter seems quite simple to understand. It is also equally simple from the perspective of the Polish Constitution.
It is worth recalling the most basic issues pertaining to this matter, and above all the judgments that the Constitutional Court has already presented many times in its jurisprudence regarding the relationship between Polish law – including, above all, the constitution – and European Union law. Similarly, the constitutional courts of other Member States, such as those of Germany, the Czech Republic, Spain, Romania, Bulgaria, and Hungary, have referred to the same sort of fundamental assumptions.
What does the constitution say?
The relationship between Polish law and EU law is determined by several constitutional provisions that are contained in its first chapter, “The Republic,” as well as its third, “Sources of Law.” The Basic Law does not contain any section devoted to Poland’s membership in the European Union. Attempts were made to amend the constitution to address this. The Speaker of the Polish Parliament, Bronislaw Komorowski, even appointed a special team that drafted a relevant regulation. In the end, however, no such constitutional amendment was enacted.
Article 8(1) states that the constitution is the supreme law of the Republic of Poland. In turn, Article 90(1) authorizes the Republic to delegate, via an agreement, with an international organization or body, the powers of state authorities in certain matters. In turn, Article 91(3) of the constitution confirms the Polish Basic Law’s supremacy, stating that law enacted by an organization to which Poland has delegated certain competencies takes precedence in the event of a conflict with domestic law. The interpretation of this provision unequivocally confirms the supremacy of the constitution over EU law.
It is first of all necessary to draw attention to one key element in Article 90(1), namely the stipulation that the power to delegate “the competence of state authorities” is granted “in certain matters.” The Polish authorities may delegate competence only in “certain matters,” and this implies a narrow interpretation. Thus, from the language of this constitutional provision, the conclusion is that there are such competencies whose delegation is impermissible. This has already been unequivocally stated by the Constitutional Court in its May 11, 2005 judgment and has been reiterated in many others. The court holds that the phrase in “certain cases” means:
-it is prohibited to delegate all the competencies of a given body;
-it is prohibited to delegate all matters in a particular area; and
-it is prohibited to delegate in substance those matters that define the competence of a given state authority.
The provisions of articles 8(1), 90(1), and 91(3) constitute a coherent regulation expressing the same constitutional goal: namely, to set limits on the authorities’ ability to delegate powers. They therefore constitute a regulation in terms of the guarantees underlying Poland’s sovereignty. As aptly noted by the Constitutional Court in its judgment of November 24, 2010, these guarantees constitute the so-called normative anchors that determine the scope and mode by which powers can be delegated by the Republic’s authorities. They therefore serve to protect Poland’s sovereignty in relation to its accession to the European Union – that is, from the point of view of those competencies governed by the Accession Treaty. Their significance goes beyond this area alone, however. They also set boundaries for the ongoing application of Polish and EU law. Thus, both in the process of Poland’s accession to the EU as well as in terms of current affairs stemming from its membership in the Union, they act as guarantees of Poland’s sovereignty.
It should be emphasized that articles 8(1) and 91(3) establish the limits under which the principle of the primacy of EU law can be exercised. Both at the stage of accession to as well as during the period of its membership in the EU, the Polish authorities are obliged to recognize the Basic Law’s supremacy. This is all the more so given that the EU’s own treaties do not provide for the primacy of EU law. It should likewise be clearly emphasized that all authorities in Poland are bound by the constitution’s provisions, and thus this applies to the Constitutional Court as well.
The omnipotence of judges
The above analysis does not lead to the only possible legitimate conclusion, however. The problem in relations between the European Union and Poland, as well as with other countries, stems from the fact that the EU recognizes in practice its supremacy over the Member States, and therefore understands itself as having a full range of powers to expand its authority and empower the Brussels bureaucracy. This expansion of the Union’s powers is precisely carried out via the activism of the EU’s judges, who understand their powers in an expansive manner. CJEU jurisprudence rejects the possibility that Member States can overrule or annul EU norms through their constitutional courts. It must be remembered, however, that the CJEU’s judges are effectively imposing the only correct interpretation of EU law, as well as forcing the acceptance of such actions that are taken by the EU ultra vires (outside the scope of its competence), because they are politically entrenched in the EU’s system of power. This practice leads us straight to the eventual rise of an EU superstate. This, in turn, will surely be the end of Polish sovereignty.
Prof. Anna Łabno – constitutionalist and member of the Academic Advisory Board of Ordo Iuris
