Editorial of September 2021

By Tiago Sérgio Cabral (Managing Editor)

On the recent Polish challenges to the primacy of EU Law

1. Some recent progress

On 14 July 2021 the Court of Justice of the European Union (hereinafter, “ECJ”) issued an Interim Order declaring that the Polish State should suspend the activity of the, widely regarded as breaching the principle of the independence of the judiciary, Disciplinary Chamber of the (Polish) Supreme Court. The ECJ’s decision came as no surprise both due to the nature of the Chamber itself and the fact the same Court had already issued a similar order a few months before. One day after, on 15 July 2021, the ECJ would issue a judgment confirming that the Chamber was in breach of Article 19(1) TEU and Article 267 TFEU.

What could be seen as a surprise is the fact that the Polish Constitutional Tribunal, whose level independence could hardly be called adequate after the reforms by the current ruling party, directly challenged (deciding on the previous order) the ECJ. The Polish Constitutional Tribunal argued that the interim measures ordered by the ECJ should be considered as incompatible with the Polish Constitution and therefore not enforced.

Of course, this follows attempts by the Polish government of establish the national Constitution as prevailing over EU Law, which would allow it pick and choose obligations associated with its membership and erode fundamental rights without pushback or supervision. In a statement to the press, Minister Michal Wojcik said that “The constitution is the highest law in our country. If it were otherwise, it would mean that we are not a sovereign state. We did not agree to this in the EU treaties”.

There is obvious danger in weaponizing courts to engage in what is clearly a political issue. The Polish government does not agree with the fundamental rights-related obligations and restrictions that come with being part of the EU, but membership is widely popular in the country. In addition, the Polish government, of course, does not want to lose the benefits (including financial) of being part of the Union. However, by trying to use its courts to “have its cake and eat it” (recent history should have proved this does not work) the Polish government may escalate the conflict and even create a situation where neither itself nor the (rest of) European Union can compromise.

Nonetheless, for the moment it is important to cut through the loud populist messages of sovereignty and understand what the end result of this conflict was. Did the Polish Constitutional Tribunal successfully manage to challenge the ECJ?

We would argue that it failed in doing so and might even have ended up further damaging its credibility. Our conclusion arises from the fact that, after some back and forth, the President of the Supreme Court partially froze the Chamber, ensuring that no new cases will go to the chamber until legislative changes are introduced or until the ECJ issues a final verdict on the matter. One should note that the President of the Supreme Court first complied with the decision from the Polish Constitutional Tribunal and unfroze the chamber, but then walked back and ended up complying with the ECJ’s decision and, in fact, even recognizing the ECJ’s final word on the matter.

But even more than the question of whether Chamber is currently working (and one may even question if its current suspension is enough to fully comply with the ECJ’s Orders) we should look at the Chamber’s current destiny. The Polish government, in practice, reversed course and promised to dissolve the Chamber in September. It is delayed compliance, but it is compliance nonetheless. Of course, the European Commission should still consider referring the matter back to the ECJ to ensure that financial penalties can be applied until Poland definitely is in compliance with the decision.

2. However, a much larger issue still looms

There is still a second issue that should be addressed: the Polish government asked the Polish Constitutional Tribunal to give its opinion specifically on whether the Polish Constitution or EU Law takes precedence. Again, taking into account the issue of independence of the Polish Constitutional Tribunal it is difficult to see how it could make an impartial decision. The judgment was supposed to be delivered on 21 August but it was delayed until 22 September.

The decision by the Polish Constitutional Tribunal may be the escalation of the conflict that we spoke above in which neither part can compromise. Primacy is an essential principle of EU Law, without which the EU could not function. For better of worse, the Union has managed to protect this primacy and ensure that Member States cannot use their national law to escape some obligations while reaping the rewards of membership.

The German Federal Constitutional Court may have unintentionally contributed to the present situation when it issued a decision where it declared as ultra vires the ECJ’s judgment European Central Bank’s Public Sector Asset Purchase Programme. This decision which could be considered as irresponsible – and arguably, shows a Constitutional Court unable to come to terms with the fact that, in practice, it is no longer the highest court in the land – did not have any immediate consequences. In fact, the German Federal Constitutional Court definitely closed the case when it rejected a new challenge against the Public Sector Asset Purchase Programme in 2021 with some legal scholars arguing that (though everyone was damaged by the initial decision) the Constitutional Court “folded”. It is important to note that Commission opened an infringement procedure due to this decision.

However, after the 2020 decision of the German Federal Constitutional Court there was always the danger that the arguments of this highly respected constitutional court could be weaponized. This is especially the case in States, that unlike Germany, do not have a strong level of respect for the Rule of Law.

If the Polish Constitutional Tribunal decides to follow this path, the European Commission must react immediately with all the weapons at its disposal, including an infringement procedure and the Rule of Law Regulation. It is key to ensure that European funds are not used to finance a government openly displaying its disrespect for both the Rule of Law and EU Law.

Pictures credits: WilliamCho.

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