Editorial of October 2021

By Alessandra Silveira (Editor) and Tiago Sérgio Cabral (Managing Editor)

Strange times and the need to remember the obvious…on the recent decision of the Polish Constitutional Court

The recent judgment of the Polish Constitutional Court calls into question one of the base pillars of the European legal order – namely the primacy of EU law over national law. As a result, it is likely that the European Commission will bring infringement proceedings against Poland. If the CJEU finds that Poland has not complied with its judgment, it may impose a financial penalty.

However, there is a possibility for de-escalation which would allow for this imbroglio to be first be resolved politically. This was the case regarding the German Constitutional Court’s astonishing decision of 5 May 2020, concerning the ECB’s bond buying programme for purchasing Member States’ public debt on the secondary market. The crux of the matter was that the German Constitutional Court’s judgment followed a judgment by CJEU which settled the issue of the validity of the ECB’s bond buying programme. The German Constitutional Court in its decision disregarded the decision of the competent court under Article 19(1) TEU, according to which the CJEU ensures that the law is observed in the interpretation and application of EU treaties. It did not take long for the so-called “illiberal democracies” in Europe to welcome the ruling of the German Constitutional Court, using it to subvert judicial independence and freedom of expression as recognised by the EU. Fortunately, the good sense of the German governmental and parliamentary authorities under Angela Merkel’s leadership prevailed – and the European institutions did not have to act accordingly (at least immediately). It is important to note that in a second decision regarding the ECB’s bond buying programme also appeared to walk back from the edge of the cliff.

In any case, such episodes recommend revisiting the elementary notions of European integration law, because there are occasions when certain civilisational achievements still need to be defended, and the reason behind some choices needs to be recalled. What functional reason justifies the primacy of Union law over national law? Does Union law take precedence over national constitutional norms (or, on the contrary, can it be declared unconstitutional or set aside on the grounds of alleged unconstitutionality)?

As in any federative system, the political actors involved in European integration establish a commitment of cooperation (or joint responsibility for the fate of the political and legal system) which is converted into constitutional norms (or, in this case, the EU’s founding treaties). From this cooperative commitment stems a principle of loyalty – which in the European legal system corresponds to the principle of loyal cooperation set out in Article 4(3) TEU, according to which the Union and the Member States shall respect and assist each other in carrying out tasks which flow from the Treaties. 

Such a bond of loyalty is established (i) between Member States, (ii) of the Member States towards the Union and (iii) of the Union towards the Member States. By virtue of the principle of loyalty, Member States are obliged to take all measures necessary to achieve the objectives of the Treaties – and not to adopt measures which undermine those objectives. And the Union, for its part, must respect the equality of the Member States, their constitutional identities, and their essential functions. The principle of loyalty also implies that each Member State must consider the interests of the other States with which it is interacting, as well as the rights and interests of individuals who, despite being in another Member State, are affected by its decisions.

Based on the principle of European loyalty, the CJEU has derived a series of other principles which flesh it out and which are essential for the functioning of the European legal order – and, to that extent, for the very survival of the EU as a federative system – among which the principle of primacy stands out. This principle resolves a conflict between legal norms from different sources (i.e. European norms and national norms) which will apply to the same territory and the same addressees. If a national norm conflicts with a European norm in a given situation, the national courts must apply the European rule rather than the national one. This is how European integration has worked since the 1960s – and all the States which have joined the EU have committed themselves to this principle (Poland has been a Member of the EU since 2004).

One must note that, the European and national legal systems are based on the same fundamental legal values; in other words, the founding Treaties imported the constitutional foundations of the Union from the constitutional principles common to the Member States (and independence of the judiciary, the reason for this conflict, undeniably of them). This assures Member States that Union law will not threaten the fundamental values of their constitutions; the constitutional system of checks and balances that guides the functioning of the European legal order is based on the constitutional traditions common to the Member States [Article 6(3) TEU] – and, therefore, does not contradict or tamper with them.

However, this structural congruence can only be guaranteed on a systemic level – i.e. it can only exist at European level and through the mechanisms provided for in the founding Treaties. It is this systemic identity which guarantees that national constitutions will not be violated, even if they can no longer be used as reference standards for the review of the validity of European legal acts. It is not difficult to understand why: insofar as the content and protection instruments of national constitutions vary greatly, the application of Union law could be subject to derogations in one Member State and not in another.

Such a result would violate the equality of all Member States and the equality of all European citizens – i.e. the prohibition of discrimination on grounds of nationality (Article 18 TFEU), since Union law cannot vary from one Member State to another, as well as the objectives of the principle of European loyalty and the functioning of the Union of law [Article 4(3) TEU]. If national constitutions could be invoked to impose selective and discriminatory application of European standards on the territory of the Union, the conformity of the European legal order with the constitutional traditions common to the Member States would be paradoxically altered. Courts are a part of this equation, as it is not possible to ensure fair application of EU law and pursue the common objectives established in the Treaties without impartial Courts.

The primacy of Union law is therefore an essential requirement of the legal order of a Union based on the rule of law. In any event, as EU law currently stands, the non-application of a national provision which is incompatible with EU law only arises if it cannot be interpreted in conformity with EU law. 

In these strange times we live in it is important to remember “why” things are organized as they are…

Pictures credits: Free-Photos.

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