On October 7, 2021, the Polish Constitutional Tribunal ruled that some provisions of EU law and EU court rulings clash with the national legislation, noting that EU institutions acted beyond the scope of their competences (case K 3/21). More precisely, the Polish court held that two core articles of the European Union’s founding treaties are incompatible with the Polish Constitution, namely Art.1 TEU, which establishes the existence of the European Union and the conferral of competences from member states, and Art. 19(1) TEU, which determines that the mission of the EU’s Court of Justice is to ensure the observance of EU law across the Union.

In a petition submitted to the Polish Constitutional Court in March 2021 by Polish Prime Minister Mateusz Morawiecki, the Polish supreme judges had been asked to examine whether the Treaty on the European Union empowers the EU Institutions to derogate from applying the Polish Constitution or to apply provisions which have ceased to have effect, on the basis of a ruling by the Constitutional Court, due to being inconsistent with the Polish Constitution, and if the European Court of Justice is authorized to review the impartiality of national judges. This was a reaction to the March 2 judgment of the European Court of Justice, which had ruled that the new national system of selecting judges was not compatible with the EU legal order, and that, by reference to the principle of primacy of EU law, the Polish judiciary had to ‘disapply’ these conflicting national provisions.

As a first reaction to the Polish Constitutional Court´s ruling, the European Commission reaffirmed that ‘EU law has primacy over national law, including constitutional provisions’ and that the decisions by the European Court of Justice are ‘binding on all member state’s authorities, including national courts’. The Commission made it very clear that it will ‘not hesitate to make use of its powers under the treaties to safeguard the uniform application and integrity of union law’.

At first sight, Poland’s top court ruling appears to show similarities with the judgement of the German Federal Constitutional Court of May 5th, 2020, according to which the Public Sector Purchase Programme (PSPP) of the European Central Bank was (partially) incompatible with the German Constitution.

However, the following differentiation must be made to discern the extent of the Polish ruling:

• Although both constitutional courts considered that the European Court of Justice acted ‘ultra-vires’, meaning beyond its competences, the Polish court questions EU primary law (Art.1 and Art. 19 TEU), contrary to the German court that only questioned a secondary legal act by an EU institution.
• While the German court decision is mostly an attempt to harmonize and reconcile national constitutional provisions with EU law, the Polish judges recognize – a novum in EU history- a general and absolute precedence of the Polish Constitution over EU law.
• Whereas the German Federal Constitutional Court´s ruling referred explicitly to a single legal act (the ECB’s PSP program), the Polish ruling is understood as applying as a leading judgement to all areas covered by the Polish Constitution. Practically, this would mean that this judgement may be the source for future disputes, further eroding the EU’s legal order.
• For the first time, a national top court denies national judges the authority to examine the conformity of national legal acts with EU law.

Against the background of such unprecedented developments, one thing is sure: the EU has a long way to go to further proceed with European integration.

Tilemachos Dafnis, LLM