On 24 November, the Polish Constitutional Tribunal ruled that the European Convention on Human Rights was partially incompatible with the country's constitution. In July and October, it had issued similar rulings on the Treaty on European Union (TEU). This double decision comes as the European Commission suspended the approval of Poland's €36 billion recovery plan, including €23.9 billion in EU grants, due to concerns about the rule of law. On 19 November, the Commission also sent a letter to the Polish government as a prelude to the launch of a procedure that could lead to the suspension of EU funds under the budgetary conditionality regulation.

The confrontation between the Polish government and the European institutions, primarily the Commission and the European Court of Justice, has been presented by the Polish government as a struggle of principle between the primacy of European law, which was allegedly being imposed excessively on Member States, with "the national legal order and the supreme force of the Constitution" being under threat. The Polish Prime Minister, Mateusz Morawiecki, explained that the implementation of EU law, as requested by the CJEU, would lead to "a fundamental lowering of the constitutional standards of judicial protection of Polish citizens, and unimaginable legal chaos".

Beyond the grandstanding and responses in support of an effort to defend the sovereignty of peoples, it appears that the weakening of these constitutional norms in recent years in Poland is precisely what has led the Constitutional Tribunal to partly denounce the TEU (European Union) and the European Convention on Human Rights (Council of Europe), and that the quarrel over the primacy of European law is essentially a smokescreen to hide this situation.

The Constitutional Tribunal's Decision

On 7 October the Polish Constitutional Tribunal deemed that the TEU was in part incompatible with the country's Constitution. It rejected the paragraphs 1 and 2 of article 1, whereby the Member States establish the European Union, granting "it competences to obtain objectives they have in common" and aiming to create "an ever closer union". It rejected article 2 which defines the Union's values, as well as article 19 §1 al.2 which obliges Member States to establish "the remedies sufficient to ensure effective judicial protection in the fields covered by Union law".

The case was brought before the Tribunal by the Prime Minister who challenged decisions of the Court of Justice (CJEU), in particular a judgment dated March 2021 which allowed Polish judges, under the principle of primacy of EU law, not to apply certain provisions introduced in 2018 and 2019 regarding the appointment of judges, which severely restricted the right of appeal of unsuccessful candidates.

The members of the Tribunal considered that Article 19, as interpreted by the CJEU, was incompatible with the Polish Constitution if used to challenge recent reforms of the judicial system. They did not reject the EU treaties as a whole or challenge the primacy of EU law as a matter of principle. But by considering, without proving it, that the Union has entered a "new stage" and is acting "outside the scope of the competences conferred upon it" by Poland, they have claimed the right to define, at the request of the government, the areas in which the Polish authorities consider themselves exempt from the European treaties and laws that they helped to draft and adopt.

In speaking out against what its president considered to be "the interference of the CJEU in the Polish legal system", the tribunal unilaterally decided that the organisation of the Polish judicial system should be autonomous from that of the European judicial system, even though the courts of the Member States are responsible for applying European law equally to all.

In an open letter, 26 former members of the tribunal, including four presidents, found that it is wrong to claim that EU law and case law challenge the primacy of the Constitution in the Polish legal order or force Polish judges to ignore the Constitution. They also found that the court had exceeded its jurisdiction and that its decision had no legal effect other than to put pressure on judges by threatening disciplinary proceedings.

The question of the primacy of European law

Addressing the European Parliament on 19 October, Mateusz Morawiecki spoke of the spectre of a Union becoming a "centrally administered parastatal organism, whose institutions may force upon its 'provinces' whatever they consider right". This argument may carry weight with public opinion, which is torn by the uncertainties and vulnerabilities of the present times, while the European Union remains a complex construction, based on both the delegation and pooling of sovereignty, without being totally supranational.

Indeed, the question of the primacy of European law, although asserted since the 1960s (Costa vs Enel case), continues to fuel dialogue between the national courts and the CJEU. It essentially revolves around the notion of national and constitutional identity, recognised by Article 4 TEU to mark the limits of the Union's competences, and is regularly invoked by the national courts.

Thus, in its so-called Solange I and Solange II rulings in 1974 and 1986, the German Constitutional Court gave itself the right to ensure that the fundamental rights recognised by the Union were equivalent to those protected by the German Constitution. It also re-iterated in 2009, during the review of the Lisbon Treaty, that Germany 'does not recognise an absolute primacy of application of Union law'.

The Karlsruhe judges have also reserved the right to rule that the CJEU acts ultra vires, i.e. outside its competence. In April 2020, they thus expressed their disagreement with the CJEU which had validated the ECB's OMT asset purchase plan while leaving it open to the ECB to demonstrate the proportionality of its action. This decision led the European Commission to open an infringement procedure against Germany in the name of defending the primacy of EU law.

Also recently, the Italian Constitutional Court in 2017 challenged a CJEU ruling on a VAT fraud case, citing the supreme principles of the Italian constitutional order. In a second judgment in response to these objections, the CJEU accepted that the obligation to protect the Union's financial interests had to be reconciled with respect for the principle that offences and penalties must be defined by law.

In practice, therefore, the primacy of European law is neither absolute nor used as a dogma. The issue raised by the Polish decision is however at another level. Unlike the German ruling of 2020 with which it is often compared, the decision of the Polish judges does not simply call into question a European law or its interpretation by the CJEU. For the first time, national judges are challenging the provisions of a European treaty that has already been ratified and applied for 13 years. There is therefore a difference in degree and nature, which leads destabilising potential for the European Union.

In France, the Constitutional Council has laid down the rule that "the transposition of a directive may not run counter to a rule or principle inherent in the constitutional identity of France, except with the consent of the constituent". But as stressed by the constitutional expert Anne Levade, it also considers that "the compatibility with the Constitution of a ratified treaty cannot be called into question, even on the occasion of the review of an amending treaty or of the law ratifying the latter".

In 2005, when speaking of the constitutionality of Poland's membership treaty to the Union, the Constitutional Tribunal ruled out any "alleged inconsistency between the scope of the CJEU (...) and the principle of sovereignty of the Republic of Poland, the supremacy of its Constitution in the Polish legal system". In 2010, it deemed that the now challenged Articles 1 and 2 TEU, were in conformity with the Constitution.

A conscious strategy

The decision of 7 October is not an error of appreciation by the Polish constitutional judges, but the expression of a conscious strategy on the part of the government that requested it. On 14 July, the Constitutional Tribunal had already deemed that the CJEU had exceeded its jurisdiction by ordering in 2020 the suspension of the disciplinary chamber of the Supreme Court, and that European law in this case did not take precedence over Polish law. The Tribunal found that Article 4.3 TEU, which states that "in accordance with the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other", was contrary to the Constitution.

The decision of 24 November follows this logic. The Constitutional Tribunal rejected Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial before an "independent and impartial tribunal established by law

The ECHR has so far registered 57 complaints, mainly on the part of Polish judges who are victims of the reforms, and has already ruled on four occasions[1]. It has ruled that the composition of the Constitutional Tribunal was "irregular", that the Disciplinary Chamber of the Supreme Court was not a "court established by law" and that the Extraordinary Control and Public Affairs Chamber of the Supreme Court was not an "independent and impartial tribunal established by law", and also that dismissed magistrates had been deprived of their right of access to a court.

The fact that the Polish government and judges are also targeting an institution outside the European Union underlines, if it were necessary, that their main concern is not the organisation and rules of the Union through the question of the rule of its law. What the three court decisions have in common is that they aim to protect the Polish government from judicial review of its justice reforms and their consequences for judges.

Since November 2015, the government led by the Law and Justice party (PiS) has passed more than 30 laws to reform all courts and tribunals, as well as appoint, transfer, dismiss, control and sanction judges[2]. The most controversial legislation is the disciplinary regime for judges, which was introduced in two stages. A first law, which came into force in 2018, automatically retired all Supreme Court judges from the age of 65, shortened the term of office of the first President, established a new disciplinary regime for judges, and created two extraordinary chambers, composed only of new judges: the Extraordinary Control and Public Affairs Chamber and the Disciplinary Chamber.

A second law, which was passed in 2019 and came into force in February 2020, strengthened the powers of the Disciplinary Chamber, obliged judges to declare their political or associative affiliation, and allowed disciplinary proceedings against judges who apply certain provisions of European law or refer preliminary questions to the Court of Justice.

Referred to by the European Commission, the CJEU has repeatedly condemned these reforms, which continue to be used to transfer or dismiss judges. In 2019, it deemed that the retirement of Supreme Court judges violated the principles of security of tenure and judicial independence. In 2020, it called for the immediate suspension of the powers of the Disciplinary Chamber with regard to the disciplinary regime of judges.

On 15 July 2021 it deemed that the disciplinary regime for judges introduced in 2018 did not comply with EU law and that the independence and impartiality of the Disciplinary Chamber was not guaranteed.

In a procedure that is still ongoing regarding the second law, on 14 July 2021 the CJEU asked for the immediate suspension of the provisions empowering the Disciplinary Chamber to rule on requests for the waiver of judicial immunity, as well as those prohibiting judges, on pain of punishment, from submitting preliminary questions to the Court.

The issue of preliminary rulings