Top court rules Polish constitution has precedence over EU law

Poland’s Constitutional Tribunal has ruled that several articles of the EU Treaties do not comply with the Polish Constitution, calling into question the primacy of European Union law over national legislation.

The ruling could further strain relations between Poland and the EU already tense owing to numerous and protracted conflicts ranging from rule of law to the environment.

The Tribunal's ruling was issued at the request of the country's prime minister.

Government spokesman Piotr Mueller took to social media to write that the Constitutional Tribunal's ruling largely acknowledges the motion of Prime Minister Mateusz Morawiecki.

"The primacy of constitutional law over other sources of law results directly from the Constitution of the Republic of Poland," he wrote on Twitter.

"Today (once again) this has been clearly confirmed by the Constitutional Tribunal."

He added that the ruling demonstrated that Polish constitution is beyond the remit of Brussels and EU law.

"It should be emphasised that Poland (on the principles set out in the Constitution of the Republic of Poland) respects the applicable norms of EU law to the extent that they have been established in areas explicitly and expressly provided for in the EU treaties," Mueller wrote.

"A clear and transparent division of these competences is the basis of the sovereignty of the Member States and the good functioning of the EU," he added.

The Constitutional Tribunal was due to issue the ruling three times before. During its August 31 session the case was postponed until September 22 after a motion was lodged by the Ombudsman, calling for the exclusion of one judge. On September 22, Julia Przyłębska, the head of the Tribunal, after hearing the parties, announced another adjournment "due to the emergence of new circumstances." And on September 30, the tribunal adjourned its sitting until October 7.

The case came before Poland's top court in late March when Prime Minister Mateusz Morawiecki asked it to check if three points of the Treaty on the European Union were compatible with the Polish constitution.

Morawiecki said that the motion had been filed with the Tribunal "in order to once again and additionally confirm the supremacy of the Polish constitution, which is the highest legal act in the Polish legal system - over EU law."

The case was brought by the Polish prime minister as part of a conflict with the EU over changes to Poland's judiciary. The Polish government has been accused of politicising the justice system because the top judicial self-governing body, the National Council of the Judiciary (KRS), is now dominated by members appointed by the ruling party. Poland has also introduced a new disciplinary body at the Supreme Court that can strip judges of immunity, but this body is not recognised by the Court of Justice of the European Union (CJEU).

According to the CJEU, the Disciplinary Chamber of the Supreme Court is inconsistent with EU law. The European court has already demanded the suspension of the operation of the chamber on grounds that it can be used to undermine judicial independence. Despite this the chamber is still functioning.

In early September, European Commissioner for Economic Affairs Paolo Gentiloni appeared to suggest that negotiations between Brussels and Warsaw on Poland's National Recovery Plan were being drawn out by Poland calling into question the supremacy of EU law thus holding up EUR 57 billion in EU recovery aid to Warsaw.

A number of national courts in the EU have challenged the primacy of EU law in the past including the Danish Supreme Court in 2016, and the German Constitutional Court in its 2020 judgment on a public sector purchase programme.

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