On the 8th of October, 2021, Poland’s predominantly national-conservative Constitutional Court shocked the world when it overrode fundamental principles of European Union law, claiming that Polish constitutional law had primacy over certain EU laws.  

Polish Prime Minister, Mateusz Morawiecki, began the court case in March 2021 due to the European Court of Justice’s decision that the Polish process for assigning judges breached EU law. Morawiecki wanted Polish judges to avoid using EU law to determine the legitimacy of judges seeking approval for appointment to Polish courts. The Polish Prime Minister's actions have already been of deep concern for the European Commission and many international legal bodies have proclaimed Morawiecki as challenging judicial independence. 

Judges in the Constitutional Tribunal concluded that four articles of the founding EU treaty were incompatible with the Polish constitution: Articles 1, 2, 4 and 19. Article 1 outlines a “new stage in the process of creating an ever closer union among the peoples of Europe.” Polish judges proclaimed that Article 1 was in violation of Polish law because it allowed the Union to act “beyond the limits of competences transferred by the Republic of Poland in the treaties.” The Constitutional Tribunal further cited Article 2 as an issue to Polish national law. Article 2 outlines the EU’s core principles including enshrining the rights of minority groups which fits into the larger EU ideal that human dignity must be respected. 

Article 19 centers around guaranteeing that when treaties are implemented, the law continues to be observed. This area of jurisdiction is handled by the EU’s Court of Justice. This article sits at the core of the quickly escalating feud between the EU and Poland, as Poland claims their laws have been violated by the treaties, whereas the EU claims Poland is disrespecting their fundamental values that all member states must uphold.  

Articles 1 and 4 of the EU treaty were of utmost importance for the Polish Court. They discussed word-use, replacing reference of the document from “of this treaty” to “of the treaty on the functioning of the European Union”. In the eyes of the Polish judges, the articles as they stand allow the EU to have unparalleled power, acting “beyond the limits of competence transferred by the Republic of Poland in the Treaties.” Articles 2 and 19 were interpreted as incompatible with the Polish constitution. 

What has occurred historically to lead to Poland challenging the EU?

Poland’s Law and Justice Party (PiS) came to power in 2015 and currently Poland’s Constitutional Tribunal is dominated by ex party members or loyalists of the PiS. The party portrays itself as traditional and focused on upholding conservative values. In reality, the party has made it one of their primary goals to dictate the Polish judiciary by publicly changing “the judicial framework included among other amendments to laws on common courts, the National Council of the Judiciary, the Supreme Court; a refusal to publish and abide by Constitutional Tribunal rulings; and unconstitutional appointments to the tribunal.”  

The Law and Justice Party’s actions are often driven by a fundamental Communist paranoia. This paranoia is rooted in the belief that when Poland transitioned to a democratic government in 1989, the new ordering of Polish institutions favored “postcommunist elites” because there was no cleansing of communists from political positions. Therefore, the PiS claims their party is representative of the Polish people and is the only party truly working to combat the supposedly broken constitutional order imposed during the democratic transition. 

What is the EU’s Response to Poland’s Legal Supremacy Argument? 

The European Commission released a statement proclaiming that “EU law has primacy over national Law--including constitutional provisions.” The statement further stresses that rulings made by the European Court of Justice are binding on all member states at all levels of government. It emphasizes that the Court of Justice would not be afraid to ensure EU law is being upheld and uniformly applied. 

The EU Commission has stated that it will not hesitate to pursue legal action. Poland has been seeking to approve a sixty-six billion dollar COVID recovery plan to help the economy and the Commission has stated that if Poland rejects the principle of EU primacy in judicial law, it could possibly delay EU funding to Poland. Should EU member states that belong to the Commission such as France and the Netherlands not support the EU treaty, there are concerns that the European Union will become even more fragmented and fragile. 

In addition, if the Commission does not take solid actions against Poland’s decision, other Eastern European countries that believe  EU integration undermines their national sovereignty such as Slovenia, Hungary, and Bulgaria will follow suit. In fact, Hungarian Prime Minister Viktor Orban has already signed a government decree that demonstrates Hungary’s support for Poland’s court ruling. 

What is the response of the Polish people to their country’s legal supremacy argument?

The Polish people have responded to this situation by organizing protests throughout Poland to boycott the decision and express their fears of Poland leaving the EU. Protests occurred in approximately 100 towns and cities, with almost 100,000 people protesting in the Polish capital of Warsaw. Archbishop Stanislaw Gadecki, a member of Poland’s highly respected Roman Catholic Episcopate which openly supports the government, stressed on Vatican Radio that “we all want to stay in Europe" and that “no reasonable person wants to leave it.”  In response, Polish Prime Minister Morawiecki clarified that his government had no desire to exit the EU, stating on social media that these worries of a “Polexit” were “fake news and a harmful myth.”  

According to polls, EU membership is highly favoured among Polish voters. Political opponents, activists, and artists have been making efforts to demonstrate that the Polish people disagree with their government’s court decision. During a rally in the capital, former president of the European Council Donald Tusk stressed that people must “defend a European Poland.” The outcome of the feud forming between the EU and the Polish Courts will set the precedent for how the international organization tackles threats to democracy.