Rule of law: Poland: court decides on the primacy of EU law

The EU Commission is holding back money for Poland because there are doubts about the rule of law. Now the Polish Constitutional Court wants to decide whether national law has priority over EU law.

Can European law take precedence over Polish constitutional law in cases of doubt? The Constitutional Court in Warsaw wants to deal with this question today.

Specifically, it is about whether provisions from the EU treaties, with which the EU Commission justifies its right to have a say in questions of the rule of law, are compatible with the Polish constitution. The court has already postponed the decision on this question several times. The meeting was last interrupted last Wednesday. The reason given was that new aspects had been put forward; the court needs time to formulate questions about it.

Prime Minister Mateusz Morawiecki had asked the Polish Constitutional Court to review a judgment of the European Court of Justice (ECJ) of March 2, 2021. In the ruling, the top EU judges found that EU law can force member states to disregard individual provisions in national law, even if it is constitutional law. According to the ECJ, the procedure for filling the Supreme Court in Poland could violate EU law. This would mean that the ECJ could force Poland to repeal parts of the controversial judicial reform of the national-conservative PiS government.

Because of the reforms, the EU Commission has already opened several infringement proceedings against the government in Warsaw and has filed lawsuits with the European Court of Justice (ECJ). Among other things, the Brussels authority has doubts about the independence of the Polish constitutional court. The chair is Julia Przylebska, a close confidante of PiS boss Jaroslaw Kaczynski. The EU Commission is currently withholding billions in Corona aid for Poland because there are concerns about whether the rule of law is being observed in the country. The responsible EU Commissioner Valdis Dombrovskis recently said that the open question of the primacy of EU law also played a role.

Poland’s government also came in handy for a ruling by the Federal Constitutional Court, which it interprets in its favor. In May 2020, the Karlsruhe judges objected to the European Central Bank’s bond purchases worth billions – and thus opposed a CJEU ruling for the first time. The constitutional judges argued that the central bank had overstretched its mandate for monetary policy with the program launched in 2015. The Federal Government and the Bundestag should work to ensure that Europe’s monetary authorities check retrospectively whether the purchases are proportionate. This has now happened, as the court found in a decision at the end of April. In June, in the dispute over the judgment, the EU Commission announced the initiation of infringement proceedings against Germany.

However, the Federal Constitutional Court has never questioned the fundamental primacy of EU law. Karlsruhe only reserves the right to carry out the final inspection in certain, very rare cases.

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