Last Thursday, the leaders of the EU gathered in Brussels for a two-day meeting of the European Council to discuss a number of pressing issues—the continuing battle against Covid-19, the recent spike in energy prices, the continuing challenge of migration, the digital transformation of Europe, trade policy and external relations. But as important as all those issues are, attention in the run-up to the meeting was focused on another issue—the October 7 decision of Poland’s Constitutional Tribunal that several articles of the Treaty on European Union are “inconsistent” with several articles of the Polish Constitution.
The Tribunal’s decision responded to a petition in March from Prime Minister Mateusz Morawiecki requesting a comprehensive resolution of the potential conflict between EU law and the Polish Constitution. He submitted the petition after the European Court of Justice issued a preliminary ruling earlier that month, in response to a request from Poland’s Supreme Administrative Court, that amendments to the Act on the National Council of the Judiciary that eliminated effective judicial control of decisions regarding nominations to the Supreme Court could be in breach of EU law and that, if a national court acknowledged they breached EU law, it couldn’t apply them.
On October 7, the Tribunal concluded, “The attempt by the European Court of Justice to involve itself with Polish legal mechanisms violates…the rules that give priority to the Constitution and rules that respect sovereignty amid the process of European integration.” Specifically, it said the first and second subparagraphs of Article 1 of the TEU, in conjunction with Article 4(3), “insofar as the EU…whose integration on the basis of Union law and through its interpretation made by the Court of Justice marks a new stage in which: 1) the Union’s institutions act beyond the limits of competences transferred by the Republic of Poland in the Treaties; 2) the Constitution is not the supreme law of the Republic of Poland and does not have precedence as of its binding force and application; 3) the Republic of Poland cannot function as a democratic and sovereign state, are inconsistent” Articles 2, 8, and 90(1) of the Constitution. And it ruled that the second subparagraph of Article 19(1) of the TEU, “insofar as in order to ensure effective legal protection in the fields covered by Union law confers on the national courts…the power to: 1) disapply, within the exercise of their functions, the provisions of the Constitution [and] 2. rule on the basis of provisions not in force—repealed by the Sejm [the lower chamber of the Parliament] or declared unconstitutional by the Constitutional Tribunal—is inconsistent” with Articles 2, 7, 8(1), 90 (1), 178(1), and 190(1) of the Constitution. The decision followed an earlier, and equally controversial, decision of the Tribunal on July 14 that Poland does not have to comply with interim measures ordered by the ECJ pertaining to the Disciplinary Chamber of Poland’s Supreme Court.
The EU would, of course, dispute the Tribunal’s characterization of the “new stage” of European integration and its assertion that the TEU confers on national courts the power to disapply provisions of the Constitution and rule on the basis of provisions not in force. The Commission immediately expressed its concern about the ruling, saying it “raises serious concerns in relation to the primacy of EU law and the authority of the Court of Justice of the European Union.” It underscored the primacy of EU law over national law, including constitutional provisions, and the fact that all rulings of the ECJ are binding on all member state authorities, including national courts. It said it would analyze the Tribunal’s ruling in detail and decide on the next steps and “will not hesitate to make use of its powers under the Treaties to safeguard the uniform application and integrity of Union law.”
Last Tuesday, Commission President Ursula von der Leyen addressed the European Parliament on the matter. She said that, while the Commission was still assessing the decision, she was deeply concerned about it and said it “calls into question the foundations of the European Union. It is a direct challenge to the unity of the European legal order….This is the first time ever that a court of a Member State finds that the EU Treaties are incompatible with the national constitution…The ruling undermines the protection of the judicial independence as guaranteed by Article 19 of the Treaty and as interpreted by the European Court of Justice…The rule of law is the glue that binds our Union together. It is the foundation of our unity. It is essential for the protection of the values, on which our Union is founded…We cannot and we will not allow our common values to be put at risk. The Commission will act. And the options are all known.”
Von der Leyen outlined three options. The first would be an infringement proceeding in which the Commission legally challenges the Tribunal’s ruling before the ECJ. The second, strongly supported by many in the European Parliament, would involve making use of the EU’s new conditionality mechanism “and other financial tools.” The conditionality mechanism, if upheld by the ECJ—it is currently being challenged by Poland and Hungary, would make the disbursement of EU funds conditional on Poland’s adherence to the rule of law. Von der Leyen didn’t elaborate on “other financial tools,” but it was widely understood they would include the Commission’s continued refusal to approve Poland’s request for €36 billion in grants and loans from the EU’s new Recovery and Resilience Facility. The third option would involve initiating the EU’s Article 7 procedure in regard to violations of the rule of law—a procedure it initiated against Poland four years ago that could, in theory (and barring certain veto by Hungary), deprive Poland of its vote in Council meetings.
Morawiecki then presented his government’s position on the Tribunal’s ruling to the Parliament, summarizing the argument he had elaborated in considerable detail in a long letter sent the day before to the heads of government of the other 26 member states and the presidents of the European Council, Commission, and Parliament. He said, “Union law precedes national law—to the level of the statutes and in the areas of competence granted to the Union. This principle applies in all EU countries. But the Constitution remains the supreme law. If the institutions established by the Treaties exceed their powers, Member States must have the instruments to react.… In the treaties, we have entrusted the Union with a very large range of competences. But we have not entrusted it with everything. Many areas of law remain the competence of nation states. We have no doubt about the primacy of European law over national laws in all areas where competence has been delegated to the Union by Member States. However, like the courts in many other countries, the Tribunal raises the question as to whether the monopoly of the Court of Justice to define the actual limits of entrusting these competences is the proper solution. Since the determination of this scope enters into the constitutional matter, someone must also express an opinion on the constitutionality of such new possible competences, especially when the Court of Justice introduces more and more new competences of EU institutions from the treaties.”
Continuing, Morawiecki said, “The supreme law of the Republic of Poland is the Constitution. It precedes other sources of law. No Polish court, no Polish parliament and no Polish government can depart from this principle. However, it is also worth emphasizing that the Polish Tribunal, also in the recent ruling, has never stated that the provisions of the Treaty on the Union are wholly inconsistent with the Polish Constitution. On the contrary! Poland fully respects the Treaties. That is why the Polish Tribunal stated that one very specific interpretation of certain provisions of the Treaty, resulting from recent case law of the Court of Justice, was incompatible with the Constitution.” According to that interpretation, he said, “judges in Polish courts would be obliged to apply the principle of the primacy of European law not only over national statutory regulations—which is not in doubt—but also to violate the Constitution and the verdicts of their own Constitutional Tribunal.…No sovereign state can agreed to such an interpretation….This is not what we agreed to in the Treaties….Important decisions should not be taken by changing the interpretation of the law….The EU’s competences have their limits. We must no longer remain silent when they are exceeded.” In concluding, he said, “Poland respects the principles of the Union, but it will not be intimidated. Poland expects dialogue on this matter.” Toward that end, he proposed creation of a new chamber of the ECJ, consisting of judges nominated by the constitutional courts of the member states, to facilitate “permanent dialogue” that might enable the courts to find “common ground.”
In his invitation letter last Wednesday to the members of the European Council in which he described the issues that would be discussed in the working sessions of the meeting, Michel said only that, “We will also touch upon recent developments related to the Rule of Law during our [first] working session.” He elaborated a bit, but only a bit, in his remarks upon arriving for the first session Thursday afternoon, saying, “This afternoon we will touch upon the rule of law. We are firm on the principles of the rule of law. We have legal and institutional tools we should use. But we should also be committed to dialogue.”
But many of the leaders made it clear, as they arrived Thursday afternoon, that they were strongly opposed to the Tribunal’s ruling and Poland’s defense of it. Dutch Prime Minister Mark Rutte said, “We have to be tough. The independence of the Polish judiciary is the key issue we have to discuss. It is very difficult to see how a big new fund of money could be made available to Poland when this is not settled.” Belgian Prime Minister Alexander De Croo likewise said, “If you want to be part of a club and have the advantages of a club, you must play by the rules. You can’t be a member of a club and say, ‘The rules don’t apply to me.’ A red line has been breached and we cannot accept that.”
When he arrived, Morawiecki, who had met with several other leaders in Brussels prior to the meeting, said, “Some European institutions assume the right to decide on matters that have not been assigned to them. We do not agree with the constantly expanding range of competences [for the EU] but we will of course talk about it, how to resolve the current dispute with understanding and dialogue….Poland does not see any differences between us and other EU countries. We are as faithful to the rule of law as others and as the EU institutions.”
And Poland had at least one prominent defender. Hungarian Prime Minister Viktor Orbán said upon arriving, “Poland is the best country in Europe. There is no need to have any sanction, it’s ridiculous. What’s going on here is that European institutions circumvent the rights of the national parliament and government and modify the treaty without having any legitimate authority to do so. Poland is right….the real division line is between common sense and non-common sense.”
Standing between the protagonists, as usual, was German Chancellor Angela Merkel, the European Council’s de facto chief mediator who was attending her 107th, and in all likelihood last, European Council meeting since her first in December 2005. In arriving, Merkel said the Poland issue was a symptom of an “underlying problem” that needs to be addressed and resolved: “It’s the question of how the individual member states envision the EU. Is it an ever closer union or is it more nation state? And this is certainly not only an issue between Poland and the EU, but also in other member states. We must find ways and possibilities to come together again on this, because a cascade of legal disputes before the European Court of Justice is not a solution.”
While Michel had said in his invitation letter and his comments upon arriving for the first session Thursday afternoon that the leaders would “touch upon” the rule of law issue, in fact they spent more than two hours discussing it and the discussion continued among some of the leaders into the working dinner. Michel asked Morawiecki to begin the discussion, which he did in a more conciliatory tone than he had used in his comments to the Parliament and after which the other leaders expressed their views. After the meeting concluded Thursday evening, Rutte said, “There was a clear message from an overwhelming group of leaders around the table that we are highly worried about the situation in Poland. Of course, there’s always an element of dialogue. But at the same time, there’s also an understanding that we fully support the Commission, most of us, in clearly putting forward the necessary measures to react to what the Polish government is doing.” French President Emmanuel Macron, who had met before the meeting with Morawiecki, added, “All the states are committed to the rule of law. We are now expecting concrete actions from the Polish government in order to avoid having to resort to all the pressure instruments at our disposal.”
On Friday, at the conclusion of the two-day meeting, Michel characterized the discussion about the rule of law as a “serene debate” that took place in a “calm atmosphere” and “helped us to establish that we are all convinced that the rule of law and the independence of the judiciary are fundamental principles, and to recognize that we have at our disposal legal and institutional instruments that have either been activated or can be activated. We also considered that political dialogue was necessary and that it should continue with the aim of finding solutions and making progress on this vital issue.”
Von der Leyen, for her part, said, “We had an important discussion, not only on the rule of law but also on the judicial independence…The rule of law is at the heart of our Union. We all have a stake in this crucial issue because we know that the rule of law ensures mutual trust, it gives legal certainty throughout the EU, and it gives equality between Member States and for each and every citizen of the EU. A fundamental pillar of the rule of law is judicial independence. This was the core of the Leader’s discussion concerning Poland. We have a long road ahead of us. This road is a combination of dialogue, legal response and concrete action to restore the independence of the judiciary. Among other requirements, the European Court of Justice ruled in July that the disciplinary regime for judges [in Poland] had to be overhauled and unlawfully dismissed judges have to be reinstated. We expect Poland to implement this ruling.”
A first step in resolving the crisis would be for Poland to comply with the ECJ’s July 15 decision that, by failing to guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court, Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) of the TEU, which is, of course, one of the articles the Tribunal said is “inconsistent” with articles in the Polish Constitution. Poland needs to learn to live with inconsistency.
David R. Cameron is a professor emeritus of political science and the former director of the MacMillan Center’s Program in European Union Studies.