The supremacy of the European Union over the national law is one of the most essential and fundamental pillars, principles and settled doctrine in the history of the EU law.
The principle of the primacy or supremacy of EU law is based on the idea that where a conflict arises between an aspect of EU law and an element of law in any EU country (national law), EU law will prevail. EU law has primacy over federal laws to ensure that citizens are uniformly protected by an EU law across all EU territories.
The importance of EU law has developed over time thanks to some historical case laws (jurisprudence) of the Court of Justice of the European Union (CJEU) that played an essential role in changing the EU law.
One of the most critical judgments by the CJEU that introduced the principle of the supremacy of the EU is the In the Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62), in that case, law, the Court declared that the regulations adopted by the European Union Institutions must be integrated into the legal systems of EU countries, which are obliged to comply with them. EU law, therefore, has primacy over national laws.
They were more case laws that affirmed the existence of this principle, such as Costa v ENEL (Case 6/64).
Since then, it was a settled doctrine, and no one questioned strongly the supremacy of the EU over the law of its Member States. However, this principle was interviewed recently by Poland. The Polish Constitutional Court decided this month that some articles of the European Treaties are incompatible with the national Constitution and affect the Country’s sovereignty.
The origin of the problem
In 2017, Poland adopted a new disciplinary regime for Supreme Court, Judges and Ordinary Courts, creating a new Disciplinary Chamber within the Supreme Court with those competencies. According to the European Commission, it does not guarantee independence and impartiality.
On 3 April 2019, the Commission launched an infringement procedure because the new disciplinary regime undermines the judicial independence of Polish judges and does not ensure the necessary guarantees to protect judges from political control.
The European Court of Justice ruled in March that Poland’s new Regulations for appointing judges to the Supreme Court could violate EU law and, on 15 July 2021, the Court of Justice ruled in its judgment in Case C-791/19 that the disciplinary regime for judges in Poland is not compatible with EU law. The Court upheld all the claims brought forward by the Commission.
The Polish disciplinary regime undermines the judicial independence of Polish judges, and it does not ensure the necessary guarantees to protect judges from political control. Under Article 260(1) TFEU, if the Court of Justice finds that a Member State has failed to fulfil an obligation under the Treaty, the State must take the necessary measures to comply fully with the judgment of the Court of Justice.
Poland’s Constitutional Tribunal rejected the principle of the primacy of EU law over national legislation in certain judicial matters. They considered that some parts of the EU law were in contradiction with the Polish law.
Polish Prime Minister Mateusz Morawiescki also insisted that the Polish Constitution is above European law and does not contravene any principle. Although he assures that it is not the Country’s intention to leave the EU, he only considers that Poland should have sovereignty over its affairs and that its Constitution should be respected.
Furthermore, Morawiecki, in his debate, claimed that “EU legislation takes precedence over national law in areas delegated by each Member State” and that “this principle is recognized by all Member States, but the highest law is the Constitution of a country”.
The European Commission decided to take steps to punish Poland for challenging the supremacy of EU law. Ursula von der Leyen, the president of the Commission, said on that Brussels had three tools to hit back at Poland, ranging from a legal challenge to a formal sanction that could withhold tens of billions of euros in EU funds, and a political process that has the power to strip the Country of bloc membership rights.
There is no doubt that this is a big challenge for the EU, one of its fundamental principle and essential values is being questioned after so many years, and this can affect the entire structure and essence of the EU in all its matters and the uniform application and integrity of the EU law.
The EU can make use of the action of infringement, the cut of the financial aid or make use of one of the most vital mechanisms, known as Article 7 of the TEU procedure, to act against this situation. It is not easy to use this last tool now since Article 7 of the TEU is the ultimate recourse to resolve this crisis and ensure that Poland complies with EU values mentioned in Article 2 of the TEU and the rule of law.
The protection of judicial independence, guaranteed by Article 19 of the TEU, is essential to protect the citizens against discrimination, helplessness, injustice, and abuse of power and ensure equal treatment in the judicial system. Without independent courts, people will have no protection, and their rights will be in danger.
Will we see a Polexit?
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