Poland’s Top Court Rules Its Constitution Trumps E.U. Law

The ruling challenges the supremacy of European law, a cornerstone of the continent’s push for an “ever closer union” since it began more than 60 years ago.


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WARSAW — Poland’s constitutional court on Thursday set up a head-on collision with the European Union by ruling that the country’s Constitution trumps some laws set by the bloc, a decision that threatens to dissolve the glue that holds the union’s 27 members together.

The ruling, issued in Warsaw by the Constitutional Tribunal after months of delays in a closely watched case, effectively challenges the primacy of European law, a cornerstone of the continent’s push for an “ever closer union” since it began more than 60 years ago.

In a tart statement, the European Commission, the bloc’s executive arm in Brussels, said the Polish ruling “raises serious concerns in relation to the primacy of E.U. law” and vowed to uphold “the founding principles of the Union’s legal order, namely that: E.U. law has primacy over national law, including constitutional provisions.”

The court decision in Warsaw also raised perilous long-term questions about the future European Union membership of Poland, the most populous and economically important nation in a group of former communist states that joined the bloc after the collapse of the Soviet empire.

The ruling centered around judicial changes in Poland that critics say open the way to political interference in the courts. But Poland, governed by the nationalist Law and Justice party, has also had acrimonious quarrels with the European Union over issues like L.G.B.T.Q. rights and media independence.

Jakub Jarczewski, research coordinator at Democracy Reporting International, described the court ruling as “a legal Polexit,” referring to the possibility that Poland could eventually follow the lead of Britain, which voted to leave the union, or “Brexit,” in a 2016 referendum.

By effectively declaring itself apart from European law, he added, Poland has put itself on a path that “might have dramatic consequences depending on the reaction of the European Commission and the E.U. Court of Justice.”

But neither Warsaw nor Brussels has any interest in forcing a rupture and will likely settle into grinding negotiations lasting many months or years. The European Commission has so far penalized Poland for its stance by withholding funds it was to receive as part of a coronavirus recovery plan.

Hungary, which joined the European Union in 2004 along with Poland and six other former communist states, has also been at loggerheads with Brussels over the reach of European law, changes to its judicial system and LGBT rights.

Defiance of European norms by Poland and Hungary, both ruled by populist governments, has confronted the European Union with its biggest challenge since Brexit, generating increasingly intemperate arguments over the union’s future direction and widening a rift between “old” Europe and the previously Soviet-dominated new one.

Poland’s ruling on Thursday will not lead to a dramatic rift like Brexit, especially since a large majority of Poles want to stay inside the union, according to opinion polls. But the ruling could accelerate an already long, slow-motion clash of wills between Brussels and Poland’s conservative ruling party, Law and Justice.

The case began in April when Poland’s prime minister, Mateusz Morawiecki filed a request that the constitutional court analyze the “collision between the norms of the European law and the national Constitution.”

Mr. Morawiecki did this in response to complaints from Europe over changes in the way Polish judges are appointed and the establishment of a disciplinary chamber within the Supreme Court that the government said was needed to purge the judiciary of communist influence. Critics said the moves were aimed at subverting judicial independence.


Prime Minister Mateusz Morawiecki of Poland asked the court to analyze the “collision between the norms of the European law and the national Constitution.”Credit…Joe Klamar/Agence France-Presse — Getty Images

The 12-member tribunal that issued Thursday’s ruling is headed by Chief Justice Julia Przylebska, a close friend of the Law and Justice leader Jaroslaw Kaczynski, a critic of what he sees as attempts by Brussels to restrict Polish sovereignty and push policies on L.G.B.T.Q. rights and other issues he says are at odds with Polish traditions and the will of voters.

Ms. Przylebska, reading the judgment in court, said that certain European laws violated the Polish Constitution and could not be honored because this would prevent the country functioning as a “sovereign and democratic state” and would “stop the Polish Constitution being the supreme law of Poland.” The European Union, she added, “acts outside the competence delegated to it in the treaties.”

After years of squabbling between Brussels and Warsaw, the European Court of Justice in July ordered Poland to dismantle its new disciplinary system for judges.

Law and Justice’s leader in August indicated that Poland might follow the order, at least partially, but has since backtracked, leaving the government to press on with its case before the constitutional court, based on arguments that the Polish Constitution, not E.U. courts, must be the ultimate legal arbiter.

“In the hierarchy of sources of law, the Treaty on European Union is below the Constitution,” Bartlomiej Sochanski, a constitutional court justice, said in court, giving a summary of the ruling.

The government has said it had no intention of leaving the union, which has provided billions of dollars in funding and which, according to opinion polls, enjoys overwhelming public support.

“The Polish government wants to have its cake, and eat it, too,” said Anna Wojcik, a researcher at the Polish Academy of Sciences, who specializes in the rule of law. “They want to stay in the European Union, because this is what 90 percent of Poles support, but at the same time they want to free themselves from the European rulings concerning the judiciary.”

The European Commission has repeatedly said it will not accept that, while avoiding any statements that would cast doubt on Poland’s future membership in a bloc that is still recovering from the shock of Brexit.

The disputed disciplinary system for judges, said Ms. Wojcik, “touches on the fundamental issue of the right to effective judicial protection” and threatens “the European legal order.”

David Sassoli, president of the European Parliament, said in a tweet that “today’s verdict in Poland cannot remain without consequences. The primacy of E.U. law must be undisputed. Violating it means challenging one of the founding principles of our Union.”


David Sassoli, president of the European Parliament, said the verdict in Poland “cannot remain without consequences.”Credit…Pool photo by Frederick Florin

Longtime members of the European bloc have also clashed with it over the boundaries of national and European law, including Germany, the biggest and most powerful member. Germany’s highest court, the Federal Constitutional Court, in May last year challenged a European court ruling that endorsed as legal a bond-buying program by the European Central Bank. In the German case, unlike the Polish one, however, there was no explicit challenge of primacy of European law.

Brussels has hit back at Poland’s previous refusal to dismantle the disciplinary system for judges by asking the European court to impose a penalty of up to $1.2 million per day on Poland. And in a further sign of rising tension, the commission last month acknowledged that it was withholding $42 billion in payments to Poland from the bloc’s coronavirus recovery fund because of the country’s challenges to E.U. law.

Donald Tusk, a former Polish prime minister, warned in July that efforts to challenge the bloc’s fundamental rules by Poland and Hungary risked pushing Europe onto a path of disintegration. But he said there would be no imminent collapse and the process would take many years.

Asked by a judge Thursday about the possibility that Poland might have to eventually leave the bloc, the government’s representative said that this was not an issue because the case was focused on narrow legal questions, not Poland’s membership,

The European Commission, however, stressed in its statement that these legal questions cut to the heart of the whole European project: “The European Union is a community of values and of law, which must be upheld in all Member States,” it said.

Monika Pronczuk contributed reporting from Brussels.

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