European Commission Starts Proceedings Against Poland Because It Does Not Respect the Primacy of EU Law

The European Commission has launched an infringement procedure against Poland because the Constitutional Court in Warsaw has ignored the importance of EU law. The case caused quite a stir last fall and is yet another chapter in the conflict with Poland over the rule of law.

 

According to the Commission, two judgments of the Polish Constitutional Court violate both the “primacy” of European law and its uniform application throughout the European Union and the right to legal protection enshrined in the European treaties. The Court has twice ruled that these treaties are incompatible with the Polish constitution.

A first judgment fell on July 14. The Constitutional Court then ruled that the European Court of Justice had overstepped its mark by imposing interim measures on Poland to ensure the proper functioning of the judiciary. The Court in Luxembourg cannot impose such safeguards without violating the Polish constitution.

The second judgment was dated October 7 and received the most resonance. The Constitutional Court then ruled that parts of EU law are not compatible with the Polish constitution. There was a storm of criticism in Europe against the “politicized” Court by the Polish ruling party PiS (Law and Justice), which openly called into question the primacy of EU law with its judgment. However, the primacy of EU law over national law, at least in those areas over which Europe has control, is one of the cornerstones of the EU.

“This judgment has major implications for the people of Poland, as it undermines the protection of judges’ independence,” said Commission President Ursula von der Leyen, for example. “And without that independence, people’s rights are at stake.” Polish Prime Minister Mateusz Morawiecki defended the ruling of the Polish Court in the European Parliament in Strasbourg.

The Commission has made efforts in recent weeks to engage in dialogue with Warsaw on the issue, “but the situation is not improving,” Justice Commissioner Didier Reynders said on Twitter on Wednesday. “The foundations of European Union law, especially the primacy of EU law, must be respected.” That is why the Commission has now launched an infringement procedure. This means that the Poles have two months to reply to the letter of formal notice that the Commission is now sending them. If the matter is not resolved, the Commission may refer the matter to the European Court of Justice.

The Commission also questions “serious questions” about the independence and impartiality of the Constitutional Court. That Court no longer even meets the requirements of what a court should be; it is sharp.

It is not the first time that the Commission and Poland have clashed over the rule of law, but the problems identified are becoming increasingly severe. For example, an Article 7 procedure was started in 2017 to put Poland back on the right path. That procedure could result in the country suspending its voting rights in the European Councils of Ministers, but the case is blocked at exactly that level.

Poland had to bite the dust twice in July this year before the European Court of Justice. That Court then ruled that the sanctions regime for Polish judges is contrary to EU law. However, it also imposed interim measures on Poland because the broken functioning of the judiciary threatens to affect the entire judicial system.

But because the Constitutional Court rejected those measures and Poland did not implement them, the EU Court fined the country 1 million euros per day until the measures were complied with – without effect for the time being. Meanwhile, the sanctions regime for Polish judges is once again before the Court in Luxembourg, after the Commission has found that Warsaw is also not complying with this judgment.