The European Commission “is deeply concerned about the ruling of the Polish Constitutional Court. Our treaties are very clear. All judgments of the European Court of Justice are binding on the authorities of all Member States, including national courts. EU law has primacy over national law, including constitutional provisions ”. President Ursula von der Leyen’s message is very clear. Immediate steps are not to be expected in the coming days, however the path of the EU’s institutional response has been traced.
“We will use all the powers we have under the Treaties to guarantee” compliance with the Treaty, adds von der Leyen. The political and institutional crisis with Warsaw rises in intensity to the maximum possible scale. French minister of European affairs Clement Beaune speaks of “a very serious situation, there is in fact a risk of Poland leaving the EU”. An event that Paris does not prefer. German Foreign Minister Heiko Maas asks Warsaw to respect ‘fully’ the common rules of the EU: being part of the Union “, benefiting from the common and strong single market implies compliance with the common rules with all the consequences”.
Yesterday the Polish Constitutional Court ruled that some provisions of the EU Treaty are incompatible with national law since “in the Polish legal system the Treaty on the European Union is subordinate to the Constitution, and like every rule of the Polish system it must be compliant”. Many spoke of a “legal exit” from the European Union despite the fact that the Polish government continues to repeat that this is not the will of the country. For the first time, the primacy of EU law over the national law of a member state is completely and definitively rejected.
Under fire, among other things, Article 19 of the Treaty is one of the pillars on which the EU is based: it indicates that “the Court of Justice of the European Union includes the Court of Justice, the General Court and the specialized courts. It ensures respect for the law in the interpretation and application of the treaties ”. The Warsaw / EU clash has thus reached the highest possible degree: yesterday’s ruling is in fact the culmination of the conflict that has been open for years on the subject of compliance with EU rules to protect the independence of the judiciary in Poland, to the sound of formal procedures v. Warsaw, rulings of the EU Court of Justice.
Then, even more recently, to protect the rights of LGBT communities. The moment is particularly delicate: following the exit of the British from the EU, the conditions for a new political-institutional crisis have now been consolidated with a country, such as Poland, whose population overwhelmingly continues to declare itself pro-European Union.
The ruling of the Polish court comes into effect upon publication in the national official gazette, which has not been the case at the moment. But this is a ‘fig leaf’, comments a European source since Prime Minister Morawiecki and the leader of PiS (Law and Justice) Kaczyinski are squaring up in defense of the sentence: the EU “has no say” on the system of justice of Poland, therefore, cannot ‘interfere’ in some areas of national political-institutional choices. The primacy of national law over EU law is the classic argument on which old and new Eurosceptics leverage.
A year ago, the German Constitutional Court challenged the judgment of the EU Court of Justice on the ECB’s (PSP) government bond purchase program considered legitimate, because it went beyond its mission as guarantor of price stability. Although the case was then handled, on the recommendation of the Karlsruhe Court itself, in such a way as not to produce effects on the choices of the ECB, the case questioned the fact that the highest German judges believe it legitimate that the choices of the ECB are subject to scrutiny by the national judge while, in compliance with the EU Treaty, they are subject only to the scrutiny of the EU Court of Justice. The thrust of the Polish Court is at an even higher level than that of the Karlsruhe Court, because it intervenes on the compatibility of some provisions of the same Treaty.