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Judicial Review and the Constraints of the Primacy of EU Law Part 2—Poland and Romania

As discussed in an earlier post about Germany, from the point of view of European traditions and systems of judicial review, defining the procedure by which the limits of the primacy of EU law are enforced may be just as important as defining the limits themselves. Now let us take a look at how this important aspect plays out in Poland and Romania.

Poland

Poland’s and the Polish Constitutional Tribunal’s (CT) stance towards the primacy of EU law and even the status of the CT and some of its members are highly contentious and controversial topics. It is also one that has been constantly evolving since the inauguration of the new Polish government. The ongoing rough and constantly changing debate—at the time of writing (June 2024)—has not, however, produced a change in the CT’s stance towards the primacy of EU law.

Article 91(2) of the Constitution of the Republic of Poland grants ratified international treaties precedence over contradictory statutes. This provides primary EU law with precedence over national legislation, but not explicitly over the constitution. According to Article 91(3) of the Polish Constitution EU secondary law also has precedence (primacy) over national law. This time it is not specified if the primacy is in connection with statutes, still, the text only refers to a conflict of laws, and it does not explicitly grant precedence over the Constitution.

In Article 87 the Constitution is enumerated among the sources of universally binding law. Based on this fact, it may even be possible to interpret the Constitution as granting precedence over itself. However, Article 8 declares it to be the supreme law of the Republic of Poland (a basic characteristic of any constitution), which lifts it from the pool of “ordinary laws”. Furthermore, since the Constitution does not provide primary EU law with any special status compared to other international treaties, requiring it to be ratified by statute, it seems unlikely that the secondary law of an organization established by a treaty promulgated in the form of a statute (which is below the constitution in the hierarchy of norms) should take precedence over the constitution and thus be “stronger” than the treaty providing the basis for it. Another part of the Constitution that may help define how Poland views the relationship between its constitution and international treaties is Article 133(2), which establishes that “[t]he President of the Republic, before ratifying an international agreement may refer it to the Constitutional Tribunal with a request to adjudicate upon its conformity to the Constitution.” That being said, Article 91(3) is quite vague in terms of specifically over which norms EU secondary law takes precedence. Nonetheless, this rule is understood only to refer to ordinary statutes but not the Constitution.

Already in 2005, in its judgment on the Treaty of Accession, the CT emphasized the Polish Constitution’s supremacy. Later on, the CT continued to develop a position that did not recognize the primacy of EU law over the Constitution.

Relying partially on this principle in its K 3/21 decision of 7 October 2021, the CT limited the primacy of EU law and even considered the interpreted content of certain provisions of the founding treaties to be incompatible with the Polish Constitution. It declared in the decision that an interpretation of Article 19(1) second subparagraph of the TEU grants domestic courts the competence to bypass the provisions of the Constitution in the course of adjudication or to adjudicate on the basis of provisions that had been deemed unconstitutional by the CT was inconsistent with the Constitution.

The second half of the sentence, where the CT forbids ordinary courts from applying EU norms that had been declared unconstitutional by the CT, is basically the exact opposite of the view held by the Court of Justice of the European Union (CJEU). The CJEU held that ordinary national courts could disapply constitutional court case law if, based on the case law of the CJEU, they deemed it to be contrary to the primacy of EU law. Thus, in this sense, putting itself above national constitutional courts, and reinforcing the decentralized judicial review system connected to the principle of primacy at the same time. Therefore, this declaration of the Polish CT (just like the whole decision) is clearly a part of the row between the CJEU and the CT. However, it is also a move that seems to strongly embody a position believing that the limits of the primacy of EU law should strictly be enforced by the centralized constitutional court, since its decisions are (and should remain) binding on everyone.

That being said, it also declared it unconstitutional, based on EU law, to allow ordinary courts to bypass provisions of the Constitution. This is quite logical if the entirety of the constitution is considered to be a constraint of the principle of primacy. At the same time though, with regard to the system/procedure of judicial review in which this said limit is to be enforced, the Polish Constitutional Court’s declaration leaves things vague. While the stance discussed in the previous paragraph clearly chooses a centralized approach, this declaration could, in theory, also work within the context of a decentralized solution.

This occurs because—unlike in other parts of the decision—the CT did not specify the need for a prior CT decision in order to determine whether an EU norm is unconstitutional or not. After all, bypassing the provisions of a constitution means acting in an unconstitutional way or applying an unconstitutional provision. For something to be considered unconstitutional, traditionally, the constitutional court of the country has to declare it as such. However, in this case, from a grammatical interpretation standpoint, ordinary courts are not only obliged to act in a constitutional manner and to designate unconstitutional laws. They are also obligated to apply the provisions of the constitution even when an EU norm that had not previously been declared unconstitutional should take precedence, considering that they cannot bypass them in any way. Thus, according to the decision, when an EU norm that contradicts the Polish Constitution should be applied by putting aside the provisions of the constitution, the regular Polish court should opt not to.

The CT thus opened up the possibility of a supplementary decentralized judicial review system, where ordinary national courts not only could have the jurisdiction to put aside national laws if they conflicted with EU law, but also EU laws, if they conflicted with the Constitution. Whether that was the goal (probably not), the reasons for it are unfortunately unknown, given that—puzzlingly—the decision contains no reasoning.

Romania

In Decision No. 390 of 8 June 2021, the Constitutional Court of Romania (CCR) established that the primacy of EU law “must not be perceived as removing or disregarding the national constitutional identity” (para. 74). So, as we can see, the CCR does not consider the primacy of EU law to be limitless either. It, however, as opposed to the ambiguity left by the Polish CT’s decision, clearly follows the road of centralized judicial review, both in the enforcement of primacy and in the enforcement of its limits.

The CCR emphasized that if it finds—on the basis of Article 148 of the Constitution (the Europe-clause of the Romanian Constitution)—that a national law is not contrary to EU law, the courts may no longer re-examine the issue. In connection with this, it also pointed out that “[i]n so far as some courts disapply of their own motion the provisions of national law which they consider to be contrary to European law, whereas others apply the same national rules, considering them to be consistent with European law, the standard of foreseeability of the rule would be seriously undermined, which would give rise to serious legal uncertainty” (para. 79).

Thus, the CCR’s approach underscores the need for a centralized constitutional court to enforce and have the last word in cases related to the limits of the primacy of EU law from the perspective of legal certainty and therefore the rule of law. This stance, while it of course does not abolish the decentralized judicial review system pertaining to the enforcement of the primacy of EU law, it does put a procedural limit on a concept.

Conclusion

Poland’s Constitutional Tribunal staunchly defends its constitution’s supremacy, even at odds with EU principles and sometimes without careful consideration of opening up unwanted theoretical possibilities, while Romania’s Constitutional Court advocates for a centralized judicial oversight to prevent legal uncertainty in the realm of the primacy of EU law. These divergent stances reflect the ongoing tension and complexity in balancing national sovereignty with EU integration, spotlighting the evolving dynamics of judicial power within the EU.


János Rupnik is a fourth-year law student at the Faculty of Law of the Eötvös Loránd University. He holds a scholarship from the Aurum Foundation and is also a member of the Bibó István College for Advanced Studies. As a former intern at the Hungarian Constitutional Court, his research focuses on the relationship between EU and national law and the related judicial review procedures.

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