must European law always take precedence over national law?

► “The Polish judgment crosses a red line”

Philippe Lamberts, MEP, co-chair of the Greens group in the European Parliament

“Polish Prime Minister Mateusz Morawiecki had a good time drowning the fish, when he addressed us, MEPs on Tuesday, citing judgments of the constitutional courts of the German, French, Danish, Spanish, Italian and Romanian courts which would also have given priority to national law over European law.

But there are really double standards between these decisions and the judgment of the Polish Constitutional Court of October 7. On the one hand, there is a challenge to the interpretation of the law, made by the Court of Justice of the EU on specific points, such as the role of the ECB for the German Court in Karlsruhe, which I find legitimate . The latter has not changed anything on the ground. This is a signal sent to legislators to urge them to harmonize national and European law, either by changing the constitution or by changing European treaties (which is more complicated).

→ ANALYSIS. At the European Council, Poland will have to explain itself on the rule of law

On the other hand, there is a frontal attack on the EU treaty in its article 1 which establishes the European Union, and in its article 19 which establishes the European Court of Justice. These two passages are judged “Incompatible” with the Polish constitution. Why not, but it had to be said before joining the Union. I would remind you that it was the Law and Justice Party (PiS), the same party that is currently in power, which ratified the Treaty of Lisbon and the Charter of Fundamental Rights. I also underline that the highest Polish legal body has become a court made for the occasion, under the domination of the majority and the executive power. Behind all this, there is the political objective of perverting the European treaties, a maneuver to benefit from membership of the EU, without complying with common rules.

In this context, it is understandable that the European Commission, guardian of the treaties, has promised to act through various tools, particularly financial ones. Poland is not likely to see the color of the 36 billion euros provided for in the post-covid recovery plan, and the conditionality mechanism for the payment of European funds should quickly see its procedure set in motion for a group of countries including Poland. Mateusz Morawiecki talks about ” blackmail “, but this is only the direct consequence of a decision that breaks the confidence guaranteed by the right that we share at 27.

→ ANALYSIS. Poland: Warsaw clashes with Brussels to defend its justice reforms

Poland now has two choices: leave the EU, or change its constitution to make it compatible with the European treaties. The first option seems impossible, in a country where more than 80% of the population continues to join the European Union. The second seems improbable under this government, as Mateusz Morawiecki’s plea consisted in defending the Constitutional Court, which proves the collusion. He has burned his ships, it will be extremely difficult for him to reverse without losing face. “

► “Without the primacy of European law, no community integration”

Frederique Berrod, Professor of European Union law at Sciences Po Strasbourg and at the College of Europe in Bruges

The rule of European Union law is essential for the proper functioning of the internal market, so that European decisions apply uniformly in all Member States. Otherwise, states would howl at unfair competition, as was the case with posted workers. In the absence of the primacy of European Union law, there is therefore no possible community integration.

This principle also offers protection to citizens of the Union who can assert their rights, including against the advice of their country. They can thus bring an appeal before the Court of Justice of the European Union, when a national legislative provision prejudices them and conflicts with European legislation.

→ EXPLANATION. Brussels intends to impose the supremacy of European law on Warsaw

Stubbornness in Warsaw

The superiority of Union law over national law was established by European judges in 1964, by the Costa v ENEL judgment. It was then not until the Lisbon Treaty, which entered into force in 2009, for it to be recognized by the Member States. But I would like to remind you that the States remain the masters of the treaties and sovereignly delegate certain powers to the European Union for joint management. In this marriage contract, therefore, there can be no question of interference.

However, since its consecration, the primacy of community law has continued to be a source of tension between national constitutional judges and European judges. In normal times, the national court has the obligation to carry out an interpretation in accordance with Union law, including when this implies departing from a national provision. However, some national judges claim respect for the “constitutional identity” of the Member States, appearing in Article 4 of the Treaty on European Union, in order to derogate from this principle. Today, Poland is also playing the card to claim a conception of judicial independence which is not shared in the Union. And even though it subscribed to European values ​​when it joined in 2004.

The problem is that the member states no longer agree on the scope of this “constitutional identity”, nor even on the meaning of common values. This is largely due to the place that national sovereignty now occupies in public debate. The example of migration policy is striking. Its definition certainly falls within the competence of States, but national law can be called into question in the event of a breach of the fundamental rights of migrants, protected by European legislation. It has nothing to do with an attack on national sovereignty.


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