The Hidden Threats of the Polish Constitutional Rebellion

The position of the Polish Constitutional Court on the prevalence of domestic law over Community law makes clear the consequences of the refusal to provide the European Union with a sovereign constitution, which – with all its difficulties – is no longer postponable by Andrea Monti, Adjunct Professor of Digital Law, University of Chieti-Pescara – Initially published by Formiche.net

The Polish Constitutional Court has recently affirmed the supremacy of domestic law over the Community’s binding powers, whether manifested in directives, regulations or decisions of the Court of Justice. The response of the European institutions has been clear:

Our Treaties are very clear. All rulings by the European Court of Justice are binding on all Member States’ authorities, including national courts. EU law has primacy over national law, including constitutional provisions. It is what all EU Member States have signed up to as members of the European Union. We will use all the powers that we have under the Treaties to ensure this.

The “original sin” of EU Law

In reality, von der Layen’s statement is correct from a political point of view, less so from a strictly legal one. The EU law is based on a delegation of powers and not on their irrevocable transfer. Its source is the system of treaties which are essentially agreements and, as such, can always be questioned (“denounced” is the technical term). Therefore, in “delegated” matters, a member State maintains the power (and the duty) to verify whether the European provisions are compatible with its own Constitution.

The subject is not new, since as early as 1974, the German Constitutional Court ruled that as long as the EU did not have a system of protection of fundamental rights compatible with that of Berlin, it would not be possible to renounce internal control over EU Community acts.  In 1986 the Court acknowledged the goal by the EU and thus stepped back. It then changed its mind again in 2021 and contested the decision of the European Court on the green light for the purchase of Eurobonds holding that the decision was a way of financing the member States.  There have been subsequent signs of thawing in this case, however, it does not diminish the relevance and importance of the Polish position based on the intrinsic superiority of national Constitutions.

The failure to create a European Constitution

Another scenario would have opened up if France and the Netherlands had not blocked, in 2005, the adoption of the European Constitution, the essential component to build the United States of Europe as a political entity with autonomous and direct sovereignty over its components. Replicating the dialectic of the hierarchy of sources in domestic law, the European Constitution would have been (or become)  of a superior rank compared to any national norm, which would have required, as a consequence, a reorganization of the national legal systems in order to transpose the new community legal sovereignty. In other words: an EU law based on the Treaties allowed the UK to leave the EU by invoking a contractual clause. An EU law based on a European Constitution would have required, in the extreme, a war of secession.

Still limited to legal analysis, the problem with this option (and perhaps it is no coincidence that it was France that imposed the halt to the process of community constitutionalization) is that it would have implied a permanent and irrevocable transfer of legal power, with the consequent need to modify the constitutional structures of the forms of state and government of the member countries.

What it means not to have a Community Grundnorm

Until it happens, it will be technically impossible to take fundamental steps for the protection and security of the EU, such as the identification of Community borders valid under international law, the establishment of a joint defence system, a federal judicial system and, more broadly, the creation of those legal infrastructures necessary to substantiate the complete EU Community subjectivity. In the meantime, however, the integrity of the Community order is increasingly undermined. As it has been observed, we are running the risk of a Europe à la carte.

The European institutions are probably aware of this risk. Therefore, they silently eroded members exclusive jurisdiction on the reserved matters. The EU has a say even in matters excluded from delegation. National security, criminal justice and public security are formally untouched by European norms. However, they are managed through “approximation” and “harmonization” or – as in the case of the Regulation on the protection of personal data – by provisions of a purely political nature.

Conclusions

In formal terms, the position of the Polish Constitutional Court is hardly challengeable because it enforces a formal criterion that classifies the hierarchy of sources in the international sphere and places – as Germany has also done – the member State interestes above those of the EU.

Even if technically sustainable, the impact of the proliferation of this approach may lead to the total fragmentation of the community rules, depriving of sense the very idea of a European Union.

The legal solution, unfortunately impracticable at present, is to approve a European Constitution with higher effectiveness than the rules of the national systems. However, such a choice would imply radical transformations that might not be possible (at least in the short term).

The answer to the autonomist tendencies of member states can only be political and once again shows how even in the West, we have moved from the form rule of law to the substance of rule by law.

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