THE PRIMACY OF EU LAW AND THE IMPLICATIONS OF THE POLISH CONSTITUTIONAL COURT'S DECISION IN K 3/21

Page 1

SYMPOSIUM stay alert keep smart

THE PRIMACY OF EU LAW AND THE IMPLICATIONS OF THE POLISH CONSTITUTIONAL COURT'S DECISION IN CASE K 3/21

OCTOBER-DECEMBER 2021

1


2


Table of Contents 1. Poland’s Withdrawal from the ‘Community of Law’ is no Withdrawal from the EU René Repasi 2. Constitutional A ack or Political Feint? – Poland’s Resort to Lawfare in Case K 3/21 Jeffery Atik and Xavier Groussot 3. e Primacy of EU Law Does Not Depend on the Existence of a Legislative Competence — Debunking the Flawed Analysis of the Polish Constitutional Court David Krappitz and Niels Kirst 4. e Rule of Law, Breach and Consequence Paul Craig 5. Mad in Poland Dimitry Kochenov 6. Last Station Before ‘Polexit’? Christophe Hillion 7. Legal Embarrassment a er PSPP and K 3/21: e Bogus Distinction Between Primacy and Supremacy and the Need for an Ethics of EU Law Supremacy Justin Lindeboom 8. e Judgment of the Polish Constitutional Tribunal in Case K 3/21: What can the Member States do to Shield the EU Values? Federico Casolari 9. e Air France Decision: Testing the Power of the French ‘Constitutional Identity’ Exception to EU Law Primacy Araceli Turmo 10. Comparing Apples and Oranges: e Danish Ajos Case in Light of the Polish Judgment in K 3/21 and the German Ruling in Weiss Ulla Neergaard and Karsten Engsig Sørensen 11. Somewhere between Poland and Germany – Ruling in the Refugee Push-Back Case Dániel Dózsa and Marcin J. Menkes

3

e Hungarian Constitutional Court’s

SYMPOSIUM


4


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

Poland’s Withdrawal from the ‘Community of Law’ is no Withdrawal from the EU René Repasi

i

e judgment of the Polish Constitutional Tribunal (Trybunał Konstytucyjny, TK)) of 7 October 2021 (K 3/21) is a legal revolution. For the rst time, a national supreme court decided to set aside EU Primary law because it allegedly violates a national constitution (a point of view that is disputed by many leading Polish constitutional lawyers). is in itself is remarkable. Apparently, the TK drew on the ‘ultra vires’ doctrine of the German Constitutional Court (Bundesverfassungsgericht, BVerfG)) in order to come to its conclusion. Yet, the BVerfG developed the ‘ultra vires’ doctrine in view of EU secondary legal acts that were adopted outside the scope of Union competence. It did not question the existence and applicability of the Union competence itself (Primary law) but its use in the shape of a secondary legal act. e compliance of Primary law with the German Constitution was always checked by the BVerfG before Germany formally rati ed any of the EU Treaties, and not a erwards. A er the rati cation – so the understanding of the BVerfG on the basis of the ‘Constitution’s openness to European integration’ (2 BvR 859/15, paragraph 112) – the Member State Germany is bound by the Treaties and recognises the primacy of EU law in relation to national law – irrespective of the law’s rank within the national legal order.

e Tribunal’s judgment means a withdrawal from the ‘Community of Law’ e TK’s judgment acts outside this se led, albeit amongst academics highly disputed ground. e Tribunal sets aside core Treaty provisions such as Article 1 TEU in conjunction with Article 4(3) TEU, Article 2 TEU and Article 19(1)(2) TEU. ese Articles establish what Walter Hallstein called the ‘Community of Law’ (Rechtsgemeinscha ) – the backbone of European integration. It is worth to recall in which context Hallstein spoke of the ‘Community of Law’. In his 1962 address he elaborated that today’s EU ‘was not created by military power or political pressure, but owes its existence to a constitutive legal act. … In place of power and its manipulation, the balance of powers, the striving for hegemony and the play of alliance we have for the rst time the rule of law. e European Economic Community is a community of law … because it serves to realize the idea of law.’ Core to this idea is the existence of individual rights under EU law that citizens can directly rely on before national courts and that have primacy over con icting national law. is mechanism is built on courts and on their free and unrestrained dialogue with the Court of Justice. It is the ‘Community of Law’ that is enacted by the Treaty provisions that the TK wants to see set aside on the Polish territory. We therefore can speak of a legal revolution as this judgment aims at rendering the ‘Community of Law’ meaningless and at transforming the EU into a community that would only be based on all those powers that Hallstein rightly condemned as unsuitable for building a sustainable European integration. It is thus justi ed to speak of a ‘legal Polexit’ when commenting on the TK’s judgment. Taking the Tribunal at its word, it requires the withdrawal of Poland’s judiciary from the ‘Community of Law’ and subjects EU law and all its rights to the political discretion of national politics.

i. Professor of Law at Erasmus University Ro erdam and member of the Editorial Board of EU Law Live.

5

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

A Tribunal’s judgment cannot be quali ed a declaration of withdrawal from the EU Yet, does this mean that the TK’s judgment can be understood as an implied declaration to withdraw from the Union within the meaning of Article 50 TEU? e wording and the purpose of Article 50 TEU are opposed to such a conclusion – as severe as the consequences of the TK’s judgment are for the EU and the European integration process. Article 50(2) TEU requires from a Member State a formal noti cation of its intention to withdraw from the Union addressed to the European Council ‘in accordance with its own constitutional requirements’. In the words of the Court of Justice in Wightman (C-621/18), the decision of a Member State to withdraw ‘depends solely on its sovereign choice‘ (paragraph 50). Such sovereign choices are made by the sovereign. at involves in some countries a referendum, in others an act of Parliament. It can, however, hardly be argued that a Court judgment – even if it is the country’s constitutional court – is a valid declaration of the sovereign. Moreover, the requirement of a formal noti cation wants to eliminate any doubts as regards the intention of the Member State to take a drastic decision such as withdrawing from the EU. If an implied declaration of withdrawal would suffice under Article 50 TEU, the Treaties would cease to apply in the Member State concerned two years a er this implied declaration was made. e affected Member State would most likely claim the continuous application of the Treaties in its territory and will hence request an authoritative decision that clari es that the alleged implied declaration does not meet the requirements under Article 50 TEU – a task that would undoubtedly fall on the Court of Justice. e Luxembourg-based Court would become the ultimate arbiter on the crucial issue of whether a judgment of a national constitutional court leads to a withdrawal of a Member State from the EU. Se ing aside the limitations of a court’s interpretative methods to come to any convincing conclusion that would uphold an implied declaration of withdrawal, the Court of Justice would have no legitimacy to decide on the continuous membership of a Member State where there is no explicit decision made by the people in a referendum or by a national Parliament. is is the foundation on which the Court of Justice build its Wightman judgment. By allowing the revocation of the noti cation of a Member State’s intention to withdraw from the Union, the Court made clear that it abstains itself from any legal quali cation of actions taken by a Member State that have implications on the status of the membership of this country.

Member States may defend the EU against destruction from within by expelling a persistently disrespectful Member State Yet, as argued by Paul Craig in this Symposium and by Martin Ne esheim elsewhere, the EU does not have to tolerate a destruction from within by a Member State that is continously disregarding the very foundations of the EU. Although the EU Treaties do not provide for a rule to expel a Member State – neither explicitly since the EU is limited to infringement proceedings, conditionality mechanisms and Article 7 TEU whenever a Member State violates the Treaties, including its very foundations, nor implicitly as just explained – the ‘good old’ International Law of the Treaties provides in Article 60 of the Vienna Convention on the Law of the Treaties (VCLT) an ‘ultima ratio’ remedy. Once the persistent disregard of the foundations of the EU amounts to an undermining of the essentials of the EU Treaties and its objectives (Article 60(3)(b) VCLT), the other Member States may suspend this Member State from the EU by unanimous agreement (Article 60(2)(a)(i) VCLT). is ‘ultima ratio’ option is not superseded by the EU Treaties as a ‘self-contained regime’. It runs against the very purpose of the EU Treaties that it would deprive the Member States from the

6

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

ultimate international law tool to defend the very functioning and the existence of ‘their’ EU Treaties and to simply tolerate self-destruction from within. e TK’s judgment can, however, clearly not be understood as meeting the threshold of the VCLT’s ‘ultima ratio’ suspension of Poland’s membership in the EU. Yet, it constitutes a relevant element of a possible line of events that might lead to such a situation: Something that should be avoided by all parties involved.

All hands on deck when defending the ‘Community of Law’ Whilst it is valid to qualify the TK’s judgment of 7 October 2021 as a ‘legal Polexit’ in its effects, it does not amount to an implied declaration of a ‘political Polexit’ having as a consequence to end Poland’s membership in the EU. e EU needs to use all its armoury to resist the judgment including the recently adopted rule of law mechanism – despite the legally meaningless political declarations of the European Council. But the decision on the EU membership of Poland remains an exclusively sovereign and political decision of Poland itself. It cannot be read into a judgment – even if such judgment is a legal revolution.

7

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

Constitutional A ack or Political Feint? Poland’s Resort to Lawfare in Case K 3/21 i

Jeffery Atik and Xavier Groussot

ii

Le pouvoir judiciaire n’a jamais été et ne peut pas être un pouvoir politique; il est le type essentiel d’un pouvoir purement juridique, il est exclusivement pour la déclaration de ce qui est conforme au droit positif. Maurice Hauriou (Principes de Droit Public, Paris, 1911)

e Government of Poland has enlisted the nation’s constitutional tribunal to express its rejection of longaccepted foundations of the EU legal order. e Polish Constitutional Tribunal’s advice in Case K 3/21 further distances Poland from its commitment to EU membership. e weaponization of a national constitutional tribunal is remarkable − and the Tribunal delivered the strident response the Government clearly desired: fundamental norms of EU law shall not be recognized to the extent they con ict with Polish constitutional provisions. e Tribunal turns supremacy on its head, declaring Polish constitutional principles superior to those of the Union. e Tribunal’s declaration may constitute Poland’s rst a ack on the EU legal order, signaling to its corps of judges that their duty rst and foremost is to the law of Poland. Or it may simply be a feint, drawing an anticipated condemnation from throughout Europe that perversely improves the status of the standing Polish Government among its national supporters.

A Machiavellian Ingenuity Case K 3/21 was entirely avoidable. Rather, the decision is purely advisory − a formulaic response to a slate of queries proposed by the Polish Government intended to provoke a legal crisis. is is an instrumental use of national legal organs to outrage − it is aggressive lawfare. e Polish Government, in the last years, has been engaged on the legal and political scenes to create smoke screens at national level in reaction to the expanding Court of Justice’s case law built on the landmark Portuguese Judges case (C-64/16) that reinforces the effectiveness of Articles 2 and 19 TEU. What is more, the Polish Government has systematically contested these principles in response to numerous Member States observations. e reaction was Machiavellian. K 3/21 appears, based on the timing of the lengthy petition of PM Morawiecki, to be a reaction to the ruling of the Court of Justice in AB (C-824/18). is case built on the principles asserted in Portuguese Judges and reaffirmed the essential right of Polish national courts to rely on legislative provisions previously in force.

i. Professor of Law at Loyola Law School in Los Angeles and Guest Professor at the Faculty of Law of Lund University. ii. Professor of EU Law at the Faculty of Law at Lund University.

8

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

K 3/21 is a frontal constitutional a ack to the principles established by the Court of Justice’s case law. It is ‘total lawfare’ in the sense that it targets fundamental EU legal principles in their entirety. ere is no mercy (or no sense of mercy, which is perhaps even worse!). e Court of Justice’s case law on the independence and impartiality of judges is inapplicable to Poland: in another word, frightening.

Fake Court, Fake Judgement? But what is more frightening in K 3/21 is that the Polish Constitutional Tribunal is a fake court. e European Court of Human Rights has ruled in Xero Flor v Poland (application no. 4907/18) earlier this year that the Tribunal is not a court based on law. And this should mark any ruling of this court illegal. To make things more complicated, the K 3/21 ruling has not yet been published in the Polish Official Journal, notwithstanding the obligation to do so immediately according to the Polish Constitution. Hesitation in publishing the ruling of the (previously independent) Polish Constitutional Court had become a common practice in recent years (see in particular K 47/15, K 39/16 and K 44/16). is use of this stratagem in the K 3/21 decision of the now captured Constitutional Tribunal creates even more confusion. Nothing surprises us anymore from the Polish Government. is is our lesson from years of Commission passivity in regard to Poland; the Commission has done too li le, has been too weak, tout petit in this now deplorable rule of law crisis. ankfully the Court of Justice has taken its role seriously! On 11 October 2021, the Polish minister of EU affairs stated to his Swedish counterpart that K 3/21 should be interpreted narrowly and does not mean a Polexit. But this ruling cannot be interpreted narrowly. On the same day, Poland and Hungary challenged before the Court of Justice the validity of Regulation 2020/2092 on the rule of law conditionality clause in the COVID-19 nancial recovery package. ese mixed messages were certainly tactical.

Response and Manoeuvre Europe’s response to K 3/21 so far has been measured. While the decision strikes at the core of the Court of Justice’s project of providing for the supremacy and effectiveness of EU law, the European court for the moment does not have an occasion to strike back. And that may be a good thing − for a war between courts would have the effect of conceding some form of mutual institutional recognition. Rather it has been the Commission who has protested the legal acceptability of the claims recognized in K 3/21. Indeed, the Commission had largely denatured the Polish Constitutional Tribunal in earlier communications, a acking the legality of its establishment, the irregularity of the personalities occupying its bench, and its essential political nature. By a acking the status of the Tribunal as a court, the Commission undermines its ability to speak the law. e decision of the Polish Government to turn to the Tribunal at this moment signals the value the Government places on judicial appearances. By invoking a fake juridical institution, the Polish Government sought to convert political provocations − which can be easily ignored or forgo en − into rigid if not unassailable legal principles, commi ing Poland to a position from which it could not easily retreat.

9

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

is political resort to the Polish Constitutional Tribunal may have the perverse effect of increasing its stature in the eyes of the Government’s supporters while demolishing its standing in mainstream Europe. If taken seriously, the case suggests there is li le space for legal reconciliation absent a complete repudiation. Whether Case K 3/21 was intended to be the rst a ack in a constitutional war of liberation or not, the be er course for Europe is to treat it as a feint. A feint is intended to confound and distract; the best course is to ignore it. But a feint does convey information − it signals that some other, hidden conduct is in course, to be revealed at some other moment, in some other place. Were this the decision of a conventional constitutional court, Polexit would be fait accompli. e Court of Justice has cleverly destabilized the foundation of the Polish Constitutional Tribunal; its use by the Government demonstrates it to be no more than a political instrumentality. e principles declared in K 3/21 are certainly alarming to European constitutionalists as they re ect the de ant position of the Polish State. ey do not, for now, constitute the last word on the relationship of Polish law to the protections assured all EU citizens by the Treaty and Charter.

e end of the equilibrium We return to our starting point: Maurice Hauriou. Hauriou’s understanding of the rule of law was based on an equilibrium between power and liberty. K 3/21 reveals that in Poland this equilibrium is totally broken. e Polish Constitutional court is an organ of the Polish government. Welcome to an ‘illiberalism of fear’!

10

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

e Primacy of EU Law Does Not Depend on the Existence of a Legislative Competence — Debunking the Flawed Analysis of the Polish Constitutional Court i

David Krappitz and Niels Kirst

ii

1. Introduction e Polish Constitutional Court (Trybunał Konstytucyjny) is no longer a court in the meaning of an independent and impartial arbiter between two parties in the sole application of the law. e Trybunał Konstytucyjny has lost its independence by the systemic political interference in the Polish justice system of the Law and Justice party (Prawo i Sprawiedliwość, PiS). Indeed, in the Xero Flor decision, the European Court of Human Rights (ECtHR) con rmed that the Trybunał Konstytucyjny lost its judicial independence in the meaning European Convention on Human Rights (ECHR). However, despite the compromised nature of the Trybunał Konstytucyjny, its ruling of 7 October 2021, issued in case K 3/21, sent shockwaves through the European political and legal sphere (see here, here and here). In that judgment, the Trybunał Konstytucyjny declared certain interpretations of Articles 1, 2, 4(3) and 19(1)(2) TEU incompatible with the Polish Constitution. is is the rst time that a national constitutional court has outright declared parts of EU primary law inapplicable within a Member State’s legal system (for the difference to a previous German constitutional court ruling, see here). is is a watershed moment for the European legal order, as it creates a fracture in the highly interwoven European legal system, which is based on the premise that EU law is applied and interpreted equally in all Member States. A er this judgment, this prerequisite does not hold in Poland anymore. While the procedure — in particular the Trybunał’s composition — and the substance of this judgment invite to a wide range of criticism (see here, here, here), this contribution focuses on the Trybunał Konstytucyjny’s misconception of the concepts of the division of competences and the primacy of EU law.

2.

e Approach of the Trybunał Konstytucyjny

e Trybunał Konstytucyjny’s verdict consists of three parts. e rst part broaches on Article 1 TEU (evercloser Union clause), Article 4(3) TEU (principle of sincere cooperation) and sets these Treaty articles in

i. Policy Officer at the Federal Ministry for Economic Affairs and Energy, Berlin, and an LL.M. postgraduate from the College of Europe, Bruges. e Analysis re ects the author’s views only. ii. Ph.D. Candidate at the School of Law and Government of Dublin City University (DCU). His thesis focuses on the EU's rule of law crisis, the remit of the Court of Justice of the European Union (CJEU), and a comparative analysis of rule of law backsliding in federal legal systems with powerful apex courts.

11

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

rather awkward opposition to Article 4(2) TEU (constitutional identity of the Member States) and Article 5(1) TEU (principle of subsidiarity). Speci cally, in paragraph 9 of the K 3/21 ruling, the Trybunał Konstytucyjny declares that a state of integration has been reached that might be incompatible with the Polish Constitution. Subsequently, in paragraph 10, it declares that the pronouncements of the Court of Justice of the European Union on the national organization of the judiciary lies outside the EU competences and therefore encroach on the competences of Poland: ‘ e scope of the competences conferred by EU Member States is primarily regulated in the Treaties, and in particular in Article 3(1) [exclusive competences of the Union] and Article 4(2) [shared competences] of the TFEU. ose competences comprise neither the functioning of the judicial system nor the organisational structure thereof [emphasis added].’ (paragraph 10) With this paragraph, the Trybunał Konstytucyjny refers to the recent Court of Justice’s jurisprudence on Article 19(1) TEU (see here and here), in which the Luxembourg-based Court found that the principle of effective judicial protection encompasses that Member States have to ensure the independence of the judiciary (see here). In the second and third part of the judgement, the Trybunał Konstytucyjny further underpins its view that the interpretation of Article 19(1) TEU made by the Court of Justices exceeds the competences of the EU and, therefore, reserves the right to disregard it. e Trybunał Konstytucyjny applies the concept of the division of competences to set aside the primacy of EU law. As a disclaimer, the authors claim no expertise in Polish constitutional law. However, the approach of the Trybunał Konstytucyjny displays a grave misconception of the concept of division of competences and of the principle of primacy of EU law. e misconception lies in the fact that these are two distinct concepts that ought to be applied separately, as we will show below. e Trybunał Konstytucyjny’s verdict proclaims that there is no primacy of EU law without EU competence. is, however, is a awed and limited analysis that neglects the effects of primary law.

3. Two Distinct Concepts a) Division of competences A primer to EU law is the division of competences, which is based upon the principle of conferral (Article 5(2) TEU): ‘Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to a ain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States’.

12

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

is provision concerns all Union institutions' acts, and most prominently secondary legislation for which the Treaties provide a large variety of legal bases. As clearly stated by the second sentence of Article 5(2) TEU, ‘[competences] not conferred upon the Union [— namely those for which the Treaties do not provide a legal basis —] remain with the Member States’. e Lisbon Treaty envisaged to classify those competences, as citizens and politicians voiced their criticism concerning a lacking delineation of EU competences vis-à-vis the competences of Member States (see the Laeken Declaration). Today, Articles 2-6 TFEU a empt to provide greater clari cation by cataloguing the competences conferred on the EU according to three categories: ㆍexclusive competencies (Article 3 TFEU); ㆍcompetences shared with the Member States (Article 4 TFEU); and ㆍcompetencies to support, coordinate or supplement the actions of Member States (supporting competencies) (Article 6 TFEU). However, according to the authors’ view, this a empt to achieve greater clarity on the division of competences yields only limited success and a justi cation by reference to Articles 2-6 TFEU is misplaced in the Trybunał Konstytucyjny’s ruling. b) Primacy of EU law Another fundamental principle of EU law, to which the Trybunał Konstytucyjny refers, is the principle of primacy, which states that in case of a con ict between EU and national law, ‘a national court which is called upon, within the limits of its jurisdiction, to apply provisions of [Union] law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any con icting provision of national legislation, even if adopted subsequently […]’. (Simmenthal, C106/177, paragraph 24). e principle of primacy complements the concept of direct effect, established in Van Gend & Loos (C26/62), concerning situations in which directly effective EU law con icts with national law. Today, the principle of primacy is subject to Declaration No. 17 to the Treaties and thus political consensus amongst the signatories of the Treaties, namely the Member States including Poland. c) Assessment of the Trybunał Konstytucyjny’s approach At no point, to the authors’ knowledge, the primacy of EU law bases itself on the division of competences. e Trybunał Konstytucyjny, however, mingles both concepts by making the scope of exclusive or shared legislative competencies a precondition for the primacy of EU law: ‘A distinction between the area of conferred competences and those exclusively reserved for the EU Member States is also essential for specifying the boundaries of the so-called principle of the primacy of EU law’. (paragraph 11).

13

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

Unsurprisingly, the organization or the functioning of the judiciary are not covered by either of the exclusive or shared competences. For the Trybunał, this nding suffices to declare that EU law in that eld cannot take precedence over con icting national law: ‘It is obvious that, in the light of Article 91 of the Constitution, EU law is applied directly, taking precedence in the case of a con ict with statutes, only within the scope of the conferred competences […]’. (paragraph 11). e Trybunał Konstytucyjny, thereby, gravely misconceives the above concepts and ignores that the Treaties contain substantive primary law which produces direct effect and takes precedence over national law — independently of the existence of a competence of the EU to legislate in the area. ere are many primary law provisions that produce direct effect such as: Article 18 TFEU (nondiscrimination), the fundamental freedoms (Part ree of the TFEU), Article 157 TFEU (equal pay) or the rights enlisted in the Charter. e applicability of a provision of primary law depends on its scope, not on an EU competence to produce secondary law in the area. Similarly, the existence of legislative competence is not a precondition for the precedence of these provisions over con icting national law as, in particular, extensive case law on the fundamental freedoms has shown (see here and here). e same holds true with regard to Article 19 TEU, which directly produces the obligation that ‘every Member State must ensure that the bodies which, as “courts or tribunals” within the meaning of EU law, come within its judicial system in the elds covered by that law, meet the requirements of effective judicial protection’. (ASJP, C-64/16, paragraph 37). e precise contents of this obligation are subject to the evolution of the Court of Justice’s growing case law, in particular in the context of the Polish judicial reforms, as shown by the most recent judgment in W.Ż. (C487/19) on the independence and irremovability of judges. e Trybunał Konstytucyjny construes that the Court of Justice’s case law on the Polish judicial reforms is ‘ultra vires’. is reasoning cannot stand an assessment under the principle of conferral, which covers not only legislative but all acts of the Union, including the jurisdiction of the Court of Justice. e Court is called upon by the Treaties to interpret EU law — see Article 19 TEU and the various procedures in Articles 258279 TFEU. e Court of Justice’s act of interpreting Article 19 TEU is thus not ‘ultra vires’, but the Court’s task conferred on it by the Treaties according to the principle of conferral.

4.

e limits of classi cation

e misconception of the Trybunał Konstytucyjny unveils the general limitations of the clari cation intended by the Lisbon Treaty regarding the division of competences.

14

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

Articles 2-6 TFEU only list legislative competences. ey make no reference to EU primary law which, subject to the interpretation by the Court of Justice, produces direct effect irrespective of legislative competences. EU integration history has shown that primary law may produce effects in elds which are reserved to Member States’ legislative competence (see, for an example in the area of health policy, the Court of Justice’s judgments in Kohll (C-158/96) and Wa s (C-372/04). e relevance of Articles 2-6 TFEU for determining the scope of EU law at large is thus limited, and Articles 2-6 TFEU cannot be applied to determine whether EU primary law takes precedence over con icting national law.

5. Conclusion Since, not only secondary, but also primary law produces direct effect, the overall extent of the primacy of EU law exceeds the competences listed in Articles 2-6 TFEU. e division of competences has no implications on whether primary law takes precedence over national law. Quite the opposite: Primary law which produces direct effect takes precedence over national law regardless of whether the Treaties provide the EU with a legislative competence in this area. e Trybunał Konstytucyjny’s approach to limit the primacy of EU law to areas in which the EU has legislative competences neglects the direct effect of primary law that the Member States concluded without necessarily providing the EU institutions with a supplementary legislative competence. e concepts of primacy of EU law and the division of competences are independent of each other. Insofar as the Trybunał Konstytucyjny asserts that Article 19 TEU — a provision agreed to in the Treaties by the Republic of Poland — does not proceed Polish national law, its claim is severely awed.

15

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

e Rule of Law, Breach and Consequence Paul Craig

i

e Decision of the Polish Constitutional Tribunal, K 3/21 of 7 October 2021, has already generated signi cant comment, which is unsurprising given the content, tenor and implications of the ruling. We can begin by clearing the ground. e Constitutional Tribunal’s Decision throws down the gauntlet to the EU legal and political order in a manner very different to any other decision by a national court. Analogical reasoning is central to legal discourse. We reason by analogy and thereby distinguish or align a particular case to past precedent. It is, therefore, unsurprising that the brief from the Polish Prime Minister sought to draw on jurisprudence from the Bundesverfassungsgericht by way of support for his desired direction of travel. is analogical argument is, however, deeply awed. Alexander iele has articulated 10 cogent reasons to differentiate the Polish Decision from that of the German courts. Suffice it to say for the present, that the Polish Decision challenges key tenets of EU primary law, including Articles 1, 2, 4(3) and 19(1) TEU, and the supremacy of EU law, as interpreted by the Court of Justice, over national law including the constitution. e challenge is broadly framed, and the consequences of the ruling, insofar as they can be divined given the breadth of their formulation, will be far reaching. e limited quali cation to the supremacy of EU law posited, normally hypothetically, by other national courts pales by way of comparison with the Decision of the Constitutional Tribunal. is leads naturally to the issue of the appropriate legal response. ere are a range of options available. ey include, at one end of the spectrum, enforcement action pursuant to Article 258 TFEU. e Court of Justice has made good use of this, and Article 267 TFEU, to tackle rule of law backsliding. e difficulty, in this context, is that any such action is likely to be greeted by repetition of the same conclusion by the Polish Constitutional Tribunal, combined with refusal to pay any penalty levied under Article 260 TFEU. e options also include, at the other end of the spectrum, talk of ‘Polexit’, whereby the Decision is regarded as akin to withdrawal under Article 50 TEU. is view has been advanced by Christophe Hillion. He argued that, although Article 50 TEU, as interpreted in Wightman (C-621/18), embodies a voluntarist conception of membership, such that a Member State cannot be forced to leave against its will, the Article does not specify the modality through which the noti cation of withdrawal has to be given. e corollary is that a ruling such as that given by the Constitutional Tribunal, which strikes at the very core of membership, should constitute noti cation for the purposes of Article 50. ere is force in this suggestion, but there are also difficulties, notably denial by the Polish Government that it wishes to leave the EU. Daniel Sarmiento is more guarded, stating that Article 50 TEU requires an unequivocal statement by the Member State, but he also contends that if the Polish government follows the Decision, which it will, then this could be akin to an

i. Emeritus Professor of English Law at St John’s College, Oxford.

16

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

indirect triggering of Article 50, whereby the Treaties cease to apply to Poland because it is not complying with the rules of the game. ere are, in addition, intermediate points along the spectrum, such as invocation of Article 7 TEU, although this is subject to the procedural difficulties encountered when a empting to use this Article in the past. An alternative is to hit Poland in its pocket book through Regulation 2020/2092, which embodies rule of law conditionality. ere is no doubt that the Constitutional Tribunal’s Decision would be regarded as infringing the rule of law as de ned in Article 2 of the Regulation, which is framed, inter alia, in terms of effective judicial protection and an independent and impartial judiciary. ere is equally no doubt that the contested Decision would be seen as breaching the rule of law, as speci ed in Article 3 of the Regulation. at still leaves the causal connection between breach of the rule of law and sound nancial management as required by Article 4, to be determined in accord with the procedure in Article 6. It would not, however, be difficult to show the requisite connection, given the breadth of the triggering conditions in Article 4(2)(a)-(h). e nancial cost to Poland could therefore be very considerable, which it would have to explain to its electorate. It is clear that the Commission is considering a range of such possibilities, but equally clear that Poland will not readily accept such strictures. ere is then a political and legal dilemma for the EU, and three considerations are especially salient. ere is the fear of the consequence of another exit from the EU, and whether this might lead to further unravelling of a kind that cannot be readily predicted in advance. Poland will undoubtedly play on this concern, to dissuade the Commission from pursuing more radical options, as a ested to by the response of the Polish Prime Minister in debate with the Commission President before the European Parliament. ere is the fear of allowing a State to remain a member of the EU, when it refuses to accept central conditions for membership. e undermining of key tenets of the Treaty, and its a endant legal principles, is serious in and of itself, and if action is not taken then it will simply encourage like-minded Member States to follow suit. e corrosive impact on the EU, politically and legally, is readily apparent. Harking back to the preceding discussion, it is difficult to see how such action by a Member State would not constitute a denial of the conditions of membership and hence exit from the EU, notwithstanding its protestation to the contrary. It is interesting to re ect in this context on the concept of material breach contained in Article 60 VCLT 1969, and the consequences thereof, which embodies fundamental precepts about the binding nature of international agreements and the consequences of violation of those commitments. e VCLT is not binding on the EU, but it can, as acknowledged in Wightman, be drawn on by way of inspiration when interpreting the EU Treaty. ere is, in addition, the less obvious, but no less important consideration that the assault on judicial independence in Poland and Hungary is but part of a broader constitutional meltdown, which is grounded in illiberal democracy and competitive authoritarianism. e EU is not responsible for this, nor does it possess the plenary authority over Member States that would enable it to address the deeper roots of the malaise. If such Member States are allowed to remain in the EU, then this will perforce cast a deep shadow over the EU as an institution and to the commitments contained in Article 2 TEU.

17

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

Mad in Poland Dimitry Kochenov

i

Observing the Polish government trashing a previously successful country is heartbreaking: following the destruction of checks and balances the economic miracle will stop. Beyond economics, a acks against the EU have long-term security concerns: the most dramatic cost of PiS clinging to power could be turning Poland into another Ukraine. How can this be explained and, most importantly, avoided? PiS-instigated constitutional breakdown has not been intellectual: those in power have been simply ignoring the State and the law, effectively imitating the functioning of the Communist party in the Polish dictatorship before the Berlin wall came down. International interconnectedness of basic principles and key institutions provided an important obstacle on the way of the ruling party’s deceptive substitution of the State with itself: objective reality checks connect Polish institutions – and especially Polish courts – with multi-layered and multi-faceted structures outside of Poland, which cannot, by virtue of their very nature, fall under the obscurantist control of PiS propagandists: the Court of Justice and other EU institutions, just as the Venice Commission and the European Court of Human Rights (ECtHR) demonstrate quite clearly how important the international checks on the abuses of local power could be, proving the late Professor Dworkin right. is international context ma ers: the mirror held in front of PiS’ nose by the Court of Justice and the ECtHR is not political: it is legal, as the same minimal standards of lawful composition and independence apply to all the courts on the continent with the sole exception of the non-CoE members: the EU and Belarus. Importantly, the mirror is the same in which Putin’s, Erdoğan’s, Aliyev’s and also Orbán’s institutions are showing, and Poland is easily distinguishable: while the human rights track-record is still relatively solid, there is a broad international consensus today that its courts are not lawfully composed and do not enjoy independence. is applies, in particular, to the so called ‘Constitutional Tribunal’, which, unlike Russian, Azerbaijani, Hungarian and Turkish institutions endowed with similar functions, is simply not a court. e picture that emerges from the ECtHR’s Xero Flor judgment to a whole array of Court of Justice’s rulings and Poland’s own Supreme Court’s decisions is astonishing in that it is so very simple and so devastatingly stupid: PiS wants to destroy judicial independence no ma er what, not ready even to keep any appearances, unlike Aliyev, Putin, Orbán and other Europeans, who realize very well how important appearances are. In the now ‘classical’ period of the academic scrutiny of EU law – 1990s – Raymond Aron’s ideas on the Mutually Assured Destruction – MAD – were applied by J.H.H. Weiler, Ulrich Haltern and also others to the dialogue between the European courts at different levels of governance. MAD is an a ractive doctrine. One needs to be absolutely mad indeed in order to press the red bu on: the whole point of Aron’s thinking is that once the costs of potential nuclear war are impossibly high, such a war will never start, giving way to conventional small-scale con icts. Starting the war to end the world is against the interest of all those playing with the warheads. Going through dusty corners at Gibert Joseph as a student I found numerous examples of the i. Professor at CEU Democracy Institute, Budapest and CEU Legal Studies in Vienna.

18

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

novels of the post-nuclear Armageddon genre – novels about a possibility of a be er humanity a er the mad did their stupid business and the world as we know it is destroyed. e context for approaching Poland today is thus set: are they mad and will the EU be be er a erwards without them if they are? Self-proclaimed experts on the ma ers of Polish constitutional law have mushroomed as of late from Luxembourg to Hong Kong: yes, they say, the Poles have de facto activated Article 50 TEU through their courts. Worse still, they had quite some reasons, apparently, to do that, given how unstable the doctrine of supremacy is in EU law. A story so retold could not be further from the truth, as numerous scholars, including, most recently, Adam Łazowski and Michał Ziółkowski have rightly pointed out. Engaging with obscurantism directly is of li le value, so in trying to engage with my Aron’s MAD dreams, I promise to speak past, rather than engage with such experts directly. Even when one could reproach the Court of Justice of treating supremacy – pace Lindeboom – too seriously, as I have also done in the past, to claim that the doctrine is not at the heart of EU law is as mad as it takes – a mistake. To speak of any Article 50 activations in this context is, with respect, even madder than that. Referring to a decision of an unlawfully composed Kangaroo ‘court’, which openly ignores its own constitution as well as EU law and, by virtue of the illegality of composition, also ECHR law and strongly goes against the public opinion in the country, as Sławomir Sierakowski reports, is thus nothing but a frivolous misrepresentation of the law, which does not withstand scrutiny. Instead of engaging with such accounts, I shall make two simple points. e rst is that Poland is not mad: it is simply hijacked as a State. e distinction between the state of Poland and the ruling party is on the verge of disappearing. e second, owing from the rst, is that a proper activation of Article 50 TEU at this point is impossible for Poland. at Poland is hijacked is quite clear from the state of its separation of powers: in reply to the statements of the ECtHR explaining why the highest courts are full of usurpers, who pretend to be judges in full knowledge of the fact that they are not – many more such ECtHR clari cations will follow, since a fake judge cannot author a real judgment – the Kangaroo courts question ECHR and also EU law, as if it will help them to acquire the legitimacy they lack. Worse still, judges following the spirit and the le er of the law, unwilling to pretend that the madness of such behavior is ok, are persecuted. A hijacked court, which does not qualify in the eyes of EU and also ECHR law to be called with such a glorious name can have no opinion whatsoever – let alone issue a judgment – about the interaction between the Polish legal system and EU law. Legally speaking, the so-called ‘Decision K 3-21’ is a nonevent, as it is outside the realm of the legal: a bizarre masquerade as per ECHR, EU and Polish constitutional law. Discussing it in legal terms is thus nothing else but an a empt to legitimise it, which is impossible, should we remain true to the le er and the spirit of the law. e same concerns the ‘Decision’s’ possible implications for Poland’s EU membership, but there is more: now that the Polish Constitution is switched off under the PiS assault and is in a dormant state – akin to the Baltic States’ constitutions under the Soviet occupation – the legitimate question arises as to whether the basic standards of Article 50 TEU could be ful lled by unfree, hijacked Poland at all. In my opinion it would be a non-sequitur to state that Poland can activate Article 50 in accordance with its ‘own constitutional requirements’ in the situation where its constitutional system is disrupted and fails to function properly. It is not only that an irrelevant mumbling of a Kangaroo court gets the law wrong. e trouble is that there is no lawfully composed constitutional court any more in Poland and no separation of powers and no properly

19

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

functioning State institutions. Rather, there are unlawful PiS institutions, masquerading as the organs of the State in direct violation of the Polish constitution as well as EU and ECHR law. In other words, in the absence of constitutional adjudication and a properly functioning Polish State, in a situation where the le er and the spirit of the national constitution is dormant, it is obviously impossible to meet even the rather low threshold of Article 50 TEU and comply with what EU law demands: ‘national constitutional requirements’. is is great news for Poland and the EU: Polish citizens, who think that leaving the EU is madness are not yet hostages of PiS – unlike the Britons, who voted to remain who were hostages of their ‘democratic’ State – precisely because of the radicalism of PiS’s own assault against the Polish State. Once again: what the unlawfully appointed self-styled judges say is not only irrelevant in the light of Article 50 TEU – it is also an additional sign that EU primary law itself makes it impossible at this stage to make any claims related to the activation of Article 50. e farcical group of people occupying the seat of the Polish Constitutional Tribunal is just an illustration of how bad the situation in Poland is, with obvious implications for the lawful conduct of the eventual exit from the EU. Mutually assured destruction is impossible when the army of one of the States involved is a group of impostors with cardboard rockets. What looks like a tragic drama for the deaf, is but a farcical opere e for those who hear the music.

20

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

Last Station Before ‘Polexit’? i

Christophe Hillion

e Polish Constitutional Tribunal (“Trybunał Konstytucyjny”, TK) declared on 7 October 2021 (in case K 3/21) that several provisions of the Treaty on European Union (TEU), as interpreted by the Court of Justice, viz. Arts 1, 2, 4(3) and 19 TEU, were incompatible with the Polish constitution. Given the central importance of the provisions thus censored, Poland’s membership in the EU has been questioned. How can a country remain a Member State while considering basic requirements of EU membership unconstitutional and, consequently, inapplicable to it? It has been suggested (here and here) that, instead, Poland needs to make a choice: either change its constitution or withdraw from the EU altogether. Mentions of ‘Polexit’ and Article 50 TEU have indeed proliferated, in different guises (for example here, here, here, or here), including in the European Parliament a er Poland’s Prime Minister regurgitated the tenor of the TK’s ndings, and more.

Poland’s EU membership is at stake Adding to an already remarkable track-record of de ance towards EU fundamental norms, the TK’s decision in K 3/21 has arguably taken Poland one step closer to the EU exit door. Whether all the conditions for activating the withdrawal procedure are now ful lled (as argued here) is however debatable. As foreseen in Article 50(1) TEU, a Member State’s decision to cease to observe the Treaties, and thus to withdraw from the EU, is to be taken in accordance with its constitutional requirements. And in its Wightman ruling, the Court of Justice also pointed to a decision that follows ‘a democratic process’. One will be forgiven for doubting that these conditions are (yet) met in the present case. As the European Court of Human Rights (ECtHR) found in Xero Flor, the TK does not qualify as ‘a tribunal established by law’ (see also the ECtHR ndings in Reczkowicz – which Poland appealed before the Grand Chamber before changing its mind; the EP resolution of 21 October 2021, and the European Commission reasoned proposal of December 2017). us the Trybunał’s verdict itself could hardly provide the constitutional credentials to the Government’s a empts to reformulate Poland’s relationship with the EU. It has also been recalled (for example here) that other constitutional provisions would have to be followed legally to bring Poland out of the EU. Similarly, no discernible democratic process supports the Polish Government’s belligerent campaign to redraw the terms of the country’s EU membership which, polls suggest, remains supported by a vast majority of Poles. ese terms were agreed in the 2003 Treaty of Accession and democratically approved by referendum (77,6% in favour). ey were recon rmed in the 2009 Treaty of Lisbon which Polish authorities co-negotiated and voluntarily rati ed, based on an overwhelming support both in the Sejm and Senate, the

i. Professor of European Law at the Centre for European Law, University of Oslo. He is also Senior Adviser at the Swedish Institute for European Policy Studies (SIEPS), Stockholm.

21

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

two parliamentary chambers of the Republic of Poland. at same Treaty includes a Declaration (No. 17) on the principle of primacy, in the light of which EU law is to be interpreted. Whether or not Article 50 TEU is ultimately triggered will be determined by what the Polish authorities and electorate make of the TK’s disputed contentions (for example here) in the coming weeks and months. If Poland’s Government double-downs on its denunciation of EU basic rules (and judgments of the Court of Justice), but this time following the domestic constitutional rules (admi ing that this might be difficult, as suggested here) and a democratic process, then such a de ance could be tantamount to the intention to cease to respect the Treaties in the sense of Article 50 TEU. It will be up to Polish citizens to make the choice between upholding the current Government’s anti-EU politics and risk withdrawal, or call for a fundamental change in the authorities’ EU policy to preserve Poland’s membership − one cannot have both. e question of Poland’s membership in the EU might indeed be at the heart of the next general elections (in autumn 2023, or sooner).

EU institutions have a duty to (re)act In the meantime, and as long as Poland is a Member State, its recalcitrant Government should be approached as such by EU institutions and other Member States. Several legal steps should be taken in reaction to the TK’s verdict, as well as other established violations of EU law, including the failure to respect judgments of the Court of Justice. While involving political discretion, these steps are also determined by the general duty of institutions and other Member States to preserve the EU legal order (as per, inter alia, Article 3(1), 13, and 4(3) TEU, respectively). One option for the EU could be not to acknowledge the authority of the TK’s decision on formal grounds. As mentioned above, the lawfulness of the TK itself is disputed. e difficulty however is that the decision has been published, both on the TK website and in the Official Gaze e. Moreover, Poland’s Government has wholeheartedly welcomed the decision − unsurprisingly so since it was the Prime Minister himself who asked the TK to (con)test the constitutionality of the provisions of EU primary law. e Government is indeed making clear its intention to make full use of the verdict to disregard the unpalatable case law of the Court of Justice and thus shield its contentious – and still on-going - transformation of the national judiciary from any EU (judicial) interference; a ‘constitutional’ shield which it is intent on using also against (the case law of) the ECtHR, following the TK decision in K6/21. e TK’s decision has not only entered Poland’s legal order, it already has tangible repercussions within its judicial system: some courts are following it (here), not least for fear of disciplinary reprisals despite their illegality, while others (bravely) ignore it (here, here). In further deepening the split in the functioning of the Polish legal system and ‘legalising’ the la er’s insulation from the European judicial system, the TK’s pronouncement further fragments the EU legal order – and others, like the European Economic Area − with potential unse ling implications for courts of other Member States (see for example here), and beyond. In practical terms, it is becoming ever more unclear what law applies across Poland, and what judicial protection citizens get. e ‘anarchy, confusion and lawlessness’, or the ‘unimaginable legal chaos’ PM Morawiecki perversely warned about in his confrontational speech at the European Parliament, and reportedly at the European Council meeting of 21-22 October, is ampli ed by the very TK’s decision he himself engineered,

22

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

and nds its origins in the contentious judicial transformation his Government has been carrying out since it took power. Nemo auditor propriam suam turpitudinem allegans. In ingement Despite the dubious character of that decision (both formally and substantively, as explained for example here), it would be problematic for the Union to disregard it altogether, if only as an additional manifestation of the breakdown of the rule of law in Poland, and in view of its corrosive effects for the EU legal order. e Commission could thus launch infringement proceedings (Article 258 TFEU) against the Polish Government because of the TK decision, as being done against Germany, possibly relying on the established case law regarding contentious decisions of national courts (see for example Commission v Italy (C-129/00), Commission v Spain (C-154/08), and Commission v France (C-416/17)). Admi edly, one could question the relevance of this case law in the situation at hand, given the disputed legality of the body having issued the contentious verdict. One could also wonder whether using that case law might indirectly grant the TK a judicial credential it does not lawfully have. e Commission could thus (also, or alternatively) argue that, in endorsing and acting upon the impugned pronouncement, the Government is infringing its EU obligations, not least its duty of loyal cooperation (Article 4(3) TEU). e Commission should equally request the Court of Justice to order the immediate suspension of the application of the TK’s decision, pending the Court of Justice’s nding on the infringement case, so as to prevent further damage being done in the meantime to Poland’s judicial system and membership, and to the EU more generally. Penalty payments (like here) should be envisaged to help secure compliance with the order. at said, one may wonder whether this type of actions will be enough to restore the rule of law in Poland. ere are no guarantees that any of the related Court of Justice’s decisions will be complied with. e Polish Government has now a track record of non-compliance with the Court of Justice’s rulings and orders (as discussed for example here). And arguably, it might be even less inclined to respect the Court of Justice’s decisions this time, considering that it deliberately sought ‘constitutionally’ to tie its hands precisely to disregard them. Demonstratively supporting the Commission infringement proceedings, the way too few Member States have hitherto done (for example here), or deploying the more sensitive inter-state enforcement procedure (Article 259 TFEU, once considered in the Dutch Parliament), particularly if triggered by several Member States, could perhaps give more clout to the enforcement proceedings, and in turn to the nal decision by the Court of Justice. But it is not guaranteed. While signi cant penalty payments could also yield more pressure on the Government, what will then happen if the la er does not suspend the application of the decision and refuses to pay? While the Commission may consider withholding the money to compensate for the unpaid penalties, it remains to be seen whether this will achieve the required compliance on the ground. e situation epitomizes the limits of the classic EU enforcement mechanism to handle the unprecedented predicament. While the standard infringement procedure remains an essential tool to address the erosion of the rule of law (especially if bu ressed by interim measures and penalty payments), its usefulness withers in the face of a Member State that purposefully de es the rule of (EU) law, whatever the price. e moment a country does no longer respect the authority of the Court of Justice, and discards (critical) provisions of EU

23

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

law, the Commission and the Court are of li le help. Other EU tools must therefore be resolutely used, in addition. Financial conditionality As already proposed, the Commission may continue to defer its opinion on Poland’s recovery plan, thus withholding EU recovery transfers, as long as the Government does not provide adequate guarantees about the rule of law. Unlocking the funds indeed requires more than lip service being paid to expressed concerns, viz. more than the mere (and yet unclear) suppression of the illegal disciplinary chamber announced by the Government, which some are (ill-advisedly) willing to see as sufficient demonstration of good will to close the dispute with the EU, and which could well foreshadow further and more problematic ‘judicial reforms’. Several other serious encroachments on the independence of Poland’s judiciary, as established by various European Courts (and others) equally need to be addressed. One could have hoped that the Commission be more readily inclined now to make full use of the general conditionality mechanism, which it has refrained from doing following the emasculating compromise reached at the European Council meeting in December 2020. As it has been argued, the contested decision would easily fall within the scope of application of the conditionality mechanism. Yet, and despite the bolder threat of the European Parliament to bring the Commission to the Court of Justice for a declaration that it has failed to act, various statements suggest that the Commission (President) will continue to abide by the European Council instruction, and thus delay the full activation of the Regulation until a er the Court of Justice has considered its legality. To be sure, the Commission’s activation of the conditionality mechanism would not in itself have much impact on the Polish Government. Funds would be suspended only if there is a quali ed majority in favour in the Council. And on that level, it remains to be seen whether Ministers will be able and willing to act more decisively than hitherto – particularly in the context of the procedure of Article 7(1) TEU − in addressing the rule of law breakdown. And again, will the nancial pressure achieve the desired results in terms of restoring the rule of (EU) law in Poland? Withholding money would admi edly put pressure on governments that depend on it, while potentially making citizens realise more tangibly the connection between their rulers’ anti-EU politics and the erosion of their EU bene ts. But the (already bellicose) governmental propaganda machine will undoubtedly put all the blame on the ‘politicised’ EU and will do its upmost to pit the population against it. e Polish Government, which may indeed turn to other nancial sources to compensate for the loss in EU funding, could also opt for blunt and disruptive blackmailing, as in autumn 2020. Article 7 TEU In view of the limitations of the EU enforcement mechanism, those of the nancial approach, and although this will sound as wishful-thinking, one needs to turn to the other tool at the EU’s disposal, viz. Article 7 TEU. e EU Council should now resolutely proceed with the procedure the Commission launched in December 2017, that is four years ago. First, the Council should, at l(e)ast, recognise that following the impugned TK’s verdicts, there is a ‘clear risk of a serious breach of the [common] values’ in Poland, as envisaged by Article 7(1) TEU, and adopt a deci-

24

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

sion to that effect. While the required quali ed majority of four- hs of its members might look difficult to reach, it is up to the Council Presidency to call the members out and face their own responsibility considering the gravity of the situation – will France’s Presidency of the EU Council show determination and leadership on this front, despite other interests it (and others) may have in relation to Poland? If the current crisis does not amount to the ‘clear risk’ Article 7(1) TEU refers to, then it is difficult to contemplate when such risk would ever materialise. e Council should also consider establishing recommendations in the framework of the same procedure, to assist the Polish Government – a combination of measures that the Commission called for in its 2017 reasoned opinion which has been regularly updated in the meantime. Should the Polish authorities decline to follow such recommendations, and fail to restore the rule of law, Article 7(2) TEU will then have to be considered to establish ‘the existence of a serious and persistent breach’ of the values common to the Member States, and consequently to suspend Poland’s membership rights, speci cally its Ministers’ seat at the Council table. As recalled by the Court of Justice in Repubblika: ‘compliance by a Member State with the values enshrined in Article 2 TEU is a condition for the enjoyment of all of the rights deriving from the application of the Treaties to that Member State. A Member State cannot therefore amend its legislation in such a way as to bring about a reduction in the protection of the value of the rule of law’ (emphasis added). e purpose of that procedure (analysed for example here and here) is to place the government responsible for the characterised breach on quarantine, so as to protect the EU constitutional order (including its institutional framework) from further damage, while preserving the ‘Member State’ status of the country concerned − in line with the principles the Court of Justice spelled out in Wightman. One third of the Member States and the Commission may activate it. e eventual suspension of membership rights presupposes a decision taken by unanimity minus-one in the European Council (though see here); abstention does not prevent its adoption (Article 354 TFEU). A changing-of-the-guard in Budapest in 2022 could thus remove one key hurdles (and there are many) in the process of reaching such critical decision. Importantly, the la er should allow Poland’s citizens to keep enjoying their EU rights (as contemplated in Article 7(3) TEU), while deciding either to con rm their Government’s manifest intention no longer to apply the Treaties and thus bring Poland out, or change their rulers and preserve their country’s membership.

25

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

Legal Embarrassment a er PSPP and K 3/21: e Bogus Distinction Between Primacy and Supremacy and the Need for an Ethics of EU Law Supremacy Justin Lindeboom

i

ere seems to be an unavoidable embarrassment in our possible responses to the unlawfully composed Polish Constitutional Tribunal’s decision in case K 3/21. Insisting once again upon the primacy of EU law begs the question and mainly causes weariness – yet another rehearsal of the same, predictable exchange – especially just one year a er the German Federal Constitutional Court’s PSPP judgment. Substantive engagement with the Tribunal’s reasoning (for example here and here) feels equally uncomfortable, suggesting that a more elaborate reasoning somehow would have made the outcome more acceptable. Had the Tribunal been lawfully composed, moreover, surely the outcome would have been no less disturbing from an EU law viewpoint (perhaps even more so, as we had to take it more seriously). But even though the Tribunal is a kangaroo court and K 3/21 ‘a bizarre masquerade as per ECHR, EU and Polish constitutional law’, ignoring the decision also seems not entirely satisfactory, simply because K 3/21 does have severe political and legal consequences. At least the Commission and the other Member States can take Poland to court – scholars can only express their outrage, which in the face of political power never fails to be embarrassing. But there is an even more embarrassing response to K 3/21, which mirrors similar reactions to the PSPP judgment. Recognising that the unconditional supremacy of EU law is unlikely to be ever accepted by the constitutional courts of the Member States, the idea is to ght the ba le on national constitutional law’s own grounds. In short, the argument goes something like this: ere is an important distinction between ‘primacy’ and ‘supremacy’ of EU law. Talking about supremacy – the ‘real’ Grundnorm and the ‘real’ supreme arbiter of constitutionality – is misguided because the Court of Justice actually never speaks of the ‘supremacy’ of EU law. e more accurate term, endorsed also by the Court of Justice, is ‘primacy’, which, in the words of Eeckhout, is ‘just a con ict rule’. Primacy of EU law is perfectly compatible with the ultimate supremacy of the national constitutional order – even the Bundesverfassungsgericht would agree. A harmonious solution which neatly ts the paradigm of constitutional pluralism. If only the unlawful Constitutional Tribunal would understand the difference between pluralism and solipsism and had asked preliminary questions to the Court of Justice (which, on a side note, would have been purely hypothetical and therefore inadmissible) before delivering the same decision… is response actually reinforces the EU law perspective’s embarrassment. is is because even if we take the Tribunal’s position to be legally valid within the Polish legal order (quod non), any a empt to respect the

i. Fulbright Scholar at Harvard Law School and Assistant Professor of European Law at the University of Groningen.

26

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

perspective of national constitutional law while maintaining primacy of EU law as the basic con ict rule is conceptually and normatively muddled as well as practically irrelevant. As a ma er of conceptual necessity, hierarchies between legal orders cannot exist. Accordingly, ‘supremacy’ as allegedly applying between legal orders is a nonsensical concept. ‘Supremacy’ can therefore only refer to the con ict rule that others may call ‘primacy’. However, that offers no practical relief in situations such as PSPP and K 3/21, because there is nothing to mitigate the operation of this con ict rule and the constitutional con icts it generates. As I will argue further below, therefore, the embarrassing conclusion is that any sincere a empt to challenge decisions such as K 3/21 on the national constitutionalist’s own terms is doomed to fail. But declaring the supremacy of EU law as a ma er of legal imperative has proved futile as well. e be er alternative, in my view, is developing an ethics of EU law supremacy, which not only relieves our own embarrassment, but also challenges the national constitutionalist viewpoint to avoid their own.

e impossibility of hierarchies between legal orders e question of ‘supremacy’ is typically considered to relate to the source of ultimate authority. What is the real ‘Grundnorm’ or ‘Rule of Recognition’ of European law? If we take seriously, however, the idea that there is an autonomous EU legal order, and equally autonomous national legal orders, speaking of supremacy among them is meaningless, as I argued elsewhere. If the concept of a ‘legal order’ means anything at all, it surely refers to some system which itself determines the criteria of membership and legal validity. It is conceptually impossible, then, to speak of a legally meaningful hierarchy between legal orders, because no legal rule can adjudicate between legal orders unless at least one of them turns out to be a fake legal order. If such a legal rule were a valid legal rule in any of the legal orders, the resulting relationship would not be hierarchy but simple absorption of one legal order by the other. is would make a mockery of the starting assumption of there being two legal orders. If the legal rule were instead a valid legal rule of some third legal order – for instance by way of ‘pluralism under international law’, to speak with the late Neil MacCormick – actually both legal orders would not be legal orders at all. ey would just pretend to be legal orders while they both are actually part of the inevitable monism of international law. Kelsen lives, as the idea of separate legal orders crumbles.

e inevitability of constitutional con ict We should rather, then, think of ‘supremacy’ precisely as the con ict rule between legal norms that the Court of Justice terms ‘primacy’. But how exactly is this more acceptable to the sceptic about supremacy/primacy of EU law? Eeckhout claims that primacy just applies to speci c con icts between national law and EU law which appear before the Court of Justice; EU law does not invalidate national law, nor does it replace whole areas of national law. All of this is true, and yet it really does not get us very far. It is like saying that those who feel disturbed by, say, a maximum road speed limit should not be concerned because the speed limit does not prevent anyone from speeding, and it only applies to speci c instances of speeding, namely those instances in which the driver happens to get caught. e argument misses the mark, therefore, because the fundamental premise of supremacy/primacy as a con ict rule is that it applies whenever there is a con ict between individual legal norms. What is more, every legal dispute is about speci c legal norms instead of legal orders as a whole. Consequently, the argument that

27

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

supremacy/primacy is only a con ict rule offers no satisfactory answer to the principled position shared by the German Federal Constitutional Court and the Polish Constitutional Tribunal – among many other national apex courts – that whenever there is an irreconcilable con ict, the relevant norm of the national constitution must prevail. In the day-to-day functioning of EU law, of course, all is mostly well. e practice of supremacy/primacy of EU law is acceptable to every Member State’s parochial understanding of legal normativity which is, to agree with David Dyzenhaus, inherent to the Hartian idea of separate legal orders (see also here). Whenever the perceived con ict between a national constitution and EU law is deemed irresolvable, however, the fact that ‘primacy’ is ‘merely’ a con ict rule is precisely the problem. Substitute ‘supremacy’ in whatever meaning for ‘primacy’ and the result is exactly the same. Consequently, insofar as the distinction between ‘primacy’ and ‘supremacy’ suggests a solution to constitutional con ict that is acceptable on national constitutional law’s terms, in fact it turns out to be useless when the con ict is irreconcilable, which is the only situation in which the distinction ma ers at all. A empts to mitigate the underlying logic of K 3/21 and other ultra vires judgments, and to think of the problem as something that ‘judicial dialogue’, ‘mutual understanding’, a be er application of the preliminary reference procedure, and so on, could resolve, are all profoundly embarrassing. ese are fake solutions to a very real problem.

Hamiltonian supremacy Agreeing with all the sophisticated analyses pointing at differences between K 3/21 and PSPP, in their fundamentals the decisions expose the same problem. at problem is that the supremacy question is legally unsolvable and empirically persistent. Accordingly, we should confront constitutional con ict directly, without embarrassing ourselves in claiming that, if only the Polish Constitutional Tribunal had a be er understanding of the primacy/supremacy distinction, constitutional pluralism, or Article 267 TFEU, surely it would have decided more responsibly. When Alexander Hamilton defended the introduction of the Supremacy Clause in Article VI of the US Constitution – which, by the way, is also nothing but a simple con ict rule, notwithstanding the more explicit and well-developed doctrine of pre-emption in US constitutional law – he argued that no one should bother because the supremacy of federal law was trivial, and the Supremacy Clause super uous: ‘what would [the laws of the Union] amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe’. No doubt the same should be said about EU law or indeed any other legal order. It is binding as law if it is to be law at all. As I argued in more detail here and here, supremacy is best described as a conceptual feature of laws. Laws claim supremacy over competing social and moral norms, as well as norms from other legal systems. For the law, it is irrelevant whether its subjects morally endorse the law or are morally repulsed by it. e law is perfectly ne with Justice Holmes’ bad man. Within their jurisdictions, all modern legal systems claim to provide supreme norms, which is another way of saying that they claim primacy, which is yet another way of saying that law claims to be binding simply because it is the law.

28

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

e fact that EU law claims internal supremacy within the national legal orders re ects the fact that EU law considers all national legal institutions ‘arms of EU law’, as Koen Lenaerts rightly points out. What PSPP and K 3/21 demonstrate once more, however, is that at least some national courts do not consider themselves ‘arms of EU law’. For legal officials whose ‘internal point of view’ – to speak with H.L.A. Hart – takes the national constitution as the ultimate legal authority, neither ‘supremacy’ nor ‘primacy’ can be taken to mean that EU law precedes over the constitution at a fundamental level – and the fundamental level is the only level that ma ers in this regard.

e need for an ethics of EU law supremacy e embarrassment of engaging with PSPP and, even more so, K 3/21 is caused, therefore, by the elemental fact that there is no Archimedean viewpoint from which the question of which law is supreme can be assessed. Or, to use Hart’s terminology, if there is indeed something like a ‘Rule of Recognition’, it must be a social rule associated with a certain judicial practice. And the reality of judicial practice is that whenever a choice must be made between competing legal norms, there is no alternative but applying one legal norm and dismissing the other. Constitutional con ict is real and unavoidable, as Gareth Davies rightly emphasised. A be er starting point is to acknowledge that the question of supremacy is a question of ethics, not law. e ethical question to be answered, then, is what interpretation of the legal landscape offers the best moral justi cation of our past and current political and legal practice. is ethical question, naturally, does not provide ready answers. However, it turns out to be the only way to adjudicate between competing supremacy claims, as Hans Kelsen already recognised (see here and here). Moreover, it pushes the posture of constitutional courts such as the German Federal Constitutional Court and the Polish Constitutional Tribunal in the defence. e position of national constitutional law is forced to include an answer as to why absolute reverence for a contingent document – let us not forget the juvenility of both the German and the Polish constitutions – really is the best moral justi cation of post-WWII constitutionalism. History usually offers a splendid kind of embarrassment to those revering their constitution as documents of eternal wisdom. Surely the United States is no exception. To be clear, I am not advocating to revere the EU Treaties or the interpretive rulings of the Court of Justice; which would only reintroduce the same embarrassment once again. Instead, we are be er off readily accepting the contingency of legal orders, and happily substituting delity to one supremacy doctrine or the other with an ethics of European constitutionalism and EU law supremacy. In fact, there is no shortage of possible starting points for such an ethical theory of supremacy. Some principles developed in the literature on constitutional pluralism surely can be helpful, as long as we recognise – with Ma ias Kumm – that they serve a moral point. More recently, Federico Fabbrini, Vlad Perju and Koen Lenaerts emphasise the multilateral context of the supremacy question. e multilateral effects of unilateral invalidation of EU law have become crystal clear in the wake of PSPP and K 3/21, and they play an important role in constructing a moral theory of EU law supremacy. Furthermore, drawing on Mark Greenberg’s moral impact theory of law, George Letsas reminds us that past and current political action has a normative impact on our moral rights and obligations. is applies not just to individuals, but to Member States and their

29

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

(constitutional) courts as well. Past political practice may by itself, therefore, create moral and conventional obligations to continue recognising the supremacy of EU law. Finally, in his recent monograph on the nature of EU law, Pavlos Ele heriadis advances an alternative, Kantian theory of European integration which conceives of the EU as an ethically required congress of sovereign States that requires the la er to constitutionally recognise EU law supremacy. In contrast to these and other possible ethical justi cations of EU law supremacy, it makes no sense to try to nd a non-existing middle way between dichotomous supremacy claims. Once we try to interpret away the con ict, once we try to insist upon the allegedly important difference between ‘supremacy’ and ‘primacy’, and once we try to convince our interlocutors that EU law ‘primacy’ is not irreconcilable with national constitutional supremacy, we are trying to defeat the opponent on their own terms. But on national constitutional law’s own terms, national constitutional law will always have the be er argument. eir embarrassment becomes our own. What we need, therefore, is an ethical defence of EU law supremacy. Not only because, at least in my view, any supremacy claim can only be defended on ethical grounds, but more importantly because the moral perspective turns the tables: it is the national constitutional court’s posture which is likely to invite moral embarrassment.

30

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

e Judgment of the Polish Constitutional Tribunal in Case K 3/21: What can the Member States do to Shield the EU Values? Federico Casolari

i

Whilst the judgment of the Polish Constitutional Tribunal in case K 3/21 does not represent the rst decision adopted by a Member State’s supreme court on the basis of the ultra vires argument, it constitutes terra incognita in terms of EU law. e judgment casts shadow over both the political essence of the European integration process, that is, the establishment of ‘an ever closer union among the peoples of Europe’ (Article 1 TEU), and the structural principle upon which that process has been built – the principle of sincere cooperation (enshrined today in Article 4(3) TEU). Also, it calls into question the Member States’ rule-oflaw obligations the Court of Justice has identi ed in the light of Articles 2 and 19(1), second subparagraph, TEU. Possible EU law implications owing from the Constitutional Tribunal’s judgment have already been discussed in this Symposium. Also, some (rather) indirect reactions have started taking shape at the institutional level: for instance, it is not hard to see in the unprecedented 1 million euros daily ne imposed on Poland by the Vice-President of the EU Court of Justice by his order of 27 October 2021 (in case C-204/21 R) a message in a bo le to the Polish Constitutional Court. Even more importantly, rst cracks in the unitary approach so far adopted by EU institutions occurred: on 29 October the European Parliament’s legal service submi ed an action under Article 265 TFEU to the Court of Justice against the European Commission for failure to apply Regulation 2020/2092. Regardless of whether such an action could be successful, it is evident that a similar crack may contribute to the development of a multifaceted reaction against the challenges on the EU values posed by Poland, strengthening in turn its effectiveness. It is against this background that it seems useful to explore the possible contribution of Member States in chartering the terra incognita the Polish Constitutional Tribunal has entered.

Inter-State litigation before the Court of Justice? Pu ing aside the ‘rusty’ Article 7 TEU machinery, a rst Member States’ contribution to taking a more resolute course of action at supranational level could be represented by the decision to trigger Article 259 TFEU, bringing thus Poland before the Court of Justice for failure to ful ll its EU rule-of-law obligations. Indeed, the possibility to reshape Article 259 TFEU as an enforcement tool of the EU values –already explored some years ago by Dimitry Kochenov in a thought-provoking piece – could represent today a

i. Associate Professor of EU law at Alma Mater Studiorum – University of Bologna.

31

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

natural development of the large recourse to the Article 258 TFEU procedure to address national breaches of the rule of law. is said, there are some points that need to be stressed. First, Member States’ reluctance in submi ing inter-State disputes to the Luxembourg judges should be taken into consideration. Such a reluctance is related to the idea that launching an inter-State procedure could jeopardize the relations among the States, leading in turn to some disruptions in their mutual trust. In this respect, it is no coincidence that Article 259 TFEU procedure has been triggered only 7 times to date (namely in cases 58/77, 141/78, C388/95, C-145/04, C-364/10, C-457/18, and C-121/21). We cannot exclude therefore that a similar reluctance could also be showed in the case at stake. Even more importantly, in all cases the procedure was activated with the aim to protect speci c national interests (for example, conservation of sheries, State prerogatives related to inhabitants of a colony subject to the jurisdiction of other Member State, treatment of Heads of State, determination of borders), making thus unlikely a possible invocation of Article 259 TFEU in the general interest of the Union. Yet, some elements of practice suggest a possible shi in the Member States’ a itude towards Article 259 TFEU, which could lead to trigger the inter-State litigation option against Poland. Particularly relevant, in this respect, is a resolution adopted in December 2020 by the Dutch Parliament, where the national institution urged the Government to bring Poland before the Court of Justice, ‘preferably with other like-minded Member States’, due to the judicial reforms introduced in the country. However, even if such an option is still on the table, one may wonder whether it could represent the only appropriate response to the gauntlet thrown down by the Polish Constitutional Court (also in light of the structural limitations the infringement proceedings show vis-à-vis the enforcement of EU fundamental values).

Can International Law Strike Back? Member States could also decide to chill their diplomatic relations with Poland, introducing some restrictions that might (hopefully) lead the State to change its approach. Indeed, as rightly stated by Advocate General Bot in his Opinion to the Article 259 TFEU procedure opened up by Hungary against the Slovak Republic on the treatment of the Magyar Head of State, ‘the sphere of diplomatic relations remains within the purview of the Member States, in accordance with international law’ (C-364/10, point 52; emphasis added). In this respect, Member States could take inspiration from the statement adopted on 31 January 2000 by the Portuguese Presidency, listing, also on behalf of the (then) other 14 Member States, possible diplomatic sanctions to be adopted in the context of the Haider affaire. ey include(d), inter alia, abstention from promoting or accepting bilateral official contacts at political level with the members of the Government, lack of support in favour of State’s candidates seeking positions in international organisations, meetings with State’s ambassadors in EU capitals only at technical level. Viewed from this perspective, the recourse to possibilities offered by international law could thus contribute to strengthening the available EU’s toolbox – something we have already seen in other recent crisis’ scenarios. Focusing on international law, another option Member States could decide to explore concerns the possibility of invoking the material breach clause enshrined in Article 60 of the 1969 Vienna Convention on the Law of Treaties (VCLT) to suspend or terminate the EU Treaties vis-à-vis Poland. A er all, the provision is ‘in many respects’ declaratory of international customary law (Gabčíkovo-Nagymaros, Judgment, I.CJ. Reports 1997, p. 7, para 99) and it is not extraneous to EU law. In its recent opinion on the Free Trade Agreement with Singapore, the Court of Justice has recognized the possibility to apply Article 60 VCLT to the contractual relations entered into by the Union (opinion 2/15, point 161). More generally, the Court has acknowledged

32

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

that the VCLT may contribute to ‘corroborate’ the interpretation of the EU Treaties (C-621/18, point 70, and here). However, even though some of the positions taken by Polish organs (including the Constitutional Tribunal) could be arguably quali ed in terms of violation of EU fundamental values, they might not be sufficient per se to trigger the clause. First, under Article 60(2)(a) VCLT the suspension/termination of the operation of the treaty in the relations between the defaulting State and all the other contracting parties would require a unanimous decision taken by the la er, a circumstance that would reproduce the same difficulties surrounding the invocation of Article 7(2) TEU in the case of Poland. Secondly, even if Article 60(2)(b) VCLT allows the suspension of the operation of the treaty in the relations between a party ‘especially affected by the breach’ and the defaulting State, the clause explicitly provides that its entire content is subject to the exception that humanitarian treaties may not be suspended – an exception that could be interpreted in broad terms so as to include in that category all treaties (or treaty provisions) protecting fundamental rights and freedoms (including Article 6 TEU). Even more importantly, Article 60(4) VCLT enshrines a ‘without prejudice’ clause (which echoes in turn Article 5 VCLT), giving precedence to the enforcement mechanisms set out in the treaty at stake. It follows thus that Article 60(4) VCLT, read in conjunction with Articles 7 TEU, Articles 258-259 TFEU, and the well-established case law of the Court of Justice preventing Member States from taking the law into their own hands (for example joined cases 90/63 and 91/63), could render problematic the adoption of a similar course of action. Of course, it might be claimed that Member States may decide to act as ‘Masters of the Treaties’, going thus beyond the Pillars of Hercules of the EU legal order. is would represent, however, another crack in the EU’s rule of law and that would not only be counter-productive, but also potentially disruptive for the supranational legal order as a whole.

33

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

e Air France Decision: Testing the Power of the French ‘Constitutional Identity’ Exception to EU Law Primacy i

Araceli Turmo

At a time when much of the debate on the interaction between the Court of Justice and constitutional courts remains justi ably focused on the a ermath of the ultra vires ruling by the Polish Trybunał Konstytucyjny in K 3/21, it may be interesting to take a step back and examine the evolving dialogue of other national institutions with EU law. e French Conseil constitutionnel’s decision on the Air France case (1) is an illustration of the more usual compromise adopted by constitutional courts, within a framework that remains unchanged in its case law since 2006. is decision marks the rst explicit de nition of principles ‘inherent to the constitutional identity’ of France, justifying a constitutional review of provisions derived from an EU instrument, and the rst identi cation of such a principle. It is worth examining this new step in the Conseil’s own ‘reasonable accommodations’ (2) with EU law which, a er the Conseil d’État’s French Data Network decision (see my Op-Ed published here on 29 April 2021), constitutes the rst example of an exception to the primacy of EU law by the Conseil constitutionnel justi ed by the same concept: ‘constitutional identity’. While the reasoning is certainly much more convincing than that presented by their Polish counterparts in K 3/21 and is not a comparable a ack on the constitutional core of EU law either in its scope or its aggressiveness, the Air France decision may be read in the broader context of the case law of European constitutional courts as a signal of a growing willingness to challenge the authority of EU law over national legal systems. e Conseil d’État (supreme administrative court) had asked the Conseil constitutionnel to review the constitutionality of two legislative provisions which establish an obligation for air carriers to return thirdcountry nationals who are refused entry into France. ey implement Directive 2001/51, itself based on Article 26 of the Convention Implementing the Schengen Agreement. Air France argued that these provisions violate Article 12 of the Declaration of the Rights of Man and the Citizen of 1789 (3) because they delegate the exercise of ‘administrative police duties inherent to the exercise of public force’. Additionally, the company argued that the provisions were also contrary to Articles 9 (4) and 13 (5) of the same Declaration i. Associate Professor in EU Law at the University of Nantes. Her recent publications include’National Res Judicata in the European Union: Revisiting the Tension between the Temptation of Effectiveness and the Acknowledgement of Domestic Procedural Law’ CMLRev. 58 (2021) and ‘Paris-Bruxelles, ou l’impossible droit d’accès au juge des collectivités territoriales dans l’Union européenne’, E (2021) 3. She is also a member of EU Law Live’s Editorial Board. 1. Conseil constitutionnel, Decision n° 2021-940 QPC, 15 October 2021, Société Air France [Obligation pour les transporteurs aériens de réacheminer les étrangers auxquels l’entrée en France est refusée]. 2. To borrow the phrase used by B. Bonnet, ‘Les rapports entre droit constitutionnel et droit de l’Union européenne, de l’art de l’accommodement raisonnable’, Titre VII (2019) no. 2. 3. ‘To guarantee the Rights of Man and of the Citizen a public force is necessary; this force is therefore established for the bene t of all, and not for the particular use of those to whom it is entrusted’. (All translations are borrowed from the Website of the French Presidency). 4. As every man is presumed innocent until he has been declared guilty, if it should be considered necessary to arrest him, any undue harshness that is not required to secure his person must be severely curbed by Law. 5. For the maintenance of the public force, and for administrative expenses, a general tax is indispensable; it must be equally distributed among all citizens, in proportion to their ability to pay.

34

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

and to Article 66 of the French Constitution (6). Last, Air France argued that the provisions were unconstitutional due to ‘negative incompetence’, namely because by not providing for appropriate exceptions to this obligation, the legislator had not exercised its powers to the full and necessary extent. e Conseil constitutionnel notes the link with EU law from the outset (paragraph 9), with a reference to Article 88-1 of the Constitution, which establishes France’s membership of the EU, and restates its previous case law derived from this provision: the implementation of EU secondary law in France cannot run counter to ‘a rule or a principle inherent to France’s constitutional identity’ unless the constituent power consents to it. is case law restricts the Conseil’s powers of constitutional review to two cases if the provision at issue is an implementation of EU secondary law: where such a rule or principle is affected, or where the provision is in fact the result of a choice of the French legislator exercising its margin of appreciation (in which case constitutional review is without consequence for EU law). In other cases, the Conseil considers itself incompetent to review provisions which implement precise and unconditional provisions of a directive or the contents of a regulation, the more appropriate locus of judicial review being the Court of Justice, in accordance with the primacy of EU law. In itself, this approach is similar to those of other constitutional courts throughout Europe which, although willing to ‘play by the rules’ of EU integration, especially when this choice became enshrined in the constitutional text, set EU primacy within acceptable limits. So far, the Conseil constitutionnel had never explicitly identi ed a ‘rule or principle inherent to the constitutional identity’ of France that justi ed constitutional review of a provision derived from EU law. is decision provides the rst example, under a very clear application of the rule: since, in this case, the provisions at issue were simply an implementation of precise and unconditional provisions of a directive, the Conseil would not review them unless they called into question such a principle. For the rst time, the Conseil states a criterion with which such a rule or principle may be identi ed. is is done by reference to EU law: in essence, it is any rule or principle which is considered part of the rights and liberties guaranteed under the French Constitution but not similarly protected under EU law (paragraph 13). In this case, the Conseil constitutionnel found that all of the constitutional norms relied upon by the claimant are protected under EU law except one, the prohibition of any delegation of the exercise of ‘administrative police duties inherent to the exercise of public force’ to private persons derived from Article 12 of the 1789 Declaration (paragraphs 14-15). True to form, the Conseil constitutionnel does not explain or justify this nding. It goes on to review the compatibility of the provisions derived from EU law with this principle. In this instance, the Conseil dismisses the claim (paragraph 18) which leads to a nding that the provisions are compatible with the Constitution. However, the fact that it did carry out such a review for the rst time, and the way in which the scope of the exception is de ned, are signi cant. From the point of view of EU law, one could argue that this is not necessarily problematic since the area is not fully harmonised and that the Member States are, in principle, allowed to pursue higher levels of protection of fundamental rights under Åkerberg Fransson (C-617/10). However, one must note that the Conseil constitutionnel takes no account of the Court of Justice’s case law on the interaction of EU and national fundamental rights standards. is decision is entirely based on the French constitutional case law, in which the level of harmonisation of an area of EU law is entirely irrelevant to determine the Conseil’s ability to review 6. No one shall be arbitrarily detained. e Judicial Authority, guardian of the freedom of the individual, shall ensure compliance with this principle in the conditions laid down by statute.

35

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

a provision. us, although in this case the review produced no problematic results, the rules set by the Conseil are capable of producing results which are clearly incompatible with the Court of Justice’s own understanding of primacy with regard to fundamental rights standards. e Air France decision must be read mainly as an a empt to remain within the bounds of the Conseil constitutionnel’s compromise with the primacy of EU law, which is not dissimilar to those of other national institutions. However, although it is entirely consistent with previous case law and thus not a signi cant innovation from the point of view of French law, this decision could be read as a warning sign of the potential of the ‘constitutional identity’ exception. e fact that the notion is de ned as any rule or principle not equally protected under EU law, with no regard to other criteria such as its importance within French constitutional law, could lead to a signi cant enlargement of the scope of the exception − in particular when one takes into account the Conseil’s creativity in ‘identifying’ principles of varying importance and scope as part of France’s ‘constitutionality block’. e Conseil seems to have granted itself signi cant leeway in se ing the impact of the primacy of EU law over its own powers of judicial review. While the concept of a norm ‘inherent to the constitutional identity’ of a country may have seemed a very small exception considering the signi cant convergence of European legal systems on a number of values and fundamental rights, this decision does demonstrate a potential for expansion which reaffirms the power of national institutions in se ing the limits of their choice to EU law primacy. Read in conjunction with the Conseil d’État’s recent case law, this decision certainly signals a newfound willingness to rely on constitutional identity as an operative concept to reclaim power for national institutions in the interactions between French law and EU law. is concept is not used as a proxy for an understanding of sovereignty as fundamentally incompatible with EU constitutional law and one must welcome the continued trust shown by the Conseil constitutionnel in the equivalency of most fundamental rights standards between the French and EU legal orders. In its willingness to play by the rules of a relatively peaceful coexistence of constitutional supremacy in the national order with EU law primacy, the Conseil presents a timely alternative to the Polish decision which has been the focus of this series. However, the growing willingness of constitutional courts to implement the exceptions established in their respective Solange-related case laws, although not incompatible with EU membership, does call into question the optimistic outlooks on constitutional pluralism of the 2000s.

36

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

Comparing Apples and Oranges: e Danish Ajos Case in Light of the Polish Judgment in K 3/21 and the German Ruling in Weiss Ulla Neergaard and Karsten Engsig Sørensen In its provocative ruling of 7 October 2021 in case K 3/21, Konstytucyjny) warns among other things that:

i

e Polish Constitutional Court (Trybunał

“…if the Court of Justice does not refrain from its ‘progressive activism’– involving, in particular, encroaching upon the exclusive competence of the Polish authorities, undermining the position of the Constitution as the supreme law in the Polish legal system, questioning the universal validity and nality of the Tribunal’s judgments, and nally casting doubt upon the status of the Tribunal’s judges – the Tribunal does not rule out the possibility that it will use the said competence and will directly assess the constitutionality of judgments of the Court of Justice, including their removal from the Polish legal order.” In the public discourse to follow, this has given reason to recall other controversial national judgments regarding national perceptions of possible limits of EU law. e comparison has been carried out regarding for instance the German judgment in Weiss (see here) and the French Air France ruling (see here), and the comparative trend was also apparent in the many discussions which took place at the recent FIDE Congress in the Hague (see here). For an older account of a Czech judgment, Landtová, o en also included in the group of shocking national judgments, see for example here. On a similar footing, it may therefore be worthwhile taking the opportunity to recall the content and implications of the Ajos case (and to some degree also the Maastricht case) rendered by the Danish Supreme Court (herea er SCDK), thereby aiming at clarifying that it is of a completely different nature than in particular the Polish ruling (an Analysis of which can be read here).

e Ajos case e factual background to the Ajos judgment, which was rendered on 6 December 2016, comprised events which had taken place back in June 2009. e person A had been dismissed from the private company Ajos A/S where he had been continuously employed since 1 June 1984. In principle, A was entitled to a severance allowance corresponding to three months’ salary under Paragraph 2a(1) of the Danish Law on Salaried

i. Professors of EU Law at the University of Copenhagen and Aarhus, respectively. Together, they have wri en ‘Activist In ghting among Courts and Breakdown of Mutual Trust? e Danish Supreme Court, the CJEU, and the Ajos Case’, Yearbook of European Law, Vol. 36, No. 1, 2017, pp. 275-313, as well as ‘Danish Courts and the Enforcement of EU Law’ in M. Botman & J. Langer (eds.), National Courts and the Enforcement of EU Law – e Pivotal Role of National Courts in the EU Legal Order (Eleven International Publishing, 2020) pp. 169-184, on which this Op-Ed to some degree is based.

37

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

Employees (Funktionærloven). However, due to special circumstances and in accordance with a consistent line of case law, the provision was interpreted in such a way that A was not granted any severance allowance. In 2010, a judgment from the Court of Justice (Andersen, C-499/08) had made it clear that not granting severance allowance to a person that continues working was age discrimination in violation of the Employment Directive. A er this, A decided to challenge the decision not to grant him severance allowance. At rst instance in the proceedings, the Maritime and Commercial Court upheld the claim brought on behalf of A (as represented by his legal heirs, but herea er ‘A’) for payment of the severance allowance in question. is judgment was subsequently appealed to the SCDK, which by order of 22 September 2014 referred two questions to the Court of Justice. With its rst question, the SCDK sought guidance as to whether the general EU law principle prohibiting discrimination on grounds of age precludes legislation such as the Danish legislation at issue. With its second question, the SCDK asked whether it is consistent with EU law to weigh the general EU principle prohibiting discrimination on grounds of age and the issue of its direct effect against the principle of legal certainty and the related principle of the protection of legitimate expectations. e Grand Chamber of the Court of Justice delivered its Ajos/Dansk Industri judgment (C-441/14) on 19 April 2016. Generally, it did not have much sympathy for the considerations behind the referred questions and rejected Ajos A/S’ and the Danish Government’s arguments. More particularly, with regard to the rst question, it rmly ruled that the general principle prohibiting discrimination on grounds of age must be interpreted as precluding, including in disputes between private persons, national legislation such as that at issue in the proceedings before the referring court. Subsequently, in spite of the ruling of the Court of Justice, the SCDK chose its own peculiar route in terms of its supporting reasoning and conclusions. e SCDK covered a number of different issues. First, the SCDK concluded that it was not possible to interpret Danish law consistently with EU law, and therefore the Danish court was confronted with the question whether it could give effect to the general principle prohibiting age discrimination in Danish law. e Court of Justice had indicated that the SCDK in this scenario should use the general principle to give A the severance allowance. Instead of doing that, the SCDK rst wanted to ensure that the general principle was applicable in Danish law, and this question was answered by interpreting the law governing the Danish accession to the EU (Act on Accession). Danish law applies a dualistic approach to the effect of international law, and thus international law will normally only have effect – including direct effect – a er its implementation. e Danish Act on Accession under which Denmark acceded to the EU ensures, in principle, that EU law has direct effect in Denmark. e SCDK accepted that Treaty provisions which have been interpreted by the Court of Justice to have direct effect also have that effect in Danish law in accordance with the act. However, since the general principle prohibiting age discrimination was based on ‘various international instruments and in the constitutional traditions common to the Member States’, this principle was not based on the Treaties and thus not covered by Paragraph 3 of that Act. Consequently, the SCDK did not accept that the general principle prohibiting age discrimination was given direct effect in Denmark according to the Act on Accession. Consequently, the principle could not give A the right for a severance allowance.

38

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

e SCDK went a step further in what appears as an obiter dictum, as it concluded that those fundamental rights that are now in the Charter −including Article 21 on non-discrimination− did not have horizontal effect. At rst sight, this seems surprising since the Charter provision has a basis in the EU treaties and therefore could be among those given direct effect in accordance with the act. But the SCDK relied on the travaux préparatoires to the Danish Act on Accession, in particular those leading to accession to the Lisbon Treaty. e SCDK noted that it had been assumed that the inclusion of the Charter had not created any new competences or altered any existing competences. More speci cally it was assumed – inter alia based on Article 51 of the Charter – that it would not have direct effect for private parties, and therefore no horizontal effect. erefore, the Act on Accession meant that the Charter could not have horizontal effect in Denmark.

Comparative Assessment It should be made clear that in Ajos the SCDK did not question whether EU law in general has supremacy over national law. e SCDK simply interpreted the Act on Accession with the result that the general principle on age discrimination had not been implemented correctly in Danish law and therefore did not have direct effect in Denmark – and a similar argument was made concerning the horizontal effect of the Charter. Of course, for A the result was the same – Danish law was not set aside by the general principle prohibiting age discrimination – but the principle of supremacy of EU law as such was not directly questioned. erefore the Ajos judgment differs from the Polish Constitutional Court judgment in K 3/21 insofar as the la er has extremely wide-reaching potential implications, including provisions in the EU treaties being seen as con icting with the Polish Constitution, a situation that for obvious reasons will be difficult to remedy. It should be stressed that EU law is not necessarily viewed as absolutely supreme to the Danish constitution. us, the SCDK had stated in its 1998 Maastricht judgment (Uf R 1998.800H) that it could not accept unconditional supremacy of EU law over Danish law. EU law could not take precedence over the Danish Constitution, since the Danish membership of the EC/EU is based on a provision in the Constitution (paragraph 20), and it is implied in that provision that any delegation of sovereignty should respect the Constitution. But even though the SCDK has made such a reservation with regard to the supremacy of EU law, it has not used the reservation yet, and it certainly did not use it in Ajos. Among the various controversial national judgments other than the Polish one, probably the German Constitutional Court’s decision from 5 May 2020 in Weiss/PSPP is the most remarkable one, not least considering this court’s perceived high standing also due to being situated in one of the most powerful Member States (also, the abovementioned Czech and French judgements appear much less far-reaching in the challenging of supremacy of EU Law). erefore, it is worthwhile emphasising that the Ajos judgment (at a rst glance) seems to share more common features with that the German court’s judgment than with the Polish one, since both deals with the question which competences the Member States have delegated to the EU. In that case the German Constitutional Court – in our understanding as non-German lawyers – seemed to hold that the European Central Bank (ECB) (and the Court of Justice) had acted outside the treaties and thus outside the power delegated by Germany to the EU (established under what they refer to as an ultra vires review). But whereas the SCDK in Ajos focused on what the Danish legislators intended to delegate through

39

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

the various revisions of the Act on Accession, the German Constitutional Court on the other hand took it upon itself to interpret the power granted to the ECB under the treaties. e ECB (and the Court of Justice) was (were) criticized for the use of power and the interpretation of EU law. us whereas the Danish SCDK focused on what the Danish government thought they delegated, and did not decide on whether the EU institutions had acted within the framework given by the EU Treaties, the German Constitutional Court focused on the la er issue. e difference may be subtle since it is difficult not to see the Ajos judgment as a criticism of the Court of Justice’s activism, namely seemingly nding general principles out of nothing. However, there is a difference, in particular because it seems easier to remedy the consequences of Ajos than the consequences of the German judgment. Also, the somewhat harsh tone found in the German judgment including statements such as: ‘…the interpretation undertaken by the CJEU is not comprehensible from a methodological perspective’, and ‘…the interpretation of the Treaties is simply not comprehensible and thus objectively arbitrary’ (paragraphs 153 and 118 respectively) is not present in the Danish one. Altogether, even though the Ajos case was a signi cant blow to the application of EU law in Denmark, it was not an example of the SCDK explicitly denying the supremacy of EU law, nor did it (directly) interfere with how the Court of Justice de nes its competences under EU law. Even though the Ajos case is very controversial, the judgment was a er all not such a blow to EU law comparable with that in icted by the two European constitutional courts mentioned.

e A ermath of Ajos Finally, a few comments about what has happened a er the Ajos judgment was handed down in December 2016. Not surprisingly, there has been much discussion about the case both in legal literature and even in the press. e press and some scholars see it as a victory for Danish law and the SCDK, but especially EU law scholars appear as being more critical about the judgment. One of the issues that is discussed is whether the judgment has implications for other general principles than the one prohibiting age discrimination, but so far there are no new cases where the courts have been asked to clarify this issue. Even before the judgment in Ajos, the Danish Law on Salaried Employees was amended to ensure that the age discrimination that was allowed to take place in Ajos cannot happen again. But no other action has been taken to remedy the problems caused by the judgment. us the Act on Accession has not been amended to allow the Court of Justice to adopt general principles that are not based on the EU treaties or allowing the Charter to have horizontal effect. e principle prohibiting age discrimination has been adopted in Danish law as part of the implementation of the Employment Directive. is principle applies to employment relationships, but no steps have been taken to implement the principle in areas not covered by the Employment Directive. Also, no initiative has been adopted towards ensuring the horizontal effect of the relevant parts of the Charter. All in all, it seems that there are parts of EU law that according to the Ajos judgment were not sufficiently implemented in Danish law, which are still not implemented. However, the Commission has to our knowledge not taken any steps in reaction hereto. A, who was the person suing for severance allowance, died before the SCDK could hand down its judgment denying him this allowance. His heirs however continued the case, and a er the judgment in Ajos they sued the Ministry of Employment for damages. e argument was that the Ministry was liable to pay damages

40

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

because it had implemented the Employment Directive incorrectly overlooking the fact that the rules of severance allowance were discriminatory. e SCDK however eventually denied damages as the claim was no longer valid according to the Danish statute of limitations. e SCDK also noted that the EU principle of effectiveness was not infringed. us, in the end A’s heirs lost everything, but other employees in a similar situation were able to negotiate the statute of limitation and have recently been awarded damages by the Danish Court of Appeal, Eastern division (see the judgment dated 22 October 2021 in case BS32796/2020-OLR). It was argued by some that A’s heirs should have sued the SCDK since its judgment was a new infringement of EU law that was not outdated. But the case never came, and it is in fact doubtful whether the SCDK instigated a new infringement of EU law by not giving full effect to the general principle prohibiting age discrimination. us, it may be argued that the SCDK just acted upon the wrongful implementation of the Employment Directive coupled with the insufficient implementation of the general principle prohibiting age discrimination.

Conclusions Although we have all along been critical about the Danish Ajos judgment, the above should make it clear that the case, a er all, is far from anything like a similar threat to European integration, as what especially the Polish ruling seems to constitute. e effects of the Danish case are a er all fairly limited and it deals rst and foremost with problems deriving from the Danish accession to the EU. Also, it should not really in itself be read as the SCDK’s explicit reservation as to the principle of supremacy of EU law (although it had to some degree expressed itself in that direction in the much earlier Maastricht judgment). Indeed, it is much more about imperfect judicial dialogue between the Court of Justice and the SCDK. Nevertheless, it is difficult not to see Ajos as a challenge to EU law and in particular to the Court of Justice, but it should be recalled that the SCDK is generally to be considered as an independent court associated with a high degree of legitimacy, and the Danish society as normally scoring highly on the Rule of Law Index of the World Justice Project. In sum, we are indeed speaking about apples and oranges

41

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

Somewhere between Poland and Germany – e Hungarian Constitutional Court’s Ruling in the Refugee Push-Back Case i

ii

Dániel Dózsa and Marcin J. Menkes

According to legal adage, hard cases make bad law − and case X/477/2021 before the Hungarian Constitutional Court was hard. It concerned a request by the Hungarian Minister of Justice to decide whether the Hungarian Government was constitutionally allowed to implement a judgment of the Court of Justice (namely Commission v Hungary, C-808/18), if the Government considered that the implementation of the judgment could result in the permanent relocation to Hungary of irregular immigrants, in violation of Hungary’s sovereignty. If the Hungarian Constitutional Court had answered the question in the negative, as requested by the Minister, the stage would have been set for a Polish / German style showdown between Hungary and the EU. However, the Hungarian Constitutional Court averted a direct judicial con ict with the Court of Justice by delivering an abstract interpretation of Hungary’s retained sovereignty in areas of shared competence with the EU. us, the Hungarian Constitutional Court did not decide on whether Hungary’s sovereignty had been violated in the speci c case decided by the Court of Justice and also refrained from expressing an opinion on whether the Hungarian Government’s practice to push-back persons seeking international protection, including vulnerable groups, to Serbia were compliant with the Fundamental Law (as Hungary’s Constitution is now called). In that sense, the Hungarian Constitutional Court Ruling issued on 7 December 2021 in case X/477/2021 is neither here nor there. Contrary to Polish and German precedents, it formally respects the dialogue between the Court of Justice and national courts by refusing to expressly overrule a judgment of the Court of Justice, but it also gives ample basis for the Government to continue to refuse compliance with the Court of Justice’s judgment on the alleged grounds that it would lead to an impermissible restriction of Hungary’s sovereign right to protect (the composition of) its population.

e Judgment of the Court of Justice e Grand Chamber judgment of the Court of Justice in Case C-808/18 concerned Hungary’s practice to push back prospective applicants for international protection from Hungary to Serbia and to create conditions under which the making of applications for international protection was difficult, if not impossible, for prospective applicants.

i. International dispute resolution counsel and guest lecturer of international dispute resolution at Leiden University. ii. International dispute resolution counsel, associate professor at Warsaw School of Economics and research scholar at Michigan Law School.

42

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

Although the Court of Justice did not question Hungary's right to adopt appropriate measures to ensure its internal and external security, it found that Hungary had not discharged its burden to prove that applicants for international protection posed a genuine, present and sufficiently serious threat affecting a fundamental public interest or Hungary's internal or external security justifying a derogation from the applicable EU rules (paragraphs 212-226). e Court of Justice had rendered its ruling in December 2020. However, it is understood that Hungary has not implemented the ruling to date.

e Minister of Justice’s petition to the Constitutional Court e applicable constitutional rules allow the Hungarian Government, among others, to request an interpretation of the Fundamental Law if necessary to address a speci c constitutional issue, if the answer to the issue may be directly deduced from the Fundamental Law. Accordingly, the Minister of Justice asked the Constitutional Court to decide, ‘in light of ’ the Court of Justice’s judgment in C-808/18, whether Hungary was allowed to discharge an obligation under EU law if, due to the de ciencies of the applicable EU regime, the execution of such obligation could lead (according to the Government) to irregular immigrants staying in Hungary inde nitely and thereby becoming de facto part of Hungary’s population. According to the Minister, the EU regime for the handling of the refugee crisis is de cient, because the EU is unable to enforce its agreements with non-Member States on the return and readmission of irregular immigrants. As a result, Hungary is unable to control the in ux of irregular immigrants, which is contrary to Hungary’s ‘inalienable’ right to determine its population. e Court of Justice’s judgment in C-808/18 does not take into account such reality and impermissibly encroaches upon Hungary’s sovereignty. Citing, inter alia, the Weiss judgment of the German Federal Constitutional Tribunal, the Minister of Justice argued that the power of EU Member States to control ultra vires acts by the EU is expanding in the jurisprudence of national constitutional courts, and that such precedents should inform the Constitutional Court’s ruling in this ma er.

e Constitutional Court’s Ruling Although the Minister’s petition is replete with references to the Court of Justice’s judgment in C-808/18, the Constitutional Court dealt with that part of the petition rather economically. us, the Constitutional Court held that it would interpret the Fundamental Law ‘separately’ from the judgment of the Court of Justice and without assessing whether the factual basis of the petition and, by extension, the Minister’s submission that the EU had failed to properly exercise a joint competence (in the handling of the refugee crisis), was correct (Hungarian Constitutional Court Ruling, pp. 8-9 and 17). e Constitutional Court thereby avoided the difficult question that lied at the core of the Minister’s petition, namely whether the implementation of the Court of Justice’s judgment could lead to the restriction

43

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

of Hungary’s sovereignty to an extent impermissible under the principle of conferral of powers to the EU in areas of shared competence. Neither did the Constitutional Court grapple with the question whether the Government practices found to have violated EU law, including the push-back of vulnerable groups of people into Serbia, were also contrary to the Fundamental Law (p. 18). e Hungarian Constitutional Court Ruling is, therefore, as signi cant for what it did not decide as for what it did. By not heeding the Minister’s call to effectively overrule the Court of Justice’s judgment, the Constitutional Court did not follow the steps of its Polish and German counterparts and respected, at least formally, the dialogue between national courts and the Court of Justice. And by not expressing an opinion on the constitutionality of the Government measures that had been assessed by the Court of Justice, the Constitutional Court avoided a constitutional showdown with the Government too (arguably, it did not have the competence to make such assessment in proceedings aimed at an abstract interpretation of the Fundamental Law). at being said, by leaving it entirely to the Government to decide whether Hungary’s sovereignty had been violated by the Court of Justice’s judgment, the Constitutional Court handed the Government signi cant constitutional leeway to decide whether (and how) to implement the Court of Justice’s judgment. In that sense, the ruling does not t well in the EU’s autonomous constitutional structure, as envisaged by the Court of Justice. e judgment starts by recalling that under the Hungarian Constitutional Court’s practice, it exercises ‘ultima ratio’ control over the delegation and (joint) exercise of certain competences to the EU. e Constitutional Court may thus exceptionally examine whether the exercise of certain joint competences by the EU infringes ‘the essential content of any fundamental right (fundamental rights control) […], Hungary’s sovereignty (including the scope of the competences it had handed over: sovereignty or ultra vires control) or its constitutional identity (identity control)’ (p. 9.). e ruling notes that national sovereignty is the ‘ultimate source of competences’ and, therefore, the delegation of certain competences to the EU may not result ‘in depriving the people of the possibility of possessing the ultimate chance to control the exercise of public power’ (p. 22). e conferral of competences to the EU may not, therefore, ‘limit the inalienable right of Hungary to determine its territorial unity, population, form of government and state structure’ (p. 10). us, the question for the Hungarian Constitutional Court was whether Hungary’s ‘sovereignty, constitutional identity or fundamental rights and freedoms’ could be violated if the EU was indeed unable to effectively exercise a joint competence, as alleged by the Minister of Justice in her petition. In that respect, the Constitutional Court noted that the EU’s failure to properly exercise a delegated (joint) competence could potentially lead to a lower level of protection of fundamental rights (of Hungarian subjects, that is) than that envisaged under the Fundamental Law, which would be impermissible under the rules of the Fundamental Law concerning the delegation of certain competences to the EU (p. 16). According to the Hungarian Constitutional Court, if the EU’s ineffective exercise of its (shared) competences allowed ‘foreign populations permanently and massively [to] remain in the territory of Hungary without

44

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

democratic authorization’, then this would ‘induce a process beyond the control of the State’ and would violate Hungary’s sovereign right to identity and self-determination (p. 18). In such a case, Hungary would be entitled to temporarily exercise, in a manner consistent with the effet utile of EU law, a non-exclusive competence delegated to the EU (namely the handling of the refugee crisis), until the EU ‘created the guarantees for the effectiveness of EU law’ (pp. 26 and 28). Such interpretation of sovereignty is, according to the Hungarian Constitutional Court, in line with the provisions of the TFEU allowing Member States to exercise residual competences in areas not covered by Union law. In addition, referring to the Court of Justice’s rulings in Franz Grad (C-9/70) and Simmenthal (C-106/77), the Constitutional Court noted that the principle of primacy of EU law is not absolute, because ‘it applies only to the extent that the institutions of the European Union actually and effectively exercise the relevant non-exclusive competence in question, in accordance with the requirement of good faith and the proper exercise of the law.’ (p. 23). Finally, referring with approval to the practice of the German Federal Constitutional Tribunal, the Hungarian Constitutional Court noted that, at the end of the day, the ‘core basis’ of the EU are international treaties concluded by its Member States and because Member States ‘dispose over these treaties, their national acts on the effectiveness of such treaties shall determine the extent of primacy enjoyed by Union law in the given Member State over the Member State’s own law’ (p. 24).

What Next? It is trite to conclude that the solution to the refugee crisis is not legal, but social, economic and political. e Hungarian Constitutional Court Ruling will not change that reality – and it was of course never intended to do so. Having said that, the Hungarian Constitutional Court Ruling deserves a ention for the trend it represents in the project of European integration. e ruling contributes to the expanding national constitutional case-law from Poland, through Germany, to France and Italy that places the EU’s competences within the context of delegated national sovereignty. While such case-law may not t easily with the Court of Justice’s vision of the (absolute) autonomy of EU law, it may be argued that it re ects Member States’ continued recognition that the EU is rst and foremost a creature established by treaties governed by public international law. At the same time, the Hungarian Constitutional Court Ruling sits somewhere between its Polish and German precedents. Whereas the Polish judges ruled, in essence, that the Court of Justice acted ultra vires by exercising its powers and the German Federal Constitutional Tribunal ruled that the Court of Justice failed to exercise its powers properly, the Hungarian Constitutional Court Ruling formally respects the division of powers between the Court of Justice and national courts. However, by effectively giving carte blanche to the Government to decide whether a binding ruling of the Court of Justice should be implemented, according to the Government’s current interpretation of national sovereignty, the Hungarian Constitutional Court has created a judicial no-man’s land within the Hungarian legal system. Any continued judicial challenge of the Hungarian Government’s treatment of seekers of international protection will thus have to be taken up, once again, by the EU’s institutions.

45

SYMPOSIUM


The Primacy of EU law and the Implications of the Polish Constitutional Court's Decision in case K 3/21

However, a prolonged judicial and political debate about irregular migration only bene ts the EU’s adversaries, as the most recent example of Belarus shows. As long as the EU is able to remain a Union of all of its Member States, who are, by de nition, equal under the rules and principles of public international law, it will be able to continue to exercise the competences delegated to it by its founding states in an unfe ered manner. But that may change if the EU is permanently unable to deliver on its mission. e EU’s continued failure to develop a consistent and sustainable common policy on the treatment of the refugee crisis threatens the unity and security of the entire Union – a problem that will not be solved through legal means only. Hard cases make bad law, but so do badly implemented policies.

46

SYMPOSIUM


All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission of the publishers.

Permission to use this content must be obtained from the copyright owner.

stay alert keep smart

EU Law Live is an online publication, focused on European Union law and any legal development related to the process of European integration. It covers news, analyses and opinion pieces, as well as long reads, on a daily basis.

Editor-in-Chief: Daniel Sarmiento Assistant Editors: Anjum Shabbir and Dolores Utrilla Editorial Board: Maja Brkan, Marco Lamandini, Adolfo Martín, Jorge Piernas, Ana Ramalho, René Repasi, Anne-Lise Sibony, Araceli Turmo, Isabelle Van Damme and Maria Weimer.

Subscription prices are available upon request. Please contact our sales department for further information at

subscriptions@eulawlive.com

47


EU LAW LIVE 2021 © ALL RIGHTS RESERVED

48


Turn static files into dynamic content formats.

Create a flipbook
Issuu converts static files into: digital portfolios, online yearbooks, online catalogs, digital photo albums and more. Sign up and create your flipbook.