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THE PRIMACY OF EU LAW AND THE IMPLICATIONS OF THE POLISH CONSTITUTIONAL COURT'S DECISION IN CASE K 3/21
OCTOBER-DECEMBER 2021
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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
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e Hungarian Constitutional Court’s
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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
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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.
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