Poland in the Netherlands

The judgement of the Constitutional Tribunal of the Republic of Poland of 7 October reaffirmed the hierarchy of the sources of law binding in Poland and in the European Union. The first place in this hierarchy is always reserved for national constitutions of EU member states. EU treaties, as acts of international law, have priority over domestic law of a statutory rank, but they cannot precede constitutions.

This principle does not raise any doubts in the case law of the courts and constitutional courts of many EU member states. These courts have repeatedly held that certain acts of the EU institutions, in particular of the Court of Justice of the EU, may be considered ultra vires, i.e. to exceed the powers granted to these institutions by the treaties. Such rulings were made, inter alia, in France, Denmark, Italy, the Czech Republic, Spain or Romania. The strongest line of jurisprudence in this respect has been established since the 1970s by the German Federal Constitutional Court.

The Polish Constitutional Tribunal has also issued similar rulings in the past – while being composed of judges elected by the Polish Parliament in all political configurations since Poland's accession to the EU. In 2005 Constitutional Tribunal presided over by Judge Marek Safjan established the principle that "the Constitution is the supreme law of the Republic of Poland in relation to all international agreements binding it, including agreements on the transfer of competence in certain matters. The Constitution enjoys the primacy of validity and application within the territory of Poland" (judgment of 11 May 2005, case K 18/04). This principle was reaffirmed in subsequent judgements of the Constitutional Tribunal, i.a. in the ruling of 19 December 2006 (P 37/05), declaring that "the Constitutional Tribunal is obliged to understand its position in such a way that it retains the position of »court of last resort« with respect to the Polish Constitution", as well as in the judgment of 24 November 2010 (K 32/09), stating that "the transfer of competencies to the EU may not infringe the principle of supremacy of the Constitution and may not violate any provisions of the Constitution".

The judgment of 7 October confirms this long-standing line of jurisprudence. The Constitutional Tribunal did not question the provisions of the Treaty on European Union per se. Nevertheless, it pointed out that their interpretation leading to a factual supremacy of the norms of international law over the national law of constitutional rank would be incompatible with the hierarchy of the sources of law established in the Polish Constitution. Interpretation of the EU law, resulting from the recent jurisprudence of the CJEU, and challenged by the Constitutional Tribunal, would lead to a situation where Polish judges would be forced (by the EU law, i.e. a legal norm of a lower rank) to disregard the provisions of the Polish Constitution (a legal norm of a higher rank).

Moreover, such an interpretation would establish a lower standard of judicial protection for Polish citizens than they are entitled to under the Constitution. In accordance with the Constitution, judges appointed by the President of the Republic of Poland are irremovable, independent, and within the exercise of their office, they are subject only to the Constitution and statutes. The interpretation of EU law questioned by the Constitutional Tribunal was intended to undermine this principle, allowing the validity of judicial sentences to be questioned and in fact depriving judges of their judicial power. As a consequence, it would also deprive the citizens of legal certainty and trust in the judiciary. Accepting this interpretation would, therefore, lower the standard of legal protection below the level guaranteed in the Polish Constitution. Hence, it could not be recognized by the Constitutional Tribunal as compliant with the Polish Constitution.

Republic of Poland respects the binding international law pursuant to art. 9 of the Constitution. All obligations arising from both primary and secondary European Union law remain in force and thus, will be continue to be fully respected by Poland. The provisions of the Treaty of the European Union indicated in the judgment of the Constitutional Tribunal of 7 October remain in force. What cannot be accepted, are only the forms of their interpretation or application that violate the Constitution of the Republic of Poland.