European Letter dedicates its first issue of 2022 to an analysis of the judicial problem that has its origins in the conflict between Poland, grappling with its authoritarian drift, and the European Union, which seeks to uphold the values of the rule of law.
The European Union, at the current stage in its process of integration, finds itself faced with a series of existential choices. On the positive side, this process is gathering pace as an effect of the establishment of the Next Generation EU programme and the prospects for Treaty reform opened up by the Conference on the Future of Europe; on the other hand, the EU has to reckon with the authoritarian drift that has taken hold in some of its member states, which in recent years have undermined, through a series of constitutional reforms, the principles of the rule of law that the European Treaties themselves solemnly endorsed.
The crisis of democracy is a problem felt by all of Europe’s member states. That said, two of them in particular, Hungary and Poland, are experiencing a very serious and uncontrolled authoritarian drift, as they no longer enjoy a free press and an independent judiciary. It is important to recognise that the antidemocratic impulses of their ruling parties are closely connected to the sovereignist doctrine they openly espouse, and that the European Union is now the last link to the principles of pluralism, democracy and the rule of law that might prevent (or at least delay) completion of the authoritarian projects being pursued in these countries. In recent years, the European institutions have taken different steps to stem the crisis of democracy in Poland and Hungary, both through attempts to pursue the avenue of political dialogue — this essentially failed — and, more recently, through the adoption by the Parliament and the Council, on the initiative of the Commission, of a regulation establishing a regime of conditionality designed to restrict access to EU budget resources in the event of violations of the rule of law.
In recent years, the Court of Justice has also intervened, issuing a series of judgments designed to guarantee the principles of the rule of law, and aimed, in particular, at the Republic of Poland. For example, it has censured some of the most controversial transformations of the Polish judicial system, such as the reform of the country’s constitutional court, whose composition was altered so as to make it a tool of the ruling majority, and the establishment of a disciplinary chamber of its supreme court, charged with reviewing disciplinary proceedings against judges but lacking the necessary requisites of independence and impartiality. In response to these positions, on 7 October 2021, the Polish Constitutional Tribunal, at the behest of the Polish prime minister, adopted an opinion in which it asserted that the European Treaties (as interpreted by the Court of Justice) are unconstitutional insofar as they allow the European institutions: to act ultra vires, to deny the primacy of the Polish Constitution, and to prevent Poland — in the words of the Constitutional Tribunal — from acting as a democratic and fully sovereign state.
This position obviously constitutes an extremely serious attack on the principle of the primacy of European law. According to this principle, which is modelled on the supremacy clauses of federal systems, in the event of a conflict between European and national law (including national constitutions), the latter must be set aside. Affirmed in the case law of the European Court of Justice since the Costa v Enel judgment of 1964, the principle of the primacy of EU law is what has allowed the Court to guarantee the integrity and effectiveness of EU law for over 50 years. It is this that allows the European Union to implement its rules and develop its policies across all its member states. Without it, states could easily ignore or set aside those European rules that no longer suit them.
Unfortunately, the Polish Tribunal’s decision to question the primacy of European law (and, with it, the stability of the entire EU legal order) is not an isolated incident, but rather the most glaring example of the ongoing friction between European and national judges. The EU’s failure, thus far, to evolve into a federal state has in fact set the citizens’ exercise of political sovereignty and their direct democratic control, which have been kept strictly at national level, at odds with the partly supranational nature of certain competences and prerogatives exercised by the European institutions, and necessary for the functioning of the European Union.
This situation has, over time, led national supreme court judges to place conditions and limits on the application of the principle of primacy. And while it was initially envisaged that such restrictions would come into play only in highly theoretical situations, for example in the case of violation of fundamental rights by the Union, as time has gone by, the concept has been extended to increasingly vast areas within the discretionary authority of national supreme court judges (through the processes of ultra vires and constitutional identity review). Thus, even before the Polish Tribunal asserted the primacy of the national constitution over European law, the German Federal Constitutional Court had already overruled a previous decision by the ECJ on the constitutionality of the ECB’s public securities purchase plan (PSPP).
Despite the predictable reaction by the Court of Justice, which ordered Poland to pay a million euros per day as a penalty for failing to suspend the aforementioned disciplinary chamber, what the clash with Poland’s constitutional court really shows is that the member states are, ultimately, still the exclusive holders of sovereignty, a situation that threatens the very foundations of the European legal order, particularly in the face of crises of the rule of law. Alongside measures put in place to contain the authoritarian tendencies of some member states, therefore, it is necessary to find a structural solution to the crisis of national democracy, in form of a strengthening of European democracy.
This can come about only through a federal evolution of the European Union. For this reason, too, it is absolutely crucial for the Conference on the Future of Europe to succeed in promoting proper debate on the political-institutional reforms and transfers of competences that would really give the European Union the tools and authority it needs to prevent its values and its citizens’ rights from being trampled on within the confines of its own member states.
 Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget.
 Judgment of 24 June 2019, Case C-619/18, Commission v Poland (Independence of the Supreme Court).
 Judgment of 15 July 2021, Case C-791/19, Commission v Poland (Disciplinary regime for judges).
 Judgment of the German Federal Constitutional Court, PSPP case, 5 May 2020.