Poland is no exception to the rule of the primacy of the Constitution over EU regulations and judgments of the TEU. "Let's see what the constitutional courts of the associate States say about the mythical primacy of EU law," wrote Dr. Łukasz Bernaciński, associate of the board of the Ordo Iuris Institute. This is his answer to the words of the TEU spokesman, who called the Polish TK 'rebelia'.
The Advocate General of the Court of Justice, Dean Spielmann, referred to the Constitutional Court judgments of 14 July and 7 October 2021 as ‘rebellion’.
By means of these judgments, the Polish Constitutional Court frontally struck the fundamental principles of the Union's legal order and the authority of the Court's judgments (EU Justices). In no case can violations of these rules be justified by national law, including constitutional law
said Spielmann. The Polish Constitutional Court replied to these statements, which stated that his opinion was a “an alarming step in the exclusive competence of the Polish Constitutional Tribunal”.
It appears that the Advocate General of the TEU does not only know the EU Treaties, which do not delegate competence to the Community in the judicial field of the associate States, but does not know anything about the regulations that apply in individual EU countries. Spielmann was reminded by Dr. Łukasz Bernacinski, board associate of the Ordo Iuris Institute.
Let us see what the constitutional courts of the associate States say about the mythical primacy of EU law.
GERMANY. The rule of primacy of EU law is not absolute. The judgments of the TEU can be controlled and as a consequence ignored.
ITALY. Since the 1970s, there has been a line of case law which reserves the anticipation of checking the constitutionality of Community law and a possible deviation from the rule of primacy of Union law. As a result, 2 judgments of the TEU were refused and the rule of precedence was waived due to non-compliance with the provisions of the Italian Constitution. The order of the Italian Constitutional Court to completely disregard the judgments of the TEU began to be called doctrine – riserva di legge (proprietary of law)
— we read in the entry on the X of Dr. Bernaciński, which on these 2 examples does not stop.
Poland is no exception
NORWAY. The Constitution does not let an global organisation to delegate competence to take decisions incompatible with the Constitution itself. Therefore, if the delegated powers are exceeded, national courts may refuse to apply specified acts as well as decisions issued by a Community judicial authority specified as the TEU.
CZECH REPUBLIC. designation of the primacy of Union law is conditional, as the Czech Republic, whose sovereignty is based on the provisions of the Constitution, remains the applicable entity of sovereignty and the resulting competences. The Czech Constitutional Court rejected the thesis of superiority of the TEU over constitutional national courts, noting the request of cooperation between equivalent partners who respect and complement each another in the exercise of their powers alternatively than compete with each other. The transfer of powers to the bodies of the European Union has its limits, set by the sphere of state sovereignty, manifested in the actual substantive exercise of power, and this transfer is not unconditional and can be withdrawn to the first national directors if the interference of EU law in the national legal order exceeds the established limits.
POLAND. A consistent and developed line of case law on the primacy of the Polish Constitution over EU law is maintained and developed. The conflict between constitutional and Community standards cannot in any way be resolved in the Polish legal strategy by recognising the superiority of the Community standard in relation to the constitutional standard. Nor could specified a contradiction consequence in the failure of power of the constitutional standard in force and its replacement by a Community standard, nor in the limitation of its scope to an area which has not been regulated by Community law.
SPAIN. The primacy of EU law over national law is not absolute and has clear limits. For example, the ultimate Court of Spain's Criminal Chamber of 9 January 2020 rejected the ruling of the TEU and decided to stay in the penal institution a leader of Catalan separatists.
FRANCE. The French Constitution remains the overarching norm of national law. According to the Council of State (Decision of 21 April 2021), The Constitution reaffirming the existence of a legal order of the European Union integrated with the interior legal order, besides reaffirms the overarching position of the Constitution in that order.
ROMANIA. In consequence to the judgement of the TEU enabling the Romanian Constitution to be ignored by its courts in the event of a conflict with EU law (the case afraid the improvement of the judiciary), the Romanian TK ruled on 8 June 2021 that the basic law retains its hierarchically superior position, while the TEU acted outside the powers conferred on the European Union by the judgment.
— reads Dr. Luka Bernaciński from the Ordo Iuris Institute.
