Ruling on constitutional conflict: Poland’s membership of the EU in jeopardy

After four adjournments since July 2021, Poland’s Constitutional Court finally issued a ruling on 7 October 2021. The Court ruled, by a majority of ten out of the twelve constitutional judges, that Articles 1 and 9 TEU are incompatible with certain provisions of the Polish constitution.

Article 1 TEU regulates the transfer of powers to the European Union and Article 19 TEU the powers of the European Court (CJEU). One of the tasks of the CJEU is to ensure that Member States comply with EU law.

The incompatibility means that the provisions of the EU Treaty do not apply in the Polish legal system because, in case of conflict, the articles of the Polish Constitution will be deemed to take precedence over the EU Treaties. According to Constitutional Judge Bartlomiej Sochanski, who announced the judgement, “The EU Treaty is subordinate to the constitution in the Polish legal system ... and, like any part of the Polish legal system, it must comply with the constitution." In its judgement, the constitutional court declared that not only did it have the right to examine the constitutionality of EU law but also the rulings of the European Court of Justice (CJEU).

The background to the constitutional conflict was an application by Prime Minister Mateusz Morawiecki of the Law and Justice Party (Prawo i Sprawiedliwość, PiS), requesting an assessment of whether EU institutions can prevent Poland from reorganising its judicial system. PiS party leader, Jaroslaw Kaczynski, welcomed the ruling with the words: “In Poland the highest legal act is the constitution and all European regulations that are in force in Poland (...) must comply with the constitution. [...] This also applies to the judiciary and the European Union has nothing to say here."

The European Commission is planning to examine the ruling before deciding on its next course of action. Some critics believe, however, that by delaying the ruling, the Polish Court was trying to put pressure on Brussels to accept Warsaw's National Recovery Plan. Funding for the national recovery plan is linked to compliance with European standards on the rule of law and democracy. At the beginning of October, EU officials said that the European Commission may approve the national recovery plans of Poland and Hungary in November, but subject to the condition that the rule of law is respected. By questioning the primacy of European law over the law of Member States, the PiS government is not only jeopardising Poland’s future in the EU but also the stability of the EU itself, say EU officials.


Prof. Dr. Andrea de Petris, cep-Expert on constitutional law