8 - The Supremacy of the EU Law as Interpreted by the Polish Constitutional Tribunal

Summary

INTRODUCTION

The principle of supremacy constitutes the core and essence not only of EU law and legal order but also of the goal of European integration itself. Without the acceptance of supremacy of EU law over the laws of the Member States, it is impossible to fulfil the goals specified in the Treaties.

The principle however is not explicitly stated in the Treaties. It was “taken” from the spirit of the Treaty and clearly established by the early judgments of the European Court of Justice (Costa v. ENEL, van Gend en Loos). Understanding of the supremacy principle (its origin, scope and effects) varies throughout the European Union. Constitutional courts/tribunals in particular Member States have been active in a dynamic interpretation of supremacy. The debate started with famous Solange case in Germany and continued through other countries, including new members joining the Union. The Polish Constitutional Tribunal issued three key judgments concerning the principle. Two of them came close in time but brought somehow contrary conclusions.

The first judgment of 27 April 2005 addressed the question of constitutionality of the European Arrest Warrant (EAW) regulations implemented in the Polish Code of Criminal Procedure in the light of Article 55(1) of the Constitution of the Republic of Poland. The Tribunal concluded that those implementing regulations were contrary to the Constitution which, as a rule, did not allow for the surrender of Polish citizens. As a result, the first amendment of the Polish Constitution was proceeded to satisfy the aims of the EU decision and as such, it confirmed the supremacy of the EU law over Polish law, including the Polish Constitution.

A couple of weeks later, on 11 May 2005, the Tribunal issued its judgment concerning the constitutionality of the Accession Treaty. Although the Tribunal did not find any grounds for the inconformity of the Accession Treaty to the Polish Constitution, it took another chance to widely explain the understanding of the supremacy principle and came to interesting conclusions including one stating that the collision of Community law and national constitutional norm may “in no event be resolved by assuming the supremacy of a Community norm over a constitutional norm”.