CITIZEN UNREST A ‘Chain of Light’ protest in Poznan, Poland, in which Polish protestors came out against their government’s judicial reform plans in July 2017. Pic: Flickr/Sakuto (CC BY-SA 2.0).
De Facto
Liamy MacNally
The EU and Poland have locked horns. The issue is the supremacy of EU law over national law say the Poles, who claim state law takes precedence. The row started when Poland introduced a disciplinary mechanism for judges. The EU objected, citing this could favour a government more than justice.
Poland was instructed in July to disband their judicial disciplinary forum (Disciplinary Chamber of the Supreme Court). Poland recently agreed to do so, by the end of the year. Meanwhile, the European Court of Justice made a ruling, fining Poland €1million per day – the highest ever on a member state. According to the court, this ‘is necessary in order to avoid serious and irreparable harm to the legal order of the European Union and to the values on which that Union is founded, in particular that of the rule-of-law’.
This all comes on the back of a ruling by the Polish Constitutional Tribunal that some EU high court decisions clash with the Polish constitution. Critics claim the Polish government controls the Tribunal. So which has precedence, state or EU law?
Most of us remember the good old days of referenda on EU treaties. Some aspects of the treaties might ‘impact’ on our constitution, so we had to ‘embrace’ the treaty to ensure there was no legal conflict. This was done through referenda (only after the then government was brought to court on the matter by the late Raymond Crotty on the Single European Act in 1986.) And those with sharp memories will recall the odd occasion where we had to vote again, to ‘get it right’! Sometimes we can be slow EU learners.
RTÉ’s Europe Editor, Tony Connolly, has a most interesting article on the issue online (‘Collision course: Why Poland threatens EU legal order’, on rte.ie). He writes:
“In June 2015, the right-wing Law and Justice Party (PiS) ensured that judges appointed to the Constitutional Tribunal should be elected by the Polish parliament, leading to widespread criticism that the court had been taken over in order to deliver favourable rulings to the government.
“Since then, critics say, the takeover has extended to the public prosecutor’s office, as well as the Supreme and lower courts.
“According to Aleksandra Kustra-Rogatka, of Nicolaus Copernicus University in Krakow, that takeover was necessary for the completion of Law and Justice’s ambitions. ‘After the 2015 elections, it quickly became apparent that the government was seeking to subjugate the judiciary. The first target was the Constitutional Court. As the essential constitutional guarantor, if it had remained independent, it would have stood in the way of the undermining of the other parts of the judiciary’, she wrote.”
The EU claims Poland wants the row to be seen as a ‘Poland versus EU institutions struggle, when the independence of the judiciary is the real issue’, writes Connelly.
Like many EU issues there is no clear answer. There are indications, understandings and acceptances, but there is no clear cut, definitive answer. We’re in the land of ’tis and ’tisn’t.
Primacy of EU law is not clear cut. It is not enshrined in the EU founding document, the 1957 Treaty of Rome, or any subsequent document. The European Court of Justice established its own primacy in a 1964 case, yet it has not been endorsed by members states even though they upheld its principles. Germany has famous cases of accepting the primacy of EU law ‘so long as’ it doesn’t breach the fundamentals of German law.
Primacy of EU law was included in the proposed European Constitution. The treaty failed after it was rejected by French and Dutch voters in 2005. EU primacy was dropped in the follow-up Lisbon Treaty, with a reference in the Annexe.
Battles continue in the German Constitutional Court over the ECB buying bonds without ‘democratic scrutiny’. The European Court of Justice responded with ‘the Court of Justice alone – which was created for that purpose by the member states – has jurisdiction to rule that an act of an EU institution is contrary to EU law’.
With EU threats also to Poland’s Covid Fund, there is more to come. At least, the Irish Constitution now states that if EU laws are required for membership, then they have primacy over national laws. Model citizens!
