Jonathan Faull / Nov 2021
Poland is in the midst of several disputes with the European Union over the independence of its judiciary, its rules on homosexuality, its media laws… and its general attitude to EU law. A recent flashpoint was a judgment of the country’s Constitutional Tribunal rejecting the primacy of EU law over national constitutional law.
This is not unprecedented in the life of the EU. Other countries’ Constitutional or Supreme Courts have made it clear that there are parts of the their national constitution beyond the reach of EU law.
What follow is a simplified account of a very complex legal and political debate which goes to the heart of the European integration project.
A constant ambiguity in the EU is the source of authority of EU Law in the member states. EU law itself says it is EU law itself! In other words, it is inherent in the nature of the EU and its legal order that, when a state has committed itself to membership, EU law reigns supreme. Most supreme courts, if forced or moved to take a position, have said or would say that EU law is supreme because their national constitution has decreed that it should be so, but that the ultimate source of legal authority in the land is always the national constitution.
Wherever the authority comes from, few deny that there is a practical need for EU law’s supremacy. Its uniform application across 27 countries would not work if one, more or indeed all of the 27 could override it on the basis of national law. The whole point about EU law is that applies throughout the EU. The single market, for example, would lose its singularity otherwise. That is not to say that perfect union has been achieved. The EU, like other administrations, has a tendency to give its projects grandiloquent names and make extravagant claims for their achievements. To take a contemporary and down-to-earth example, the EU’s banking law provides for a “banking union”, a “single supervisory mechanism” and a “single rule book”. In fact the European Central Bank’s supervisors are often heard to complain about the different rules they encounter from country to country as they go about their task of supervising large cross-border banks. The level playing field is often bumpy work in progress. “Ever closer” gives the sense of direction but the destination still lies ahead.
In practice, while argument about the relationship between EU law and national constitutions rears its head from time to time and may never be fully resolved, time and again the particular legal issue which provoked the argument has been settled in one way or another and the debate leaves the political arena and returns to the law faculties where passions ebb and flow, but nothing drastic needs to be done or decided. The highest courts in France and Germany have been involved in these incidents, but the Franco-German engine still functions and the EU river has kept on flowing. Apparently legal disputes, even of this seemingly fundamental importance, do not need to be resolved for Unions and countries to function and flourish. Those not following British constitutional developments may be surprised to learn that the question whether certain rules are “entrenched” by the Act of Union of 1707 between England and Scotland is still a matter of debate.
What is new in Poland?
One issue which has provoked the latest debate about the status of EU law in the national legal order is the notion of “ever closer union”, which featured – as we will see below – in the UK’s Brexit campaign as well. Article 1 of the Treaty on European Union provides that “This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.”
The expression “ever closer union” had been included in the EU treaties since the EEC Treaty of 1957.
The Polish Constitutional Tribunal held that this provision was contrary to the Polish Constitution.
This is not a particular dispute about monetary policy or the effect of directives, issues which have preoccupied judges in Germany and France respectively. A general concept rather than a specific legal norm has come under attack. That is altogether harder to solve pragmatically and therefore more serious.
It might be useful to recall the consideration of “ever closer union” in the 2016 Decision of the Heads of State or Government, meeting within the European Council, concerning a new settlement for the United Kingdom within the European Union. This ill-fated agreement between the EU and the UK was concluded before the UK’s referendum on leaving the EU and thereupon in its own words “ceased to exist”. Nevertheless, it must be presumed to have represented what all EU leaders believed in 2016 to be politically appropriate and, perhaps more relevantly today, the legally correct position.
Section C of the 2016 Decision was entitled sovereignty. Its paragraph 1 provided as follows:
- It is recognised that the United Kingdom, in the light of the specific situation it has under the Treaties, is not committed to further political integration into the European Union. The substance of this will be incorporated into the Treaties at the time of their next revision in accordance with the relevant provisions of the Treaties and the respective constitutional requirements of the Member States, so as to make it clear that the references to ever closer union do not apply to the United Kingdom.
The references in the Treaties and their preambles to the process of creating an ever closer union among the peoples of Europe do not offer a legal basis for extending the scope of any provision of the Treaties or of EU secondary legislation. They should not be used either to support an extensive interpretation of the competences of the Union or of the powers of its institutions as set out in the Treaties.
These references do not alter the limits of Union competence governed by the principle of conferral, or the use of Union competence governed by the principles of subsidiarity and proportionality. They do not require that further competences be conferred upon the European Union or that the European Union must exercise its existing competences, or that competences conferred on the Union could not be reduced and thereby returned to the Member States.
The competences conferred by the Member States on the Union can be modified, whether to increase or reduce them, only through a revision of the Treaties with the agreement of all Member States. The Treaties already contain specific provisions whereby some Member States are entitled not to take part in or are exempted from the application of certain provisions of Union law. The references to an ever closer union among the peoples are therefore compatible with different paths of integration being available for different Member States and do not compel all Member States to aim for a common destination.
The Treaties allow an evolution towards a deeper degree of integration among the Member States that share such a vision of their common future, without this applying to other Member States.”
The first sub-paragraph plainly applied only to the United Kingdom in the specific circumstances of that country. The rest of the text quoted above did not distinguish between Member States and sets out general considerations which remain pertinent today unless there have been relevant legal developments in the intervening years, quod non.
I do not know whether the Polish Constitutional Tribunal considered this text when reaching its controversial judgment. Where it failed to assuage British doubts, perhaps it could contribute to calming tensions between Poland and the European Union.
 This suggests that closer union between peoples (not states or their governments) is an aspiration, not a legal norm. In 2015, with debate raging in the UK about EU membership, a shining example of the notion was English football fans signing La Marseillaise at a match against France in London shortly after terrorist attacks in Paris: see https://www.dailymail.co.uk/sport/sportsnews/article-3322698/England-fans-sing-La-Marseillaise-France-friendly-Wembley-football-stands-united-following-Paris-attacks.html .
 For a convenient summary in the particular British context: https://commonslibrary.parliament.uk/research-briefings/cbp-7230/. Some have heard a conscious echo of the preamble to US Constitution: “in order to form a more perfect union…”
 OJ C 69, 23.2.2016
 “It is understood that, should the result of the referendum in the United Kingdom be for it to leave the European Union, the set of arrangements referred to in paragraph 2 above will cease to exist.” In other words, it is bereft of life, nailed to the perch…
 A possible relevant case on Austrian indexation of child benefits is pending before the Court of Justice of the European Union: Case 328/20, Commission v Austria, https://curia.europa.eu/juris/document/document.jsf?text=&docid=230707&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=15996113