These days, many European media and politicians have been scandalized by the ruling K 3/21 of the Constitutional Court of Poland.
As you could already read in Counting Stars, this ruling establishes that there are certain points of the EU Treaty that collide with the Constitution of Poland, and that in that collision, the one that prevails is the Constitution. This is not a new attitude on the part of a European country. Other countries have done this before, establishing the primacy of their national law over the Treaty on the Functioning of the European Union (TFEU), the Treaty on the European Union (TEU) and the Court of Justice of the European Union (CJEU). Let’s look some examples pointed out yesterday by Sebastian Kaleta, Polish Deputy Minister of Justice, on his Twitter account. I have looked for each of the sentences (not an easy task, as they are written in different languages). You have the links in the quote of each sentence.
On December 18, 1973, in its Sentence 183/1973, the Constitutional Court of Italy established the primacy of Italian law over European law, specifically over the Treaty of Rome of the European Economic Community.
Germany: 1974, 1986, 1993, 2000, 2009, 2010, 2019 and 2020
The biggest criticisms of Poland for the decision of its Constitutional Court have come from Germany. And it just so happens that Germany has been the European country that has most times pointed out the primacy of its national law over European law. The Constitutional Court of Germany established it this way in its following decisions:
In total, the Constitutional Court of Germany has published 19 decisions prioritizing German law over Community law between 1974 and 2020. After what we have just seen, how dare Germany criticize Poland?
In 1998, in its Judgment I 361/1997, the Supreme Court of Justice of Denmark established the primacy of Danish Justice over European law, stating that “Danish courts must consider that a Community act or a rule of Community law based on the jurisprudence of the European Court of Justice is inapplicable in Denmark if the extraordinary situation arises that it can be established with the necessary certainty that the act or rule is based on an application of the Treaty that does not enter into the transfer of sovereignty by virtue of of the Act of Accession.“
Czech Republic: 2006 and 2012
On March 8, 2006, the Constitutional Court of the Czech Republic published its Sentence 154/2006 Sb, establishing the primacy of its national law over community law. The judicial decision cited, among other antecedents, four of the decisions of the Constitutional Court of Germany that we have just reviewed. This primacy was reaffirmed by the Czech Constitutional Court in its Decision Pl. ÚS 5/12 on January 31, 2012.
On March 14, 2006, the Constitutional Court of Lithuania published its Sentence 17/02-24/02-06/03-22/04, which states that in the event of a collision between national and European law, European law must prevail, with one exception: the Constitution of Lithuania.
On April 28, 2016, in its Sentence 62/2016, the Belgian Constitutional Court established limitations to the jurisdiction of the European institutions: “It is true that the Stability Treaty entrusts the European Commission with the task of proposing common principles on the nature, scope and timing of the corrective actions that, if necessary, should be taken to properly route an overall national budget. However, these proposals do not bind the Contracting States, which are free to choose the corrective measures.“ The ruling added: “The jurisdiction that the Stability Treaty confers on the Court of Justice of the European Union is even more limited.”
On December 19, 2019, the CJEU issued its judgment C-502/19 granting immunity to the Catalan separatist leader Oriol Junqueras, sentenced to 13 years in prison and 13 years of absolute disqualification for the crimes of sedition and embezzlement of public funds in relation to to the separatist coup of October 1, 2017 in Catalonia. The CJEU justified its decision in the fact that Junqueras had been elected MEP. In its Special Case 20907/2017, the Supreme Court of Spain contradicted the CJEU, stating: “The text of the first paragraph of Article 9 of the Protocol of Immunities to the Treaty on the Functioning of the European Union refers to national law and we had already indicated that the immunities granted to the members of the Spanish Parliament, all of them refer exclusively to procedural phases prior to the opening of the oral trial.”
On April 21, 2021, the Council of State of France published its Decision No. 393099, establishing the supremacy of the Constitution of the French Republic over the Treaty of the European Union on the general and indiscriminate preservation of all traffic data and Location.
On June 22, 2021, the Romanian Constitutional Court published its Decision No. 390/2021 questioning the competences of the CJEU in the field of the judiciary of the member countries.
The European Commission did not threaten any of these nine countries
A striking fact is that none of these nine countries were threatened by the European Commission for prioritizing their constitutions or judicial decisions over European ones. Why is Poland threatened? What kind of democracy is the European Union when Poland is treated so unequally as those nine other countries received?
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