MOTION FOR A RESOLUTION on the rule of law crisis in Poland and the primacy of EU law

19.10.2021 - (2021/2935(RSP))

to wind up the debate on the statements by the Council and the Commission
pursuant to Rule 132(2) of the Rules of Procedure

Ryszard Antoni Legutko, Mazaly Aguilar, Adam Bielan, Joachim Stanisław Brudziński, Jorge Buxadé Villalba, Ryszard Czarnecki, Margarita de la Pisa Carrión, Carlo Fidanza, Raffaele Fitto, Anna Fotyga, Michiel Hoogeveen, Ladislav Ilčić, Patryk Jaki, Krzysztof Jurgiel, Karol Karski, Beata Kempa, Izabela‑Helena Kloc, Joanna Kopcińska, Zdzisław Krasnodębski, Elżbieta Kruk, Zbigniew Kuźmiuk, Beata Mazurek, Andżelika Anna Możdżanowska, Tomasz Piotr Poręba, Elżbieta Rafalska, Rob Rooken, Robert Roos, Bogdan Rzońca, Jacek Saryusz‑Wolski, Raffaele Stancanelli, Beata Szydło, Dominik Tarczyński, Hermann Tertsch, Grzegorz Tobiszowski, Valdemar Tomaševski, Evžen Tošenovský, Witold Jan Waszczykowski, Jadwiga Wiśniewska, Jan Zahradil, Anna Zalewska, Roberts Zīle, Kosma Złotowski
on behalf of the ECR Group

B9‑0539/2021

European Parliament resolution on the rule of law crisis in Poland and the primacy of EU law

(2021/2935(RSP))

The European Parliament,

– having regard to Articles 2, 5, 7 and 19 of the Treaty on European Union (TEU),

– having regard to Rule 132(2) of its Rules of Procedure,

A. whereas the Polish Constitutional Tribunal issued a judgment in case K 3/21 on 7 October 2021 in which it stated that certain interpretations of some of the TEU provisions in a way that results in the primacy of international law over the Polish Constitution – Poland’s supreme law – violates the Constitution;

B. whereas on 12 October 2021, the judgment was published in Poland’s official gazette Dziennik Ustaw, which rendered it binding in the Polish legal system;

C. whereas since 2005, the Polish Constitutional Tribunal has repeatedly stated that the primacy of constitutional law over other sources of law derives directly from the Polish Constitution; whereas these rulings were issued by various compositions of the Constitutional Tribunal, whose members were elected in all political configurations since Poland’s accession to the EU;

D. whereas as early as 2005, the Constitutional Tribunal, presided over by Judge Marek Safjan, established the principle that ‘the Constitution is the supreme law of the Republic of Poland in relation to all international agreements binding it, including agreements on the transfer of competence in certain matters’ and that ‘the Constitution enjoys the primacy of validity and application within the territory of Poland’[1];

E. whereas this principle was reaffirmed in subsequent judgments of the Constitutional Tribunal, including the ruling of 19 December 2006 (P 37/05), which declared that ‘the Constitutional Tribunal is obliged to understand its position in such a way that, in matters of fundamental importance and which are systemic in nature, it retains the position of “the court of last resort” with respect to the Polish Constitution’, as well as in the judgment of 24 November 2010 (K 32/09), which stated that ‘the transfer of competences to the EU cannot infringe the principle of the supremacy of the Constitution and cannot violate any provisions of the Constitution’;

F. whereas the constitutional courts of various EU countries have repeatedly examined the constitutionality of EU law and have stated on numerous occasions that national constitutions have primacy over EU law; whereas in particular the German Federal Constitutional Court, the Italian Constitutional Court, the Czech Constitutional Court, and the Danish Supreme Court have taken the view that EU law and the activities of the Court of Justice of the European Union are subject to review from the perspective of constitutional norms – including those which define the limits of the competences transferred to the EU by a given Member State;

1. Underlines that the judgment of the Polish Constitutional Tribunal of 7 October 2021 is in line with the earlier case law of the Polish Constitutional Tribunal and many other constitutional courts and tribunals across Europe;

2. Is of the opinion that Poland has respected the binding norms of EU law in so far as they are laid down in areas expressly and explicitly conferred to the EU in the Treaties;

3. Stresses that the judgment does not affect any areas in which the EU has competences, which have been explicitly and literally conferred by the EU Treaties;

4. Takes the view that examining the conformity of EU law with national constitutions is normal practice in Europe and that this alone restricts the application of the principle of the primacy of EU law over national law;

5. Underlines that the position of the constitutional courts of the Member States authorises and legitimises them as the ‘guardians of the constitutions’ and it is ultimately for a constitutional court to decide on the legality and applicability of rules in a given territory;

6. Stresses that according to the Treaties, the EU is not a superpower but an alliance of sovereign states;

7. Notes that the judgments of other countries’ courts and tribunals did not mark the beginning of the road to leaving the EU, as such rulings merely emphasise the primacy of national constitutions in matters in which the EU does not have competences conferred by the Member States;

8. Deplores the fact that the judgment is sometimes described by its opponents as evidence of Poland’s desire to leave the EU;

9. Instructs its President to forward this resolution to the Commission, the Council, and the governments and parliaments of the Member States.

• [1] Judgment of 11 May 2005, in case K 18/04.