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The Need For an Explicit EU Constitutional Identity: The Flipside of the Polish Constitutional Tribunal Judgment K 3/21


The judgment of the Polish Constitutional Tribunal of 7 October 2021 in case K 3/21 illustrates the very real need to conceptualise and express a clear EU constitutional identity. As will be put forward here, the constitutional identity of the EU itself needs to be outlined as such, in addition to the constitutional identities of the Member States.

The Polish judgment, which declared a number of provisions in the Treaty on European Union (TEU) unconstitutional in so far as they interfere with the country’s judicial organisation, has led to a tide of constitutional analysis and criticism. Comparisons have been with the much discussed PSPP judgment of the German Federal Constitutional Court of 5 May 2020, arguing that the Polish Tribunal went much further in qualifying the primacy of EU law than did its German neighbour. The Polish judgment has even been interpreted as notification of intent by Poland under article 50 TEU to withdraw from the EU. A position which on its part has been disagreed with too.

What stands clear though is that the Polish judgment should serve as a wake-up call regarding the practice and study of constitutionalism in the legal space shared between the EU and its Member States. Admittedly, the judgment is part of a long line of highest Member State (constitutional) courts using arguments based on ultra vires control and constitutional identity review to outline national limits to the operation of EU law and European integration. However, the judgment towers above its peers for three inter-related reasons.

Firstly, the judgment marginalises the supranational role assigned to the Court of Justice of the European Union (CJEU) in relation to EU law, as recognised by article 19(1) TEU. Although the Tribunal’s press release (the considerations behind the judgment have yet to be published) speaks of the need for mutual and sincere dialogue driven by loyalty and which is characteristic for European legal culture, the judgment seems to pay mere lip service to these lofty ideals. The effect of the judgment is to bypass the CJEU in a categorical manner by not posing any preliminary questions according to article 267 TFEU.

Secondly, the judgment devalues the central importance of article 2 TEU, which enshrines the European project’s foundational values. While the importance of this provision is undeniable, as also recognised by article 7 TEU, the Tribunal’s press release negates this by describing its values as “not legal principles”. The effect is to further cement the supremacy of the Polish Constitution over EU law by marginalising article 2 TEU in a substantive sense. While the judgment did not establish the supremacy of the country’s Constitution over EU law, as this was already done in previous judgments, it arguably takes that principle in a concerning direction.

Thirdly, the judgment is further troubling because of its implications for the rule of law crisis in Poland, which has been discussed before on this forum by Rick Lawson. The Tribunal essentially moved to insulate the country’s courts from any external scrutiny related to judicial independence by declaring EU primary law unconstitutional to that extent. This motive was confirmed on 24 November 2021 when the Tribunal in case K 6/21 declared the right to a fair trial in article 6(1) of the European Convention on Human Rights unconstitutional in so far as it extended to the Tribunal itself and the election of its judges. Fundamental EU and Council of Europe norms are so side-lined with disturbing ease.

For these reasons, the Polish judgment in case K 3/21 challenges the European project’s constitutional foundations in an unprecedented way. By doing so, the judgment exposes the real need to conceptualise and express a clear EU constitutional identity in response to it. Many Member States configure their participation in the European project in constitutional identity terms, often as a consequence of the EU’s duty in article 4(2) TEU to respect such identities. In this regard, the term “identity” captures the essential features expressive of each state’s constitutional order. However, the flipside, that of the EU’s constitutional identity, is rarely considered in such explicit terms. Although the EU has increasingly been constitutionalised over the years, references to its identity are far and few between in scholarship and largely absent from case law. To date it has only been referred to twice by Advocates General of the CJEU, most recently by Advocate General Szpunar in 2020. This lack of interest could leave the impression that the EU does not possess a real constitution of its own, and therefore no own identity either. On this account, the EU’s “constitution” simply functions as a proxy of the Member States’ constitutions as steered by their national institutions. This account of the EU’s constitutional nature cannot be supported. The European project is an interlocked multilevel entity composed of an EU constitution and 27 Member State constitutions – all of which can ultimately be relayed to Europe’s citizens.

Configuring an explicit EU constitutional identity would not only confirm the reality and distinctiveness of its constitution, but it would also provide a benchmark for assessing Member State claims in the legal space they share with the EU. Positioning the EU’s identity along the axes of diachronicity and synchronicity, it could be argued that legal autonomy (including the doctrines of primacy and direct effect) satisfies the former axis, while EU citizenship(substantively buttressed by article 2 TEU) satisfies the latter axis. In other words, the autonomy of EU law through time is not an end in itself, but it is a necessary vehicle with which to vindicate the material values inherent in EU citizenship in specific instances. This interconnectedness was illustrated recently in Advocate General Campos Sánchez-Bordona’sOpinion (para. 273) in Case C-156/21, which explained that the “rule of law” had to be interpreted autonomously in order to ensure its uniform application across the EU. As Ronald Janse explained on this forum regarding Cases C-156/21 and C-157/21, the Opinion clearly contradicts the argument made by Poland and Hungary that the concept is too vague to be applied to them by EU in vindicating article 2 TEU. A special role should be reserved in such cases for the CJEU, given article 19(1) TEU, to interpret and develop the EU’s constitutional identity based on the Treaties (similar to the role fulfilled by the highest Member State (constitutional) courts in relation to national constitutions). In sum: an express and refined EU constitutional identity framework is necessary in order for it to fully categorise and respond to Member State claims of a constitutional nature.

In the case of the Polish Tribunal’s judgment in case K 3/21, the extent of the constitutional interface with the EU only really becomes clear when applying an identity framework, such as the one outlined very briefly above. In this regard, the judgment undermines both the EU’s diachronic and synchronic identity axes, thereby compounding the challenge to the integrity of the supranational constitution. By limiting the primacy of EU law in a field as fundamental as judicial independence, the Tribunal not only impairs the autonomy of EU law but also a core feature necessary for meaningful EU citizenship. The fact that the judgment attempts to disable EU constitutional law in these two domains should be understood and addressed for what it is. Namely: not as a technical or jurisdictional question related to an overreach on the part of the EU (an ultra vires issue), but as a national attempt to escape the fundamental consequences of state participation in the EU (a constitutional identity issue).

Over de auteurs

Gerhard van der Schyff

Gerhard van der Schyff is universitair hoofddocent bij de vakgroep Public Law and Governance aan Tilburg Law School. Daarnaast is hij redacteur van de European Constitutional Law Review.

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