Primacy of Constitution, primacy of democracy

By Mateusz Morawiecki, Prime Minister of Poland

The European Union is in a difficult position today. We are still struggling with successive waves of pandemic infections. We have just started rebuilding our economies after the crisis and the necessity of restricting economic life. The Recovery Fund has not been yet implemented and the risk of an energy crisis looms on the horizon. Higher gas prices have hit the pockets of ordinary citizens. For the first time in Europe’s post-war history, future generations cannot be sure that they will inherit a better future.

The pressure on Europe is rising. Russia is using the gas issue to blackmail and force individual states to take decisions in their favour and with Russian interests in mind. On the EU’s eastern border, Poland, Lithuania and Latvia face daily provocations from Belarus and an increasing wave of illegal migration. In addition, we are now experiencing the shifts on the global chessboard – the US has been adjusting its current strategy and its place is likely to be taken by other countries that aspire to become superpowers.

The excess of crises should encourage responsibility. Yet the European Union is paying more attention to imaginary problems than to the real ones. Problems that are more self-generated than resulting from external challenges.

We must act united in the face of these challenges. Meanwhile, we wallow in internal disputes. I have the impression that the conflict with Poland is a convenient alibi for many politicians to avoid specific action. After all, this dispute is based more on stereotypes and prejudices rather than on facts.

It would be hard to find a nation that is more committed to the idea of freedom and democracy and Europeanness than the Poles. Pro-European forces dominate the Polish Parliament and public life. And yet the media and politicians are trying to stir up a propaganda slogan about ‘Polexit’.

There is only one truth. Poland is not leaving the EU. Poland is and will remain a member of the European Community. We are an integral part of the European Union, which should reject the language of blackmail, pressure and punishment of those who defend their own opinion. We must have a discussion with each other, even if it is a difficult and long. However, we must always do this with respect and in the interests of unity. This is the only way to get back on track.

Poland is a loyal member of the EU. We respect European law just like any other member state. But respect for the rights of the community does not mean that they stand higher than national constitutions. Poland is no exception. Therefore, constitutional pluralism must remain the rule that maintains a balance between the different systems of national and European law. Thanks to it, we can talk about mutual complementarity, not the exclusion of these systems.

The EU Treaties indicate precisely which competences the member states have conferred on the European Community and which they have retained exclusively. The principle of the primacy of EU law means that they take precedence over laws within the areas of Union competence. We fully recognise this also in Poland.

But it is the states that are the “masters of the treaties”, and it is the national constitutional courts that ultimately decide on the conflict between treaty norms and constitutional norms. Therefore, the recent judgment of the Polish Constitutional Tribunal, which examined the relationship between EU law and the constitutional law, should not be surprising. Courts and tribunals in Germany, Denmark, France, Italy, Spain, Lithuania, the Czech Republic and other EU countries have already made similar judgements.

“The principle of the primacy of EU law … cannot undermine the supreme power of the Constitution in the national legal order” – as judged by the French Constitutional Council. “The Constitutional Court may conduct an ultra vires review (…) to establish whether the actions of the EU institutions infringe the principle of conferral if the EU institutions, bodies, offices and agencies of the Union have exceeded their powers in a manner that infringes that principle – judgment of the German Constitutional Court. On the other hand, its Danish counterpart stated that ‘the Constitution prohibits conferring powers to the extent that [a Member State] could not be regarded as a sovereign and democratic country’.

I would like to make a strong statement here. The supremacy of national constitutions is in fact principle of the primacy of state democracy over EU institutions. Today we answer the question whether the nations and citizens are to remain European sovereigns, or EU  institutions are to become the sovereigns, institutions in Brussels and Luxembourg, which are characterised by a democratic deficits. Our common future depends on how we will answer this question.

In 1795 Poland disappeared from the map of the world for 123 years. Yes, we were in a difficult position at the time. But Poland had fallen because some of the elites and instead of fighting the real challenges, fought among themselves over influence and interests. This is our sin. This sin was used immediately by aggressive and powerful neighbours. As a Europe, let us not make the same mistakes. We have to remember our global neighbours, those that are becoming stronger and more ruthless. May this historical warning be a lesson for all of us.

• Mateusz Morawiecki is the Prime Minister of Poland