There are lots of articles related to Poland's highest court ruling that some parts of EU treaties are incompatible with the Polish constitution (example), but I cannot find the exact articles referred by the ruling (or at least a part of them).

I guess that article 47 mentioned here is one of "the parts":

It is well known that Article 47 of the Charter of Fundamental Rights of the European Union on the “Right to an effective remedy and to a fair trial” echoes Article 2 of the EU Treaty on the European Union (TEU), which considers “the rule of law and respect for human rights” as being among the values of the European Union.

This seems to be confirmed by this EU press release which also mentions article 19.1:

(..) the Commission notes that the law on the judiciary prevents Polish courts from assessing, in the context of cases pending before them, the requirements of judicial independence and from requesting a preliminary ruling. This is incompatible with the principle of primacy of EU law, the functioning of the preliminary ruling mechanism and Article 19(1) of the Treaty on European Union read in connection with Article 47 of the Charter of Fundamental Rights of the European Union (..)

Are these the only EU treaties parts indicated by the Poland's highest court?


2 Answers 2


I found a summary of the decision. (I'm not sure if the full text has been published; in some EU jurisdictions it's common for a decision to be announced and a full justification to be published only later.) Basically the Polish court declared that

  • The EU courts have exceeded the competences that Poland has actually agreed to transfer under "the first and the second subparagraphs of Article 1 TEU, in conjunction with Article 4(3) TEU" given the provisions of "Article 2, Article 8 and Article 90(1) of the Constitution of the Republic of Poland". And that

  • "The second subparagraph of Article 19(1) TEU" by its provision to "disapply, [...] the provisions of the [Polish] Constitution – is inconsistent with Article 2, Article 7, Article 8(1), Article 90(1) and Article 178(1) of the Constitution of the Republic of Poland."

I think this is basically a statement of dualism.

Actually, the Polish court has published its own longer summary in English, but it seems to be consistent with the above synopsis (not that the 1st half merely summarize the PM's complaint, the 2nd part is the actual decision).

I also found an MS thesis which has more background of the disputes surrounding 19(1): they seemingly began not with Poland but the Portuguese Judges case, in which the EU counts found that they have competence to decide whether a salary cut of Portuguese national judges interferes with the independence of the judiciary. Portugal accepted the decision though, probably in no small part because the EUCJ decided that while it has competence to review, the temporary salary cut measure didn't interfere with the independence of the Portuguese judiciary. On the other hand, in the Polish case, the change in law that forced judges into early retirement was judged to interfere with the principle of the irremovability of judges, in particular because the Polish president could grant exceptions.

Side note (hopefully not controversial, although I've only consulted one source on this): the EU treaties don't actually seem to say that EU law has supremacy. That was (1) a self-empowering EUCJ decision in 1964 and (2) included explicitly in the rejected EU constitution of 2004, but dropped from the revised Lisbon treaty.

  • (+1) Article 2 TFEU already establish a kind of primacy for EU law as does the role given to the EUCJ. The EU constitution was a bit of a mess but apart from the symbolic and political value of using words like “constitution” it wouldn't have fundamentally changed that framework.
    – Relaxed
    Oct 17, 2021 at 13:12
  • @Relaxed: It's CJEU, the Court of Justice for the European Union. Hmm, are you saying consitutions are just 'symbolic'? They are actually legal dicuments, and in fact, supra-legal. Oct 18, 2021 at 0:40
  • @MoziburUllah EU Court of Justice is quite common in English too, I don't think Fizz is wrong to use this. Something people also use ECJ to make a distinction between the Court of Justice and the General Court, which together form the CJEU. Re: Constitutions, that's not what I am saying at all and not a topic I would want to elucidate in comments, I was merely speaking about the defunct “Treaty establishing a constitution for Europe”.
    – Relaxed
    Oct 18, 2021 at 7:34

Politico says that:

four crucial provisions of the main EU treaty clash with - and should not prevail - over the Polish constitution.

  • Article 1 that sets up the EU as an 'ever closer union amongst the peiples of Europe."

  • Article 2 that sets up the EU values on "respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights, including the rights of persons belonging to minorities" in a society which "pluralism, non-discrimination, toletance, justice, solidarity and equality between men and women prevail."

  • Article 4.3 that sets up the principle of "sincere cooperation" between EU members and to "assist each other in carrying out tasks which flow from the treaties."

  • Article 19 that sets up the Court of Justice for the EU (CJEU) and which interprets, implements and ensures observation of EU law

  • 1
    I think that's a bad interpretation; the judgement itself is linked from the Politico article and doesn't say that. It seems the journalists have confused the preamble, which reiterates the complaint submitted by the PM with the actual decision that follows. The Polish court does dispute how the EUCJ interpreted those articles with respect to the Polish judges appointment & retirement dispute. Oct 17, 2021 at 16:43
  • @Fizz: Err, have you read the judgement? The adjudication after the preamble mentions in item 1, that articles 1 & 4.3 of EU Treaty is 'inconsistent' with the Polish Consitution and in item 3, that articles 2 & 19 of the EU treaty are also 'inconsistent' with the Polish Constitution. They do not mention the word 'interpretation'. Politico is quite right whereas your reading or rather interpretation is neither a reading nor an interpretation. Your bad. Oct 18, 2021 at 0:08
  • 1
    Yes, I've read it. You've missed the parts like "insofar as [...] the European Union authorities act outside the scope of the competences conferred upon them by the Republic of Poland in the Treaties" etc. They have inanely long sentences, but it's not an unconditional declaration as you have it. Oct 18, 2021 at 0:14
  • @Fizz: No, your comment above missed all the substantative points - which is why it was confusing; moreover, all legal judgements are qualified by such statements and journalists do not bother putting such qualifications in their articles as they write to be clear to their audience rather than fussing about legal nicieties. These niceities are not 'inanane', they are neccessary in legal discourse but entirely unneccesary in journalism. And it was a news journal I quoted. Oct 18, 2021 at 0:26
  • @Fizz: And even if it was a legal document I was quoting, I would still have left the legal nicieties out as I'm not writing a legal document but a post on a Q&A site with pretensions to rigour and authority. Oct 18, 2021 at 0:28

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