How does the Polish court's rejection of EU law supremacy differ from Germany's seemingly similar action?

Question

I'm not sure if this a 100% correct summary of what happened in Germany last year, but:

While the German Federal Constitutional Court has long reserved the power to reject EU actions that manifestly exceed EU competences or violate Germany’s constitutional identity, it was commonly thought that the Court was barking without biting. The ground-breaking judgement delivered on 5 May changed this. Although the ECB’s bond-buying programme had been ruled legal by the European Court of Justice, Germany’s Federal Constitutional Court set this decision aside for significantly exceeding EU competences on monetary policy and interfering with national competences on economic policy. It held that the ECB exceeded its powers by not assessing the effectiveness and collateral damage caused by the bond-buying programme. The Karlsruhe Court ordered the Bundesbank to end its participation in the ECB stimulus programme unless the ECB adopts a new decision demonstrating the proportionality of the programme within three months. In the absence of such an ECB decision, the Bundesbank would have to disregard either a Federal Constitutional Court judgement or its obligations according to EU law.

The ECJ reacted to the judgement by maintaining that it was the only institution authorised to rule that an EU institution violates the EU’s founding treaties. The EU Commission President Ursula von der Leyen stressed that rulings of the ECJ are binding on national courts and that the Commission was looking into opening infringement proceedings against Germany.

And the EU actually did start that 13 months later.

Among the key decisions announced [...] was a “letter of formal notice to Germany for breach of fundamental principles of EU law, in particular the principles of autonomy, primacy, effectiveness and uniform application of Union law, as well as the respect of the jurisdiction of the European Court of Justice” by the German court in its decision in the PSPP case. Specifically, the Commission faulted the court for declaring the ECB “to be ‘ultra vires’, going beyond its competence” and declaring the ECJ’s 2018 ruling in the case “to be ‘ultra vires’ – without referring the matter back to the Court of Justice. As a consequence, the German Court deprived a judgment of the European Court of Justice of its legal effect in Germany, breaching the principle of the primacy of EU law. This is the reason now for starting this infringement procedure….The Commission considers that the judgment of the German Constitutional Court constitutes a serious precedent, both for the future practice of the German Constitutional Court itself, and for the supreme and constitutional courts and tribunals of other Member States” The Commission gave Germany two months to reply to its concerns.

I read however commentary such that in the Economist:

The German court was playing with matches; its Polish counterpart doused the EU’s legal system in petrol and deliberately started a fire.

How does the Polish case differ in gravity from the German one?

Answer 1

Politico notes that Franklin Delhousse, a professor of law and a former judge at the CJEU (Court of Justice at the EU) states along with other law professors that:

The German and Polish rulings are quite different. For one thing, the Polish ruling came in response to a request from the government. The German government in contrast did not implement the judgement coming from the Constitutional Court in Karlsruhe.

And they further note that Piet Elkhout, a professor of EU law at University College London, stated that

unlike the German ruling, which concerned one particular situation with the ECB, the Polish decision is "systemic" and "clearly rejects the values underpinning the EU" and "ultimately, Poland should leave or accept the implications of membership."

Answer 2

A difference in tone, if not in principle.

• The German constitutional court demanded that the ECB should explain their actions before they continue. The Polish constitutional court demanded that they EU should stop requiring the rule of law.
• Afterwards, the German government exchanged carefully worded notes with the EU where they did not quite disavow the German constitutional court, but mostly sided with the EU on the substance. The ECB provided documentation which the German government accepted as sufficient. The Polish government backed their court.

Still, the principle remains. EU member states have the right to leave. Unless and until they do so, they must abide by the rules, and one of those rules is the ECJ.

Answer 3

To answer my own question from a source that I would judge moderate in its reaction, Matteo Bonelli (Assistant Professor of European Union law at Maastricht University) writes:

Of course, the judgment of the [Polish] Tribunal is not the first instance in which a constitutional or supreme court rejects the version of EU law primacy affirmed by the CJEU: many other courts in Europe have also qualified the impact and application of the principle of primacy in their domestic constitutional orders, and the Polish Constitutional Tribunal itself, well before becoming a ‘captured court’ in the hands of the political actors, had already established (significant) limits to primacy in its 2005 ruling on EU accession. And of course, the Tribunal was not either the first court to explicitly reject the authority of the Court of Justice and disobey a ruling of the latter: the Czech Constitutional Court in Landtova, the Danish Supreme Court in Ajos, and most famously and most recently, the German Bundesverfassungsgericht in the PSPP/Weiss case have done so in the past.

Yet, and with the disclaimer that any more detailed analysis will have to wait until the publication of the full judgment, I would argue that the challenge posed by the October 2021 ruling of the Constitutional Tribunal goes further than the position expressed by any of those other courts, for three different reasons. First, while most constitutional courts generally accept the primacy of EU law, even on constitutional norms, and only create an exception for a hard core of domestic constitutional law (often defined as the national or constitutional identity of that Member State), the Polish court stresses the primacy of the entire constitution on EU law, as point 1b) of the operative part of the decision suggests. Second, the Tribunal does not reject a specific ruling of the CJEU as the German constitutional court in the Weiss/PSPP case, but a body of key decisions on judicial independence based on Article 19 TEU. (Admittedly, though, in the Ajos case the Danish Supreme Court took a comparable position on EU general principles). Third and most crucially, the legal and political context is profoundly different: the Tribunal itself is an unlawfully established court, as the ECtHR – but even the ‘old’ Constitutional Tribunal – have made clear; and the decision was taken upon an application of the Polish Prime Minster, something that strongly suggests an explicit intention to create a direct conflict with European institutions and to pave the way for rejecting the application of the Court of Justice’s judicial independence case law. In simple words: the Polish institutions are clearly attempting to challenge the authority of the Court of Justice and of EU law, and they are instrumentally using the Constitutional Tribunal to achieve that goal. Ultimately, even if we accept that the concrete impact of this interpretative ruling might not amount to much, and that in doctrinal terms it might not be absolutely exceptional, there is no doubt that it warrants a robust EU reaction, again especially when considering the broader political context and background, and at the need to provide effective answers to the rule of lack backsliding process in Poland.

Julian Scholtes (Newcastle University) draws a simpler parallel:

There is, of course, nothing new about this [Polish judgement] – we already saw the same thing happen in 2016, when the Hungarian Constitutional Court issued its infamous ‘constitutional identity’ judgment. In that case, the invocation of constitutional identity by the Constitutional Court was never intended to result in any meaningful constitutional dialogue. Instead, the judgment was leveraged by Viktor Orbán – who, in his own words, “threw his hat in the air” when he heard of it – as an argument for not implementing the Refugee Relocation Decision adopted by the Council. Rather than providing a frame for judicial dialogue about constitutional identity, the judgment was part of an internal conversation between the government and its captured constitutional court about how to leverage constitutional authority in service of politically disengaging from the implementation of EU law.

The Polish example had fit the pattern already before this judgment was issued. The ‘muzzle law’, passed in early 2020, fended off European challenges to the judicial reforms by politically mandating a complete disengagement from European standards regarding the rule of law. It plotted out a constitutional space to which the shared standards of legitimacy that facilitate European integration are entirely unwelcome. Now, like its Hungarian counterpart, the Polish government solicited a judgment from the captured Constitutional Tribunal, to have its back in keeping its solipsistic little constitutional bubble intact, and it delivered.

Such is the constitutional logic of authoritarianism: Governments that deny the relativity of their own authority domestically – for instance, by disciplining and firing judges who make unfavourable decisions – are also unlikely to acknowledge the relativity of their own authority externally. Authorities that do not respect pluralism within their own society will not respect constitutional pluralism [at the EU/international level], either.