Primacy of the Constitution, primacy of democracy

Today the European Union is at a difficult moment. We continue to face new waves of the pandemic. We have just started the process of rebuilding our economies after the crisis caused by the need to restrict economic life. We have not yet fully implemented the Reconstruction Fund, and the risk of an energy crisis is already on the horizon. Gas price rises are hitting the pockets of ordinary citizens. For the first time in Europe's post-World War II history, future generations cannot be sure that we are leaving them a better future.

The pressure on Europe is growing. Russia is using the gas issue to blackmail and force individual countries to take decisions that favour Russian special interests. On the EU's eastern border, Poland, Lithuania and Latvia face daily provocations from Belarus and a growing wave of illegal immigration.  In addition, we are witnessing changes in the global chessboard: the US is readjusting its strategies and other countries, aspiring to become superpowers, will want to take their place.

This concurrence of crises should encourage responsibility. However, the EU pays more attention to imaginary problems than to real ones. Problems that are created by the Union itself rather than caused by external factors.

We must act together in the face of challenges. In the meantime, we are mired in internal disputes. I have the impression that for many politicians, the conflict with Poland is a convenient alibi for avoiding concrete action. After all, this dispute is based more on clichés and prejudices than on facts.

It would be hard to find a nation more committed to the idea of freedom, democracy and Europeanism than the Poles. Pro-European forces predominate in the Polish parliament and in public life. And yet the media and politicians are spreading the propaganda slogan of "polexit".

There is only one truth. Poland will not leave the European Union. Poland is and will remain a member of the European Community. We are an integral part of the European Union, which must renounce the language of blackmail, pressure and punishment of those who stand up for their own opinion. We must talk to each other, even if it is a difficult and lengthy conversation. But we must always do so in a spirit of respect and unity. This is the only way to move forward together.

Poland is a loyal member of the EU. We respect European law like any other member state. But respect for EU law does not mean that it is above national constitutions. Poland is no exception.  Therefore, constitutional pluralism must remain the rule that maintains the balance between the different systems of national and European law. It allows us to state that these systems are complementary and not mutually exclusive. The EU Treaties indicate precisely which competences the member states have attributed to the Union and which they have retained exclusively. The principle of the primacy of Community law means that Community law prevails over laws in areas of Union competence. We also fully recognise this in Poland.

But it is the states that are the "masters of the treaties", and it is the national constitutional courts that ultimately settle conflicts between treaty rules and constitutional rules. Therefore, the recent ruling of the Polish Constitutional Tribunal, which examined the relationship between EU law and the Polish Constitution, should not come as a surprise. Courts and tribunals in Germany, Denmark, France, Italy, Spain, Lithuania, the Czech Republic and other EU countries have already handed down similar rulings.

According to the French Constitutional Council, "the principle of the primacy of EU law (...) cannot undermine the supreme power of the Constitution in the national legal order". "The Constitutional Court may carry out an ultra vires review (...) to determine whether the action of the institutions of the European Union infringes the principle of conferral if the institutions, bodies, offices and agencies of the Union have exceeded their powers in a manner which infringes that principle", the German Constitutional Court ruled. For its part, its Danish counterpart declared that "the Constitution prohibits the transfer of competences to the extent that it would mean that [a member state] cannot be considered a sovereign and democratic country".

I would like to make a stronger statement here. The principle of the primacy of national constitutions is de facto the principle of the primacy of the democracy of the states vis-à-vis the EU institutions. The question today is whether sovereignty should remain with the European nations and citizens or with the institutions in Brussels and Luxembourg, which are characterised by their democratic deficit. Our common future depends on how we answer this question. 

In 1795 Poland disappeared from the map of the world for 123 years. Yes, we were in a difficult position at that time.  Now, Poland fell because a part of the elites, instead of fighting against the real challenges, fought among themselves for their particular influences and interests. That was our sin. A sin that was immediately exploited by our ruthless and powerful neighbours. Let us not repeat these mistakes in Europe. We now also have global, ruthless and increasingly powerful neighbours. Let this historical warning serve as a lesson to us all.

Mateusz Morawiecki. Prime Minister of Poland/The Diplomat