Op-Ed: “Poland’s withdrawal from the ‘Community of Law’ is no withdrawal from the EU” by René Repasi
This contribution is part of the EU Law Live Symposium on the primacy of EU law and the implications of the Polish Constitutional Court Decision in case K 3/21. See also the Op-Eds by Jeffery Atik and Xavier Groussot, David Krappitz and Niels Kirst , Paul Craig, Dimitry Kochenov, Christophe Hillion, Justin Lindeboom, Federico Casolari, and Araceli Turmo.
The judgment of the Polish Constitutional Tribunal (Trybunał Konstytucyjny, TK)) of 7 October 2021 (K 3/21) is a legal revolution. For the first time, a national supreme court decided to set aside EU Primary law because it allegedly violates a national constitution (a point of view that is disputed by many leading Polish constitutional lawyers). This in itself is remarkable. Apparently, the TK drew on the ‘ultra vires’ doctrine of the German Constitutional Court (Bundesverfassungsgericht, BVerfG)) in order to come to its conclusion. Yet, the BVerfG developed the ‘ultra vires’ doctrine in view of EU secondary legal acts that were adopted outside the scope of Union competence. It did not question the existence and applicability of the Union competence itself (Primary law) but its use in the shape of a secondary legal act. The compliance of Primary law with the German Constitution was always checked by the BVerfG before Germany formally ratified any of the EU Treaties, and not afterwards. After the ratification – so the understanding of the BVerfG on the basis of the ‘Constitution’s openness to European integration’ (2 BvR 859/15, paragraph 112) – the Member State Germany is bound by the Treaties and recognises the primacy of EU law in relation to national law – irrespective of the law’s rank within the national legal order.
The Tribunal’s judgment means a withdrawal from the ‘Community of Law’
The TK’s judgment acts outside this settled, albeit amongst academics highly disputed ground. The Tribunal sets aside core Treaty provisions such as Article 1 TEU in conjunction with Article 4(3) TEU, Article 2 TEU and Article 19(1)(2) TEU. These Articles establish what Walter Hallstein called the ‘Community of Law’ (Rechtsgemeinschaft) – the backbone of European integration. It is worth to recall in which context Hallstein spoke of the ‘Community of Law’. In his 1962 address he elaborated that today’s EU ‘was not created by military power or political pressure, but owes its existence to a constitutive legal act. … In place of power and its manipulation, the balance of powers, the striving for hegemony and the play of alliance we have for the first time the rule of law. The European Economic Community is a community of law … because it serves to realize the idea of law.’ Core to this idea is the existence of individual rights under EU law that citizens can directly rely on before national courts and that have primacy over conflicting national law. This mechanism is built on courts and on their free and unrestrained dialogue with the Court of Justice. It is the ‘Community of Law’ that is enacted by the Treaty provisions that the TK wants to see set aside on the Polish territory. We therefore can speak of a legal revolution as this judgment aims at rendering the ‘Community of Law’ meaningless and at transforming the EU into a community that would only be based on all those powers that Hallstein rightly condemned as unsuitable for building a sustainable European integration. It is thus justified to speak of a ‘legal Polexit’ when commenting on the TK’s judgment. Taking the Tribunal at its word, it requires the withdrawal of Poland’s judiciary from the ‘Community of Law’ and subjects EU law and all its rights to the political discretion of national politics.
A Tribunal’s judgment cannot be qualified a declaration of withdrawal from the EU
Yet, does this mean that the TK’s judgment can be understood as an implied declaration to withdraw from the Union within the meaning of Article 50 TEU? The wording and the purpose of Article 50 TEU are opposed to such a conclusion – as severe as the consequences of the TK’s judgment are for the EU and the European integration process. Article 50(2) TEU requires from a Member State a formal notification of its intention to withdraw from the Union addressed to the European Council ‘in accordance with its own constitutional requirements’. In the words of the Court of Justice in Wightman (C-621/18), the decision of a Member State to withdraw ‘depends solely on its sovereign choice‘ (paragraph 50). Such sovereign choices are made by the sovereign. That involves in some countries a referendum, in others an act of Parliament. It can, however, hardly be argued that a Court judgment – even if it is the country’s constitutional court – is a valid declaration of the sovereign.
Moreover, the requirement of a formal notification wants to eliminate any doubts as regards the intention of the Member State to take a drastic decision such as withdrawing from the EU. If an implied declaration of withdrawal would suffice under Article 50 TEU, the Treaties would cease to apply in the Member State concerned two years after this implied declaration was made. The affected Member State would most likely claim the continuous application of the Treaties in its territory and will hence request an authoritative decision that clarifies that the alleged implied declaration does not meet the requirements under Article 50 TEU – a task that would undoubtedly fall on the Court of Justice. The Luxembourg-based Court would become the ultimate arbiter on the crucial issue of whether a judgment of a national constitutional court leads to a withdrawal of a Member State from the EU. Setting aside the limitations of a court’s interpretative methods to come to any convincing conclusion that would uphold an implied declaration of withdrawal, the Court of Justice would have no legitimacy to decide on the continuous membership of a Member State where there is no explicit decision made by the people in a referendum or by a national Parliament. This is the foundation on which the Court of Justice build its Wightman judgment. By allowing the revocation of the notification of a Member State’s intention to withdraw from the Union, the Court made clear that it abstains itself from any legal qualification of actions taken by a Member State that have implications on the status of the membership of this country.
All hands on deck when defending the ‘Community of Law’
Whilst it is valid to qualify the TK’s judgment of 7 October 2021 as a ‘legal Polexit’ in its effects, it does not amount to an implied declaration of a ‘political Polexit’ having as a consequence to end Poland’s membership in the EU. The EU needs to use all its armoury to resist the judgment including the recently adopted rule of law mechanism – despite the legally meaningless political declarations of the European Council. But the decision on the EU membership of Poland remains an exclusively sovereign and political decision of Poland itself. It cannot be read into a judgment – even if such judgment is a legal revolution.
René Repasi is Professor of Law at Erasmus University Rotterdam and member of the Editorial Board of EU Law Live.