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EU Law and the Doctrine of Supremacy in Poland

By: Louis Golden BL

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It has long been established that European Union Law takes precedence over the national law of Member States and that domestic courts must enforce the former where a conflict arises. This doctrine of supremacy forms the backbone of the law of the Institutions of the EU but has been the subject of much EU scepticism. It did not appear in the Union’s founding treaties, but rather was established by the Court of Justice of the EU and later affirmed when a declaration of primacy was annexed to the Lisbon Treaty. In particular, in Nold v. Commission [1974] ECR 491, the principle emerged that EU Law is superior even to the constitutions of Member States.

Poland or Primacy?

In what might be described as the latest occurrence in a lengthy disagreement between Warsaw and Brussels, Poland’s Supreme Court ruled in October that parts of EU Law were incompatible with the Constitution of Poland, thereby challenging the supremacy of EU Law. As is now well known, this follows Poland’s attempt to shake up its Supreme Court and introduce a regime that would allow judges to be punished for the contents of their rulings.

President of the European Commission, Ursula von der Leyen, claimed that the common values of the EU could be put at risk by such a challenge to primacy. Therefore, the Commission resolved to punish Poland. President Von der Leyen referred to three tools in the Commission’s arsenal which could be used to reprimand Poland: a political approach which would strip Poland of bloc membership rights; an economic approach of withholding funds that would otherwise have been made available to Poland; and a legal approach.

In Strasbourg, Parliamentary members took to their feet to criticise the Polish government and the Polish Prime Minister. The Prime Minister responded with a pugilistic account of his own. He struck a defiant, steadfast tone, using words like “biased”, “blackmail”, and “threats”.  He insisted that the Polish Constitution superseded EU Law.

On the 27th of October 2021, the European Commission made an application for interim measures, seeking that Poland pay a daily penalty to the EU’s budget. Article 258 TFEU formed the basis for the application on the grounds that Poland had failed to fulfil its obligations to give effect to an order of the Court of Justice of the 14th of July 2021.  Poland, of course, argued against the measure and, in so resisting, contended that the application must be examined by the Grand Chamber of the Court. Ultimately, while reserving costs, the Vice-President of the Court ordered that Poland pay a penalty of one million euro per day.


There seems to have been a failure on the part of Poland to remember that, by entering the EU, it chose to follow the rules of the Union to empower itself politically and economically.  Supporters of the doctrine of primacy have also reminded sceptics that it ensures that legal consistency is achieved throughout the EU. While this is not the first time that a Member State’s Supreme Court has issued a ruling that conflicts with the CJEU, it is significant as it happens in a way that suggests that the Polish judiciary and parliament are both railing against primacy, in unison. There have been several occasions in the past when a Member State’s Supreme Court has decided a case in a way that flies in the face of the supremacy doctrine, but this occasion is unique because of the ensuing debacle between Warsaw and Strasbourg.

The EU developed out of a greater desire for worldwide cooperation. It is worrying to see that, so soon after it joined the EU on the 1st May 2004, the Polish Parliament has forgotten the importance of this cooperation.

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