10 Oktober 2021

Whoever equates Karlsruhe to Warsaw is wildly mistaken

In the Polish, and to some extent also in the German public discourse, the ruling of the Federal Constitutional Court of 5 May 2020 on the partial unconstitutionality of the ECB’s PSP programme is considered to be qualitatively comparable to the ruling of the Polish Constitutional Tribunal of 7 October 2021. In this respect, the Polish judgement is merely seen as a continuation of the established case law of the Bundesverfassungsgericht. From a legal point of view, however, this is clearly false for several reasons, which will be briefly outlined here.

Effectively, the Polish ruling – unlike the German one – calls into question a cornerstone of European integration with its sweeping rejection of the primacy of European law, up to a point where there are serious doubts as to whether Poland can continue to remain part of the EU. In detail, the following differences exist:

  1. In its tenor, the Polish court establishes the unconstitutionality of central primary law norms (Art. 1 and 19 TEU) and questions in principle the established primacy of European law with regard to the Polish constitution. The Federal Constitutional Court, on the other hand, in its case law consistently accepts the primacy also over the Constitution and in its ruling only classified an individual secondary legal act of an EU institution as ultra vires by way of exception.
  2. By declaring primary legislation unconstitutional, the Polish Constitutional Tribunal is breaking new legal ground. This has never been done before in any Member State, especially since Article 1 TEU, a central article, is affected. Dogmatically, this is very doubtful in any case. In any case, the BVerfG’s ruling was not about primary law, but about a secondary law purchase programme.
  3. The Polish Constitutional Tribunal does not follow an established and limited doctrine of reservations and does not develop such a doctrine in this judgement. In any case, the judgement is notable for its lack of reasoning, especially in comparison to the BVerfG judgement. Unlike the latter, it is not about harmonising and reconciling European law in its claim to primacy with the requirements of the national constitution in a cooperative procedure. Rather, a blanket primacy of the Polish constitution is postulated (almost somewhat defiantly). There is not even an attempt to limit this constitutional primacy to certain constellations (such as national identity) and thus not to make it absolute.
  4. The Polish Constitutional Tribunal’s decision, unlike in the case of the Federal Constitutional Court, is not about a single act of a single EU institution. Rather, the primacy of European law is excluded comprehensively and for all areas with regard to the constitution. Contrary to public perception, this by no means only concerns the field of legal remedies. This was quite different at the BVerfG: Here it was only about the PSP programme; other, future purchase programmes were expressly not even covered.
  5. Furthermore, the provisions of the Union Treaty are also classified as unconstitutional by the Polish Constitutional Tribunal to the extent that they jeopardize the Republic of Poland’s functioning „as a sovereign and democratic state“. What this is supposed to mean is completely unclear and ultimately open to the free interpretation of the Polish government. Taken literally, the Polish government can thus oppose any obligation that follows from European law. This would be nothing less than the end of the EU as a community of law. The supranational organisation would become a weak confederation of states. Once again, nothing comparable can be found in the ruling of the Federal Constitutional Court.
  6. The Polish Constitutional Tribunal’s judgement has an effect primarily on the future and can and probably will be used against future judgements of the ECJ and other actions of the EU. This is probably also the reason why the Polish government itself applied for this ruling in the first place. The ruling of the Federal Constitutional Court, on the other hand, explicitly referred only to the ECB’s PSP programme and explicitly excluded other purchase programmes. It therefore has rather an effect on the past. Now that the dispute over the proportionality of the PSP programme has been settled, it no longer has any direct effect. How the Court will decide in future rulings remains to be seen. The established reservations have been activated once; apart from that, the primacy of European law remains completely untouched, also and especially from the perspective of the BVerfG.
  7. The Polish Constitutional Tribunal resists any form of alleged encroachment by the EU in general and the ECJ in particular. In contrast, the Federal Constitutional Court explicitly calls for stricter control by the ECJ and will then retreat again to its reserve role. Whatever one thinks of the BVerfG’s ruling, it is in any case not directed against the institutional order of the EU, but rather wants to see it strengthened with respect to separation of powers.
  8. With regard to the design of the national judicial system, the Polish Constitutional Tribunal ultimately denies any competence of the EU. This is practically untenable, since the Polish courts are part of the European judicial network and act within this framework as functional Union courts. For this reason, non-independent national courts are incompatible with the European rule of law, which is why such an organisation of a national judiciary can and must be sanctioned by the EU. This is a matter of fundamental principles, the non-existence of which would prevent EU accession. The case of the Federal Constitutional Court, on the other hand, was about very technical questions of monetary union, which ultimately do not threaten the foundation of the EU as such from the outset. In fact, the BVerfG’s ruling did not even have any serious impact on the monetary union or the ECB’s ability to act (as I, among others, have already predicted here).
  9. The Polish Constitutional Tribunal denies national judges the established power to review the conformity of national measures with European law themselves and to disregard conflicting provisions. This is another fundamental encroachment on basic principles of the European judicial system and the community of law. Obviously, none of this can be found in the BVerfG decision.
  10. In this context, the Polish Constitutional Court also prohibits national judges from applying superseded national law, insofar as the new superseding law should be contrary to European law. This also massively damages the legal community with effect in the future; the EU could no longer be considered a supranational organisation. There is nothing of that sort in the decision of the Federal Constitutional Court.

The bottom line is this: Regardless of what one thinks of the BVerfG ruling, the Polish ruling has a completely different quality. It shakes the foundations of European integration, massively impairs the functioning of the supranational European judicial system and, in this respect, primarily affects the future. With the blanket rejection of the primacy of European law, European integration in its previous form is no longer possible. Strictly speaking, Poland’s remaining in the EU is no longer conceivable under these circumstances; the EU would be nothing more than a weak confederation of states (like the German Confederation of 1815-1866). The BVerfG’s ruling, on the other hand, does not question any of the established principles, not even and especially not the primacy of European law, but merely sees the EU outside its competences in a very specific and hardly relevant field in the future. To put it differently: In one case, integration in general becomes practically impossible, while in the other case, only selective corrections are demanded without touching the basic principles. The dispute between the ECJ and the BVerfG can be resolved, the one between the Polish Constitutional Court and the EU (and the ECJ) cannot – at least not legally. Formally, this judgement still has to be published by the Polish government. Until then, it has no formal legal force. Irrespective of this, however, the political damage has already been done.

SUGGESTED CITATION  Thiele, Alexander: Whoever equates Karlsruhe to Warsaw is wildly mistaken, VerfBlog, 2021/10/10, https://verfassungsblog.de/whoever-equals-karlsruhe-to-warsaw-is-wildly-mistaken/, DOI: 10.17176/20211010-181242-0.


  1. Eleanor Spaventa Mo 11 Okt 2021 at 00:02 - Reply

    Thank you for this and I agree. But in my opinion because the polish const court can of course not impinge on EU constitutional principles and the Treaties, then this should be seen as obligation for eiher exiting or changing the constitution. Politics aside in a working rule of law based system this is the only conclusion one should draw. Of course we know system lacks both at the moment but legally those are the only avenues that should be open in a traightforward clash. I d be interested in your view point.

  2. Damian Chalmers Mo 11 Okt 2021 at 08:34 - Reply


    I am a bit bemused by this, so have some questions.

    1) Where does the Federal Court accept the primacy of EU law over the Basic Law? In its judgment of May 2020, it talks of the primacy of the Basic Law at para 106 (‚Vorrange des Verfassungs‘). Where is that subsequently contradicted? https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2020/05/rs20200505_2bvr085915.html

    (ii) Did that May 2020 judgment not put in doubt any EU primary law? I read it as saying the CJEU had breached Art 19 TEU and the proportionality principle (para 155 etseq). It also rejected the CJEU’s interpretation of Art 127 TFEU. It is dancing on pinheads to argue that the CT rejecting provisions or principles of EU law as developed by the CJEU is ‚wildly‘ different from the FCC rejecting interpretations of EU Treaties made by the CJEU.

    (iii) In its judgment of 11 May 2005 on accession to the EU, the Polish Constitutional Tribunal made clear that the Polish Constitution by dint of Article 8(1) remained the supreme law in Poland. Should Poland never have been admitted therefore? Why, on your premises, did that judgment not put EU law in question in a similar way to this week’s?

    (iv) Did this week’s Polish CT judgment say Polish statutes have precedence over EU law? My understanding is that it was silent on that. If so, how does this allow the Polish government to oppose any EU law obligation? Passing a Polish statute will not help them.

    (v) You claim that the FCC’s judgment was not directed at the institutional order of the EU. My understanding is it put in doubt the central activity carried out by any EU Institution at the time, namely QE in its different forms by the ECB. What EU institutional activity has the Polish court’s decision stopped?

    I do not think much of the Polish court’s composition and workings, and think even less of its not publishing the judgments. I also think neither the judgment nor EU law should be overstated. In that regard, I would be interested in answers to my questions.

    • Lukas Küppers Di 12 Okt 2021 at 12:28 - Reply

      BVerfG accepted primacy of EU law over the Basic Law implicitly in Solange II, by disapplying the german fundamental rights, which are part of the basic law. In Honeywell, para 53 (https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2010/07/rs20100706_2bvr266106en.html), it explictly recongnized primacy of EU law over the Basic Law, which it has subsequently repeated, for instance in the final judgement in the Gauweiler/OMT case (https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2010/07/rs20100706_2bvr266106en.html) in para 118 in Right to be forgotten II, para 47 (https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2019/11/rs20191106_1bvr027617en.html), in European Arrest Warrant III para 36 (https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2020/12/rs20201201_2bvr184518en.html)

      Ultra-vires revies, identity review and the Solange Reservation are excpetions. As a general rule, BVerfG recognizes the precedence of EU law, even over German constitutional law.

      • Damian Chalmers Mi 20 Okt 2021 at 01:54 - Reply

        OK Lukas, find me a German Constitutional Court judgment which strikes down a provision of the Basic Law because it conflicts with EU law. There are none because EU law derives it authority in Germany from art 23 of the Basic Law.

        (i) On the point of primacy over the constitution, I would refer you to back to para 53 of Honeywell which does not say anything explicit about primacy over the Basic Law but talks about EU law’s ‚constitutional empowerment‘ by a provision of that Law. Then look at paras 54 & 55 of Honeywell below immediately after the para you invoke. They say nothing about ultra vires or constitutional identity being exceptions. They are rather German constitutional doctrines which condition the authority granted to EU law.

        54 Unlike the primacy of application of federal law, as provided for by Article 31 of the Basic Law for the German legal system, the primacy of application of Union law cannot be comprehensive (see BVerfGE 73, 339 ; 123, 267 ).

        55 As autonomous law, Union law remains dependent on assignment and empowerment in a Treaty. … The applicable principle is that of conferral (Article 5.1 sentence 1 and Article 5.2 sentence 1 TEU). The Federal Constitutional Court is hence empowered and obliged to review acts on the part of the European bodies and institutions with regard to whether they take place on the basis of manifest transgressions of competence or on the basis of the exercise of competence in the area of constitutional identity which is not assignable (Article 79.3 in conjunction with Article 1 and Article 20 of the Basic Law) (see BVerfGE 75, 223 ; 89, 155 ; 113, 273 ; 123, 267 ), and where appropriate to declare the inapplicability of acts for the German legal system which exceed competences

        (ii) The fundamental rights law of the German Constitutional Court does not assert the primacy of EU law over the GG. It states EU fundamental rights (not other EU law) will apply providing the standard of review subject to certain constitutional conditions of substantive protection (‚Solange). Basic Law rights continue to provide the underpinning framework. So in Right to be Forgotten II look at para paras 47 and 55:

        47. It is solely on the basis of the recognition of the precedence of application of EU law that the German fundamental rights are not applied as the relevant standard of review (cf. BVerfGE 123, 267 ; 126, 286 ; 129, 78 ; 140, 317 with further references); the validity of the fundamental rights of the Basic Law as such remains unaffected. They remain in force as the underlying dormant framework. In its established case-law, the Federal Constitutional Court only recognises the precedence of application of EU law, which rules out a review on the basis of the fundamental rights of the Basic Law, subject to the reservation that the protection afforded by the EU fundamental rights that apply instead must be sufficiently effective (cf. BVerfGE 73, 339 ; 102, 147 ; 118, 79 ; 129, 186 ; established case-law). The Basic Law puts the individual and the individual’s fundamental rights at the centre of its order, declares their essence and the core of human dignity to be inviolable (cf. Art. 19(2), Art. 79(3) GG) and also guarantees this protection with regard to the EU Treaties (cf. Art. 23(1) third sentence GG). Therefore, EU law can only prevail over the guarantees afforded by domestic fundamental rights if the protective guarantees of these fundamental rights are upheld in substance.

        Also para 55 ‚Thus, effect is given to EU law at the domestic level in Germany in accordance, in principle, with the requirements concerning the organisation of the state as set out in the Basic Law.‘

        (iii) EAW3 uses broader language, to be sure. It still explicitly subjects EU fundamental rights law to 3 German constitutional provisions: 1, 23 & 79. Given the sweeping nature of art 1 in German constitutional law, it underpins all fundamental rights I see that as not changing too much particularly in light of the detailed subsequent evaluation of article 4 EUCFR. There is also the small point that it does not follow the ECJ on the remit of review of EU fundamental rights law. The area must be determined by EU law. That does not include something like ERT.

        • Edward Mi 20 Okt 2021 at 18:06 - Reply

          Thank you for this enlightening and interesting discussion. I would really like to hear the author’s, Alexander Thiele’s, views on the points you have raised.

  3. Pola Mo 11 Okt 2021 at 14:42 - Reply

    I believe that the judgments are incomparable, because the Polish Constitutional Court is not a constitutional court (because of its appointments, lack of judicial independence and its functioning in blatant violation of the Canon over the past years).
    However, I believe that it is very difficult to reach a conclusion about an incomparable nature of the two reasoning versions (we only have the short communication available on the Polish side) based on purely doctrinal perspective. When we try to find nitty-gritty differences in the legal arguments ignoring the elephant in the room, we risk ending up reinforcing the PiS narrative. It is very difficult to argue then that there is really a difference in nature and not a difference in degree (quality of legal arguments or applying them to different norms of EU law).
    We need to look at the political and institutional context of the adjudication. I would wonder even whether the political context of the judicial challenges could not be comparable , as cases both in Germany and Poland tend to be brought with subversion motives regarding EU integration. But the institutional context regarding judicial independence of the German and Polish consitutional courts are what is incomparable.

  4. Matthias Buck Mo 11 Okt 2021 at 15:02 - Reply

    Dear Alexander Thiele, many thanks for this very clear and succinct overview. I have shared it on Social Media. Your article helps structuring a debate that will be messy indeed and can only be resolved politically. MB

  5. Rousseau Mo 11 Okt 2021 at 15:53 - Reply

    With all due respect, this analysis falls once again in the „special treatment“ that is reserved by „politically correct“ academia and the Court to the big & founding MS and especially Germany.

    As Chalmers states it i a previous comment, the German judgment is much more virulent against the EU that what is described here and in reality the Polish one is much more „cooperative“ and with factually well-founded criticisms of the actual interpretation of the EU system.

    Paras 5 to 21 of the Polish judgment are sound and should be published here to allow readers to form their own opinion and a more constructive debate.

    • Michał Krajewski Di 12 Okt 2021 at 13:44 - Reply

      What you refer as paras 5 to 21 is not a judgment… The judgment, i.e. its full written motives have not been published yet. It’s just a press release…

  6. Erik Mo 11 Okt 2021 at 19:49 - Reply

    I’d be interested in seeing a similar comparison between the recent Polish ruling and the 2016 Ajos ruling by the Danish Supreme Court, since that’s the other comparison that I’ve seen being made.

  7. Michal Krajewski Di 12 Okt 2021 at 14:16 - Reply

    I don’t want to defend the Polish „judgment“ issued by something that is the parody of a court. But at the same time, I don’t understand how such sweeping statements like those here (‚…there are serious doubts as to whether Poland can continue to remain part of the EU…‘), on such a fundamental and delicate issue, could have been written by a professor of law who hasn’t read the full motives of the judgment. He couldn’t have read them, no one could have, becase the full motives have not been published yet. We just have an operative part – which is incomprehensible to someone who doesn’t specialise in Polish constitutional law (e.g. the nuanced and controversial understanding of the ‚in so far as‘ formula) – and a press release in Polish, as well as the video recording of short oral motives in Polish.

    There are doubtful and not sufficiently detailed or nuanced statements here. The Polish „judgment“ is not about secondary law provisions, it’s about resisting a particular line of ECJ case law (A.K., A.B., W.Ż.). The ‚in so far as‘ formula does not invalidate the reviewed Treaty articles in Poland. Unlike what is written here the Ajos judgment of the Danish Supreme Court was about reviewing the interpretation of PRIMARY law, concidering it ultra vires, i.e. the general principle of non-discrimination (Danish Supreme Court ‚concluded that the judge-made principles of EU law such as the general principle of non-discrimination on grounds of age, were not binding because it did not have its origin in a specific Treaty provision‘, https://verfassungsblog.de/legal-disintegration-the-ruling-of-the-danish-supreme-court-in-ajos/). In my view, the Polish quasi-CT reasoning, as following form the material that we have, is similar. But when it comes to this post, points 9 and 10, and the subsequent paragraph, are phrased in such a way that they suggest that the whole principle of primacy was switched off in Poland, which is not true (‚…the blanket rejection of the primacy of European law, European integration in its previous form is no longer possible…‘). As Jakub Jaraczewski explained in more detail today on Verfblog:’The real gist of the applicant’s argument, with which the Tribunal has sided, is that the EU has no competence on grounds of Art. 19(1) TEU with regards to how the Polish judiciary is to be organised. According to the Tribunal, CJEU case law based on Art. 19(1) TEU should therefore not be understood as allowing Polish courts to overrule domestic laws that the CJEU considers incompatible with Art. 19(1) TEU‘.

    Again, the problem of the Polish „CT“ „ruling“ is very serious. It requires attention but it also requires deep reflection and analysis, something that academics should specialise in. To me this post is not about this, it’s about unconditional defence of the German Court using overblown statements and over-simplification.

    • Alexander Thiele Mi 13 Okt 2021 at 10:19 - Reply

      Thanks for the critique. However a few remarks: First of all I do not want to defend the German Constitutional Court at all. I am one of the many critiques of this judgement. (here on verfassungblog). Second of all: I agree that one of the main aspects of the Polish Court concerns the competence of the EU in the field of the national judiciary. However: It also states that Art. 1 (!) TEU is not compatible with the the Polish constitution as far as it hinders the functioning of the the Polish sovereign and democratic Republic – in general. So I would stick to my conclusion that it is not inly the field of national judiciary that is effected here. But I look forward to further discussions. My main aim was to point to these differences in the two judgements. Again: No intention at all to justify the German judgement.

      • Michał Krajewski Mi 13 Okt 2021 at 19:08 - Reply

        Thank you for the reply. I appreciate it. However, to me this reply perfectly shows your misconception about how the Polish CT rulings work. The ‚in so far as‘ formula has been used to introduce so-called interpretive rulings (among other things, the practice has been inconsistent). This kind of rulings do not formally invalidate the controlled provisions but are intended to induce their different intepretation. Put bluntly, the ‚in so far as‘ is a synonym of „understood as“ or „if“.

        The question is how to interpret point 1 of the operative part. In its press release the „CT“ noted, in point 9, that where some conditions are fulfilled (principle of conferral, the supremacy of the constitution, democracy+sovereignty) Art. 1 TEU is consistent with the Constitution. In my view, their intention was to make an interpretive ruling: „When Article 1 is interpreted as breaching the principle of conferral, then it is unconstitutional“ more or less. But – as you and I agree – this hypothesis is EMPTY. So the whole point 1 of this operative part – for now – looks EMPTY to me and has NO EFFECT.

        This is how I understand Jakub Jaraczewski’s opinion expressed on Verfblog: „The first part is downright bizarre, amounting to something more akin to a political declaration and less to a judgment of a court.“ Jaraczewski doesn’t believe in the point of legal examination of this provision and I agree with him. But I feel I should clarify what I see as a serious misconception. After all, this CT is not the real CT so it cannot decide on the principle of primacy in Poland. We still do have independent judges.

        It appears that your sweeping statements about the end of the principle of primacy in Poland have turned out pre-mature as proven by the Supreme Administrative Court which just repealed (on 11 Oct 2021) a whole series of decisions of the neo-KRS regarding the appointment of neo-judes to the Supreme Court. The SAC thus applied the AK case law of the ECJ and disregarded Przyłębska’s CT. I haven’t seen these SAC decisions yet – I have to emphasise this fact – but there were reported by the Polish Judge’s Association „Iustitia“: https://monitorkonstytucyjny.eu/archiwa/19877

  8. J. Ryou Di 12 Okt 2021 at 15:16 - Reply

    Dear sir.

    While I agree that the BVG decision is limited to the specific quantitative easing programme, does it not seem to have gained further meaning by the European Commission announcing its intention to begin infringement proceedings against Germany?

    It seems that even before this Polish decision that the Commission was displeased with the rejection of the CJEU’s methodology as „not comprehensible“.

    Thank you for your succinct article – I was directed to it by my assoc. prof. of EU law at the LSE.

    • Alexander Thiele Mi 13 Okt 2021 at 11:23 - Reply

      Thanks for your comment. I surely did not want to defend the German judgement. And I can understand the Commission for initiating proceedings (though it can be debated whether this was the right step politically). I simply wanted tpo point to the different approaches of the two courts and again: I do believe the German judgement was wrong for many reasons.

      • Jewook Ryou Mo 25 Okt 2021 at 19:29 - Reply

        Dear sir. Many thanks for your response – it clarified a few things.

  9. Thomas Jaeger Mi 20 Okt 2021 at 12:31 - Reply

    „Wildly mistaken“ is a bold claim. PM Morawiecki only yesterday in the EP relied on the example of PSPP to defend the Polish position. This is not an issue of legal argument, but of legal culture: Nobody claims that the two Courts or their reasoning and dogmatics are the same. It is the signal sent and the disrespectful and schoolmasterish language used (in some parts of PSPP, while other parts are moderate) by Karlsruhe that did all the damage. A different tone and less self-righteousness of argument would have achieved the same result. Just compare PSPP to the elegant and well-reasoned approach of the Conseil d’Etat in La Quadrature du Net to learn how this is done. The Polish tragedy is not just a low point for Europe, but especially for Karlsruhe.

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