Is It Time to Rethink ‘Supremacy’ of EU Law Over Member States?

October 18, 2021 Updated: October 19, 2021


A major constitutional crisis is currently brewing in the European Union (EU).

The cause of the crisis is the recent decision by the Polish Constitutional Court that some European laws and decisions of the Court of Justice of the European Union (ECJ) conflict with Poland’s constitution. Therefore, the court has considered whether Polish membership in the EU necessarily results in the supremacy of European law whenever there is a perceived or actual conflict with national law.

Specifically, the Polish court decided that articles 1 and 19 of the Treaty on European Union (TEU) diminish Polish sovereignty.

Article 1 of the TEU stipulates that the Member States “confer competences” on the EU “to attain objectives they have in common.” While Article 19 establishes that the ECJ “shall ensure that in the interpretation and application of the treaties, the law is observed.”

The Polish Constitutional Court decided that the TEU and its associated treaty on the functioning of the EU are merely international treaties that a later, incompatible national law can override.

There is no doubt that the judgment of the Polish Constitutional Court, in concluding that national law prevails over incompatible provisions of European law, is legally defective.

Indeed, the ECJ decided long ago that EU laws take precedence over all national laws and that the “supremacy of European Law principle” is essential to maintain the EU as a supranational legal system.

The principle of the supremacy of European law has been well-understood since the early days of the Union’s predecessor, the European Community. Thus, for example, in Costa v Enel (1964), the ECJ declared that the transfer by the States from their domestic legal system to the Community legal system carries with it a permanent limitation of their sovereign rights.

In a subsequent case, Amministrazione delle Finanze dello Stato v Simmenthal SpA (1978), the ECJ also held that:

“A national court which is called upon … to apply provisions of community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation.”

Following the release of the judgment of the Polish Constitutional Court, members of the European Parliament have demanded that regular payments to Poland be frozen with daily financial penalties imposed on it. In implementing this demand, the EU has now made it, so EU funding is contingent upon respect for the “rule of law.”

Epoch Times Photo
Polish Prime Minister Mateusz Morawiecki arrives for a European Union leaders meeting in Brussels, Belgium, on June 24, 2021. (Johanna Geron/Pool/Reuters)

However, a misinterpretation or even disregard by a national court of EU law does not violate the rule of law because courts occasionally decide cases before them wrongly. If so, the freezing of funds may itself be an egregious violation of EU membership because the failure to disburse funds to Poland would constitute that of a punishment.

Surely, then the threat of withholding funds functions as a sword to scare member states into submission, and this is a breach of the rule of law which is unacceptable from a legal point of view.

Rather than threatening Poland with the withholding of regular payments, the EU should instead use Article 258 of the EU treaty on the Functioning of the EU to seek redress. This article, known as an infringement procedure, declares that if the Commission considers a member state has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.

As the principle of the precedence of European law is a cornerstone, it becomes imperative to look for other reasons which may have precipitated the judgment of the Polish Constitutional Court. Primarily is it possible that the bureaucratic machinery of the EU in Brussels disregards the expectations of the more conservative member states in the union, including Poland and Hungary?

An honest examination of conservative-leaning EU member states may result in a reconsideration of the legitimate expectations of the people of the union.

Such examination aligns with article 1 of the TEU which promises that EU decisions will be taken “as openly and as closely as possible to the citizen.”

Indeed, suppose one considers the judgment of the Polish Constitutional Court that EU decisions do adversely affect the lives of Polish people and the sovereignty of the nation. In that case, the EU administration in Brussels should be abundantly aware of the discontent currently existing in Poland.

Furthermore, the burgeoning crisis should serve as an invitation for the EU members to revisit the present arrangements regarding the relationship between the EU and its member states. It should ideally be based on the idea that sovereignty resides in the people—not the bureaucracy.

The alternative is the further disintegration of the European Union, with Polexit a real outcome if Brussels does not understand the brewing controversy.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland, and served as pro vice-chancellor and dean at Murdoch University. In 2003, Moens was awarded the Australian Centenary Medal by the prime minister for services to education. He has taught extensively across Australia, Asia, Europe, and the United States. Moens has recently published novels as well including, “A Twisted Choice,” and short story, “The Greedy Prospector” in “The Outback” anthology (Boolarong Press, 2021).