Constitutional Identity of Poland: Is the Emperor Putting on the Old Clothes of Sovereignty?

Abstract

This paper analyses the way the term “constitutional identity” is understood and applied in the case-law of the Polish Constitutional Tribunal. The Tribunal first used this term in the Treaty of Lisbon decision to demarcate limits of the state power to confer competences to the European Union. In this context, the Tribunal reaffirmed that membership in the EU is a form of self-limitation and the contemporary form of expressing national sovereignty. In the following discussion, the paper presents decisions in which the constitutional identity of Poland denotes the axiological equivalence or convergence with the EU legal order, or conversely, divergence from common constitutional standards. These standards, setting out the core of the EU constitutional identity, are based on the protection of fundamental rights, rule of law, and democracy. We examine the application of constitutional identity as convergence and divergence on the examples of the right to respect the private and the family life and the right to a fair trial. Yet, we argue, it is the recent constitutional crisis surrounding the Constitutional Tribunal which shows the Polish constitutional dispensation. Failing to cooperate with the European institutions with regard to legal reforms affecting the rule of law the Polish government is not merely insisting on its constitutional identity, but trying on the “old clothes” of national sovereignty.