Protection of constitutional identity in light of the jurisprudence of the Constitutional Court of the Republic of Poland – a comparative study

Abstract

Open AccessProtection of constitutional identity in light of the jurisprudence of the Constitutional Court of the Republic of Poland – a comparative studyMaciej Serowaniec, Katarzyna JachimowiczMaciej SerowaniecSearch for more papers by this author, Katarzyna JachimowiczSearch for more papers by this authorhttps://doi.org/10.7767/9783205217381.55SectionsPDF/EPUB ToolsAdd to favoritesDownload CitationsTrack Citations ShareShare onFacebookTwitterLinkedInRedditEmail About1. Introductory remarksThe essential axiological basis of the European Union (EU) is the idea of affirming one’s constitutional identity in solidarity with, rather than against, other peoples.1 The counterpart of the concept of constitutional identity in European primary law is the concept of national identity. The first sentence of Article 4(2) of the Treaty on the European Union emphasises that ‘the Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental political and constitutional structures’. Indeed, the concept of national identity recognises not only the specificity of culture, language, customs or religion but also the link with state identity, expressed in the preservation of basic state functions that condition the existence of the state as a distinct entity. In a broader sense, the concept of national identity should therefore be understood as an obligation to respect the continuity of the existence of Member States as sovereign entities, respect for national cultures, the norms of national law or the principles of the socio-economic system of the state.2 Also, Advocate General M. Poiares Maduro, in his opinion in Case C-213/07, took the view that national identity includes the constitutional identity of a Member State and that its preservation is an obligation of the EU. This obligation stems from the essence of the European project launched in the early 1950s, which involves deepening integration while preserving the political existence of states.Consequently, a Member State may claim the protection of its national identity, among other things, when derogating, in certain cases and under the court’s control, from the application of the fundamental freedoms of movement. Moreover, in the Ombudsman’s view, the required preservation of the constitutional identity of the Member States may constitute a legitimate interest capable of justifying a limitation of the obligations imposed by Union law. This is all the more reason for a state to invoke that interest to justify its assessment of the constitutional measures that should supplement EU legislation to guarantee respect, within its territory, for the principles and rules contained in, or underlying, that legislation. The Ombudsman emphasised, however, that the preservation of the constitutional identity of the Member States could not be understood as absolute respect for all national constitutional principles. If this were the case, national constitutions could become instruments that enable Member States to free themselves from Union law in certain areas.3 Constitutional identity is, therefore, closely linked to the concept of national identity.42. Protection of constitutional identity in light of selected case law of the constitutional courts of EU Member StatesFrom the Member States’ perspective, it seems legitimate to ask whether the limits of EU competence, especially legislative competence, can be drawn, especially in the context of the obligation to respect national identity. In constitutional courts’ decisions on the constitutionality of the Lisbon Treaty, two ways of approaching these questions can most broadly be distinguished. The first way is to accept the transfer of competences (sovereign rights) with the proviso that there are limits to the transfer. However, these limits are defined very generally and with reference to the characteristics of the systemic relationship between the two legal orders – national and EU.5 Such an approach is presented, among other things, by the Czech Constitutional Court. In its judgment of 26 November 2008, the Czech Constitutional Court6 referred to earlier German constitutional case law by indicating in its reasoning that after the entry into force of the Lisbon Treaty, the ‘masters of the treaties’ will continue to be the Member States. This view reflects the importance the Court attaches to the Czech constitutional order, which remains the criterion for assessing the admissibility of the transfer of competences and determines the scope of the transfer of competences. The Constitutional Court emphasised that it would be up to the Czech legislator to adopt legal provisions corresponding to the requirements of the constitutional order referred to in the Lisbon Treaty. It also recalled that the treaty does not change the concept of European integration, meaning that the Union remains an international organisation and the Member States retain their constitutional identity; therefore, the Czech Constitution remains the most important law in the state. Emphasising the importance of state sovereignty, the Court pointed to its role as the highest authority for the protection of the constitutionality of Czech law, also in the context of possible abuses of competence by EU bodies and European law. European law, contrary to the materially understood essence of constitutionality and the democratic state of law, could not have a binding character in the Czech Republic. At the same time, the importance of the Constitution and the Member States’ laws in guaranteeing their sovereignty and national identity was also pointed out. The Court stated that under the conditions of the Lisbon Treaty, the EU remains a union of sovereign states and not a federation. As an international organisation, the Member States of the Union retain their full sovereignty and are ‘masters of the treaties’. The limit of acquiescence to the development of the Union, therefore, lies where Member States would begin to lose their constitutional identity.7For the second approach, it is important to identify the material limits of the delegation of competences and thus define a core of sovereignty or national identity. This approach is admittedly less open to integration. However, it seems to meet the requirements of the principle of legal certainty to a greater extent, as it makes the outcome of the resolution of possible future national and Union law conflicts more predictable.8 The group of constitutional courts that actively seek to delimit the Union’s competences using, among other things, the concept of national identity for this purpose include the German Federal Constitutional Court and the French Constitutional Council.The decision of the French Constitutional Council of 20 December 2007,9 which preceded the ratification of the Lisbon Treaty, indicated that the arrangements provided for in the Treaty might ‘not be sufficient to prevent the transfer of competences under the Treaty from being of such a magnitude or from taking place in such a way that the fundamental conditions for the exercise of national sovereignty might be infringed’ (thesis 16). Among the competences ‘inseparable from the exercise of national sovereignty’, the Constitutional Council included in particular the competences in the following fields: the fight against terrorism and related activities; the fight against trafficking in human beings; and judicial cooperation in civil and criminal matters related to the establishment of the European Public Prosecutor’s Office (theses 18 and 19). In the Constitutional Council’s view, incompatible with the French Constitution in force at the time, are ‘all the provisions of the Treaty of Lisbon which relate to areas which are inseparable from the exercise of national sovereignty and which are already within the competence of the Union or of the Community, which modify the rules of decision-making either by replacing the unanimity rule by the qualified majority rule within the Council, thus depriving France of any possibility of opposition, or by delegating decision-making powers to the European Parliament, which is not an emanation of national sovereignty, or by depriving France of its right of initiative’ (thesis 20). Interpreting the European constitutional clause as it stood at the time of the adjudication, particularly Art. 88–1 (‘The Republic shall take part in the European Communities and in the European Union composed of States which have freely decided, under the Treaties establishing these organisations, to exercise jointly certain of their competences’), the Constitutional Council stated that this clause ‘confirms the supreme legal force of the Constitution in the internal legal order’ and at the same time allows ‘France to participate in the creation and development of a permanent European organisation with legal personality and endowed with decision-making powers as a result of the delegation of competences by the Member States’.In the judgment of the Federal Constitutional Court of Germany of 30 June 2009,10 the issue of ‘constitutional identity’ is an important motive for recognising that the EU, being a ‘treaty-based union of sovereign states’, cannot lead to insufficient room for political debate in the Member States, which, with regard to amendments to the treaties constituting the Union not by means of a revision treaty but by means of ‘other legal regulations’ (the so-called footbridge procedure) without the requirement of ratification, means that the federal government and legislatures have a special ‘integration responsibility’, concretised as a rule by the need to give their consent by means of an appropriate law.11 Therefore, there is no possibility of any acknowledgement that membership of the EU, in order to be effective, requires the acceptance of an almost automatic acceptance of the transfer of competences needed by the Union through the simple implementation of a treaty. In light of the judgment mentioned above, constitutionally acceptable accession to such an organisation does not mean it can concede to itself the necessary competences belonging to the Member States and gradually deprive them of their sovereignty of its previous significance. In this context, the Federal Constitutional Court’s redefinition of its own role in light of the Lisbon Treaty, as guardian of ‘constitutional identity’ – in that the constitutional courts cannot be deprived of their responsibility to ‘guarantee the constitutional limits of the integration mandate and the non-transferable constitutional identity’ (thesis 336) – deserves emphasis. According to the Federal Court, its competence derives from Germany’s sovereignty as a Member State of the Union. For this reason, the Court will declare an act of EU law inapplicable in Germany if the principle of the primacy of EU law lacks a constitutional basis for application (thesis 339). German law is the source of the principle of the primacy of Union law over German law. The Federal Constitutional Court also stated in the judgment under review that failure to comply with the requirements under German law for the participation of the parliamentary chambers in the shaping of Germany’s position in the European Council and the Council of the European Union in the process of the transfer of ‘supreme rights’ would be a violation of the ‘constitutional identity’ of the State, which, after all, is not precluded by the constitutional approval of membership of the Union. The Federal Constitutional Court held that the principle of primacy of EU law only refers to the primacy of application vis-à-vis German law and does not imply an obligation to abrogate this law if it would jeopardise the effectiveness of EU law. The Court pointed out that a constitutional court of a Member State may declare an act of EU law incompatible with its own constitution while retaining ‘the right to the last word’, but at the same time accepting ‘the need then to bear the inter-state consequences’ (thesis 340). The Court pointed out that the infringement of Germany’s constitutional identity is impermissible, since the constitutional legislator has not granted the representatives and organs of the nation the right to dispose of sovereignty. The Federal Constitutional Court must ensure that this limitation, which is part of the immutable provisions of the Basic Law of Germany as a state, is respected (theses 234 and 235).12 Since the Treaty of Lisbon refers to the national identity of the Member States, according to the Federal Constitutional Court, the basic components of constitutional identity include, in particular, the following: citizenship; civil and military monopoly over the use of the armed forces, public revenue and expenditure; interference in the exercise of fundamental rights (especially in the form of deprivation of liberty under criminal law); the right to language; the shaping of living conditions in the family; education; the exercise of freedom of the press, assembly and expression; freedom of religion and the dissemination of ideology. Understanding the determinants of identity derives from the context of historical and cultural experience (thesis 249). The judgment of the Federal Constitutional Court of Germany of 6 July 2010 expressed the view that, when referring in its jurisprudence to acts of the European institutions, the Court should, in principle, align itself with the line of case law of the European Union Court of Justice, which sets the binding interpretation of Union law. At the same time, the Federal Constitutional Court stated that the judgment of the European Court of Justice in Case C-144/04,13 which recognised the prohibition of age discrimination as a general principle of European law, derived from the constitutional traditions of the Member States. The Court further stated that the duty of the national court to guarantee the full effectiveness of the general principle of non-discrimination on grounds of age by disapplying any provisions of national law that are contrary to it, even if the time limit for transposition of that directive has not yet expired,14 did not go beyond the competence of the Union ‘in a constitutionally objectionable manner’.In this context, it is also worth recalling the position of the Court of Justice of the European Union (the CJEU) in its judgment of 5 December 2017 in the so-called Taricco II case.15 In this judgment, the CJEU made a precedent-setting departure from the absolute nature of the principle of the primacy of EU law: recognising the material nature of the statute of limitations in Italian law, with the consequence that it is linked to the principle of legality and the principle of nullum crimen, which are integral to the Italian constitutional acquis. The CJEU held that the obligation to ensure the effective collection of the Union’s own resources cannot stand in the way of the principle of legality, and it is for the national judge to determine whether the application of Article 325 TFEU is contrary to the constitutional identity of the Member State concerned. Consequently, the CJEU held that Italian courts should, as a general rule, not apply the statute of limitations ‘unless such non-application has the effect of infringing the principle of the statutory definition of offences and penalties because of the inadequate definition of the applicable law or because of the retroactive effect of provisions laying down stricter conditions for liability than those in force at the time the offence was committed’. In response to this judgment, the Italian Constitutional Court16 reserved its position as guardian of the Constitution, looking after the integrity of the national legal order, particularly in relation to protection of fundamental rights and Italy’s constitutional identity.On the other hand, the Hungarian Constitutional Court’s ruling of 30 November 2016 in case 22/2016 (XII. 5.) examined the constitutionality of the Hungarian Council Decision 2015/1601 of 22 September 2015 concerning the forced relocation of refugees. In its ruling, the Hungarian Court scrutinised the said regulation both from the point of view of the EU’s ultra vires action and the decision’s violation of the Hungarian constitutional identity, finding that its various elements violate both tests. It should be emphasised that to this end, in paragraph 49 of the judgment, it referred explicitly to the German Federal Constitutional Court judgment for guidance on how to conduct a constitutional identity review. In practice, the Hungarian Constitutional Court’s aim was not to increase the level of protection of fundamental rights but rather to protect the political settlement made by the national authorities.173. Constitutional identity in light of the jurisprudence of the Constitutional Tribunal of the Republic of PolandUntil the start of the constitutional changes in 2015, the Constitutional Tribunal of the Republic of Poland shared the view expressed in the doctrine that the competences covered by the prohibition of transfer constitute constitutional identity and thus reflect the values on which the Constitution is based.18 Constitutional identity is therefore a concept that determines the extent of the ‘exclusion from the competence of transfer of matters belonging (…) to the ‘hard core’, cardinal to the foundations of the political system of a given state’, the transfer of which would not be possible based on Article 90 of the Constitution. Therefore, irrespective of the difficulties associated with the establishment of a detailed catalogue of non-transferable competences, it is necessary to include, among the matters covered by the absolute prohibition of transfer, the provisions defining the main principles of the Constitution and the provisions concerning the rights of the individual determining the identity of the state. These rights include, in particular, the requirement to ensure the protection of human dignity and constitutional rights; the principle of statehood; the principle of democracy; the principle of the rule of law; the principle of social justice; the principle of subsidiarity; the requirement to ensure a better realisation of constitutional values; the prohibition of the transfer of constitutional authority; and the competence to create competences.19The guarantee of the preservation of the constitutional identity of the Republic remains Article 90 of the Constitution and the limits of the delegation of powers set out therein. As further emphasised by the Constitutional Tribunal, the democratic legal State referred to in Article 2 of the Constitution, as a member of the EU, fully retains its constitutional identity due to the fundamental homogeneity of the constitutional role of law in the Member States and in the organisation they form. Article 90 of the Constitution, understood from the perspective of the principles and values derived from Article 2 of the Constitution and concerning the recognition that there are no competences that do not derive from an express legal provision, excludes the transfer of competences without an observance of the legal basis and the democratic procedure for its establishment stipulated therein. Due to the validity of Article 2 of the Constitution, an amendment of the treaty’s content without observance of the ratification procedure leading to the transfer of competences to the Union requires a proper statutory basis under the rules contained in Article 90 of the Constitution. However, Article 90 of the Constitution cannot be understood to exhaust its meaning after a single application. Such an interpretation would result from assuming that the transfer of competences to the EU in the Lisbon Treaty is a one-off and opens the way for further transfers, already disregarding the requirements set out in Article 90. Such an understanding of Article 90 would deprive this part of the Constitution of the characteristics of a normative act. The provisions of Article 90 are to be applied to amendments to the treaty provisions constituting the basis of the EU which occur other than by means of an international agreement if those amendments result in a transfer of competences to the EU. The Constitution defines the relationship between international law and domestic law primarily according to the principles of the common good, sovereignty, democracy, the rule of law and the favouring of domestic law over international law. The effect of the delegation of competences is usually a complex set of relationships between the state, its organs and the international organisation. Therefore, the transfer of competences must always be assessed from the point of view of the principles shaping constitutional identity. The guarantee for the preservation of the constitutional identity of the Republic remains Article 90 of the Constitution and the limits of the transfer of competences set out therein.20From the point of view of the impact of integration processes on the scope of sovereignty, the legal order of the EU, against the background of the law enacted by international organisations, is distinguished by the broader scope of the Union’s competences compared to other international organisations, the binding character of a significant part of Union law, and the direct effect of Union law in the internal relations of the Member States. The Constitutional Tribunal shares the view expressed in the doctrine that in the sphere of delegated competences, states have relinquished the power to take autonomous legislative action in internal and international relations, which, however, does not lead to a permanent limitation of the sovereign rights of these states, as the delegation of competences is not irreversible. Indeed, the relationship between exclusive and competing competences is dynamic. The Member States have only accepted the obligation to jointly exercise state functions in the areas covered by the cooperation. As long as the Member States retain the full ability to determine the forms of exercise of state functions, coextensive with the competence to ‘determine their own competences’, they will remain sovereign entities under international law. There are complex processes of interdependence between the Member States of the EU, linked to their entrusting to the Union part of the competences of the organs of state authority. However, these states remain subjects of the integration process, they retain ‘competence of competence’, and the model of European integration remains the form of an international organisation.It is the conviction of the Constitutional Tribunal that the sovereignty of the Republic and its independence, understood as the distinctiveness of Poland’s state existence within its present borders, in the conditions of membership of the EU on the principles set out in the Constitution, signifies confirmation of the primacy of the Polish Nation to determine its own fate. The normative expression of this principle is the Constitution, and in particular the provisions of the Preamble, Article 2, Article 4, Article 5, Article 8, Article 90, Article 104(2) and Article 126(1), in light of which the sovereignty of the Republic is expressed in the non-transferable competences of the organs of state authority that constitute the constitutional identity of the state. The expression of this principle is the very existence of the Basic Law and the Republic as a democratic state under the rule of law (Article 2 of the Constitution). Article 4 of the Constitution stipulates that the supreme power ‘belongs to the Nation’, which excludes its delegation to another superior. According to Article 5 of the Constitution, the Republic shall safeguard the independence and inviolability of its territory and ensure the rights and freedoms of of persons and citizen. The provisions of Article 4 and Article 5 of the Constitution, in conjunction with the Preamble, delineate the fundamental relationship between sovereignty and the guarantee of the constitutional status of the individual, while at the same time excluding the renunciation of sovereignty, the recovery of which the Preamble to the Constitution affirms as a premise for the nation to stand for itself.In the last few years, we can observe a dramatic change in the Polish Constitutional Tribunal’s approach to constitutional identity. The background of this controversial and politically motivated change is the escalating conflict between Poland and the EU to ensure effective judicial protection in areas covered by EU law. It is linked to the introduction of several statutory changes in recent years that interfere with the courts’ and judges’ independence. The first such break in the previous jurisprudence of the Constitutional Tribunal concerning how the concept of constitutional identity is perceived was the judgment of 14.07.2021 in case P 7/20.21 In this judgment, the Constitutional Tribunal ruled that ‘the second sentence of Article 4(3) TEU in conjunction with Article 279 TFEU, to the extent that the CJEU imposes ultra vires obligations on the Republic of Poland as a Member State of the European Union by issuing provisional measures relating to the system and jurisdiction of Polish courts and the procedure before Polish courts, is incompatible with the Constitution of the Republic of Poland’. The ruling in case P 7/20 represents a departure from the previous line of jurisprudence, considering both the Constitution’s supremacy and the principle of effectiveness of EU law. The crowning argument raised by the Polish Constitutional Tribunal was that the CJEU was ruling in the area of the system and jurisdiction of judicial authorities (i. e., in areas that the Republic of Poland has not and cannot delegate to the EU). As further emphasised in the justification, no nation can have rules imposed on it in regard to how it will organise its own state. In the opinion of the Constitutional Tribunal, a European-friendly interpretation of the Constitution has become a well-established principle and practice in the Republic of Poland. However, it has its limits where Polish constitutional identity is infringed. Even with the best will of a pro-European interpretation of the Constitution, the power of the CJEU to suspend Polish laws concerning the system and jurisdiction of Polish courts, in particular the independence of Polish judges, cannot be interpreted. As an exception to the principle of independence and sovereignty of the Republic of Poland, the delegation of competences cannot be interpreted broadly. On 7.10.2021, the Constitutional Tribunal issued a judgment in case K 3/21, initiated by a motion of the Prime Minister. In the motion, the Prime Minister challenged the interpretation of selected CJEU provisions adopted in the CJEU case law. It is worth noting that the full justification of this judgment has not been published to date, so in this case we must refer to the arguments raised in the application to the CJEU. In the context of constitutional identity, the Prime Minister emphasised that constitutional identity is inextricably linked to the sovereignty of the nation and its right to self-determination. Constitutional identity, understood as the values on which the Constitution and its guiding principles are based, is therefore the concept that determines the scope of the exclusion of the admissibility of the delegation of powers under Article 90(1) of the Constitution. In the opinion of the Prime Minister, in line with the constitutional standard, it is therefore inadmissible to introduce an exception to the principle of supremacy of the Constitution in case the exception source would be international law. Poland’s accession to the EU and the related transfer of competences do not imply a surrender of sovereignty to the EU. The limit of the transfer of competences is determined by the sovereignty of the State as a national value, as indicated in the preamble to the Constitution. The application of the Constitution – including in relation to the field of European integration – should correspond to the meaning that the preamble to the Constitution attributes to the recovery of sovereignty, understood as the ability to determine the fate of Poland. This is a significant change in the perception of the Court’s role in protecting constitutional identity.4. SummaryWhat remains common to the constitutional courts of the Member States is the conviction of the fundamental importance of the Constitution as a reflection and guarantee of state sovereignty in the current phase of European integration, as well as of the special role of the constitutional judiciary in the field of the protection of the constitutional identity of the Member States, which at the same time determines the treaty identity of the EU. Furthermore, in some Member States, particularly Hungary and Poland, we can observe attempts by constitutional courts to shape a dangerous systemic practice in which the principle of the primacy of EU law is not absolute and judgments of the CJEU can be controlled by individual constitutional courts and, as a result of this control, also be rejected. In practice, the aim of constitutional courts in Hungary and Poland becomes not so much to increase the level of protection of fundamental rights and constitutional identity but rather to protect the political settlement made by the national authorities.ReferencesJurisdictionLiterature1 K. Wójtowicz, Poszanowanie tożsamości konstytucyjnej państw członkowskich Unii Europejskiej [Respect for the constitutional identity of the Member States of the European Union], Przegląd Sejmowy 2010, no. 4, p. 21.2 A. 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