Poland's Top Court Decision 'Breaks 50-Year-Old Principle Of EU Law': Expert

As tension has heightened since earlier this week between the EU and Poland, an expert on EU law said a decision by the Polish top court challenges a "50-year-old principle of EU law."

"The ruling questions the basis of legal integration within the EU," Ralf M. Kanitz, a lecturer on EU and international law at Istanbul-based Turkish-German University, told Anadolu Agency in an email interview.

The remarks by Kanitz, who represents the German federal government before the Court of Justice of the European Union (CJEU), were in reference to the 1970s case, Internationale Handelsgesellschaft, which deals with the conflict between the national legal system in Germany and EU laws.

"It breaks with a 50-year-old principle of EU law: the primacy of EU law over provisions even of a constitutional nature." Although he represents Germany, Kanitz said that he is expressing his personal view.

He was on his way from Berlin to Luxemburg to attend CJEU hearings on Poland and Hungary's challenge to the EU new rule-of-law mechanism next week.

On Thursday, the Constitutional Tribunal in Poland ruled that some EU treaty articles were "incompatible" with the Polish Constitution.

The court ruling came after Poland's Prime Minister Mateusz Morawiecki asked in March whether EU institutions could stop Poland from overhauling its judicial system, according to Radio Poland.

"Speaking from a strictly legal perspective, this is not so different from what other member states' constitutional courts claim (i.e. 'ultra vires' control of EU actions)," he noted in reference to control of legitimacy that checks if the EU's actions in individual cases are grounded in the democratic will of the member states.

"Often only in theory," he said, giving as an example of last year's German Federal Constitutional Court's ruling on the European Central Bank's central monetary policy tool Public Sector Purchase Programme.

"In my view, however, there are two main differences."

First, he said, "whereas most other member states' constitutional courts explicitly accept the principle of primacy of EU law and will apply 'ultra vires' review only in (very) exceptional circumstances (as a last resort, in a particular case), the POL Constitutional Tribunal (Poland's top court) seems to break with the principle itself," he said, adding he has not yet seen an official translation of the tribunal's reading of the decision.

And secondly, "other member states' constitutional courts tend to review the EU's action with the intention to strengthen judicial review of their member state's government's action (this is at least the case for the German Federal Constitutional Court, I would argue)," he said. "The POL Constitutional Tribunal's aim, however, clearly is to loosen judicial review of the POL government's actions."

EU expresses deep concern

Earlier this week, the EU Commission president expressed "deep concern" about the Polish constitutional court ruling.

"I have instructed the Commission's services to analyze it thoroughly and swiftly. On this basis, we will decide on the next steps," Ursula von der Leyen said in a statement.

Kanitz said there are several options that the EU would take following the Polish court's decision.

One is that the commission "could initiate the new rule-of-law mechanism (regulation 2020/2092) that allows for cuts in transfer payments to protect the EU budget."

"That is what the EP (European Parliament) has been asking from the COM since last spring," he added. "This presupposes that the COM revokes its decision not to activate the mechanism until the CJEU has ruled on the legality of the regulation. (POL and HUN) have challenged its legality, next week is the hearing."

Another is to "initiate (yet another) infringement procedure against POL (it would be the fifth one with regard to the 'judicial reform')," he added.

When asked about whether this situation would lead to a new Polexit similar to the UK leaving the EU, he said: "There is no 'legal Polexit' in my opinion."

"The decision to leave the EU is a political one, and it can only be made by POL following the Article 50 TEU procedure," he added, referring to the decision to leave the EU. -