Case Law in Selected EU Member States on Constitutional Supremacy over EU Law

The analysis below was first published in Polish in July 2021.

1. GERMANY

The Federal Constitutional Court (German Bundesverfassungsgericht; hereinafter: “BVerfG”), like its Italian counterpart, has since the 1970s maintained and developed a line of case law reserving the possibility of constitutional review of Community law and, if necessary, of departing from the principle of primacy.

Among the most important BVerfG judgments are: the judgment of May 29, 1974 in the case of Internazionale Handellgeselschaft¹ case no. BvL 52/71 (the so-called Solange I), judgment of October 22, 1986, in the case of Wünsche Handelsgesellschaft² case no. BvR 197/83 (Solange II), judgment of December 12, 1993 in the Maastricht Treaty case³, judgment of February 17, 2000, case no. 2 BvR 1210/98⁴, judgment of June 30, 2009, case no. 2 BvE 2/08⁵, order of June 6, 2010, case no. 2 BvR 2661/06⁶, judgment of April 24, 2013, case no. 1 BvR 1215/07⁷, judgment of June 21, 2016, case no. 2 BvR 2728/13⁸ (OMT), and the judgment of May 5, 2020, case no. 2 BvR 859/15⁹.

Over the past fifty years, Germany’s BVerfG has gradually developed several doctrines that have justified, among other things, ex post review of CJEU judgments by the Federal Constitutional Court and, in some cases, have resulted in the non-application of CJEU judgments.

1. Judgment of the Second Senate (Chamber) of the BVerfG of May 29, 1974, case no. BvL 52/71

In the reasoning of the Solange I judgment, it was stated that the authorization to transfer competences to international institutions does not allow for changes to the fundamental structure of the constitutional order of the Federal Republic of Germany. Thus, the principles arising from the German Basic Law cannot be changed except by amending the German Basic Law; for example, not through the rule-making activity of international institutions (such as the current CJEU – author’s note). In the ruling at issue, the BVerfG also held that the Court of Justice (the predecessor of the CJEU) cannot determine whether a given provision of supranational law is compatible with the German Basic Law. This judgment also set out the principle of conditional recognition of the principle of the primacy of Community/EU law. The primacy of EU law is not absolute—according to the ruling, it is the BVerfG that may rule on the incompatibility of EU law norms with the German Basic Law.

2. Judgment of the Second Senate (Chamber) of the BVerfG of October 22, 1986, case no. BvR 197/83

In the Solange II judgment of October 22, 1986, the Federal Constitutional Court (BVerfG) confirmed the conditional nature of the principle of the primacy of Community law and held that, in accordance with the Basic Law, the possibility of transferring state powers to international institutions may not infringe the constitutional order by undermining its basic structure and the principles on which it is founded.

3. Judgment of the Second Senate (Chamber) of the BVerfG of December 12, 1993, case no. 2BvR 2134, 2159/92

In the judgment of December 12, 1993, in the case concerning the Maastricht Treaty, the so-called Kompetenz-Kompetenz doctrine was first articulated. It amounts to the assertion that since the European Union is not a sovereign state, it has no authority to determine its own powers. The European Union may act only within the powers conferred on it by the sovereign Member States. According to the Kompetenz-Kompetenz doctrine, EU institutions such as, e.g., the CJEU are prohibited from acting beyond the competences conferred upon them, i.e., ultra vires. The contention that the CJEU has exceeded the competences conferred on EU institutions was also emphasized by Poland’s Prime Minister in his application submitted to the Constitutional Tribunal seeking review of selected provisions of the Treaty on European Union for their conformity with the Constitution of the Republic of Poland, which was so harshly criticized by the European Commission in 2021 and led to EU sanctions against Poland. In the reasoning of judgment 2BvR 2134, 2159/92, the BVerfG pointed out that: “Any future interpretation of the rules governing competences carried out by the institutions and bodies of the Community must, in doing so, take into account the fact that the TEU draws a fundamental distinction between the exercise of the sovereign powers conferred on them (within a limited scope) and amendment of the Treaty. Therefore, the interpretation of the Treaty’s provisions cannot lead to results tantamount to extending its provisions; such an interpretation of the Treaty’s competence norms would not produce binding effects within the territory of the Federal Republic of Germany (…). If, for example, European institutions or bodies were to apply the Treaty or creatively interpret it in a manner inconsistent with its content (…) the German state authorities, for constitutional reasons, could not apply such acts (…) The BVerfG examines whether the legal acts issued by European institutions and bodies fall within the limits of the sovereign powers conferred on them or exceed them”¹⁰.

4. Judgment of the Second Senate of the BVerfG of June 30, 2009, case no. 2 BvE 2/08

The BVerfG confirmed the ultra vires doctrine while reviewing the Act on the ratification of the Treaty of Lisbon (judgment of June 30, 2009). In this judgment, the boundaries of integration were set and the BVerfG’s authority to review the actions of EU institutions that exceed the powers conferred upon them was confirmed. The BVerfG’s authority to review the constitutionality of supranational legal acts was also reaffirmed. In the reasoning of the judgment of June 30, 2009, a second concept was also presented, confirming the conditional nature of the primacy of EU law, the so-called “constitutional identity review test.” Put as briefly as possible, it can be defined as the BVerfG’s authority to make a final assessment of the compliance of both EU primary and secondary law with the key provisions of the German Basic Law. If the Federal Constitutional Court finds that a given EU act is inconsistent with German standards concerning, for example, human dignity, fundamental rights, and the separation of powers, it is empowered to declare its non-application in Germany and to set aside the primacy of supranational law over national law¹¹.

5. Order of the Second Senate (Chamber) of the BVerfG of July 6, 2010, case no. 2 BvR 2661/06

When presenting the case law of the Federal Constitutional Court, one cannot fail to mention the order of the German Federal Constitutional Court dated July 6, 2010, case no. 2 BvR 2661/06, in which the BVerfG discussed in detail the Court of Justice’s judgment of November 22, 2005 in Case C-144/04, Mangold.
In the order, it was held that although it is possible for the Court of Justice (CJEU) to develop the principles of EU law, the abuse of powers in a manner that would result in lawmaking activity by the Court is precluded. The BVerfG paid particular attention to political matters that should fall within the exclusive domain of the legislative branch. It was also noted in the reasoning of the order that it is impermissible for the CJEU to go beyond the bounds of the specific case and to make decisions of a political nature or to effect structural shifts in the system of the constitutional division of power and influence.¹² It should be noted that, in its order, the BVerfG observed that the CJEU judgment regarding Mangold “deprives the Member States of discretion in the field of employment policy, which is largely reserved to the Member States”¹³.

6. Judgment of the First Senate (Chamber) of the BVerfG of April 24, 2013, case No. 1 BvR 1215/07

When recalling the principal holdings of the case law of the Federal Constitutional Court in Karlsruhe, it is worth quoting the most interesting excerpts from the reasoning of the judgment of April 24, 2013, case no. 1 BvR 1215/07. The case concerned the assessment of the provisions of the act on the establishment of databases for counter-terrorism purposes, in the context of the Charter of Fundamental Rights (hereinafter: “CFR”). A legal act that is often cited in requests for a preliminary ruling submitted to the CJEU by Polish courts, as well as in the judgments delivered in those cases. According to the reasoning of the aforementioned judgment¹⁴: “Therefore, the decision cannot be understood and applied in such a way that absolutely any connection between the subject matter of a provision and the purely abstract scope of EU law, or merely incidental effects on EU law, would suffice to bind the Member States to the Union’s fundamental rights set out in the Charter of Fundamental Rights. On the contrary, the Court of Justice of the European Union itself clearly states in this decision that the European fundamental rights deriving from the Charter “apply in all situations governed by European Union law, but not outside such situations” (CJEU, judgment of 26 February 2013, C-617/10, para. 19). Although the so-called British Protocol¹⁵, which provides for an opt-out in the CJEU’s competence to examine the compatibility of provisions, practices, or administrative actions with the rights, freedoms, and principles arising from the Charter of Fundamental Rights, does not cover Germany but applies to the Republic of Poland, the Federal Constitutional Court, relying on the ultra vires doctrine, expressly stated that the Charter of Fundamental Rights does not apply to national measures whose objectives concern domestic public order, even if those objectives are identical to those laid down in EU legislation.¹⁶ At the same time, the significance of the British Protocol in the context of Poland is being ignored by the CJEU. In itself, this shows that the CJEU has granted itself powers that the Republic of Poland did not confer on it (see: ultra vires).

7. Order of the Second Senate (Chamber) of the BVerfG of January 14, 2014, and Judgment of the Second Senate (Chamber) of the BVerfG of June 21, 2016, case no. 2 BvR 2728/13

Another example of a BVerfG decision in which that court departed from the absolute primacy of EU law over German law is the BVerfG order of January 14, 2014 concerning the Outright Monetary Transactions program organized by the European Central Bank. In that order, the BVerfG referred a question for a preliminary ruling, while stipulating that the final decision concerning the compatibility of the ECB’s actions with the German Basic Law would lie with the BVerfG. It should be noted that, in this order, the BVerfG referred to the case law of courts in ten EU Member States (including Poland) to confirm that the possibility of constitutional review of EU law with regard to ultra vires action by EU institutions is widely accepted. Ultimately, after the CJEU delivered its judgment on June 16, 2015,¹⁷ the German Constitutional Court in the judgment of June 21, 2016, case no. 2 BvR 2728/13,¹⁸ held that: “Constitutional bodies, given their responsibility for European integration, must oppose acts of the institutions, bodies, and organizational units of the European Union that violate constitutional identity or constitute an ultra vires act.”¹⁹

8. Judgment of the Second Senate (Chamber) of the BVerfG dated May 5, 2020, case no. BvR 859/15

The most recent decision of the German Federal Constitutional Court concerning CJEU judgments is the judgment of May 5, 2020, case no. 2 BvR 859/15²⁰. As in the previous case, the subject matter analyzed by the BVerfG concerned the measures taken by the European Central Bank (public sector asset purchases). In the reasoning of the judgment of May 5, 2020, the BVerfG explicitly indicated the need to disregard the CJEU judgment of December 11, 2018 ²¹ on the grounds that the EU institutions had exceeded the competences conferred on the EU by the Treaties. From the reasoning of the aforementioned judgment, one can infer, inter alia, the following conclusions:

1. If the CJEU exceeds its competences, arrogating to itself the right to adjudicate matters that have not been conferred on the Union institutions and deriving norms from the Treaties in a manner that exceeds the bounds of permissible interpretation, then its judgments are no longer covered by Article 19(1), second sentence, of the TEU. At least as regards Germany, these judgments, lacking the requisite democratic legitimacy, do not have a proper basis under Article 23(1) second sentence, in conjunction with Article 20(1) and (2) and Article 79(3) of the German Basic Law²²;
2. The wide scope of discretion exercised by the CJEU, together with a limited standard of review, clearly do not ensure that the principle of conferral of competences is sufficiently effective. This phenomenon paves the way for the continual erosion of the Member States’ powers²³;
3. Safeguarding the principle of a democratic state governed by the rule of law requires that the institutions of the European Union respect the foundations of the division of competences. The principle of conferral, one of the fundamental principles of the European Union, cannot be challenged.²⁴
4. In the context of the delimitation of competences between the European Union and the Member States, the principle of proportionality is of great importance in view of the principles of a democratic state governed by the rule of law and the sovereignty of the people. Disregarding these requirements may shift the basis for the allocation of competences in the European Union, undermining the principle of conferral.²⁵
5. German constitutional bodies, administrative authorities, and courts may not participate
   in the drafting, implementation, enforcement, or operationalization of laws that are ultra vires.²⁶

According to the case law of the German Federal Constitutional Court , the principle of the primacy of EU law is not absolute. Judgments of the CJEU may be reviewed by the BVerfG and, as a result of that review, disregarded. Key grounds for challenging the CJEU’s case law include instances in which EU institutions exceed the scope of the competences conferred on them (ultra vires) or seek, without authorization, to interfere with Germany’s constitutional legal order (the constitutional identity review test).

2. ITALY

Since the 1970s, the Italian Constitutional Court (Corte Costituzionale) has maintained a line of case law (controlimiti) reserving the possibility of reviewing the constitutionality of Community/EU law and of potentially departing from the principle of primacy.²⁷ As a result of the aforementioned counter-limits line of case law, there was a refusal to apply two judgments of the Court of Justice of the European Union and a departure from the principle of primacy on the grounds of incompatibility with the provisions of the Italian Constitution. The principle of the primacy of EU law is therefore not absolute, and the judgments of the CJEU may be reviewed by the Italian Constitutional Court and, as a result of that review, even set aside.

1. Judgment of the Constitutional Court of December 18, 1973, in the case of Frontini v. Ministero delle Finanze

A landmark decision on the issue at hand is the Constitutional Court’s judgment of December 18, 1973 in the case Frontini v. Ministero delle Finanze. The case concerned the imposition, in one of the Community regulations, of import charges on farmers and the impermissible level of those charges. In the context of the aforementioned case, the Constitutional Court held that Article 11 of the Constitution of the Italian Republic establishes certain limitations on state sovereignty, namely the fundamental principles of the constitutional order and the inalienable rights of the human person. As a result of the foregoing, it would be impermissible for Italy to limit its sovereignty in favor of an international organization that did not provide guarantees of the protection of fundamental human rights at least to the same extent as the Constitution of the Italian Republic.²⁸ The Italian Constitutional Court concluded that there had been no violation of the Italian Constitution; however, it made fundamental findings regarding the application of Community law in Italy, which can be presented as follows:

1. It confirmed the European Community’s competence to issue regulations with normative force equivalent to statutes, which do not require implementation into national law, but within the scope of competences precisely defined in the Treaties.
2. It excluded the constitutional review of secondary law; if, however, an attempt were made to confer an aberrant interpretation on Article 189 of the Treaty establishing the European Union (hereinafter: TUE), the Italian Constitutional Court could assess whether the Treaty itself is consistent with the principles and fundamental rights expressed in the Constitution. Such an “aberrant interpretation” could, in the view of the Italian Constitutional Court, be associated with a violation of the supreme values of the national legal order, such as the inalienable rights of the human person.
3. It introduced the possibility of constitutional review of primary law, and in particular its interpretation, which cannot be reconciled with the Italian constitutional order.
4. The ability of national judges to apply Community law was restricted. In the event of a conflict between Community/EU law and national law, judges may not independently decide not to apply a national provision—the Constitutional Court should first find such a provision unconstitutional.²⁹

2. Judgment of the Constitutional Court of June 5, 1984 in the Granital case

In its judgment of June 5, 1984, in the case of Granital (case no. 170/184), the Italian Constitutional Court confirmed its exclusive jurisdiction to review the constitutionality of both the Treaties themselves and the statutes ratifying them, in particular as regards compliance with the fundamental principles of the constitutional system and individual rights, in the event that the Treaties were interpreted in a manner that authorizes EU institutions to adopt acts that infringe those principles. National law, by virtue of its conformity with Community law, enables the latter’s direct application in all Member States.

3. The “Taricco Saga”

One of the most discussed cases concerning the dialogue between a Member State and the CJEU is the so-called “Taricco Saga”.³⁰ It begins on September 8, 2015, in the case of Ivo Taricco³¹. The defendants were charged with establishing and organizing, during the tax years from 2005 to 2009, a criminal organization for the purpose of committing various offenses in the field of value-added tax (VAT). Indeed, they were charged with creating fraudulent legal arrangements of the “VAT carousel” type, involving in particular the creation of shell companies and the issuance of false documents, by means of which they purchased goods (in this case, bottles of champagne) without paying VAT. The request for a preliminary ruling concerned the interpretation of Article 101 of the Treaty on the Functioning of the European Union (TFEU), Article 107 TFEU and Article 119 TFEU, as well as Article 158 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax. The CJEU judgment in this case sparked significant controversy in legal scholarship from the perspective of the protection of fundamental rights (in particular, considering the potential need—in its light—to reopen proceedings that had already been dismissed as time-barred), and also resulted in considerable uncertainty in legal transactions. The CJEU based its judgment on Article 325 TFEU, according to which the Member States must combat fraud affecting the financial interests of the Union by means of effective and dissuasive measures. The Court established a direct link between VAT-related fraud and the Union’s financial interests and emphasized the need to initiate criminal proceedings in such cases³². The judgment under review was unclear, and it gave rise to numerous interpretive discrepancies. An Italian court defended principles stemming from the constitution. In response to a request for a preliminary ruling from the Italian Constitutional Court, by judgment of December 5, 2017 the CJEUheld that “[A]rticle 325(1) and (2) TFEU must be interpreted as meaning that it imposes on the national court an obligation, in the context of criminal proceedings concerning offenses in the field of value added tax, to disapply national rules on limitation belonging to domestic substantive law that prevent the imposition of effective and dissuasive criminal penalties in a significant number of cases of serious fraud affecting the financial interests of the European Union, or that provide for shorter limitation periods for serious fraud affecting those interests than the limitation periods for fraud affecting the financial interests of the Member State concerned, unless such disapplication results in a breach of the principle of the statutory definition of criminal offenses and penalties due to the insufficient precision of the applicable law or on account of the retroactive application of provisionsestablishing stricter conditions of liability than those in force at the time the offense was committed.” ³³

The Italian Constitutional Court fully rejected the possibility of applying both CJEU judgments with regard to disapplying the statute-of-limitations provisions, on the grounds of their non-compliance with and contradiction to the wording of Article 25 of the Italian Constitution, which provides that:

1. no one may be excluded from the jurisdiction of the court to which they are subject by law,
2. no one may be punished except on the basis of a statute that took effect before the act was committed,
3. no one may be subjected to preventive measures, except in situations provided for by statute.³⁴

The Constitutional Court’s order to completely ignore CJEU judgments came to be called the riserva di legge doctrine (reservation of law).³⁵ The first court decisions therefore focused primarily on determining the status of EU law within the domestic legal system. Over time, the Italian Constitutional Court opposed the principle of the primacy of EU law over the Constitution of Italy. Currently, the Constitutional Court has the power to review CJEU judgments and, within its remit, to reject them when the CJEU’s interpretation of the Treaties cannot be reconciled with Italy’s constitutional norms and constitutional heritage and with Article 6(3) TEU.³⁶

3. DENMARK

1. Judgment of the Danish Supreme Court of April 6, 1998, case no. I 361/1997

Proceedings before the Supreme Court (Højesteret) were initiated by a group of citizens in the form of a constitutional complaint and concerned the amendment of the 1972 Act on Denmark’s accession to the European Communities brought about by the ratification of the Maastricht Treaty. As recalled, Section 20(1) of the Constitution states that “[t]he powers vested in the authorities of the Kingdom under this Constitution may, within the limits provided by law, be delegated to international bodies established by mutual agreement with other states for the establishment of international rules of law and cooperation.” Although the Supreme Court ultimately held that the provisions of the statute under review were constitutional, it clearly addressed the relationship between the Constitution and EU law.³⁷

The Supreme Court considered the question of the extent to which Danish courts are bound by the interpretation of the European Court of Justice (ECJ), with due regard to the conferred competences. The Supreme Court held that, by virtue of accession, the ECJ acquired jurisdiction to interpret the scope of application of the Treaties. This means that Danish courts cannot declare a Community act inapplicable in Denmark without first referring a question for a preliminary ruling to the ECJ concerning the act’s compatibility with the Treaties. Such a solution is consistent with the scope of the delegated authority. However, a consequence of the power vested in national courts to review the constitutionality of statutes of the national parliament is that they cannot be deprived of the right to hear cases concerning the European Community’s exceeding of the competences conferred under § 20 of the Constitution.³⁸ Moreover, as the Supreme Court noted, in the event of an attempt by an international organization to exceed the powers conferred on it, the government would be constitutionally obligated to veto such draft legislation.³⁹ As noted in the literature, the “Carlsen doctrine ” provides that, where there are doubts as to the compatibility of Community law with the Constitution, a national constitutional court may refer a question to the ECJ for a preliminary ruling concerning the interpretation of Community law. However, if, as a result of the ruling, it has not been convinced of that conformity, the decision whether to apply the Community law provision rests with it.⁴⁰ Consequently, the Supreme Court held that the Constitution does not permit the transfer to an international organization of the competence to make decisions that are inconsistent with the Constitution itself. Accordingly, if the conferred powers are exceeded, national courts may refuse to apply such legal acts. A similar situation shall also apply to judgments delivered by the judicial body which, in the case of the European Community, is the European Court of Justice.⁴¹

To sum up, as indicated by the cited foreign scholarly literature, in its judgment concerning the Danish Act on granting consent to the ratification of the Treaty of Maastricht, the Danish Supreme Court noted that Danish courts retain the right to review whether the legal acts of the European Community remain within the limits of the competences conferred upon it pursuant to Danish accession.⁴² Ultimately, the Supreme Court, despite the reservations noted above, held the amending statute constitutional, since the scope of the powers being transferred fell within the scope provided for in § 20.

2. Judgment of the Danish Supreme Court of December 6, 2016, case no. 15/2014

The cited Supreme Court judgment concerned an employment dispute. The Supreme Court referred a request for a preliminary ruling to the CJEU regarding the need to apply European Union law directly, asking for a ruling on whether the principle of legal certainty and legitimate expectations should prevail with respect to the private legal entity in this case, namely the employer.

The Court of Justice of the European Union delivered a judgment on April 19, 2016, holding that the principle of non-discrimination on grounds of age is a general principle of EU law, which also has its sources in the constitutional traditions of the Member States, and therefore requires that national law be interpreted in conformity with that principle and, if that is not possible, that national provisions be disapplied—even in horizontal relationships⁴³.

The Supreme Court completely rejected the CJEU judgment, stating that it falls within the competence of national law and the national constitutional court to determine whether the principle of non-discrimination on grounds of age is directly applicable in a Member State with primacy over national law in horizontal relations. The Supreme Court also held that Denmark had not conferred on the European Union the competence for the direct application of the Charter of Fundamental Rights to Denmark.⁴⁴ According to the Supreme Court, the adoption of a potential pro-EU interpretation, in this case in favor of the unwritten principle of non-discrimination on grounds of age, would constitute an in concreto interpretation contra legem⁴⁵.

Tom Flynn highlights key passages from the ruling that was handed down: „[The Court of Justice of the European Union] has jurisdiction over matters relating to the interpretation of European Union law. (…) Accordingly, it is for [the Court of Justice of the European Union] to decide whether a provision of EU law has direct effect and has primacy over conflicting national provisions, including in disputes between individuals. (…) The question of whether a provision of EU law may have direct effect in Danish law, in accordance with the requirements of EU law, concerns primarily the Act of Accession under which Denmark acceded to the European Union (…) A situation such as the one in which, at the treaty level under EU law, the principle is to produce direct effect (thereby creating obligations) and to confer primacy over conflicting Danish law in a dispute between individuals, while that principle has no basis in specific treaty provisions, is not provided for in the Act of Accession.”⁴⁶ The foregoing means that although the provisions of European Union law may take precedence over conflicting national provisions, this cannot apply to principles that lack a legal basis in the Treaties.

In the final part of the judgment’s reasoning, the Supreme Court held that “(…) the Act of Accession does not provide a legal basis for the unwritten principle prohibiting discrimination on the basis of age to take precedence over Article 2a(3) of the Employees Act insofar as that provision conflicts with the prohibition.” Ultimately, the Supreme Court did not apply the above-mentioned principle.

4. CZECHIA

The Czech Republic’s jurisprudential contribution to shaping the doctrine endorsing constitutional review of EU law and acts of EU institutions deserves particular attention, because the Czech Constitutional Court, already in its initial rulings on the matter, accorded primacy to the Czech Constitution, noting the need to safeguard it against undue interference by EU law.

1. Judgment of the Constitutional Tribunal of March 8, 2006, Pl. US 50/0453

Such a position can be derived from the judgment of the Czech Constitutional Court of March 8, 2006⁴⁷ in the case of the so-called sugar quotas, in which the constitutionality of Regulation of the Government of the Czech Republic No. 364/2004 on certain conditions for the implementation of instruments of the common market organization in the sugar sector was reviewed. Although the regulation was held unconstitutional due to the transfer of competences in this matter to the European Union, the position of national legislation in relation to the EU legal order was presented in detail.

The Czech Constitutional Court held that recognition of the primacy of EU law is conditional, because the Czech Republic remains the proper subject of sovereignty and the competences arising therefrom, and its sovereignty is based on Article 1(1) of the Constitution. EU law will take precedence over domestic law upon fulfillment of a formal prerequisite concerning the sovereign prerogatives of the state and of a material prerequisite relating to the substantive aspects of the exercise of power; therefore, the effects of transferring part of the competences of state authorities may continue only so long as they are exercised in a manner that preserves the foundations of the state sovereignty of the Czech Republic and does not threaten the very essence of a state governed by the rule of law in the substantive sense. Otherwise, the development of the European Communities or the European Union would threaten the very essence of the Republic’s sovereignty or the fulfillment of the requirements of a democratic state governed by the rule of law, which would necessitate restoring the transferred powers to the Czech state authorities. The Constitutional Court, in turn, is a body established to protect constitutionality.⁴⁸ This ruling clearly indicates that under Czech legislation there will be no unconditional acceptance of the terms of EU membership if the above-stated principles of the legal order were to be breached, and it also delineates the limits of EU law within the Czech legal order⁴⁹.

2. Judgment of the Constitutional Court of November 26, 2008, Pl.US 19/08, and judgment of the Constitutional Court of November 3, 2009, Pl.US 29/09

The Czech Constitutional Court took a position on the primacy of EU primary law in its judgments of November 26, 2008⁵⁰ and November 3, 2009⁵¹, in which it examined the compatibility of the Treaty of Lisbon with the Constitution. Three principles concerning the relationship between a Member State’s constitutional order and EU law were identified there:

1. General recognition of the functionality of the EU institutional frameworks for ensuring oversight of the scope of the exercise of transferred competences, with the proviso that this position may change if those frameworks cease to function.
2. For the constitutional order of the Czech Republic, and within its framework, what is relevant is not only the text itself and the content of the Treaty of Lisbon, but also its future, concrete application;
3. The Czech Constitutional Court is empowered to issue final decisions and may examine whether EU legal acts exceed the competences transferred to the Community institutions under Article 10a, and the basis for such actions is a departure from the identity of values and the aforementioned exceeding of the conferred competences.⁵²

The further reasoning emphasized that, in the realm of so-called shared competences, it should be recognized that if a competence (whether exclusive or shared) is not expressly defined in the treaty provisions as a Union competence, it remains entirely within the competence of the Member State⁵³, and it rejected the superiority of the CJEU over national constitutional courts, drawing attention to the requirement of cooperation between equal partners who, in exercising their competences, respect and complement each other rather than compete with one another⁵⁴. The Czech Constitutional Court again affirmed the constitution as the supreme law of the state, and the Constitutional Court as the highest authority for protecting the constitutionality of Czech law, also in the context of potential abuses of competences by EU institutions and law⁵⁵.

Similarly, in the above-mentioned 2009 judgment, the Czech Constitutional Court found the treaties compatible with the Czech constitutional order, again invoking constitutional identity and the principle of conferral (acting on the basis of conferred powers) as limits on the primacy of EU law and as grounds for the review of that legislation by a state authority.⁵⁶

3. Judgment of the Constitutional Tribunal of January 31, 2012, Pl. US 5/12

The line of case law presented above led to the CJEU judgment being called into question in the judgment of January 31, 2012.⁵⁷ in the so-called Slovak pensions case, in which the differing positions of the Czech Constitutional Court and the Czech Supreme Administrative Court clashed (hereinafter: :SAC”). After the dissolution of Czechoslovakia, the newly formed states engaged in a dispute over the obligation to pay pensions owed to citizens of the now-defunct state, which ended with an agreement under which each country undertook to be responsible for paying pensions to citizens whose employer, on the date of the split or immediately before it, had its registered office in one of the two countries. As a result, Czech citizens received pensions from both the Czech Republic and the Slovak Republic, with a significant disparity between them caused by Slovakia’s much worse economic situation. The Czech Constitutional Court ruled that this situation violates constitutional norms and ordered the state authorities to pay a supplement to citizens receiving a pension from the Slovak Republic.⁵⁸ The Supreme Administrative Court disagreed with the above judgment and, after the Czech Republic’s accession to the EU, found it to be contrary to EU law, namely to Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community,⁵⁹ and accordingly referred preliminary questions to Luxembourg. In its response, the CJEU stated that Council Regulation (EEC) No 1408/71⁶⁰ precludes the existence of a judgment such as in the main proceedings that would constitute an obligation to provide pension top-ups to citizens for whom Slovakia is responsible for social security, and that such a situation leads to discrimination on grounds of nationality and place of residence, which is prohibited under EU law.⁶¹ In turn, the Czech Constitutional Court, in an identical matter, maintained its position, stating that the issue at hand lacks a cross-border element that would warrant the application of EU law, because time worked in Czechoslovakia cannot be regarded as employment abroad. Consequently, in the case there is no EU connecting factor that would justify applying the Community legal order, and the CJEU judgment was criticized by the Czech Constitutional Court, which considered it an expression of a lack of respect for Europe’s history, reflected in the view that legal relations arising from the dissolution of a state with a uniform social security system do not differ from legal relations arising from the free movement of persons within the European Communities.⁶² It should be noted that the judgment under comment is merely the result of a formal analysis of the national and EU legal order; it is not based on any contention of the complainant, but constitutes an ultra vires review ex officio. In this judgment, the Czech Constitutional Court also cited prior case law in which it regarded itself as the guardian of the Constitution, and the very Constitution—as the supreme law in force in the territory of the Czech Republic.

In light of the case law discussed above, a view is emerging that the conferral of competences on the institutions of the European Union has its limits, delineated by the sphere of state sovereignty, manifested in the actual substantive exercise of power. At the same time, this transfer is not unconditional and may be reverted to the original national authorities if the interference of EU law in the national legal order exceeds the established limits. The body entrusted with reviewing the effects of EU law is the Czech Constitutional Court, which, in safeguarding the Constitution as the supreme law of the Czech Republic, may issue final rulings determining whether the EU institutions, through their legislation, have exceeded the powers conferred upon them. The basis for such actions by the Czech Supreme Court is not only an overstepping of the bounds of the powers granted to them, but also the abandonment of the identity of the values in whose name legislative power was delegated. At the same time, it should be emphasized that Czech law does not recognize the supremacy of the CJEU over the national constitutional court and does not consider interference by EU institutions in the relations among national judicial authorities to be justified, while drawing attention to the need for mutual respect, cooperation, and the complementarity of legal orders. Consequently, national legislation and EU legislation are intended to cooperate with each other, rather than compete, and their relationship is not based on a hierarchical structure. The Czech Constitutional Court recognizes the primacy of EU law over national law, but this is conditional upon the EU meeting certain requirements that ensure the preservation of a Member State’s sovereignty.

5. POLAND

1. Judgment of the Constitutional Tribunal of May 11 2005, case no. K 18/04⁶³

In the judgment at issue, it was stated that the Constitution remains—by virtue of its special legal force—the supreme law of the Republic of Poland with respect to all international agreements binding on the Republic of Poland. This also applies to ratified international agreements on the transfer of competences “in certain matters.” By virtue of the supremacy of its legal force resulting from Article 8(1) of the Constitution⁶⁴, it enjoys primacy in binding force and application throughout the territory of the Republic of Poland.

“Although the Tribunal is not authorized to make an autonomous assessment of the constitutionality of the primary law of the European Union⁶⁵, it is, however, vested with such competence with respect to the Accession Treaty as a ratified agreement of an international character (Article 188 point 1 of the Constitution).”

In the event of a conflict between constitutional and Community/EU norms, the Constitutional Tribunal (CT, the Tribunal) has held that: “Such a contradiction cannot, under any circumstances, be resolved in the Polish legal system by recognizing the primacy of a Community norm over a constitutional norm. Nor could it result in the loss of the binding force of a constitutional norm and its replacement by a Community norm, nor in restricting the scope of application of that norm to areas not covered by Community law.” The Constitutional Tribunal also takes the position that neither Article 90(1) nor Article 91(3) of the Constitution can constitute a basis for delegating to an international organization (or its body) the authority to enact legal acts or make decisions that would be contrary to the Constitution of the Republic of Poland.

In the judgment at issue, the Constitutional Tribunal advocated rejecting the “supremacy” of EU law, while at the same time employing the notion of “primacy”. However, contrary to the position adopted by the CJEU, the Constitutional Tribunal held that the principle of primacy does not exclusively determine the content of final decisions made by sovereign Member States in the context of a hypothetical conflict between the EU legal order and constitutional provisions. According to the Constitutional Tribunal, “in the Polish legal system, decisions of this kind should always be made taking into account the wording of Article 8(1) of the Constitution, according to which the Constitution ‘remains […] the supreme law of the Republic of Poland'”⁶⁶.

2. Judgment of the Constitutional Tribunal of November 24, 2010, case no. K 32/09

In this judgment, Poland’s Constitutional Tribunal upheld the views expressed in the reasoning of the judgment of May 11, 2005, case no. K 18/04. The ruling once again emphasized that the Constitution remains—by virtue of its special force—the “supreme law of the Republic of Poland“.

The Tribunal noted that the Constitution permits the transfer of powers only in certain matters, which means a prohibition on transferring the totality of a given organ’s powers, on transferring powers with respect to all matters in a particular field, and a prohibition on transferring powers as to the essence of matters that define the remit of that organ of state authority. It is therefore not possible to transfer to the EU a competence that could interfere with the essence of constitutional bodies. The Tribunal also derived such an interpretation from the principle of national sovereignty, noting that “[m]ember States of the European Union retain sovereignty because their constitutions, which are an expression of state sovereignty, retain their significance.” The provisions of the Polish Constitution “preclude the renunciation of sovereignty, the recovery of which, as a prerequisite for the Nation’s self-determination, is affirmed by the Preamble to the Constitution.”

The Tribunal also emphasizes the issue of constitutional identity, which is particularly evident in cases of conflict between Polish law and EU law. In the Constitutional Tribunal’s view, constitutional identity is a concept that delineates the scope of exclusion from the competence to transfer matters that constitute the foundations of a given state’s constitutional order. It was also noted that the transfer of competences may occur not only once—upon the adoption of the accession treaties—but also when the provisions of those treaties are amended.

3. Judgment of the Constitutional Tribunal of November 16, 2011, case no. SK 45/09

In this judgment, the Polish Constitutional Tribunal held that “the Constitution of the Republic of Poland retains […] supremacy and primacy over all legal acts in force in the Polish constitutional order, including EU law.” Moreover, the Constitutional Tribunal indicated that “EU regulations, as normative acts, may be subject to review for their conformity with the Constitution in proceedings initiated by a constitutional complaint.” The fact that these are acts of EU law, although they also form part of the Polish legal order, affects the specific nature of the review conducted by the Constitutional Tribunal.”

6. Judgment of the Spanish Constitutional Court of December 13, 2004, case no. DTC 1/2004

In the judgment at issue concerning the Treaty establishing a Constitution for Europe, the Spanish Constitutional Tribunal held that “[t]he proclamation of the primacy of EU law by Article I-6 of the Treaty does not conflict with the supremacy of the Constitution”⁶⁷.

The Spanish Constitution addresses the relationship between domestic law and EU law in Article 93, which provides that: Authorization to conclude treaties that entrust an international organization or institution with the exercise of powers derived from the Constitution may be granted by an organic law. The implementation of these treaties and of the resolutions of international or supranational organizations to which powers have been conferred shall be ensured, within the scope of their respective competences, by the Cortes Generales and the Government”⁶⁸.

The Tribunal also pointed to the primacy of European law over national law, emphasizing that it has the character of an “existential requirement,” which means that it is necessary to ensure its direct application and to maintain the uniformity of the EU legal system. However, it is not absolute in nature. The transfer of powers to the European Union and, consequently, the integration of Community law with national law inevitably imposes limitations on the sovereign competences of the state permissible as long as European law is consistent with the fundamental principles of a democratic state governed by the rule of law established by the Constitution.

Spain’s Constitutional Tribunal also formulated three necessary conditions for the application of the principle of primacy:

1) EU law should not go beyond the constitutional values of the Member States and should remain within the bounds of constitutional identity;

2) the application of the principle of primacy is possible only with respect to competences conferred on the EU;

3) powers were conferred on the EU by virtue of the voluntary will of the Member States, and they may be revoked on the same terms.

In its judgment, the Tribunal also made a distinction between the concepts of supremacy and primacy. In his view, supremacy should be understood as a relation based on the hierarchy of norms, in which a lower-order norm is invalid if it were to violate a higher-order norm. Primacy, however, does not necessarily rely on hierarchy, but rather on distinguishing the areas of application of various norms that are, in principle, equally important, some of which nevertheless have the capacity to supersede others by virtue of preferential or general application.

It is also worth recalling the order of the Criminal Chamber of the Supreme Court of Spain of January 9, 2020 in special proceeding No. 20907/2017, in which the court held that one of the leaders of the Catalan separatists should remain in prison, contrary to the CJEU judgment in Case C-502/19.

7. Decision of the French Council of State of April 21, 2021, No. 393099

The French Council of State (which, within the institutional system of the French Republic, plays a dual role—as an advisory body to the public administration and as the supreme administrative court), in the reasoning of its decision concerning the collection of data by mobile operators, held that the French Constitution takes precedence over European law. The decision was issued as a result of the Council’s challenge to a CJEU judgment, in which the Court invoked a number of rights derived from the Charter of Fundamental Rights of the European Union, such as the rights to privacy, freedom, and the protection of personal data.

The Council of State recalled that the French Constitution remains the supreme norm of national law. Pursuant to Article 88-1 of the French Constitution: “The Republic participates in the European Union, which is composed of states that have voluntarily decided to jointly exercise some of their powers under the Treaties.” According to the Council, by confirming the existence of the European Union’s legal order integrated with the domestic legal order, Article 88-1 confirms the primacy of the Constitution⁶⁹. It is for the administrative judge to derive from the content of the CJEU judgment concerning obligations arising under Union law the interpretation most consistent with constitutional requirements.

8. Judgment of the Romanian Constitutional Court of June 8, 2021, case no. 390-2021

The Romanian Constitutional Court, in response to a CJEU judgment⁷⁰ allowing its courts to disregard the Romanian Constitution in the event of a conflict with EU law (the case concerned judicial reform), stated that the Constitution retains its superior hierarchical position, and that a national court has no authority to assess the compatibility of a provision deemed constitutional by a ruling of the Constitutional Court with EU law⁷¹. Moreover, the Romanian Constitutional Court ruled that the CJEU acted beyond the powers conferred on the European Union. The judgment also stated that Article 148 of the Romanian Constitution does not grant primacy to the application of EU law over the Romanian Constitution⁷² and that, under that article, Romania may, to some extent—based on the principle of constitutional identity—adopt a legal act contrary to the obligations incumbent on an EU Member State.

Authors:

Advocate Tomasz Chudzinski

Advocate Joanna Modrzewska

Przemysław Pietrzak

Weronika Przebierała

Anna Wawrzyniak

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1 Judgment of the Second Senate (Chamber) of the BVerfG of May 29, 1974, Case No. BvL 52/71.

2 Judgment of the Second Senate (Chamber) of the BVerfG dated October 22, 1986, 2 BvR 197/83.

3 Judgment of the Second Senate (Chamber) of the BVerfG, dated December 12, 1993, 2BvR 2134, 2159/92.

4 Judgment of the Second Senate (Chamber) of the BVerfG of February 17, 2000, 2 BvR 1210/98.

5 Judgment of the Second Senate (Chamber) of the BVerfG of June 30, 2009, 2 BvE 2/08.

6 Order of the Second Senate (Chamber) of the BVerfG of July 6, 2010, 2 BvR 2661/06.

7 Judgment of the First Senate (Chamber) of the BVerfG of April 24, 2013, 1 BvR 1215/07.

8 Judgment of the Second Senate (Chamber) of the BVerfG of June 21, 2016, 2 BvR 2728/13.

9 Judgment of the Second Senate (Chamber) of the BVerfG of May 05, 2020, 2 BvR 859/15.

10 Judgment of the Second Senate (Chamber) of the BVerfG of December 12, 1993, case no. 2BvR 2134, 2159/92, nb. 81-82

11 Judgment of the Second Senate of the BVerfG of June 30, 2009, 2 BvE 2/08, nb. 240-241

12 See: M. Baińczyk, Pomiędzy otwartością a kontrolą ultra vires – orzeczenie niemieckiego Bundesverferfassungsgericht dotyczące skutków wyroku TS w sprawie Mangold II, „Europejski Przegląd Sądowy” 2013, nr 5, s. 34-36.

13See: Leitsätze zum Beschluss des Zweiten Senats vom 6. Juli 2010- 2 BvR 2661/06, Nb 112.

14 See: para. 91, Headnotes to the judgment of the First Senate of 24. April 2013 1 BvR 1215/07.

15Protocol No. 30 to the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (2007/C 306/01)

16 A. Kustra, Kelsenowski model kontroli konstytucyjności prawa a integracja europejska. Studium wpływu, Toruń 2015, s. 261; Leitsätze zum Beschluss des Zweiten Senats vom 6. Juli 2010- 2 BvR 2661/06, nb. 58-64

17 Cf. the CJEU judgment of June 16, 2015, C-62/14 P.

18 Judgment of the Second Senate (Chamber) of the BVerfG of June 21, 2016, 2 BvR 2728/13.

19 Ibid.

20 Judgment of the Second Senate (Chamber) of the BVerfG of May 05, 2020, 2 BvR 859/15.

21 Judgment of the CJEU of December 11, 2018, C-493/17, Heinrich Weiss and Others.

22 Judgment of the Second Senate (Chamber) of the BVerfG of May 05, 2020, 2 BvR 859/15.

23 Ibid.

24 Ibid.

25 Ibid.

26 Ibid.

27 Motion of the Prime Minister dated March 29, 2021, case no. BPRM.5091.5.2021, s.36.

28 J. Wawrzyniak, Opinia w sprawie kognicji Sądu Konstytucyjnego Republiki Włoskiej w zakresie prawa wtórnego UE, „Zeszyty Prawnicze BAS” 2/30 (2011), s. 23.

29 Motion of the Prime Minister dated March 29, 2021, case no. BPRM.5091.5.2021, s.36.

30 The ‘Taricco Saga’: the Italian Constitutional Court continues its European Journey – https://open.luiss.it/en/2019/05/15/la-saga-taricco-la-corte-costituzionale-italiana-continua-il-suo-viaggio-in-europa/ accessed: 07/15/2021.

31 Cf. the CJEU judgment of September 08, 2015, C-105/14, Taricco.

32 R. Bruggeman, J. Larik, The Elusive Contours of Constitutional Identity: Taricco as a Missed Opportunity—article available at the web address: https://utrechtjournal.org/articles/10.5334/ujiel.489/. accessed: July 15, 2021).

33 Judgment of the CJEU of December 5, 2017, C-42/17, M.A.S. and M.B.

34 Translated from: https://biblioteka.sejm.gov.pl/wp-content/uploads/2016/11/Wlochy_pol_010711.pdf, accessed: July 15, 2021).

35 Corte Costituzionale, Comunicato del 31 maggio 2018 – document available at: https://www.cortecostituzionale.it/documenti/comunicatistampa/CC_CS_20180531112725.pdf, accessed: July 15, 2021.

36 Motion of the Prime Minister dated March 29, 2021, case no. BPRM.5091.5.2021, s.45.

37 Ibid., p. 53.

38 P. Lachmann, The Treaty of Maastricht vs. the Danish Constitution, “Nordic Journal of International Law” no. 67 issue, 3 (1998), p. 365-368.

39 T.C. Hartley, The foundations of European Union law,Oxford 2010, pp. 267-268.

40 G. Martinico, O. Pollicino, The Interaction between Europe’s Legal Systems: judicial dialogue and the creation of supranational laws, Northampton 2012, p. 12.

41 T.C. Hartley, European Union Law in a Global Context: Text, Cases and Materials, Cambridge 2004, p. 157.

42 A. von Bogdandy, J. Bast, Principles of European Constitutional Law: Second Revised Edition, Munich 2010, p. 86, and the literature cited therein.

43 Motion of the Prime Minister dated March 29, 2021, case no. BPRM.5091.5.2021, p. 56.

44 R. Nielsen, C.D. Tvarnø, Danish Supreme Court Infringes the EU Treaties by its Ruling in the Ajos Case, “Europaraettslig Tidskrift”, no. 2 (2017), pp. 307-308.

45 D. Elkan, R. Holdgaard, G.K. Schaldemose, From cooperation to collision: The ECJ’s Ajos ruling and the Danish Supreme Court’s refusal to comply, no. 55 z. 1, Common Market Law Review, p. 27, https://kluwerlawonline.com/journalarticle/Common+Market+Law+Review/55.1/COLA2018002 (accessed: July 14, 2021).

46 T. Flynn, Constitutional pluralism and loyal opposition, “International Journal of Constitutional Law”, no. 19, 1, DOI: https://doi.org/10.1093/icon/moab035, pp. 251–252.

47 Judgment of the Constitutional Court of March 8, 2006. Pl. US 50/0453.

48 Ibid.

49 K. Witkowska – Chrzczonowicz, Konstytucyjne aspekty członkostwa Republiki Czeskiej w Unii Europejskiej w świetle orzecznictwa czeskiego Sądu Konstytucyjnego, „Przegląd Sejmowy” nr 5 (2008), s. 119-120.

50 Judgment of the Constitutional Court of November 26, 2008, Pl.US 19/08.

51 Judgment of the Constitutional Court dated November 3, 2009, Pl.US 29/09.

52 Judgment of the Constitutional Court dated November 26, 2008, Pl.US 19/08, part XI pt. 120 [translated after: K. Witkowska-Chrzczonowicz, Wyrok Sądu Konstytucyjnego…, s. 278].

53 Judgment of the Constitutional Court dated November 26, 2008, Pl.US 19/08, part XII pt. 134 [translated after: K. Witkowska-Chrzczonowicz, Wyrok Sądu Konstytucyjnego…, s. 278].

54 Judgment of the Constitutional Court dated November 26, 2008, Pl.US 19/08, part XVII pt. 197 [translated after: K. Witkowska-Chrzczonowicz, Wyrok Sądu Konstytucyjnego…, s. 278].

55 Judgment of the Constitutional Court dated November 26, 2008, Pl.US 19/08, part XX pt. 216 [translated after: K. Witkowska-Chrzczonowicz, Wyrok Sądu Konstytucyjnego…, s. 278].

56 K. Witkowska – Chrzczonowicz Wyrok Sądu Konstytucyjnego z dnia 3 listopada 2009r. w sprawie zgodności z konstytucją Traktatu z Lizbony zmieniającego Traktat o Unii Europejskiej oraz Traktat ustanawiający Wspólnotę Europejską „Przegląd Sejmowy” nr 1 (2011), s. 217 i n.

57 Judgment of the Constitutional Court of January 31, 2012, Pl. US 5/12.

58 Judgment of the Constitutional Court of June 3, 2002, Il.US 405/02.

59OJ EU L 28 of January 16, 1997, p. 197.

60OJ EU L 28 of January 16, 1997, p. 197.

61 Judgment of the CJEU of June 22, 2011, C-399/09, Landtova.

62 Judgment of the Constitutional Court of January 31, 2012, Pl. US 5/12, part VII point 2 [translated after: A. Kustra, Kelsenian…, p. 274].

63 Among earlier “European” decisions of the Polish Constitutional Tribunal (TK), it is worth mentioning the judgments of May 27, 2003, on the constitutionality of certain provisions of the Act; and of March 14, 2003, on the nationwide referendum (K 11/03; Z.U. 2003/5A/43); of April 21, 2004 on the constitutionality of certain provisions of the Act of October 2, 2003 on biocomponents used in liquid fuels and liquid biofuels (K 33/03; Z.U. 2004/4A/31); of 31 May 2004 on the constitutionality of certain provisions of the Act of 23 January 2004 – Electoral Ordinance for the European Parliament (K 15/04; Z.U. 2004/5A/47); of January 12, 2005, on the constitutionality of the Act of March 11, 2004, on cooperation between the Council of Ministers and the Sejm and the Senate in matters related to the membership of the Republic of Poland in the European Union (K 24/04; Z.U. 2005/1A/3); dated 24 April 2005, issued as a result of a question of law concerning the conformity of Article 607t § 1 of the Act of 6 June 1997 – the Code of Criminal Procedure, which allows the surrender of a Polish citizen to a Member State of the European Union under the European Arrest Warrant, with Article 55(1) of the Constitution (P 1/05; Z.U. 2005/4A/42). The reasoning of judgment K 18/04 was, however, at that time the most extensive and most serious pronouncement by the Polish Constitutional Tribunal on the EC/EU and their legal system – R. Kwiecień, Zgodność traktatu akcesyjnego z Konstytucją. Glosa do wyroku TK z dnia 11 maja 2005 r., K 18/04, „Europejski Przegląd Sądowy” nr 1 (2005), s. 40.

64 Constitution of the Republic of Poland of April 2, 1997, Journal of Laws No. 78, item 483.

65 This view was upheld in the judgments of the Constitutional Tribunal of December 19, 2006, P 37/05, LEX no. 220769, and of June 26, 2013, K 33/12, LEX no. 1335468.

66 K. Wójtowicz, Traktat akcesyjny – wyrok z dnia 11 maja 2005 r., K 18/04, [w:] M. Derlatka, L. Garlicki, M. Wiącek, Na straży państwa prawa. Trzydzieści lat orzecznictwa Trybunału Konstytucyjnego, Warszawa 2016, LEX/el. 2017.

67 Judgment of the Spanish Constitutional Tribunal of December 13, 2004, case no. DTC 1/2004

68 Constitution of Spain, https://biblioteka.sejm.gov.pl/wp-content/uploads/2015/10/Hiszpania_pol_300612.pdf access: July 15, 2021)

69 Decision of the French Council of State of April 21, 2021, No. 393099.

70 Judgment of May 18, 2021 in the joined cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19.

71 Judgment of the Romanian Constitutional Court of 8 June 2021, case no. 390-2021

72 Ibid., paragraph 83.

Source of cover photo: Adobe Stock