European Papers (Nov 2021)
Sovereign Within the Union? The Polish Constitutional Tribunal and the Struggle for European Values
Abstract
(Series Information) European Papers - A Journal on Law and Integration, 2021 6(2), 1117-1121 | Editorial | (Abstract) On 6 October 2021, the Polish Constitutional Tribunal (CT) delivered its much-awaited ruling in case K 3/21. The Tribunal declared the unconstitutionality of arts 1, 2 and 19 TEU inasmuch as they require that national judges discard the Polish legislation on the organisation of the judiciary; in particular, those provisions which, in the view of the CJEU, place the Polish magistrature under strict control of the political power. However, and paradoxically, this ruling does not necessarily prelude to Poland’s decision of to withdraw from the European Union. By combining the self-referential legitimacy endorsed by the CT with the unfortunate withdrawal clause of art. 50 TEU, Poland could well retain its claim to be sovereign within the Union without having to comply with its fundamental principles and values. But how could MS react against a violation of the Treaty values apart from by fighting the symbolic battle for the art. 7 TEU procedure? To answer this question, a short reference should be made to the relation between the Union’s values and the obligations which reflect them. While art. 7 TEU provides for a special procedure to assess a systemic breach of the values of the Union, by no means does it prevent the functioning of ordinary remedies against a failure to comply with these specific obligations. Some of these rules are exclusively part of the body of European law. Others are also established by international law. The correspondence of the content of an obligation of international law with the values protected by art. 2 TEU does not, per se, prevent MS from invoking that obligation in their reciprocal relations. An action brought by the MS against Poland in their capacity of sovereign States would produce a number of beneficial effects. It would remedy the weakness of the institution-al procedures designed to ensure the implementation of the values of the Union. It would contribute to saving the soul of the Union and the fundamental rights of its citizens. It would make virtuous use of sovereignty: as a historical nemesis for the very ideology of sovereignty.
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