European Court of Justice’s Effort to Override Member States’ Constitutional Courts Gears Up

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As the Advocate General of the Court of Justice of the European Union (CJEU), Dean Spielmann, pointed out in an opinion issued on March 11 regarding the primacy of EU law over national constitutions, Poland has violated its obligations to the European Union when its Constitutional Tribunal issued rulings that undermine the supremacy of EU law. Advocate General Spielman called this “an unprecedented revolt” that “undermines the primacy, autonomy, and effectiveness of EU law.”

Although the CJEU is not bound to rule in accordance with the opinions issued by its Advocates General, it typically does. Therefore, an attempt at a sweeping, extra-democratic change to the European Union's legal framework by the judges in Luxembourg can be expected. This would not be the first time the CJEU has expanded its own powers and those of the EU by reinterpreting treaties signed by sovereign, democratic member states. However, this ongoing process, which began many years ago, could mark the final erosion of national sovereignty—and consequently, democracy—within the European Union, provided that member states comply.

Revolt of the Polish Constitutional Court or a Coup by the European Court of Justice?

The case in which the CJEU’s Advocate General issued an opinion on March 11 specifically concerns the Polish Constitutional Court's rulings of July 14 and October 7, 2021, which addressed CJEU decisions concerning Poland's judicial reform process.

The October 2021 ruling by the Polish Constitutional Tribunal reaffirmed that EU law can only take precedence over national law in areas where member states have explicitly delegated their sovereignty to the European Union. When the Polish Constitutional Tribunal issued its ruling, the reactions across the EU mainstream were overwhelmingly negative, contrasting with the more restrained response to the German Federal Constitutional Court's May 5, 2020, judgment. In that case, Germany’s constitutional court questioned the applicability of an CJEU decision that validated the European Central Bank’s (ECB) sovereign debt purchase program. The judges in Karlsruhe then asserted that member states remain the “masters of the treaties” and that national constitutional courts must oversee the Luxembourg-based CJEU judges when they overstep their mandate.

German Court Similar to Polish Court, but Different Reactions

Both the German and Polish cases involved national constitutional courts reaffirming the primacy of their respective constitutions and rejecting decisions by the European Court that would result in an unauthorized transfer of sovereignty beyond the terms of ratified treaties. Even without directly challenging the CJEU’s authority, the French Constitutional Council held a similar position in a ruling of October 15, 2021, stating that “the transposition of a directive or the adaptation of domestic law to a regulation cannot run counter to a rule or principle inherent to the constitutional identity of France, except with the consent of the constituent.”

However, in the case of Poland, the European Commission opened an infringement procedure on December 22, 2021, citing “violations of EU law by its Constitutional Tribunal.” Additionally, following the July 2021 ruling by the Polish Constitutional Tribunal that denied the CJEU’s authority to issue an interim order suspending the Disciplinary Chamber of the Polish Supreme Court, the CJEU imposed a daily penalty of 1 million euros on Poland. Warsaw refused to pay, but the European Commission eventually deducted the sum from other funds allocated to Poland.

So, will the CJEU ultimately rule that Poland has failed to meet its obligations as an EU member by prioritizing its constitution over the CJEU’s reinterpretation of EU law?

The next chapter of this conflict unfolded in 2023, when the European Commission again brought Poland before the CJEU over its Constitutional Tribunal’s rulings. While the matter may now seem outdated—especially since Poland has amended the contested laws and its government has changed to one openly supported by the Von der Leyen-led European Commission—the issue remains significant. The European Commission terminated the Article 7 sanction procedure against Poland in May last year, declaring that there was no longer a “threat to the rule of law,” but the EU institutions’ efforts to use the Polish case as a precedent to affirm the primacy of EU law over national constitutions continue.

What Do Other EU Member States Say About the Supremacy of EU Law?

As noted earlier, Germany does not recognize the absolute primacy of EU law. German courts scrutinize CJEU judgments and may disregard them when necessary. Similarly, in France, the Constitution remains the highest legal norm. In addition to the Constitutional Council’s ruling already mentioned, the French Council of State, in a decision issued on April 21, 2021, upheld the primacy of the French Constitution, despite acknowledging the existence of an EU legal order integrated into the national legal order.

In Italy, judicial precedent dating back to the 1970s maintains the right to review the constitutionality of EU law and, if necessary, reject its primacy. This has resulted in the refusal to apply two CJEU judgments due to conflicts with the Italian Constitution. The Italian Constitutional Court’s assertion of this authority is known as the riserva di legge doctrine.

Denmark’s Constitution does not allow the delegation of powers to an international organization in a way that would override its constitutional framework. If EU institutions exceed their delegated authority, Danish courts may refuse to enforce such measures.

Similarly, in the Czech Republic, recognition of the EU law’s primacy is conditional upon respect for national sovereignty, as defined by the Czech Constitution. The Czech Constitutional Court has rejected the notion that the CJEU has supremacy over national constitutional courts, advocating instead for cooperation based on mutual respect.

Spain also imposes limits on the supremacy of EU law. For example, the Spanish Supreme Court’s Criminal Chamber rejected a CJEU ruling on January 9, 2020, choosing instead to uphold the imprisonment of a Catalan separatist leader.

In Romania, a conflict between the CJEU and the Constitutional Court arose over judicial reforms. The CJEU had ruled that Romanian courts could disregard the country’s Constitution in favor of EU law, but the Romanian Constitutional Court, on June 8, 2021, reaffirmed that the Constitution remains the supreme legal authority.

Notably, the CJEU has aggressively sought to impose its supremacy over national constitutional courts primarily in Poland and Romania—two countries heavily reliant on EU funds and, therefore, more vulnerable to financial penalties and political pressure.

Casus Poland – What Does the Polish Constitution Say?

The relationship between Polish and EU law is defined in the Polish Constitution, particularly in Chapter I (“The Republic”) and Chapter III (“Sources of Law”). Article 8(1) states that the Constitution is the supreme law of the Republic. Article 90(1) allows Poland to delegate certain state powers to an international organization via treaty. However, Article 91(3) asserts that international law applies only when it does not conflict with the Constitution, confirming the fundamental supremacy of national constitutional law over EU law. In short, as everywhere in the EU, if a conflict arises, the Constitution of the land must be amended before EU law can apply.

Judicial Overreach and the Path to an EU Superstate

Despite these constitutional provisions, the EU continues to assert its supremacy over member states, primarily through judicial activism. This expansion of EU power, not stemming from the ratified EU treaties but driven by unelected judges, undermines national sovereignty and paves the way for a very undemocratic EU superstate.

It is worth mentioning, however, that a reform of the EU treaties is currently pending following a procedure launched in 2023 by the European Parliament, with strong support from Germany and France. If this reform comes to fruition, the supremacy of EU law and its interpretation by the CJEU over national constitutions will then be enshrined in the treaties. The Ordo Iuris Institute highlighted this in a 2024 report titled Why Do We Need Sovereignty –  Ten Areas of the Proposed Surrender of National Sovereignty in Light of the European Parliament's Resolution on Proposals for the Amending of the Treaties.

In response, the Ordo Iuris Institute and Hungary’s Mathias Corvinus College (MCC) have published an alternative EU reform proposal. Their report, The Great Reset: Restoring Member State Sovereignty in the European Union, advocates for limiting CJEU overreach and returning unlawfully appropriated powers to member states.

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The above is based on a piece by Polish constitutionalist Prof. Anna Labo, titled On the Unconstitutional Primacy of European Law and the Consequences of Its Imposition (in Polish), as well as an entry on X by Dr. Łukasz Bernaciński, PhD, director of the Ordo Iuris Institute's Programs and Analysis Department, and a contribution by the Ordo Iuris Communication Department.