Supremacy Over Primacy...? Reflections on Legal Controversies Between Poland and The European Union (2015–2023)

The violation of the rule of law in Poland (2015–2023) was related to the relationship between national law, especially constitutional law; and international law, especially European Union (EU) law. This article focuses on the issue of constitutional review in the context of concepts such as sovereignty and conferral of competences, as well as the supremacy of the Constitution and the primacy of application of international rules and principles. Sovereignty, a qualitative feature of the State, operates within the law, not outside of it. EU (international) law does not limit sovereignty, but the sovereign nature of the State cannot justify violations of the applicable law. Situating the relationship between international (EU) law and the national constitution in the perspective of the supremacy of one order over the other leads in practice to a collision and/or a stalemate. Rather, we should be guided by the principle of primacy as an “existential requirement” for the functioning of the Union, and more broadly, of international law. The primacy of application does not imply the supremacy of EU law over national law, nor the derogation of national law norms. Constitutional supremacy, on the other hand, is a principle of domestic law which does not have external legal effects and does not exempt a State from its international legal responsibility. The concepts of priority and supremacy coexist, but they fulfil different functions and express different perspectives – primacy does not prejudge supremacy, and supremacy does not exclude primacy. What is problematic is not so much the review of constitutionality per se, but the scope of that review and its effects. Once a national court has found a conflict between EU law and the national Constitution, should we accept the effect of selective refusal to apply EU law on the grounds of constitutional supremacy and sovereignty? The answer to this question is negative.