Łukasz Perlikowski - Blog/Personal Academic Website

If we take the political disputes heating up the Polish public sphere out of the equation; if we separate Poland's issues with the Constitution, the Tribunal, and relations with the European Union from the personal disputes polarizing Polish society in the year 2025, we must state that we are dealing with an interesting legal impasse. For if we compare EU treaty law with the Polish constitution, we find a kind of self-referential loop, in which a member state declares that the constitution is the highest act of law, which fundamentally allows for the relinquishment of this highest sovereign position through participation in international organizations. The Tribunal, in this context, rules on the constitutionality of national law, and simultaneously on the (in)compatibility of EU law with the Polish constitution (see Judgment of the Constitutional Tribunal, 7.10.2021, case reference K 3/21). The main argumentative weapon of the Tribunal here is Article 8 of the Constitution of the Republic of Poland, which states that "The Constitution is the highest law of the Republic of Poland." In this way, the Constitution "asserts" its validity while simultaneously colliding with the fundamental principles of EU law, which declare the supremacy of EU law. It is worth recalling two famous principles: the principle of the primacy of community law and the principle of the direct effect of European Union law (Craig, de Búrca, 2020). Both of these principles stand in open contradiction to Article 8 of the Polish constitution, and this contradiction seems insurmountable. To demonstrate the seriousness of this situation, it is worth pointing out that a similar incompatibility of legal systems occurred in the case of the British legal system colliding with the EU system. The consequences of this tension are well known (Perlikowski, 2023).

However, returning to the Polish context, it should be noted that although it is difficult to separate the discussed issues from current politics, one could ponder how History would evaluate these events… or, to put it another way, how an impartial observer would assess this matter. However, to avoid lingering too long on a historiographical level of considerations and to look at this issue more concretely, I will share below my thoughts on what effects enshrining EU membership in the Constitution and regulating the relationship between national constitutional law and EU law at the constitutional level would have for our impasse.

The European Union influences member states in many, sometimes non-obvious ways. We know, among other things, that a specter is haunting Europe – the specter of European federation. It is said that the European Union is an international organization sui generis, as it possesses elements belonging to political entities, yet it remains an organization that brings together states, without being a state entity itself. These elements include institutions that reflect the idea of the separation of powers, with a clearly delineated judiciary. If there are courts, there exists a legal system in which these institutions function; if there is a Charter of Fundamental Rights that can be interpreted through case law; if there are individuals whose rights can be protected in courts based on official, separate citizenship of the European Union, then the only missing piece in this puzzle is a European Union constitution, which could serve as fundamental law, guarded by the Court of Justice of the European Union. Leaving aside the political disputes that have arisen around the realization of this idea, it should be noted that it is not necessary to have a written codified constitution to operate within a constitutional regime, as evidenced by ancient times with the Roman Empire, and in modern times by the political systems of countries without a codified constitutional document, led by Great Britain and Israel. Can the European Union, therefore, be considered as an entity with a political system characteristic of systems based on uncodified constitutions? It seems that such an interpretation is increasingly justified and permissible, especially when considering the nature of the case law of the CJEU, which increasingly resembles a common law system, characteristic of the Anglo-Saxon common law. If matters are indeed moving in the direction suggested by the above-formulated intuition, then the European Union would most likely become the first political entity in history with a federal character, where at the central level there exists a constitutional system without a written constitution, while at the level of the federation members, which are the member states, there would be national constitutions. In the United States, alongside the Constitution at the central level, there are the constitutions of individual states – at both levels, these constitutions are clearly codified. In the European Union, as the future outlines for us, we would be dealing with a completely different situation, where at the central level, the shape of constitutionalism is primarily determined by the dynamics of the case law of the European Union.

The influence of European law extends not only to member states but also to those outside the European Union. For instance, if we examine the Constitution of Montenegro, we may be surprised to find that one of the first provisions is the prohibition of human cloning (Article 27). Given that Montenegro is not generally regarded as a global leader in biotechnology, the inclusion of such a provision might raise eyebrows. However, when we look at the Charter of Fundamental Rights of the European Union (Article 3 d), the inspiration from this legal provision becomes clear. The creators of the Constitution of Montenegro undoubtedly intended to reference EU regulations, which can be seen as a step towards unifying the values underpinning European constitutionalism. The compatibility of national law with European law is a crucial element for all countries considering future accession to the European Union, and the integration of the Western Balkans is increasingly viewed as a priority in the further development of the EU (Beres, P., Costa, O., Gressani, 2023).

This somewhat anecdotal example illustrates a broader trend. It involves the infiltration of European states' legal systems by EU law. To redirect attention to the case of Poland, it is worth noting that one of the amendments to the Constitution of the Republic of Poland (which is generally regarded as one of the more rigid constitutions among European states) was indeed related to aligning national law with EU legal standards. The amendment from 2006 allowed for extradition in connection with the European Arrest Warrant. This step was clearly dictated by the intention to merge the national and European legal systems.Notably it is widely regarded as one of the more rigid constitutions among European states.

The development of EU law and its impact on the legal systems of member states has become an undisputed issue. However, the forms of addressing this problem and their further consequences remain unexplored. These issues can primarily be studied by examining the practices of constitutionalism in member states, eight of which have clear references to EU membership in their constitutions. These include Bulgaria, Finland, France, Ireland, Lithuania, Germany, Sweden, and Croatia. Let us take a look at the constitutional solution of the latter. The Constitution of Croatia was amended, importantly through a constitutional amendment, to include an entire section concerning the European Union (VIIA). This section defined the legal basis for membership and the transfer of constitutional powers (Article 141a), the principles of participation in EU institutions (Article 141b), equated the status of national law with EU law in terms of protecting individual rights (Article 141c), and confirmed the equivalence of EU citizenship with national citizenship while emphasizing the rights arising from it. Without delving into the details of the interpretation of these provisions, it should be noted that they clearly state the matter and do not fall into the impasse known from the Polish case. However, what seems most significant is that if these provisions were included in the constitution through an amendment, it can be presumed that any potential withdrawal of these provisions could also be carried out in this manner. Therefore, it is worth noting that the Croatian solution, initially radical and unequivocally pro-EU, still leaves a loophole for changes resulting from the potential political will of future holders of popular sovereignty. This raises the question of whether the Republic could follow this path by introducing a more flexible constitution while simultaneously incorporating European issues into the constitutional document. In this context, the question arises: What sense, purpose, and consequences does the proposal to include EU membership or recognition of EU values in the constitutions of member states have? It seems that paradoxically, the introduction of provisions on EU membership is an expression of the position that the constitution is the source of recognition of EU law, rather than the other way around. When contrasted with the possibility of changing the constitution, the power of decision remains in the hands of the state sovereign. In this way, European values are fully "internalized," and their future role, shape, and function depend on the actual and potential scope of the constitution's flexibility.

Perlikowski, Ł. (2023), The Sovereignty of Parliament and the Stability of the Political System of the United Kingdom in the Perspective of the Consequences of Brexit, "Review of Constitutional Law" No. 1, pp. 107–119., https://doi.org/10.15804/ppk.2023.01.08

Perlikowski, Ł. (2022) The Role of the Supreme Court of the State of Israel in the Context of the Stability of a Political System Based on an Uncodified Constitution, "Parliamentary Review" No. 1(168)/2022, pp. 119–136., https://doi.org/10.31268/PS.2022.89

Uncodified Constitutions and the Question of Political Legitimacy (ed. Ł. Perlikowski) (2022). Toruń: UMK Scientific Publishing.https://doi.org/10.12775/978-83-231-4930-9

Sources:

Beres, P., Costa, O., Gressani, G., et al. (2023). Sailing on High Seas – Reforming and Enlarging the EU for the 21st Century, Paris-Berlin.; Constitute Project: https://www.constituteproject.org/.; Craig, P., & de Búrca, G. (2020). EU Law: Text, Cases, and Materials. Oxford: Oxford University Press.; Radziewicz P. (ed.) Office of Parliamentary Analyses. (2010). Changes in the Constitution of the Republic of Poland Regarding Poland's Membership in the European Union. Documents from the work of the scientific team appointed by the Marshal of the Sejm. Warsaw: Sejm Publishing.; Treaty on European Union. Treaty on the Functioning of the European Union. Charter of Fundamental Rights of the European Union (2022). Warsaw: Wolters Kluwer.; Judgment of the Constitutional Tribunal of October 7, 2021, case file K 3/21

#3 Ł. Perlikowski (24.09.2025). We are in the Union and the Union is in us., https://lukaszperlikowski.pl/blog

*Photograph: Court of Justice of the European Union, Luxembourg 2023 (own archive)