"Spain did the same, and that was accepted. So why punish us?" That is the argument which the Polish government is now making in its head-on clash with the European Union. Last Thursday, Poland's Constitutional Court asserted that the Treaty of Accession of Poland to the European Union is incompatible with some parts of the Polish Constitution, as it puts EU law before national law in a way that is unacceptable to the Poles. But Poland claims that it is not the only country that has asserted the preeminence of national law in the EU, and specifically, it refers to Spain, in the case of the then-imprisoned Catalan leader Oriol Junqueras and the Spanish response to his election as an MEP.
The Junqueras case
After the jailed pro-independence politician was elected to the European Parliament in May 2019, the debate on his immunity as an MEP reached the European Court of Justice, which in December 2019 ruled that Oriol Junqueras did in fact have immunity as an MEP. It thus asserted that Spain's Supreme Court should have released him before he was sentenced in the Catalan independence trial (which had taken place in October that year), so he could have taken up his seat as an elected member of the European Parliament.
However, a month later, in January 2020, the Supreme Court refused to allow Junqueras to attend the European Parliament because, by then, he had been given a 13-year prison sentence for sedition. One of the arguments put forward in the interlocutory by the Spanish court is that national law states that there is no immunity for a person who takes part in an electoral process when he has already been tried.
In this regard, Poland indicates that the Supreme Court's ruling on the Junqueras case implies "that the Spanish legal order is more important than that of the European Union." Therefore, the argument from the Warsaw authorities is that the ruling by its Constitutional Court provides "nothing new on the European scene." As well as Spain, they also mention other cases in which the national law has prevailed over Union legislation - from countries such as France, Italy, Denmark and Romania.
Poland's controversial court decision
Last Thursday, Poland's Constitutional Court issued a ruling determining that Articles 1 and 19 of the European Treaties are unconstitutional in that country, for an alleged invasion of powers. The Polish justices consider that the European Court of Justice has no jurisdiction to determine whether or not the judges of their country are independent.
This decision, moreover, has been made known at a time when the 23.9 billion euros earmarked for Poland from the EU's Next Generation recovery fund have not yet been approved. At the same time, the Polish ruling has caused "deep concern" in the European Union. European Commission president Ursula von der Leyen has warned that the continental body will respond with "all the powers" at its disposal.