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Second working session — The impact
States. I refer to the decision of the Czech Constitutional Court of 31 January
2012 (declaring the judgment of the Court of Justice
ultra vires
) and the deci-
sion of the Polish Constitutional Court of 16 November 2011.
Let me say just a few words about the ruling of the Polish Constitutional
Court. I must admit that I was personally involved in that case. I had an hon-
our to plead in these proceedings on behalf of the Ministry of Foreign Affairs
(pleading unsuccessfully since our arguments were not followed by the Court).
As you may know, the Polish Constitutional Court acknowledged its compe-
tence to rule on compatibility of some provisions of the Regulation Brussels I
with the Polish Constitution. The Court of course did not find any contradic-
tion between EU law and the Constitution. Nevertheless in the grounds of the
decision one can find analysis of potential consequences of declaring an act of
EU secondary law contrary to the Constitution. The Court stated, I am quot-
ing, ‘organs of the Polish state would be deprived of the possibility of applying
an act of EU secondary law and such act could not produce any legal effects
on the territory of Poland’. I must emphasise, however, in order to remove any
possible tensions that the Constitutional Court considered such scenario as an
ultimate solution that must be avoided by all means.
It must be underlined that the potential exclusion of the territory of one
Member State from the scope of the application of some parts of EU legisla-
tion would lead to a large number of practical problems. Especially if we deal
with a legal instrument providing for judicial cooperation between Member
States. One of the questions that could arise would be to what extent it would
affect the recognition or enforcement of decision of the Polish Court in other
Member States.
It is clear that, if it occurs, a breach of the principle of uniform applica-
tion would create tremendous and unpredictable consequences. Let’s believe
that the position taken by some constitutional courts would only lead – as
Professor Pernice suggested in his paper – to so-called ‘emergency compe-
tence’ that would rather contribute to stabilising the system of mutual regard
and encourage the EU institutions to be aware of the limits of their own power.
2.
Terminology
My second remark concerns terminology. The newMember States – as new
comers to the EU – inherited or adhered to extremely confusing terminology
