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Panos Koutrakos
Recent developments in the relationship of EU law with national and international law highlight certain common threads. The main trigger for examining these two fields together has been provided by the Polish Constitutional Tribunal and its rulings that fundamental provisions of the Treaty on the European Union were contrary to the Polish Constitution. Having concluded that the latter took precedence over the former, the Polish Constitutional Tribunal made it all but inevitable for the Commission to bring an enforcement action against Poland for violating “the general principles of autonomy, primacy, effectiveness and uniform application of Union law and the binding effect of rulings of the Court of Justice of the European Union”. This is not the first time an art.258 TFEU action is brought against a Member State for a judgment by a domestic court of last resort. However, it is the first time that the mutual understanding of the fundamentals of the EU legal order between the ECJ and domestic courts would be questioned so directly. After all, the EU legal order has matured even though domestic courts and the ECJ understand the principle of primacy in different terms. And yet, through legal ingenuity, flexibility, and restraint, we have learned to live with conceptual ambiguity provided that, by and large, all relevant courts have been loath to challenge the fundamentals of primacy in practice. The judgments of the Polish Tribunal and the ensuing enforcement action by the Commission suggest that this modus vivendi may have been irredeemably challenged.
The case-law of the Court of Justice on the rule of law and primacy is characterised by the emphasis on, amongst others, the autonomy of EU law. For instance, in Commission v Poland (C-791/19), the point is made that “the keystone of the judicial system established by the Treaties is the preliminary ruling procedure … which, by setting up a dialogue between one court and another, specifically between the Court of Justice and the courts and tribunals of the Member States, has the object of securing uniformity in the interpretation of EU law, thereby serving to ensure its consistency, its full effect and its autonomy, as well as, ultimately, the particular nature of the law established by the Treaties”.
The focus on autonomy, which is intrinsically linked to the primacy of EU law, is by no means confined to the internal EU plane. As is well-known, there is a developing body of external relations case-law which has brought the principle to the fore. A case in point is the relationship between investor-State arbitration and EU law. Drawing on autonomy, the Court of Justice has articulated a number of principles of profound practical significance: investor- State arbitration under an intra-EU Bilateral Investment Treaty (BIT) is contrary to EU law ...
