The rule of law crisis in Poland and the challenge to the principle of the primacy of EU law

Tensions between European Union and Member State laws have always existed. Not enshrined in the EU treaties, the principle of primacy of EU law was developed by means of jurisprudence of the Court of Justice of the European Union. The breakthrough judgment, Van Gend en Loos, emphasised the compliance of Member States with EU law, which shall be integrated with the national laws. This principle was reinforced by further landmark judgments such as Costa v. Enel, Simmenthal and Marleasing. Obviously, the primacy is not absolute, as it only applies to those areas of competence that have been transferred to the EU. We acknowledge some borderline cases where such transformation has not occurred in full. The central aim of our chapter, which focuses on the situation in Poland ahead of the 2023 elections, is to analyse recent judgments of the Polish Constitutional Court that challenged the primacy of EU law. We distinguish between two approaches, namely “good faith” and “bad faith”, assess their outcomes and give some recommendations. We also present future challenges for the EU as a “community of law”.