Tensions Between National Law and EU Law in the Context of Returning Irregular Migrants and Legal Certainty Presented by: Dr. Tchórzewski Date: 2 May 2024 European Union - positions of CJEU - The principle of the primacy ('precedence', 'supremacy') of EU law. - EU law must be applied to all national acts, whether they were adopted before or after the EU act in question. - Where EU law takes precedence over conflicting national law, the national provisions are not automatically annulled or invalidated. - However, national authorities and courts must refuse to apply those provisions as long as the overriding EU norms are in force. - The primacy principle, principles of direct effect and of uniform applicability - a foundation of effectiveness of the EU legal order. - The principle of primacy of the Union law stems from its autonomous character and the principle of effectiveness of the Union law. It is related to the duty to resolve the conflicts between Union law and national law in favor of the former. Poland - Positions Of The Constitutional Court - The Constitutional Court (CT) acknowledges the position of CJEU as being exclusively competent in terms of adjudicating in areas vested to the EU by the treaties while respecting the constitutional identity and basic functions of the Member States as well as the principles of subsidiarity and proportionality. - Condition the interpretation of the EU law is not being conducted arbitrarily. - These constitute unbreachable boundaries of an interpretation of the Constitution that is friendly from the point of view of the EU law. - From the perspective of the basic principles of the EU such interpretation of the treaties, which would overwrite state's sovereignty or threaten national identity, would be a breach of the Lisbon Treaty. Hungary - positions of the Constitutional Court - Joint exercise of competences through the institutions of the European Union may not lead to lower levels of protection of fundamental rights than that which is required by the Fundamental Law. Czech Republic - positions of the Constitutional Court - The Czech Constitutional Court was the first (among the Constitutional Courts of the EU member states) to describe a decision of the CJEU as ultra vires and, as such, as one that cannot be given effect in the Czech Republic. - Constitutional Court judgement of 31 January 2012 (Holubec judgement). - The Czech Constitutional Court, in very specific circumstances, had attributed to itself the right to decide upon the limits of the prerogatives of the CJEU. - It is being pointed out in the Czech literature, however, that the significance of the Holubec judgement should be considered as marginal from the point of view of the relationship between Czech national law and the EU law. Romania - position of the Constitutional Court - EU member states have decided to exercise specific powers, which traditionally were ascribed to the area of national sovereignty, jointly. - It was described as obvious that in an era of globalization, national sovereignty cannot be considered absolute without risking unacceptable isolation. - Romania cannot adopt a normative act contrary to the obligations to which it committed itself as a member state. - A constitutional limit, expressed in what the Court qualified as 'national constitutional identity'. NOTES - Impact on legal certainty in the context of returning of irregular migrants. - Possible solutions.