Poland’s constitutional court rules EU energy policies breach national sovereignty

Keep our news free from ads and paywalls by making a donation to support our work!

Notes from Poland is run by a small editorial team and is published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

Poland’s Constitutional Tribunal (TK) has ruled that European Union energy and climate regulations are incompatible with the Polish constitution and breach national sovereignty in determining energy policy.

The Tribunal found that EU institutions, including the Court of Justice of the European Union (CJEU), had exceeded their competences by interpreting EU treaties in a way that significantly impacts Poland’s ability to choose its energy sources independently.

Interpretations of EU law “cannot mean that Poland loses control over the scope of its delegated competences, and thus that there are areas in which its sovereignty (here: energy) is not protected”, the court said in a statement announcing its decision.

However, the ruling is unlikely to have any real effect for now given that the current government, a coalition led by Prime Minister Donald Tusk, does not recognise the TK’s legitimacy due to it containing judges unlawfully appointed by the former Law and Justice (PiS) administration.

The case was brought by a group of opposition lawmakers led by Sebastian Kaleta, a PiS MP and former deputy justice minister. The motion challenged the compatibility of EU climate rules – including Directive 2003/87/EC, which created the EU Emissions Trading Scheme (EU ETS) – with the Polish constitution.

The MPs argued that, although Poland had transferred some powers to Brussels, it should retain sovereignty over critical energy decisions. They claimed that mandatory participation in the EU ETS restricts economic freedom and undermines the state’s ability to ensure energy security.

They also warned that EU decision-making processes, which do not require unanimity in the European Council on issues affecting Poland’s energy mix, might breach the limits of competence conferred on the EU and undermine the primacy of the Polish constitution.

In its ruling, the TK agreed with the motion’s core arguments. It held that the CJEU had extended the interpretation of the Treaty on the Functioning of the European Union beyond the conferred competences, infringing on national sovereignty.

“Competences not conferred on the European Union belong to the member states themselves, and the EU can only act on the basis of the principle of subsidiarity, subject to the scrutiny of national parliaments at all times,” the court said.

Consequently, the TK found this interpretation of EU law to be incompatible with the Polish constitution, emphasising that Poland cannot lose control over the scope of delegated powers, especially in such a key area as energy sovereignty.

The TK, however, discontinued proceedings relating specifically to the ETS “due to the incomplete, from a formal point of view, definition of the object under verification”.

The TK concluded its statement by stating that it was now up to the Polish legislature and executive to take “appropriate public law measures” to implement the decision, which enters into force upon its publication.

However, it is the government that is responsible for publishing TK rulings, and it refuses to do so given that some of the tribunal’s judges were illegitimately appointed under PiS.

The ruling could still reverberate in Polish politics, however. The PiS-aligned president-elect, Karol Nawrocki, who takes office in August, said last month that the TK’s decision on this case could pave the way to lower electricity prices by 33% – one of his campaign promises.

He also pledged to hold a referendum on withdrawing from the EU’s Green Deal – a set of policies aimed at reaching climate neutrality by 2050 – and reaffirmed his support for coal, which remains Poland’s main source of electricity generation and is also widely used for heating homes.

PiS politicians welcomed the verdict, insisting that it means that Poland does not have to implement the Green Deal.

“The EU has not been given the competence to decide without the consent of Poland which energy sources we can use and what fiscal burdens may be imposed on individual sources,” Kaleta wrote on X. “This opens the path for a radical reduction in electricity and heating prices now.”

The former justice minister in the PiS government, Zbigniew Ziobro, meanwhile, challenged Tusk, asking if he would “break the law again and hide the verdict to drive Poles into poverty” or “will you behave as you should?”

The government has so far not commented on the TK’s ruling.

Notes from Poland is run by a small editorial team and published by an independent, non-profit foundation that is funded through donations from our readers. We cannot do what we do without your support.

Main image credit: Adam Stepien / Agencja Wyborcza.pl

Alicja Ptak

Alicja Ptak is senior editor at Notes from Poland and a multimedia journalist. She previously worked for Reuters.