This article is published courtesy of Poland’s Ordo Iuris Centre for Research and Analysis
• The Polish Constitutional Tribunal ruled on June 10 that the EU Directive establishing the European Emissions Trading System (ETS) is incompatible with the Polish Constitution, as it was adopted beyond the powers granted to the European Union by Poland.
• The Tribunal’s reasoning fully aligns with the proposal of the Ordo Iuris Institute in this regard, presented in its report on the possibility for Poland to withdraw from the European Green Deal.
• The effects of the ruling remain an open question. On the one hand, repealing the act implementing the ETS Directive may expose Poland to penalties imposed by the European Commission and the Court of Justice of the EU (CJEU); on the other hand, it may serve as a clear signal, potentially inspiring representatives of other Member States to oppose the Green Deal.
Ordo Iuris report proposing to repeal the Green Deal through the Constitutional Tribunal
In early April, the Ordo Iuris Institute published a report indicating the legal means by which Poland could free itself from the European Green Deal (here in Polish). One of the proposals in the report was for the Constitutional Tribunal to declare the Green Deal incompatible with the Constitution of the Republic of Poland. However, since the Constitutional Tribunal does not have competence to directly review secondary EU law, Ordo Iuris proposed that the ruling should formally take the form of a so-called “scope judgment.” In other words, according to the authors, the Tribunal could rule that the relevant EU Treaty is incompatible with the Constitution to the extent that it serves as the legal basis for a given legal act (regulation or directive). The Polish Constitutional Tribunal is undoubtedly competent to review the compliance of international agreements with the Polish Constitution – this follows directly from Article 188(1) of the Polish Constitution.
Substantively, the incompatibility with the Constitution would lie in the fact that these legal acts were issued in violation of the principles under which Poland conferred powers on the European Union. It should be emphasized that the European Union holds no powers other than those conferred on it by the Member States through its founding treaties (this is the “principle of conferral”). What, specifically, would the violation of these principles consist of in this case?
It is a matter of having issued secondary legislation without achieving unanimity in the Council of the European Union – the body composed of representatives of Member States’ governments, whose consent is required for the adoption of EU regulations and directives. According to Article 192(2) of the Treaty on the Functioning of the European Union, the adoption of EU legal acts in the field of the environment that primarily have fiscal implications or significantly affect a Member State’s choice between different energy sources and the general structure of its energy supply requires unanimity in the Council. However, none of the acts falling within the scope of the Green Deal were adopted in this manner, but rather through the ordinary legislative procedure, requiring a 55% majority in the Council.
Constitutional Tribunal ruling K 10/24 in line with Ordo Iuris’ argumention
The Ordo Iuris Institute’s proposal was undoubtedly bold, and it was uncertain whether Poland’s Constitutional Tribunal would adopt it and thereby risk confrontation with EU institutions. However, on June 10, the Tribunal decided to adopt it in full.
Specifically, in case K 10/24, the Constitutional Tribunal ruled: “Article 192(1) in conjunction with Article 192(2)(c) of the Treaty on the Functioning of the European Union (OJ 2004 No. 90, item 864/2, as amended), interpreted in such a way that the unanimity requirement of the Council is limited to measures whose primary intended result—arising from their purpose or content—is to significantly affect the Republic of Poland’s choice between different energy sources and the general structure of its energy supply, is incompatible with Article 2, Article 7, Article 8(1), Article 90(1) in conjunction with Article 4(1) of the Constitution of the Republic of Poland.”
The essence of this ruling can be summarized as follows: adopting the Directive establishing the European Emissions Trading System (ETS) without achieving unanimity in the EU Council is incompatible with the Polish Constitution. The Tribunal further emphasized that: “It is not possible […] to adopt a pro-constitutional interpretation of primary EU law that negates the fundamental principles of this organization: the principle of conferred powers, the principle of loyalty and mutual cooperation, or the principle of subsidiarity.” In other words, the Tribunal indicated that Poland, by transferring (under Article 90 of the Constitution) certain competences of state authority to the European Union, did not agree for EU bodies to unilaterally expand the scope of those competences without any control by Poland. The Tribunal also stressed that transferring any competences to the European Union cannot result in Poland losing its sovereign status—including energy sovereignty.
Effects of the ruling – what next?
The effects of the ruling require clarification. First, it should be recalled that EU directives require implementation, meaning that in Poland, the ETS functions not directly on the basis of the directive but on the basis of the Act of 12 June 2015 on the Greenhouse Gas Emissions Trading Scheme.
Regarding this act, the Tribunal noted: “The ruling does not apply to the provisions of the Act of 12 June 2015 on the Greenhouse Gas Emissions Trading Scheme and the executive acts to this Act, as these were not indicated as the subject of review in this case.” At the same time, however, the Tribunal called on the legislative authority, i.e., the Sejm, to take appropriate action to implement the ruling—in practice, to repeal the said act.
What, then, will be the consequences of the ruling under EU law, which is, understandably, not bound by decisions of the Polish Constitutional Tribunal? As the Ordo Institute indicated in its report, Poland essentially has three options.
The first and most far-reaching—hence the least likely—is to leave the European Union.
The second is to remain in the Union, repeal the implementing act, and accept the possibility of penalties being imposed on Poland by the European Commission and the Court of Justice of the EU for non-implementation. This would require calculating which would be more costly for Polish citizens—paying penalties or applying harmful EU solutions that fundamentally contribute to rising energy prices.
Finally, the third option would be to work towards repealing the directive at the EU level—either through the legislative process or via proceedings before the CJEU. This would undoubtedly be the most advantageous solution. Its success, however, depends on decisions by external actors, beyond Poland’s control.
In any case, the fact remains that the Constitutional Tribunal has sent both EU institutions and citizens and politicians in other Member States a clear signal that opposition to the Green Deal is both possible and legally justified. If this ruling is followed by actions from the Polish political class, both domestically and at the EU level, aimed at implementing it, one can hope—as the Ordo Iuris Institute expressed in its report—that this signal will not be isolated but will inspire similar actions in other countries. The emergence of an international coalition opposing the Green Deal, particularly one supported by the current US administration, could force EU institutions to review their stance and revise the adopted measures, particularly by abandoning the utopian goal of making the economy climate-neutral by 2050.
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