Constitutional Resistance in the EU: A Proposal for a ‘Declaration of Incompatibility’

Case K 3/21 of the Polish Constitutional Tribunal is the most recent and extreme example of the increasing trend of resistance to the primacy of EU law. This paper argues that it is now necessary to recognise and address this phenomenon in order to preserve the EU constitutional order. A new mechanism allowing national apex courts to make a declaration of incompatibility of EU law with national constitutional identity is proposed, drawing inspiration from section 4 of the UK Human Rights Act 1998. This provision seeks a similar squaring of the circle between upholding European legal obligations and preserving Parliamentary Sovereignty. The proposal for a ‘declaration of incompatibility’ mechanism is presented not only in contrast to the arguments of EU law ‘supremacists’ that, in such a situation, a Member State should either amend its constitution or withdraw from the EU, but also to create practicable pathways for the amendment of national or EU law in response to such resistance.