When the captured constitutional court desperately search for legitimization… Abusive constitutional borrowings in the “Eurosceptic” decisions of the Polish Constitutional Tribunal

The phenomenon of “constitutional borrowings“ is noticeable in the constitutional courts’ case-law regarding the EU membership. Within the European judicial area there are both courts that can be described as “trendsetters“ and those that relatively often borrow judicial ideas. There is no doubt that the court whose judicial concepts related to the EU law (such as Solange, ultra vires review and
constitutional identity) are most often referred to by other national constitutional courts is the German FCC. Nevertheless, although some constitutional courts present at least dubious interpretation of the original concepts developed in the German FCC case-law, the category of abusiveness should be reserved only for qualified misuse of “constitutional borrowings“ to achieve specific (often strictly political) goals. Hence, glaring examples of such abusive constitutional borrowings are the recent “Eurosceptic“ decisions of the captured Constitutional Tribunal.