The judical review of European Union secondary law in the light of the Constitutional Court sentence of 16 November 2011 (SK 45/09)

Abstract

Constitutional Court sentence of 16 November 2011 in case SK 45/09 is on one hand a continuation of the previous Polish Constitutional Court’s line of jurisprudence in the so-called EU issue, but on the other hand, it is also a breakthrough. Until then, the authority has not considered on the constitutionality of the EU secondary law. In this sentence Constitutional Court did not recognize unconstitutionality of the EU secondary law (and more specifically of the Council Regulation (EC) No 44/2001 of 22 December 2000), but stressed, just like Constitutional Courts of Italy and Germany, that the control over the constitutionality of EU secondary law is justified by the human rights protection. Thus, it defined itself as a "court of last word" in this area and confirmed the acceptability and legitimacy of scrutinizing EU secondary law in dealing with a constitutional complaint.