Verfassung über alles oder wohin uns die Gralshüter führen …

Nobody questions the review of the constitutionality of EU or international law. However, its consequences are often a source of controversy. The concept of States as »Herren der Verträge« should therefore be treated with caution. At the level of national law, in the event of a conflict of norms, the primacy principle is equivalent to the precedence of application of EU or international law (collision norm), while supremacy refers to the domestic rank of a national constitution. The two terms should not be confused: primacy does not mean supremacy and supremacy does not eliminate primacy. Primacy does not decide on the supremacy of international law over national law (and vice versa). The Federal Constitutional Court (BVerfG) accepts the primacy principle, but at the same time shows its limits (protection of fundamental rights, ultra vires, constitutional identity). In the case of non-compliance with the criteria established by German Court, the acts of EU law are inapplicable on the German territory. The jurisprudence of the BVerfG accomplishes a defensive and conservative function, however, in practice performed moderately (exception: judgment of 20 May 2020). The BVerfG doctrine became a model of constitutional review for other States. Since 2015, the Polish Constitutional Tribunal refers expressly to the BVerfG rulings in purpose to dismantle democracy and the rule of law in Poland and undermine the validity of EU primary law and judgments of the European Court of Justice. It can be said that the BVerfG doctrine is in full bloom in Poland (although also in Russia). In the Polish legal order, the Constitution is »the supreme law of the Republic of Poland« (Article 8(1) of the 1997 Constitution). At the same time, however, the following applies: »The Republic of Poland respects international law binding upon it« (Article 9). Since 2015 the Polish Constitutional Court invokes Article 8 and on this basis considers some acts of EU law as inapplicable (in disregard of Article 9). The author argues that if the Constitution is the supreme law and if a norm of international law is considered incompatible with it, Poland is obliged to eliminate this conflict. It is not enough (according to the BVerfG model) to declare EU law inapplicable.