What is currently unfolding in Poland touches on an issue that runs far deeper than the conflict between Donald Tusk and his political opponents. It concerns the very foundation of the constitutional state: who has the ultimate authority to determine the extent to which state sovereignty may be transferred?
EU law is based on the principle of primacy over national law. The Court of Justice of the European Union maintains that this also applies to national constitutional provisions within the scope of EU law. But this gives rise to a fundamental constitutional paradox.
The EU has derived its authority from treaties to which the Member States have acceded in accordance with their constitutions. How, then, can this derived authority claim to take precedence over the constitutional basis that made the transfer of authority possible?
This is not merely a question of legal interpretation. It touches upon the very distinction between an international organisation with delegated powers and an independent state with original sovereignty.
Poland’s Constitutional Tribunal challenged this distinction in 2021. The Court of Justice of the European Union responded in December 2025 by ruling that the decisions of the Polish Constitutional Tribunal were contrary to EU law. At the same time, the Constitutional Tribunal’s own independence was called into question as a result of previous judicial appointments.
The conflict has thus become twofold: there is a dispute both over who has the right to interpret the Constitution and who can legitimately exercise this right.
Norway does not have its own Constitutional Court. We have the Supreme Court, which, under Article 89 of the Constitution, has the right and duty to review the constitutionality of laws and decisions by public authorities.
However, the Norwegian problem is of a different nature. Here, the transfer of powers has largely taken place gradually, through what can aptly be described as the ‘salami method’.
In the ACER judgement of 2023, the Supreme Court specifically addressed the question of whether previous transfers of authority must be taken into account when assessing a new transfer.
The Supreme Court recognised that several transfers, each of which is relatively minor in itself, may collectively appear more far-reaching. The Court also recognised that isolated assessments may undermine the considerations underlying the Constitution’s requirement for a qualified majority.
Nevertheless, the Supreme Court concluded that, as a general rule, the Storting is not obliged to consider previous transfers of authority in conjunction with the new one.
This is where the fundamental problem arises.
For if the Constitution’s protection of national sovereignty can be assessed piecemeal, without any mandatory assessment of the cumulative effect, there is a risk that the constitutional whole will gradually disappear.
Each individual slice of the sausage may be small. Each individual transfer of authority may, viewed in isolation, be of minor significance. But once the final slice has been cut, the whole sausage is gone.
And no one can reasonably claim that the whole has been preserved simply because each individual slice was small.
This is the difference between assessing the isolated legality of a decision and assessing its cumulative effect on the constitution.
The Constitution is not merely a collection of procedural rules governing how authority may be transferred. It is also the legal basis for the fact that the state’s authority lies, in principle, with Norwegian constitutional bodies.
If this premise is gradually altered without a constitutional amendment, the question arises as to whether, in reality, it is the constitution that is being amended through ordinary parliamentary resolutions.
Poland illustrates what can happen when two legal systems each claim to have the final say. Norway illustrates another question: what happens when the transfer of authority is never considered as a constitutional whole?
The decisive factor is not whether the individual transfer of authority appears modest, expedient or politically desirable.
What matters is whether the Constitution’s substantive protection of sovereignty still has any real substance.
A constitution that can be stripped of its substance without being amended is ultimately left with nothing but its form.
And a sausage that has been sliced up and eaten no longer exists simply because one still has the packaging.
