Poland in the EU

Dear Presidents and Prime Ministers,
Ladies and Gentlemen,

 

I am writing this letter to reassure you, and at the same time to make you concerned.

I wish to reassure you that Poland remains a loyal member of the European Union. A European Union that is an organization based on common Treaties, established by all Member States which have entrusted a number of competences to common institutions and have jointly regulated many areas of life through European law. Poland respects this law and recognizes its primacy over national laws, pursuant to all our obligations under the Treaty on European Union.

At the same time, however, I want to make you concerned – and draw your attention to a dangerous phenomenon that threatens the future of our Union. We ought to be anxious about the gradual transformation of the Union into an entity that would cease to be an alliance of free, equal and sovereign states, and instead become a single, centrally managed organism, run by institutions deprived of democratic control by the citizens of European countries. If we do not stop this phenomenon, all will feel its negative effects. Today it may concern just one country – tomorrow, under a different pretext, another.

Which is why, I am asking you to hear Polish arguments, to refer to them, and to be open to dialogue. I truly believe that together, in the spirit of mutual respect and understanding, without imposing one’s will on others, we can find a solution that will strengthen our European Union.

***

Poland fully respects European law, as well as the judgments of the Court of Justice, like any other Member State. The obligation for each Member State to respect EU law derives directly from the Treaties – we are obliged to do so to the extent required in the Treaties. Not one iota less – and not one iota more.

The principle of the primacy of EU law covers all legal acts up to the level of statutory rank in the areas of Union competence. This principle, however, is not unlimited. In every country, the Constitution retains its primacy. The assessment of where the border lies can only be made by the courts – both the Court of Justice of the European Union and our national constitutional courts. Each of them is the "guardian of the constitution", which ultimately decides on the legality and validity of the norms applied in a given territory. This is the role for which they were appointed by the creators of the constitutional judiciary.

The Constitutional Tribunal of the Republic of Poland has the same rights as courts and tribunals in any other EU country. They can verify the compliance of EU primary law with their own constitutions, and they have been doing so consistently for many years, even decades. Individual judgments deal with broader or narrower issues, but their essence remains unchanged - the primacy of EU law over national law exists and although it is wide in scope, it has its clear limits.

These boundaries are determined not only by the constitutional or statutory nature of national legal norms but also by the subject matter covered by EU law. The principle of conferral, as defined in Article 4 and 5 of the Treaty on European Union, is the guiding principle of the Union. It means that the competences of the European Union bodies extend only to matters which we have entrusted to them within the Treaties. Attempts to expand these competences cannot be accepted. Any such action should be considered ultra vires, and by its very nature contrary to the treaty principle of the rule of law. No European Union body should take action that is not authorized to by the Treaties.

This issue does not raise any doubts in the decisions of tribunals and constitutional courts of the EU Member States. Indeed, these courts have repeatedly stated that some actions of the European Union institutions, in particular those of the Court of Justice of the EU, exceed the powers granted by the Treaties. As a consequence, national courts have consistently decided that individual judgments of the CJEU - as delivered ultra vires - are not binding on a particular Member State.

The Polish Constitutional Court does nothing today that the courts and tribunals in Germany, France, Italy, Spain, Denmark, Romania, the Czech Republic or other EU countries have not done in the past. It is a well-trodden path of jurisprudence, which is by no means a novelty. None of these judicial decisions led any Member State astray with European integration. Each of them was a statement and confirmation of the facts that result from the letter and spirit of European law. The Polish Constitutional Tribunal does nothing today that it would not have done in the past – back in 2005, 2006, 2010 or 2011 - in other composition of judges, and elected in every political configuration since Poland's accession to the EU.  The Polish Constitutional Court has repeatedly ruled on the primacy of the Polish Constitution over European Union law. These judgments have never been challenged by the Commission. This is simply because the review of compliance of international law with the national constitution does not infringe EU law.

Pursuant to Article 4 of the Polish Constitution, the supreme authority in the Republic of Poland belongs to the nation. An expression of this principle is also the hierarchy of sources of law, according to which it is the Polish basic law - adopted by the Nation as the highest expression of its political will - that precedes other sources of law, such as acts or even international agreements ratified by Poland. No government may depart from this principle – as this would be a flagrant breach of the Constitution and be incompatible with the principle of national sovereignty.

It is also worth emphasizing that the Polish Constitutional Tribunal does not state that the provisions of the Treaty on European Union are entirely inconsistent with the Polish Constitution. It only declares that one, very specific interpretation of certain provisions of the Treaty (the result of the recent case-law of the Court of Justice) is inconsistent with the Polish Constitution.

According to this interpretation, judges of Polish courts would be obliged to apply the principle of the primacy of European law not only over national laws of statutory rank - which does not raise any doubts - but also to violate their own Constitution and judgments of their own Constitutional Tribunal. Moreover, adopting this interpretation would lead to the conclusion that millions of judgments issued in recent years by Polish courts may be arbitrarily challenged, and thousands of judges dismissed from office. This would not only be in direct violation of the principles of independence, iremovability, as well as stability and certainty of the right to court, arising directly from the Polish Constitution, but also lead to a lowering of the constitutional standard of judicial protection of Polish citizens and consequently unimaginable legal chaos with severe impact on everyone.

No sovereign state can agree to such an interpretation. Accepting it would effectively translate into the European Union ceasing to be a union of free, equal and sovereign countries. Such a fait accompli approach would transform the European Union into a centrally managed state organism, whose institutions can force whatever they want within its ‘provinces’, regardless of any legal basis.

This is not what we agreed to in the Treaties. Poland fully complies with EU law. Like every other Member State, this right gives our country specific obligations and rights. One is the right to demand that EU bodies act only in matters for which they are entrusted, and not the ones beyond their competences.

Unfortunately, today we  are dealing with a very dangerous phenomenon whereby various European Union institutions usurp powers they do not have under the Treaties and impose their will on Member States per fas et nefas. This is particularly evident today as financial tools are being used for such a purpose. Without any legal basis, there is an attempt to force Member States to do what the institutions of the Union tell them to do – irrespective of any legal basis to impose such demands.

Such a practice cannot be accepted. Not only because it is illegal, but above all because it is dangerous to the continuation of the European Union, by weakening all Member States. The Union is strong due to the strength of its members. Their weakening, by subordinating Member States to the practically unlimited power of centrally managed institutions, deprived of democratic control, may ultimately lead to a complete detachment of decision making mechanisms from the will of citizens, for instance in democratic elections - and to the transformation of the Union into an organization that contradicts our common values: freedom, democracy, equality, rule of law, pluralism, non-discrimination, tolerance, justice and solidarity.

There are consequences, and we must bear them in mind. Today, the attention of the EU institutions is focused on Poland. And Poland is determined to defend its sovereignty and the principle of conferral. Let us remember however, that if any state can be forced to act in violation of its sovereignty today, a precedent would be set. The effects will inevitably be felt by other countries in the future.

***

Europe today is not only slowly recovering from the pandemic crisis, but facing challenges of a much deeper origin. These challenges did not arise yesterday. The financial crisis that threatens to weaken or even collapse the euro area, the migration crisis, the Brexit crisis, the gas and energy crisis which threatens poverty for millions, are just a few examples showing that the fate of our Union in recent years is not a chronicle of success.

If we want to avoid further crises, we must change our ways. The success of European integration is based on common principles such as mutual respect and solidarity, the pursuit of economic and social cohesion while respecting diversity and the law – and to demand from ourselves precisely what we have committed to in the Treaties.

We must return to these sources. The European Union is not and should not be a collection of better and worse countries. It does not and should not serve to pursue the interests of some Member States at the expense of others; nor should it become a centrally managed organism without democratic control of the sovereign - the citizens of European countries expressing their will through the EU Member States.

It is necessary that we start working together again in the imperative of understanding. The language of financial blackmail, punishment, “starving” of unsubordinated states, undemocratic and centralist pressures do not have a place in European politics. Such language strikes not only at individual states, but the entire Community.

Poland is ready for dialogue. We look forward to talking - in the spirit of mutual respect, and respect of our sovereignty, without pushing us to give up our national competences. I can assure you that we undertake these reforms solely in the interests of our citizens, and in the end they shall hold us accountable for everything in a transparent and democratic manner. Our goal is to take only the measures that are both good for our citizens and in line with EU law, to the extent to which we are bound by the Treaties. I am asking you for understanding and reciprocity - similar readiness to conduct dialogue in the spirit of respect. We are all in the same boat.

We wish to have this discussion face to face. This week in Strasbourg and Brussels, I therefore wish to address myself to you personally and explain the meaning of Poland's position in detail.

"Make men work together; show them that beyond their differences and geographical boundaries, there lies a common interest.” said Jean Monnet. Today is the time to act together - not to stand up against each other. Let us remember the lesson of the Founding Fathers of the European Communities: have the courage to face reality. Today we need courage to overcome real problems. I strongly believe that all Member States and institutions of the European Union will be brave and responsible enough to be guided by this principle in their actions.

Sincerely,
Mateusz Morawiecki