The EU member states are the “masters of the treaties”

What the EU bodies’ dispute with Poland is really about

by Dr iur. Marianne Wüthrich

On 19 October, the Polish Prime Minister Mateusz Morawiecki gave a much-noticed speech to the European Parliament in Strasbourg. On the one hand, it dealt with the concept of the rule of law and the relationship between EU law and the national constitutions of the member states; on the other hand, Mateusz Morawiecki asked the question that is burning under the nails of many EU Europeans: In which direction is the ball rolling? With his statement, he wanted to explain to the EU parliamentarians and the EU Commission the heavily attacked ruling of the Polish Constitutional Court of 7 October and to address the audience on the possibility of an EU of sovereign member states. Those who were familiar with the court’s decision and had heard the Polish Prime Minister’s statement (with simultaneous German translation) rubbed their eyes in amazement at the irrelevant reactions of politicians and the media. Had some listeners not been listening at all?

Polish legislation comes into the crosshairs of the EU “values watchdogs”

Since the “national conservative” PIS (Law and Justice Party) won the most votes in Poland and therefore the majority of seats in parliament, the EU Commission and the European Court of Justice (ECJ) have repeatedly intervened in the Polish state structure. With a so-called rule of law mechanism, the EU institutions have been taking action against legislative amendment in the area of the judiciary in particular since 2017. Without dealing with the contents of these laws in detail, it should be noted here: All law revisions are decided by the legally elected parliament. The fact that the parliamentary majority often approves the government's drafts is nothing unusual elsewhere.

  • 5 November 2019 – Decision of the ECJ: Parts of a law on ordinary courts amended by the Polish Parliament are “incompatible with Union law”: namely, the reduction of the retirement age for judges and the competence of the Polish Minister of Justice to extend the term of office of judges (endangering the “independence of the Polish courts”), as well as a different retirement age for male (65 years) and female (60 years) judges (“discrimination on grounds of sex”).1 Note: We Swiss women are lucky that we have not concluded a framework agreement with Brussels, because the still lower AHV age for women also violates “discrimination based on sex”.
  • April 2020 – Decision of the ECJ: The Polish Disciplinary Chamber, responsible for disciplinary proceedings against judges, endangers “judicial independence”. In August 2021, the Polish Supreme Court, under pressure from the EU, provisionally suspended the disciplinary chamber.2 

Conclusion: The main accusation of the Western “values watchdogs” is that politics or rather the PIS party, elected by the people but unloved in Brussels, influences the courts. In reality, the EU leaders are probably bothered by something quite different: Poland and other states in Eastern Europe insist on determining their own state structure and cultural values.
  By the way, the closest European alliance between the executive and the judiciary is undoubtedly that of the EU Commission and the European Court of Justice, which – almost always – skilfully play into each other’s hands.

Polish Constitutional Court: Constitution remains the supreme law of the Republic of Poland

In view of the ECJ’s interference in Polish law, the decision of the Polish Constitutional Court of 7 October is quite understandable.
  From the decision of the Polish Constitutional Tribunal: The European Court of Justice had interfered in the procedure for appointing judges according to the Polish Constitution by controlling and criticising the “legality of the procedure for appointing judges [...]” in Poland (ruling of the Constitutional Tribunal, paragraph 2 lit a). This was incompatible with the Polish Constitution. By its broad interpretation of various articles of the Treaty on European Union (TEU), the European Court of Justice had authorised the EU institutions to “act outside the limits of the competences conferred by the Republic of Poland in the Treaties” (paragraph 1 lit a).
  However, according to the Polish Constitutional Court, the European Union had been “founded by equal and sovereign states”, which had merely transferred certain competences to the EU. The constitution of the individual state – in this case Poland – remains “the supreme law of the Republic of Poland” (para. 1 lit b). Otherwise, “the Republic of Poland cannot function as a sovereign and democratic state” (para. 1 lit c).3 Who can object to a state – even as an EU member – remaining sovereign and democratic and abiding by its constitution?

Protest against the absolute power of the ECJ and the EU Commission

The storm that roared through the Western media after this judgement is known to every newspaper reader. How else are Poland or Hungary or any other EU member state supposed to defend themselves when the European Court of Justice, in conjunction with the EU Commission, grants the Union more and more powers that go beyond the contents of the EU treaties? Those who don’t spurt will be pressured and punished, as Commission President Ursula von der Leyen demonstrated in Strasbourg on 19 October – even before the Polish Prime Minister had his say.
  “We cannot and we will not allow our common values to be put at risk,” she declared with much pathos. The judgement from Warsaw was “a direct challenge to the unity of the European legal order”. And she immediately enumerated the punitive measures she intends to set in motion against Poland: further infringement procedures and, above all, the application of the rule of law mechanism.4 
  The rule of law mechanism under Article 7 of the EU Treaty was recently extended by the EU Council to allow Brussels to suspend or reduce payments to individual member states if they “violate the rule of law”. So that member states cannot protect each other from this real hammer (who can afford to do without the but millions and billions from Brussels?), the unanimity principle in the rule of law mechanism was overturned.5 
  Von der Leyen put the thumbscrews on the Polish government in Strasbourg, so to speak, by threatening it with just such contribution cuts.6 The ECJ already granted the Commission’s request on 27 October: One million euros a day in fines for the “serious and irreparable damage” Poland was causing to the EU legal order. On top of that, half a million euros a day has been imposed since September for Poland's failure to abandon lignite mining; already in 2017, the ECJ imposed a daily fine of 100,000 euros for deforestation in a nature reserve.7 As I said: the package deal between the EU Commission (executive) and the European Court of Justice (judiciary) works perfectly well – it can even be used to interfere in the domestic energy supply and forestry law of individual states.
  No wonder, the Polish Prime Minister then defended himself – with clear words against the blackmail and against the overstepping of competences by the EU institutions: “This is not how democracies do things!” However, he also extended his hand to the future path as equal, sovereign states (see box below).
  As is well known, there is no legal recourse against the rulings of the ECJ. As the supreme authority, it determines which law and which values are to apply in the EU “community of values”. This confirms the wisdom of the Swiss Federal Council in breaking off the negotiations on the Framework Agreement with Brussels – we freedom-loving Swiss and our popularly determined law would otherwise have been put through the wringer !  •

1 “Commission welcomes ECJ ruling on retirement age for Polish judges”. European Commission statement of 5 November 2019
2 “Justizreform. Polen legt Disziplinarkammer für Richter begrenzt lahm”. (Judicial reform. Poland cripples disciplinary chamber for judges to a limited extent). Deutsche Welle of 6 August 2021
3 “Assessment of the conformity to the Polish Constitution of selected provisions of the Treaty on European Union” Constitutional Tribunal K 3/21 Ref. K 3/21. Judgment in the name of the Republic of Poland of 7 October 2021.
4 Steinvorth, Daniel. “Im Streit um die Rechtsstaatlichkeit in Polen droht von der Leyen mit Sanktionen der EU” (In the dispute over the rule of law in Poland, von der Leyen threatens with EU sanctions.” In: Neue Zürcher Zeitung of 19 Oktober 2021
5 See Wüthrich, Marianne. “Who determines the values in the EU ‘community of values’?” In: Current Concerns of 21 July 2021
6 Steinvorth, Daniel. “Im Streit um die Rechtsstaatlichkeit in Polen droht von der Leyen mit Sanktionen der EU” (In the dispute over the rule of law in Poland, von der Leyen threatens with EU sanctions.” In: Neue Zürcher Zeitung of 19 October 2021
7 Steinvorth, Daniel. “Polen zu saftiger Strafzahlung verurteilt” (Poland sentenced to hefty fine). In: Neue Zürcher Zeitung of 28 October 2021

From the speech of the Polish Prime Minister

Poland’s head of government, Mateusz Morawiecki, was not deterred by the hubbub following the ruling of the Polish Constitutional Court, but went into the lion’s den, or rather the EU Parliament in Strasbourg. Here are some striking excerpts from his speech. 

– Rules of the game must be the same for all
“Politics must be based on principles. The main principle which we profess in Poland and which is the basis of the European Union is the principle of democracy.
  Therefore, we cannot remain silent when our country - including in this Chamber - is attacked in an unfair and biased manner. […]
  It is unacceptable to extend powers, to act by means of accomplished facts. It is unacceptable to impose one's decisions on others without a legal basis. It is all the more unacceptable to use the language of financial blackmail for this purpose, to talk about penalties, or to use even more far-reaching words against certain Member States. […] That’s not how democracies do things.”

– The European Union is not a state
“Union law precedes national law – to the level of the statutes and in the areas of competence granted to the Union. This principle applies in all EU countries. But the Constitution remains the supreme law. If the institutions established by the Treaties exceed their powers – Member States must have the instruments to react.”

– Principle of the primacy of Union law must not undermine national constitutions
It’s all over town: Some other constitutional courts in EU countries have already protested against the absolute usurpation of power by the ECJ. In this sense, the Polish head of government quotes from decisions of the French Constitutional Council, the Danish Supreme Court and the German Federal Constitutional Court and names other states with similar court decisions. For example: “The Constitution prohibits the transfer of powers to such an extent that would mean that [a state] cannot be considered a sovereign and democratic country.” All these national constitutional courts have one thing in common, says Mateusz Morawiecki: they insist on their “right to control whether Union law is applied within the limits of what has been entrusted to it”.

– Constitutional pluralism and deciding the future path of the EU
“Constitutional pluralism means that there is space for dialogue between us, our countries and legal systems. This dialogue also takes place through court rulings. How else are courts supposed to communicate if not through their rulings? However, there can be no consent to giving instructions and orders to states. This is not what the European Union is about. We have a lot in common, we want to have more and more in common - but there are differences between us. If we are to work together, we must accept existence of these differences, we must accept them, we must respect each other”.
  “The Union will not fall apart from the fact that our legal systems are different. […] Today there are two attitudes we can adopt: either we can agree to all extra-legal, extra-treaty attempts to limit the sovereignty of European countries, including Poland, to the creeping expansion of the competences of institutions such as the Court of Justice, […] – or we can say: “No, my dears” – if you want to make Europe into a nationless superstate, first gain the consent of all European countries and societies for this.”

– Poland respects the treaties with the EU within the framework of its constitution
“I will repeat once again: the supreme law of the Republic of Poland is the Constitution. […] However, it is also worth emphasising that the Polish Tribunal, also in the recent rulling,has never stated that the provisions of the Treaty on the Union are wholly inconsistent with the Polish Constitution.”

– Clear legal basis instead of creative reinterpretation
“The phenomenon of democratic deficit has been discussed for years. And this deficit has been getting worse. Never before, however, has it been so visible as in the last few years. Increasingly, through judicial activism, decisions are made behind closed doors […] And more and more often – it is done without a clear basis in the treaties, but through their creative reinterpretation. And – without any real control. […] Today that process has reached such a stage that we have to say: stop. The European Union’s competences have their limits. We must no longer remain silent when they are exceeded.”

– A Europe that fights for justice, solidarity and equal opportunities
“Honourable Members. I want a strong and great Europe. I want a Europe that fights for justice, solidarity and equal opportunities. A Europe which is capable of standing up to authoritarian regimes. A Europe that prioritises the latest economic solutions. A Europe that respects the culture and traditions from which it has grown. A Europe that recognizes the challenges of the future and works on the best solutions for the whole world. This is a great task for us. For all of us, dear friends. Only in this way will the citizens of Europe find in themselves hope for a better tomorrow. They will find in themselves the will to act and the will to fight. It is a difficult task. But let’s undertake it. Let’s undertake it together. Long live Poland, long live the European Union of sovereign states, long live Europe, the greatest place in the world! Thank you very much.”


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