The Constitution of the Republic of Poland Article 8



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The Constitution of the Republic of Poland

Article 8

  1. The Constitution shall be the supreme law of the Republic of Poland.

  2. The provisions of the Constitution shall apply directly, unless the Constitution provides otherwise.

Article 9

The Republic of Poland shall respect international law binding upon it.



Article 87

  1. The sources of universally binding law of the Republic of Poland shall be: the Constitution, statutes, ratified international agreements, and regulations.

  2. Enactments of local law issued by the operation of organs shall be a source of universally binding law of the Republic of Poland in the territory of the organ issuing such enactments.

Article 90

  1. The Republic of Poland may, by virtue of international agreements, delegate to an international organization or international institution the competence of organs of State authority in relation to certain matters.

  2. A statute, granting consent for ratification of an international agreement referred to in para.1, shall be passed by the Sejm by a two-thirds majority vote in the presence of at least half of the statutory number of Deputies, and by the Senate by a two-thirds majority vote in the presence of at least half of the statutory number of Senators.

  3. Granting of consent for ratification of such agreement may also be passed by a nationwide referendum in accordance with the provisions of Article 125.

  4. Any resolution in respect of the choice of procedure for granting consent to ratification shall be taken by the Sejm by an absolute majority vote taken in the presence of at least half of the statutory number of Deputies.

Article 91

  1. After promulgation thereof in the Journal of Laws of the Republic of Poland (Dziennik Ustaw), a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly, unless its application depends on the enactment of a statute.

  2. An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes.

  3. If an agreement, ratified by the Republic of Poland, establishing an international organization so provides, the laws established by it shall be applied directly and have precedence in the event of a conflict of laws.


Acceptance of EU law by the Polish Constitutional Tribunal

Judgment of 11th May 2005, K 18/04

POLAND’S MEMBERSHIP IN THE EUROPEAN UNION (THE ACCESSION TREATY)

Type of proceedings:

Abstract review

Initiator:

Groups of Deputies

(…)

Legal provisions under review Basis of review

The Treaty concerning the accession of the Republic of Poland to the European Union, read in conjunction with certain provisions of the Treaty establishing the European Community and the Treaty on European Union



Numerous provisionsof the Constitution citedby the applicants

The Treaty concerning the accession of 10 States, including Poland, to the European Union (hereinafter referred to as the Accession Treaty) was signed on 16th April 2003, in Athens. There are 25 State parties to this Treaty: the 15 existing EU Member States and the 10 acceding States.

On 7th and 8th June 2003 a referendum was held in Poland, wherein the Nation was asked, within the procedure provided for by Article 90(3) of the Constitution of the Republic of Poland, to grant consent for ratification of this Treaty. A majority of voters (77.45%) chose in favour of ratification. In accordance with the referendum results, the Polish President ratified the Accession Treaty which, together with the accompanying documents, was published in the Journal of Laws of the Republic of Poland No. 90, dated 30th April 2004. On 1st May 2004, Poland became a member of the European Union.

The Accession Treaty is accompanied by the “Act concerning the conditions of accession of the Republic of Poland and the adjustments to the Treaties on which the European Union is founded” constituting an integral part of the Treaty. The “Final Act” is of a similar character.

Pursuant to the Accession Treaty, Poland undertook to implement European Union law in its entirety, including the so-called founding treaties – the Treaty establishing the European Community (EC Treaty) and the Treaty on European Union (EU Treaty). The concept of the European Union encompasses three “Pillars”: I – the European Communities, i.e. the European Community (formerly known as the Euro-pean Economic Community) and the European Atomic Energy Community; II – the Common Foreign and Security Policy; III – the Police and Judicial Cooperation in Criminal Matters. To date, only those Communities within the framework of the First Pillar have the character of international organisations; the Second and Third Pillars constitute a kind of forum for cooperation between Member States. Accordingly, the notion of “EU law” encompasses, on the one hand, Community law, i.e. the law of the First Pillar and, on the other hand, provisions connected with the functioning of the two remaining Pillars. Community law consists of the entire acquis communautaire, including provisions of the Treaties (the so-called primary Com-munity law – originating directly from Member States), provisions issued by organs of the Communities (called secondary Community law), as well as the jurisprudence of the Court of Justice of the European Communities (ECJ, located in Luxembourg) and the Court of First Instance.

The Constitutional Tribunal’s judgment in the present case does not represent the Tribunal’s first statement concerning the relationship between Polish law and EU law. It refers, however, to certain prob-lems concerning this relationship and, in particular, the relationship between the Polish Constitution and the contents of the Accession Treaty and founding treaties, in the broadest and, to date, the most fundamental manner. The issue concerning the constitutionality of the procedure for accession was dealt with in the Tribunal’s judgment of 27th May 2003, K 11/03. Amongst the Tribunal’s various judgments concerning the relationship between domestic law and EU law, the following judgments deserve special attention: K 33/03 (bio-components in gasoline and diesel), K 15/04 (participation of foreigners in European Parliamentary elections”), K 24/04 (inequality in competences of Sejm and Senate committees in respect of European Union legislative proposals) and P 1/05 (application of the European Arrest Warrant to Polish citizens). The aforementioned judgments are summarised individually.

The initiators of the proceedings before the Constitutional Tribunal in the present case – three groups of Deputies from the Sejm (the lower chamber of the Polish Parliament), opposing Poland’s membership of the EU on the conditions stemming from the Accession Treaty – alleged that this accession failed to conform to the Constitution of the Republic of Poland, inter alia, to the constitutional principles of the sovereignty of the Polish People and the supremacy of the Constitution within the Polish legal system. In challenging these conditions of accession, which constitute an indivisible whole, in their entirety, the applicants focused their critique on the following provisions of the Treaties:

• Article 1(1) of the Accession Treaty, according to which 10 new EU Member States, in-cluding Poland, become “Parties to the Treaties on which the Union is founded as amended or supplemented”.

• Article 1(3) of the Accession Treaty: “The provisions concerning the rights and obliga-tions of the Member States and the powers and jurisdiction of the institutions of the Union as set out in the Treaties referred to in paragraph 1 shall apply in respect of this Treaty”.

• Article 2 of the Act concerning the conditions of accession, according to which the provisions of the original Treaties and the acts adopted by the institutions and the European Central Bank prior to accession shall be binding upon the new Member States.

• Article 8 of the EC Treaty, establishing a European system of central banks (ESCB) and a European Central Bank (ECB) acting within the limits of the powers conferred upon them by this Treaty and by the Statutes of the ESCB and ECB.

• Article 12 of the EC Treaty: “Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules designed to prohibit such discrimination”.

• Article 13(1) of the EC Treaty: “Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.” Section 2 of this Ar-ticle contains complementary provisions concerning procedural matters.

• Article 19(1) of the EC Treaty: “Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at mu-nicipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.”

(…)

• Article 202 of the EC Treaty: “To ensure that the objectives set out in this Treaty are at-tained the Council shall, in accordance with the provisions of this Treaty:



- ensure coordination of the general economic policies of the Member States,

- have power to take decisions,

- confer on the Commission, in the acts which the Council adopts, powers for the implementation of the rules which the Council lays down. The Council may impose certain requirements in respect of the exercise of these powers. The Council may also reserve the right, in specific cases, to exercise directly implementing powers itself. The procedures referred to above must be consonant with principles and rules to be laid down in advance by the Council, acting unanimously on a proposal from the Commission and after obtaining the opinion of the European Parliament.”

• Article 203 of the EC Treaty: “The Council shall consist of a representative of each Member State at ministerial level, authorised to commit the government of that Member State. The office of President shall be held in turn by each Member State in the Council for a term of six months in the order decided by the Council acting unanimously.”

• Article 234 of the EC Treaty: “The Court of Justice shall have jurisdiction to give preliminary rulings concerning: a) the interpretation of this Treaty; b) the validity and interpretation of acts of the institutions of the Community and of the ECB; c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide. Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.”

• Article 249 of the EC Treaty: “In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is ad-dressed, but shall leave to the national authorities the choice of form and methods. A decision shall be binding in its entirety upon those to whom it is addressed. Recommendations and opinions shall have no binding force.”

• Article 308 of the EC Treaty: “If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community, and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.”

• Article 6(2) of the EU Treaty: “The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.”

• Article 17 of the Charter of Fundamental Rights, adopted on 7th December 2000 by the Council of the EU during the Nice Summit: “1. Everyone has the right to own, use, dis-pose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the condi-tions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest. 2. Intellectual property shall be protected.”

In justifying the claim that the conditions of accession failed to conform to the Polish Constitution, the applicants referred to the Constitution’s Preamble – especially in its part concerning the “sovereign and democratic determination of Homeland’s fate” by the Nation, and the independence of Poland – as well as to numerous constitutional provisions whose complete wording may be found in the table located at the end of this summary.

The structure of the ruling corresponds to the configuration of the challenged provisions and the bases of constitutional review attributed to them by the applicants. Whenever the Tribunal uses the formula “is not inconsistent with”, this expresses the Tribunal’s view that the constitutional provision cited by the applicant does not constitute an adequate basis upon which to review the challenged legal provision, given the absence of any significant conjunction between their contents.

PRINCIPAL REASONS FOR THE RULING

1. The accession of Poland to the European Union did not undermine the supremacy of the Constitution over the whole legal order within the field of sovereignty of the Republic of Poland. The norms of the Constitution, being the supreme act which is an expression of the Nation’s will, would not lose their binding force or change their content by the mere fact of an irreconcilable inconsistency between these norms and any Community provision. In such a situation, the autonomous decision as regards the appropriate manner of resolving that inconsistency, including the expediency of a revision of the Constitution, belongs to the Polish constitutional legislator.

2. The process of European integration, connected with the delegation of competences in relation to certain matters to Community (Union) organs, has its basis in the Constitution. The mechanism for Poland’s accession to the European Union finds its express grounds in constitutional regulations and the validity and efficacy of the accession are dependent upon fulfilment of the constitutional elements of the integration procedure, including the procedure for delegating competences.

3. The Constitutional Tribunal’s competence to adjudicate upon matters concerning the conformity of international agreements with the Constitution (Article 188 point 1 of the Constitution) is not dependent upon the procedure for consenting to the ratification of an agreement; it encompasses agreements which were ratified following prior statu-tory consent, as well as those ratified via the procedure of a nationwide referendum (Article 90(3) of the Constitution).

4. When reviewing the constitutionality of the Accession Treaty as a ratified international agreement, including the Act concerning the conditions of accession (constituting an integral component of the Accession Treaty), it is also permissible to review the Treaties founding and modifying the Communities and the European Union, although only insofar as the latter are inextricably connected with application of the Accession Treaty.

5. Statutes authorising the ratification of an international agreement are adopted with observance of the appropriate procedural requirements governing the decision-making process within the Sejm and the Senate. These requirements, as regards the regulation contained in Article 90(1) and (2) of the Constitution, which refer to international agreements concerning the delegation of competences of Polish public authority organs to an international organisation or international organ, are significantly strengthened – in comparison with the ratification mentioned in Article 89 of the Constitution. In the discussed field, the Sejm and Senate function as organs representing the Nation-sovereign, in accordance with the principle expressed in Article 4(2) of the Constitution. The reference to a sovereign decision of the Nation is even more intensive and direct where consent for the ratification of an international agreement concerning the delegation of certain competences is not expressed by statute (Article 89(1), read in conjunction with Article 90(2), of the Constitution) but rather via the procedure of a nationwide referendum (Article 90(3)).

6. It is insufficiently justified to assert that the Communities and the European Union are “supranational organisations” – a category that the Polish Constitution, referring solely to an “international organisation”, fails to envisage. The Accession Treaty was con-cluded between the existing Member States of the Communities and the European Union and applicant States, including Poland. It has the features of an international agreement, within the meaning of Article 90(1) of the Constitution. The Member States remain sovereign entities – parties to the founding treaties of the Communities and the European Union. They also, independently and in accordance with their con-stitutions, ratify concluded treaties and have the right to denounce them under the pro-cedure and on the conditions laid down in the Vienna Convention on the Law of Treaties 1969. The expression “supranational organisation” is not mentioned in the Accession Treaty, nor in the Acts constituting an integral part thereof or any provisions of secondary Community law.



7. Article 90(1) of the Constitution authorises the delegation of competences of State organs only “in relation to certain matters”. This implies a prohibition on the delega-tion of all competences of a State authority organ or competences determining its sub-stantial scope of activity, or competences concerning the entirety of matters within a certain field.

8. Neither Article 90(1) nor Article 91(3) authorise delegation to an international organisation of the competence to issue legal acts or take decisions contrary to the Constitution, being the “supreme law of the Republic of Poland” (Article 8(1)). Concomitantly, these provisions do not authorise the delegation of competences to such an extent that it would signify the inability of the Republic of Poland to continue functioning as a sovereign and democratic State.

9. From an axiological perspective of the Polish Constitution, the constitutional review of delegating certain competences should take into account the fact that, in the Preamble of the Constitution, emphasising the significance of Poland having reacquired the possibility to determine her fate in a sovereign and democratic manner, the constitutional legislator declares, concomitantly, the need for “cooperation with all countries for the good of a Human Family”, observance of the obligation of “solidarity with others” and universal values, such as truth and justice. This duty refers not only to internal but also to external relations.

10. The regulation contained in Article 8(1) of the Constitution, which states that the Con-stitution is the “supreme law of the Republic of Poland”, is accompanied by the requirement to respect and be sympathetically predisposed towards appropriately shaped regulations of international law binding upon the Republic of Poland (Article 9). Accordingly, the Constitution assumes that, within the territory of the Republic of Poland – in addition to norms adopted by the national legislator – there operate regulations created outside the framework of national legislative organs.

11. Given its supreme legal force (Article 8(1)), the Constitution enjoys precedence of binding force and precedence of application within the territory of the Republic of Poland. The precedence over statutes of the application of international agreements which were ratified on the basis of a statutory authorisation or consent granted (in accordance with Article 90(3)) via the procedure of a nationwide referendum, as guaranteed by Article 91(2) of the Constitution, in no way signifies an analogous precedence of these agreements over the Constitution.

12. The concept and model of European law created a new situation, wherein, within each Member State, autonomous legal orders co-exist and are simultaneously operative. Their interaction may not be completely described by the traditional concepts of monism and dualism regarding the relationship between domestic law and international law. The existence of the relative autonomy of both, national and Community, legal orders in no way signifies an absence of interaction between them. Furthermore, it does not exclude the possibility of a collision between regulations of Community law and the Constitution.



13. Such a collision would occur in the event that an irreconcilable inconsistency appeared between a constitutional norm and a Community norm, such as could not be eliminated by means of applying an interpretation which respects the mutual autonomy of European law and national law. Such a collision may in no event be resolved by assuming the supremacy of a Community norm over a constitutional norm. Furthermore, it may not lead to the situation whereby a constitutional norm loses its binding force and is substituted by a Community norm, nor may it lead to an application of the constitutional norm restricted to areas beyond the scope of Community law regulation. In such an event the Nation as the sovereign, or a State authority organ authorised by the Constitution to represent the Nation, would need to decide on: amending the Constitution; or causing modifications within Community provisions; or, ultimately, on Po-land’s withdrawal from the European Union.

14. The principle of interpreting domestic law in a manner “sympathetic to European law”, as formulated within the Constitutional Tribunal’s jurisprudence, has its limits. In no event may it lead to results contradicting the explicit wording of constitutional norms or being irreconcilable with the minimum guarantee functions realised by the Constitution. In particular, the norms of the Constitution within the field of individual rights and freedoms indicate a minimum and unsurpassable threshold which may not be lowered or questioned as a result of the introduction of Community provisions.

15. The Communities and the European Union function, in accordance with the Treaties establishing these organisations, on the basis of, and within the limits of, the powers conferred upon them by the Member States. Consequently, the Communities and their institutions may only operate within the scope envisaged by the provisions of the Treaties. The Member States maintain the right to assess whether or not, in issuing particular legal provisions, the Community (Union) legislative organs acted within the delegated competences and in accordance with the principles of subsidiarity and proportionality. Should the adoption of provisions infringe these frameworks, the principle of the precedence of Community law fails to apply with respect to such provisions.

16. The Court of Justice of the European Communities (ECJ) is the primary, but not the sole, depositary of powers as regards application of the Treaties within the legal system of the Communities and Union. The interpretation of Community law performed by the ECJ should fall within the scope of functions and competences delegated to the Communities by its Member States. It should also remain in correlation with the principle of subsidiarity. Furthermore, this interpretation should be based upon the assumption of mutual loyalty between the Community-Union institutions and the Member States. This assumption generates a duty for the ECJ to be sympathetically disposed towards the national legal systems and a duty for the Member States to show the highest standard of respect for Community norms.

17. The principle that judges of the courts and Constitutional Tribunal are subject to the norms of the Constitution (Article 178(1) and 195(1)) also encompasses the duty to apply Community law binding upon Poland. Such a duty arises as a result of the ratification, in compliance with the Constitution and on the basis thereof, of international agreements concluded with the Member States of the Communities and the European Union, which constitute a part of international law binding upon Poland (Article 9 of the Constitution). The ECJ’s competence to declare a binding interpretation of Com-munity law, particularly via the procedure for delivering preliminary rulings (Article 234 of the EC Treaty), constitutes an element of the aforementioned agreements. The referral to the appropriate Community organ, by a Polish court or tribunal, of a question regarding the validity or content of Community law to be applied in accordance with the obligations stemming from ratified Treaties, does not conflict with Article 174 of the Constitution, pursuant to which the “courts and tribunals shall pronounce judgments in the name of the Republic of Poland”.

18. Article 188 of the Constitution determines the Constitutional Tribunal’s competences (scope of jurisdiction). The application of Article 234 of the EC Treaty neither constitutes a threat to these competences, nor narrows them. If the Constitutional Tribunal decided to request a preliminary ruling concerning the validity or content of Community law, the Tribunal would undertake this within the framework for exercising its ad-judicative competences, as stipulated in Article 188 of the Constitution, and only where, in accordance with the Constitution, the Tribunal ought to apply Community law.

19. The direct review of the conformity with the Constitution of particular decisions of the ECJ, as well as the “permanent jurisprudential line” derived from these decisions, does not fall within the Constitutional Tribunal’s scope of jurisdiction (Article 188 of the Constitution).

20. The principle of the democratic State governed by the rule of law (as expressed in Article 2 of the Constitution) refers to the functioning of States and not necessarily to international organisations. This concerns, in particular, the concept of separation and balance of powers: the legislature, executive and judiciary (Article 10 of the Constitution), constituting an element of the aforementioned principle. Accordingly, the Constitutional Tribunal may not treat these principles as adequate bases of review for institutional solutions within the Communities and European Union, including the composition and legislative competences of the Council.

21. The formal requirements for adopting Polish law, as specified in the Polish Constitution, are not directly applicable to the procedures and principles governing adoption of Community law.




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