Attack on Poland by Brussels’ elites
Hon. Piotr Andrzejewski: “The current aim of the EU bodies is the gradual colonization of Poland.”
“No branch of the government in Poland is safe from having its existence and competence undermined by EU bodies. None. This interference nullifies the scope of the subjectivity of the law and the Polish state,” says in an interview with the wPolityce.pl portal – Piotr Łukasz Andrzejewski, attorney and Vice-chairman of Poland’s State Tribunal.
wPolityce.pl: The European Commission has initiated infringement proceedings against Poland over two rulings of the Constitutional Tribunal on the primacy of the Polish Constitution over EU law. It seems that this is an attack not only on the Polish Constitutional Tribunal but – first and foremost – on the Constitution itself, as the Constitutional Tribunal is not a source of law. How do you assess this?
Piotr Łukasz Andrzejewski: The Constitutional Tribunal (TK) is a body of the Polish state securing by its rulings the functioning of the hierarchical structure of the sources of law in Poland. The scope of international treaty law binding on Poland derives exclusively from its jurisprudence. The TK, in its jurisprudence, is guided by the assessment of the compliance of other sources of binding law with the benchmarks of the Polish Constitution. This system under the control of the Polish TK shapes the non-contradictory, complementary and complete nature of law in Poland. The rule of law is the compliance of this system with the Polish Constitution. Based on the Lisbon Treaty, the European Union is pushing through a procedure for the incompatibility of the activities of the Polish Constitutional Tribunal with the formal, undefined directional norms of so-called EU law. It has long used a procedure to formulate allegations against Poland of violations of the rule of law based on Article 7 of the Lisbon Treaty, which states that: “the European Council, acting by unanimity on a proposal by one-third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.”
Article 2 refers, in a manner that needs to be clarified, to the observance of values such as freedom, democracy, equality, respect for human rights, tolerance, justice, and solidarity as slogans commonly used in the democratic systems of European states.
The procedure that has been initiated may be followed when “on a reasoned proposal by one-third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four-fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2.”
This procedure has been going on for some years now based on ever-new concretizations of the nature of the interpretation imposed on the enigmatic and undefined concepts to which it refers.
This method of casuistically specifying requirements according to the political demand for the EU to subjugate the functioning of the bodies of a Member State of the Union to itself while keeping things in proportion may be comparable to the use of the slogan of the “struggle for peace” by the USSR in its ideological struggle against the democratic countries of the West.
Article 7, point 2 of the Treaty, then provides for the possibility to declare that a Member State, in this case, Poland or Hungary, is in serious and persistent breach of the enigmatic and indefinite values listed in Article 2 of the Treaty.
Then we have the next stage (point 2, Art. 7.) “The European Council, acting in unanimity…” and here is where it hurts the most because this unanimity cannot be achieved so far because there are two countries – Hungary and Poland – that are preventing this procedure from being limited to obtaining the full consensus of all members of the European Union. The European Council, unanimously, at the request of a third of the Member States or the EC, and with the EP’s consent, can therefore conclude, after calling on a Member State to submit its observations, that there has been a serious and persistent breach by that Member State of “…the values referred to in Article 2.”
Such a conclusion requires unanimity of all EU members, which, given the position of Poland and Hungary, cannot currently be achieved. In this state of affairs, the procedure itself can serve to arbitrarily apply another provision of the Treaty, which, through the CJEU, can conclude that a Member State is not complying with the obligation imposed on it by the Treaty and, through the CJEU’s jurisprudence at the unilateral discretion of this EU body, can impose significant financial penalties deducted from the funds allocated to the Member State.
This practice is being implemented against Poland because the Polish state has not conferred decision-making or adjudicatory powers to EU bodies. According to the Polish Constitution, this character of diktat violates the rule of law not in Poland, but in the functioning of the European Union.
The regulation supplementing the Lisbon Treaties regarding the conditioning of the spending of funds allocated to a Member State under the European Union Recovery Instrument (NGEU) and the raising of its budgetary resources by the EU from borrowing and the imposition of additional taxes on citizens of EU Member States, to the extent that Poland has agreed to a procedure for waiving unanimity in the application of this procedure, is currently being interpreted in a way that violates the agreement concluded in December 2020 between Poland and the other members of the European Union in the European Council.
The regulation conditioning the disbursement of allocated sums on compliance with the rule of law, according to the agreement, was intended to deal solely with protecting how funds allocated to a member country under the Reconstruction Fund (NGEU) were spent against corruption, embezzlement, misappropriation or diversion for purposes other than those in the approved plan.
This international agreement, which modifies treaty obligations, is currently being challenged on its content and is being unjustifiably extended by EU bodies. This constitutes a breach of the treaty agreement.
From what you have said, I infer that the European Commission’s game is to bring about, as a result of this action, the suspension of Poland’s vote in the European Council and thus make it possible to revise the treaties without the Polish side. Is this the case?
Yes. There is an aggressive, frontal attack on Poland and Hungary. Just as from the east, Putin’s Russia is questioning the sovereignty and subjectivity of Ukraine, so from the west, the European Union, under the dictates of Berlin and Brussels, is applying procedures to the unallocated competencies of the Polish state for the practical limitation of the sovereignty and independence of the Polish state and its people.
To what extent, in your opinion, does this legal juggling act have a chance of success?
Preliminarily, a particular difference was outlined in treating and defining the content of Poland’s obligations to the EU and the Union’s obligations to Poland in Prime Minister Mateusz Morawiecki’s speech to the EP in the fall of 2021. Not only that, it was followed by letters of the so-called “aide-mémoire” of the Prime Minister of the Polish government to the leaders of all EU member states, but this was completely ignored in the further actions of the EU bodies. Moreover, this speech by Mateusz Morawiecki is not followed up due to restrained political decisions, nor is it enforced by international politics.
What is this justified by?
By looking for any pretext to “starve” Poland by not transferring the funds due to it. With this practice of legal invasion, in my opinion, the consequences of what Mateusz Morawiecki stated in his letter to EU leaders should continue. The EP pretended not to hear it, that it doesn’t exist, and that Poland doesn’t count for the EU as an entity whose treatment is equivalent to other EU members, such as Germany. Recall that concerning Germany, with a similar ruling of the Federal Constitutional Court in Karlsruhe to the case law of the Polish Constitutional Court, such an aggressive Article 7 procedure was not applied, recognizing the inviolability of respect for the constitutional identity of an EU Member State. As for Poland, different principles are applied in the absence of a uniform benchmark in this regard.
The media exaggerates the conflict between the position of Prime Minister Mateusz Morawiecki and Justice Minister Zbigniew Ziobro when it comes to assessing the current situation in this case. Does this conflict really exist?
There is no contradiction between the Prime Minister and the Minister of Justice in assessing the illegality of the EU bodies’ actions against Poland.
The current goal of the EU bodies’ actions is the gradual colonization of Poland through the proliferation of more and more directives, recommendations, or “milestones.” We are dealing not only with discrimination but with an attempt to impose systemic norms that harm the independence and sovereignty of the Polish state.
It is worth quoting what Mateusz Morawiecki wrote in a letter to EU leaders, in which the autonomy of functioning is indirectly mentioned. The head of the government writes:
The principle of Granting authority, derived from Articles 4 and 5 of the EU Treaty, is the supreme principle of the Union. It means that the powers of the EU bodies extend only to those matters that we have entrusted to them in the Treaties. Attempts to expand these competencies cannot be accepted: for any such action is ultra vires, intrinsically contrary to the treaty principle of the rule of law. No body of the European Union can take any action that it is not authorized to take in the Treaties.” Prime Minister Morawiecki says that the consequence of rulings by national judicial bodies has always been that individual CJEU rulings as ultra vires are not binding on a particular Member State. This means that, as Morawiecki points out, “the Polish Constitutional Court, therefore, does nothing today that courts and tribunals in Germany, France, Italy, Spain, Denmark, Romania, the Czech Republic or other EU countries have not already done in the past.
Uninformed people are still distracted by this supposed conflict between Mateusz Morawiecki and Zbigniew Ziobro, which is simply a different style of operation.
Prescribed therapy in the situation of a western invasion, which is closer, and eastern, physical aggression, which is likely, looks completely different.
Mateusz Morawiecki has not given the EU the power to control the rule of law in Poland in all areas, including the judiciary, except for how the funds allocated to Poland are spent. Conditioning the availability of funds allocated to Poland on claims of compliance with the so-called “rule of law” has not been granted by the Polish state either in the treaties or in the agreement on the application of the conditionality (compliance with the rule of law) mechanism. Compliance with the rule of law, to the extent recognized by Poland, was and is supposed to concern only how the funds granted to it are implemented as to their purpose, scope, and compliance with the purposes for which the funds were granted.
Poland’s agreement to waive the principle of unanimity in the implementation of control over the disbursement of post-COVID funds granted, having the nature of an international agreement, was treated as a “Trojan horse” for blackmailing Poland with the withholding of payments of funds given to it in the event of non-compliance with ever-new directives, recommendations, and orders of the EU ultra vires (to the extent not granted by Poland to the bodies of the Union). The current positions of the European Commission are an abusive interpretation that expands the content of the contractually concluded agreement on applying the conditionality mechanism.
It seems – please correct me if I’m wrong – that the whole story with judges, with the European Commission interfering with the courts’ composition and sentences, may lead to further consequences, even to the undermining of the last elections in Poland. Because why wouldn’t it?
This practice indicates that no level of authority in Poland is safe from undermining its existence and competence by EU bodies. None. This interference nullifies the right of Poland to promulgate the laws and the sovereignty of the Polish state.
Interviewed by Anna Wiejak
For the Polish original see: https://wpolityce.pl/polityka/606969-andrzejewski-celem-ue-jest-stopniowa-kolonizacja-polski