Constitutional basis for the Poland’s membership in the European Union
The Constitution of the Republic of Poland of 1997 contains a basic provision which represents a constitutional authorization to conclude the Accession Treaty and accede to the European Union. According to Article 90 para. 1: The Republic of Poland may on the basis of an international agreement transfer to an international organization or international institution the powers of organs of the state authority in certain matters. It should be noted that neither the words “European Union” nor “European Community” are used in the provision in question. Article 90 para. 1 was deliberately formulated in a more general manner, so that it could be applied more broadly. However, in the light of the intentions of the framers of the Constitution there can be no doubt that the provision in question is meant to refer primarily to integration within the European Union. On the basis of such an agreement there thus takes place a shift to the international level – or perhaps it would be better to say in this context the “supranational” level – of powers which, on the basis of the Constitution and statutes, are typically assigned to State organs. It is to be assumed that the provision in question may concern the powers of all the categories of organs of State authorities mentioned in Article 10 of the Constitution, and also to organs of local government or other forms of self-government.
Place of international and EU law in the constitutional order of Poland
The general provision specifying the place of international law in the constitutional order of the Republic of Poland is Article 9 of the Constitution. On the other hand Article 91 of the Constitution specifies the place of international treaties in the legal order of the Republic of Poland, as well as the relationship between the provisions found in international agreements and the norms of Polish law. It should be noted at this point that the Polish constitution does not differentiate between international law and Community (Union) law.
1. Article 91 para. 1 introduces the principle of the direct applicability in Poland of ratified international treaties. It should be stated in the context of Poland’s membership in the European Union that direct applicability pertains not only to the provisions of the Accession Treaty itself, but to the whole acquis communautaire accepted in Poland by virtue of the Article 2 of the Act concerning the conditions of accession.
The obligation to observe the principle of direct applicability of Community law pursuant to Article 91 para. 1 of the Constitution rests on all organs of State authority in Poland: the legislative branch (Sejm and Senate), the executive branch (the government and public administration), and the courts. It should be acknowledged that after Poland’s accession to the European Union, Article 91 para. 1 has to be interpreted in the context of Community law and in particular in reference to the case law of the ECJ. Thus whether or not in a given situation the application of Community law “depends on the enactment of a statute” is not fully decided at the discretion of Polish organs, using the criteria they themselves have established for recognizing certain norms as self-executing. The question arises as to whether or not the “direct applicability” of Community law, as referred to in Article 91 para. 1 of the Constitution, should be understood more broadly, so as to take in also “direct effect.” An affirmative answer should be favoured here. Direct effect is in essence one of the consequences of the direct applicability of the norms of Community law.
2. Article 91 para. 2 of the Constitution covers a broad spectrum of international agreements; more specifically, it deals with treaties ratified by prior consent expressed in a statute. However, given the topic of this analysis, it is essential that this provision refers also to the Accession Treaty and indirectly to the founding treaties of the Union and the Community. Article 91 para. 2 of the Constitution proclaims the primacy of primary Community law over Polish statutes. Moreover, though this is not expressly stated, the primacy of Community law extends to legal acts of a lower rank in the hierarchy of the sources of law than that of a statute (for example, executive regulations and other normative acts of the government, ministers, or various organs of public administration). It is safe to assume that the term “primacy” used in the provision under discussion should be understood in the same way as in the previously established case law of the Court of Justice. In the event of contradictions between the norms of Community law and the norms of Polish statutes, as well as the norms of acts of lower rank, the Polish state organs are obliged to assure that the norms of Community law are applied. The formulation used in Article 91 para. 2, to the effect that the primacy (supremacy) of an international agreement [here: Community law] comes into play “if the statutes cannot be reconciled with the agreement” should be understood as establishing the obligation to interpret the provisions of Polish law in such manner as to bring about the removal of contradictions with Community law, as far as possible.
3. Article 91 para. 3 regulates, among other things, the role of the secondary EU law in the legal order of Poland which enjoys primacy over Polish statutes and is directly applicable. It should be assumed that the term “direct applicability” found in Article 91 para. 3 is used in the same sense as in Article 91 para. 1, while the term “primacy” is used in the same meaning as in Article 91 para. 2. There is no need, then, to reinterpret these concepts at this point.
4. The provisions of Article 91 paras. 2 and 3 of the Constitution, discussed above, do not proclaim, however, the primacy of EU primary and secondary law over the Constitution itself. What is more, according to Article 8 of the Constitution: The Constitution is the supreme law of the Republic of Poland.
Various positions have been presented in the literature on the relationship between Community law and the Polish Constitution. According to some authors, in view of the clear wording of Article 8 referred to above, the primacy of Community law does not extend to cover the Constitution. An opinion to the contrary is also expressed, that is to say that through the conclusion of the Accession Treaty upon the authorisation contained in Article 90 of the Constitution, Poland took over the entire acquis communautaire, including the principle of primacy of Community law over the whole national legal order as developed in the jurisprudence of the ECJ. Finally, a pragmatic approach is also represented, postulating the abandonment of a general definition of the relationship between the legal orders discussed and seeking ways of avoiding conflicts, especially using the suitable interpretation of the law. The Constitutional Tribunal held in its judgment of 11.05.2005, that also after accession to the Union the Constitution of the Republic of Poland shall remain the supreme law in Poland, and Article 8 thereof shall keep its full force and effect. If a conflict occurred between the Constitution and Community law, impossible to eliminate through an interpretation of the law, Poland will have three ways out of such a situation: amending the Constitution, initiating modification of EC (EU) law or ultimately withdrawing from the European Union. In the opinion of the Constitutional Tribunal, the principle of primacy of Community law may not eliminate its competence of examining the compliance of EU law with the Constitution of the Republic of Poland. Particularly emphasised in that context was the unacceptability of reducing the level of protection of the rights and freedoms of individuals.
Administrative judiciary and EU law
1. The administrative judiciary in Poland consists of 16 regional administrative courts and the Supreme Administrative Court in Warsaw. The administrative courts review the legality of administrative acts and other actions (or failure to act) of administrative authorities. The courts take into consideration not only Polish law but also international and EU law (see, supra Article 91 of the Constitution).
In the period preceding the accession, Polish courts clearly stressed that the European law did not have binding force in Poland. For this reason the primacy (supremacy) vis-à-vis Polish law and the direct effect of provisions of EC (EU) law were not admitted. The courts recognised, however, the binding force of the Europe Agreement, as a ratified international agreement. After accession to the EU the Community law enjoys primacy over Polish statutes pursuant to Article 91 para. 2 of the Constitution, as already presented. In the period preceding the accession, the Polish courts have often referred to the provisions of both primary and secondary EC law. They have done so primarily in connection with the obligation of the approximation of Polish law with the requirements of acquis communautaire, as proclaimed in Article 68 of Europe Agreement. The norms of the EC (EU) law were used by Polish courts as an aid in the interpretation of Polish law.
2. At present, after the accession there is a growing number of cases in which the administrative courts refer to EC law (both primary and secondary) and the case law of the ECJ. EC law has been considered by courts in various areas: mostly tax law and customs law and less frequently in intellectual property law, public procurement law, environmental law, or data protection law.
Regional administrative courts are not bound by the legal basis and arguments claimed by applicants. It means, that such courts can (or even should) take EC law into consideration ex officio. On the other hand the Supreme Administrative Court adjudicates in the limits set by the cassation claim.
When the administrative courts find that acts of the administrative authorities in question infringe provisions of EC law, they reverse such acts and order to issue new ones. The authorities of public administration are obliged to follow the guidance of the courts. Generally speaking, all state authorities, including public administration have to apply EC law in conformity with the provisions of the Constitution.
The courts are empowered to set aside Polish laws which are found to be contrary to EC law although they are rather cautious about exercising such a competence. The are however at least two cases in 2005 in which courts refused to follow provisions of the Polish tax law which they considered incompatible with EC law. The courts can not however quash laws and general regulations inconsistent with EC law.
3. Some important and interesting intertemporal problems are to be mentioned in this context. In many cases pending before administrative courts just after the accession to the Union parties of the proceedings raised questions of EC law and demanded that the courts submit the reference to the ECJ (Article 234 EC). The courts refused to do that however arguing that administrative acts under consideration had been issued before the accession, at the time when EC law was not yet in force in Poland. The obligation to respect Europe (association) agreement and to approximate of Polish law to EC law was not equal to the obligations of the Member States. The position of the Polish courts turned out to be correct in the light of the subsequent case law of the ECJ (see judgement C- 302/04 Ynos).
4. Till now there was just one reference from Poland to the ECJ (C-313/05, pending). In 2005 the regional administrative court in Warsaw asked for interpretation of Articles 25, 28 and 90 EC in context of the Polish law on excise tax. It is likely that next references will be submitted soon. Apart from various specific matters, there is at present one general problem of a great legal and economic significance. The question is whether administrative authorities can impose obligations on individuals (mostly companies) based on Community regulations which have not officially been published in the Polish edition of the Official Journal of the EU yet. According to the Article 2 of the Act concerning the conditions of accession: From the date of accession, the provisions of the original Treaties and the acts adopted by the institutions and the European Central Bank before accession shall be binding on the new Member States and shall apply in those States under the conditions laid down in those Treaties and in this Act. On the other hand Article 58 of the Act states: The texts of the acts of the institutions, and of the European Central Bank, adopted before accession and drawn up by the Council, the Commission or the European Central Bank in the Czech, Estonian, Hungarian, Latvian, Lithuanian, Maltese, Polish, Slovak and Slovenian languages shall, from the date of accession, be authentic under the same conditions as the texts drawn up in the present eleven languages. They shall be published in the Official Journal of the European Union if the texts in the present languages were so published. It seems to be a reference to Article 253 EC. Due to significant delays a lot regulations and other legal acts were published in Polish many months after the accession and in the meantime were hardly accessible to the individuals. One can notice here a clear conflict between, on the one hand, the principle of effectiveness of EC law and, on the other hand, the principle of legal certainty and protection of legitimate expectations.