The rules of the game must be equal for everyone. This is the rule of law
I am standing here before you today in the Parliament, to set out our position on a number of issues which I believe are fundamental for the future of the European Union. Not just for the future of Poland, but for the future of the Union as a whole.
.Firstly, I will talk about the crises that Europe is facing today – and which we should address.
Secondly, I will talk about standards and rules – which should always be equal for everyone – and the fact that too often they are not.
Thirdly, I will present a view on the principles that no public authority should take action for which it has no legal basis.
The fourth point of my speech will concern the judgment of the Polish Constitutional Tribunal and what it and other similar judgments mean for the Union.
And also about the importance of diversity and mutual respect.
Then, fifthly, I will present our view on constitutional pluralism.
Next, I will point to the huge risks for the whole society resulting from the application of the EU Court of Justice judgment, which are already materialising in Poland.
Finally, I will sum up all the conclusions and look to the future with hope.
Let me start with the basics – with the challenges that are crucial for our common future. Social inequalities, inflation and rising costs of living, which strike all European citizens, external threats, rising public debt, illegal imigration, or the energy crisis increasing the challenges of climate policy. All of these lead to social unrest and extend the catalogue of significant problems.
The debt crisis, has raised the question, for the first time after the war, whether we can provide a better life for the next generation.
Our borders are becoming increasingly tunstable. In the South, the onslaught of millions of people made the Mediterranean a tragic place. In the East, we are facing aggressive, Russian policy, which is capable of going to war in order to block neighbouring us countries from choosing the European path.
Today, we stand at the threshold of a huge gas and energy crisis. Soaring prices – caused, among other things, by the intentional actions of Russian companies – are already putting many companies in Europe in the position of having to choose between cutting production or passing the costs on consumers. The scale of this crisis could shake Europe in the coming weeks. Many companies could go bankrupt, the gas crisis coul push millions of households, tens of millions of people – into poverty and deprivation through uncontrolled costs increases across Europe. We also have to reckon with the risk of contagion – one crisis can trigger a cascade of subsequent collapses.
I say “we” every time – because none of these issues can be solved alone. Not every one of these problems has affected my country as dramatically as they have in other states of the EU. That does not change the fact that I consider all these problems to be “our problems”.
I will now say a few words about Poland’s contribution to our common project.
.For us, European integration is a civilisational and strategic choice. We are here, we belong here and we are not going anywhere. We want to make Europe strong, ambitious and courageous again. That is why we do not look only at short-term benefits, but also at what we can give to Europe.
Poland benefits from integration mainly because of trade in the common market. Technology transfers and direct transfers are also very important. But Poland did not enter the EU empty-handed. The process of economic integration has broadened opportunities for companies from my country, but it has also opened great possibilities for German, French or Dutch companies. Entrepreneurs from these countries are benefiting enormously from the enlargement of the Union.
Just count the huge outflow of dividends, interest profits and other financial instruments from Central European countries – the less wealthy ones – to Western Europe – the wealthiest ones. However, we want there to be no losers in this cooperation – but winners.
It was Poland that promoted an ambitious Recovery Fund ensuring that today’s response to the challenges of energy, climate change and post-pandemic transformation was adequate to the needs. So that economic growth would be strong, giving hope and guarantee that millions of children, women and men would not be left alone and vulnarable to globalisation. On these matters we spoke with one voice with the European Parliament.
Poland strongly supports the European Single Market. We want strategic autonomy that strengthens the 27.
That is why Poland or Germany, the Czech Republic and other Central European countries promote solutions increasing the European economy competetiveness in the spirit of enforcement of the four fundamental freedoms. The freedom of movement of goods, services, capital and people. Without encouraging the activities of tax havens, what, unfortunately, is still being done by some Western European countries, which are shunning their neighbours in this way. Yes, ladies and gentlemen, the tax havens that we tolerate in the European Union mean taking the money by the richest. Is this fair? Does it help to improve the fate of the middle class or the least well-off? Does it fit into the catalogue of European values? I very much doubt it.
Poland and Central Europe is also in favour of an ambitious enlargement policy that will strengthen Europe in the Western Balkans. It will complete European integration geographically, historically and strategically. We want the global aspirations of the Union and we are in favour of a strong European defence policy with a structure fully consistent with NATO!
Today, when the eastern border of the Union is the object of an organised attack cynically using migration from the Middle East to destabilise it, it is Poland that gives Europe security acting as a barrier together with Lithuania and Latvia to protect this border. And by strengthening our defence potential – we strengthen the security of the Union in the most traditional sense.
As I stand here before you today, I would like to thank the Polish, Lithuanian and Latvian services, as well as all the southern European countries, our border guards and uniformed services, for efforts and professionalism in protecting the borders of the Union.
Security has many dimensions. Today, when we are all affected by rising gas prices – it is easy to see what can be the results of short-sightedness in matters of energy security. Gazprom’s policy and consent for Nord Stream 2 are already resulting in record high gas prices.
While today in the countries that founded the Communities the level of trust in the Union has fallen to historically low levels, such as 36% in France, in Poland this trust in Europe remains at its highest level. Over 85% of Polish citizens say clearly: Poland is and remain a member of the European Union. My government and the parliament majority standing behind it, are part of this pro-European majority in Poland.
This does not mean that Poles today are not experiencing doubts and anxiety about the direction of change in Europe. This anxiety is visible and, unfortunately, justified.
I have spoken of how much Poland has contributed to the Union. And unfortunately! We still hear about dividing into better and worse. Too often we have a Europe of double standards. And now I will tell why we must put an end to this model.
Today all Europeans, expect one thing. They want us to face up to the challenges posed by several crises at the same time, and not against each other, looking for someone to blame – or rather, those who are not really to blame, but whom it is convenient to blame.
Unfortunately, seeing some of the practices of EU institutions, many of the citizens of our continent are asking themselves today: Are there really any equality in the extremely different rulings and decisions made by Brussels and Luxemburg in respect of different Member States in similar circumstances, which in fact deepen the division into strong, old and new EU Member States, into strong and weak, rich and poor?
Pretending that problems do not exist drives bad consequences. Citizens are not blind, they are not deaf. If self-satisfied politicians and officials fail to see this, they will gradually lose trust. And along with them, institutions will lose confidence. It is already happening, ladies and gentlemen.
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.
The set of rules of the game must be the same for everyone. It is everybody’s responsibility to abide by them – including the institutions which were established in those treaties. These are the foundations of the rule of law.
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.
I reject the language of threats, hazing and coercion. I do not agree to politicians blackmailing and threatening Poland. I do not agree blackmail to become a method of conducting policy towards a Member State. That’s not how democracies do things.
We are a proud country. Poland is one of the countries with the longest history of statehood and democracy. Three times in the 20th century, at the cost of great sacrifice, we fought for the freedom of Europe and the world. In 1920, when we saved Berlin and Paris from the Bolshevik invasion, then in 1939, when we were the first to enter into a murderous battle with Germany and the Third Reich, which had an impact on the fate of the war and finally, in 1980, when “Solidarity” gave hope for the overthrow of another totalitarianism – the cruel communist system. The post-war reconstruction of Europe was possible thanks to the sacrifice of many nations, but not all of them were able to benefit from it.
Honourable Members. Now a few words about the rule of law. There is a lot to be said about the rule of law, and everyone will understand this concept differently to some degree. However, I think that most of us will agree that there can be no talk of the rule of law without several conditions. Without the principle of separation of powers, without independent courts, without respecting the principle that each power has limited competences, and without respecting the hierarchy of sources of law.
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.
The Union is a great achievement of the countries of Europe. It is a strong economic, political and social alliance. It is the strongest, most developed international organization in history. But the European Union is not a state. The States are the 27 Member States of the Union! The States are European sovereigns – they are the “masters of the treaties” and it is the States that define the scope of the competences entrusted to the European Union.
In the treaties, we have entrusted the Union with a very large range of competences. But we have not entrusted it with everything. Many areas of law remain the competence of nation states.
We have no doubt about the primacy of European law over national laws in all areas where competence has been delegated to the Union by member states.
However, like the courts in many other countries, Polish Tribunal raises the question as to whether the monopoly of the Court of Justice to define the actual limits of entrusting these competences is the proper solution. Since the determination of this scope enters into the constitutional matter, someone must also express an opinion on the constitutionality of such new, possible competences, especially when the Court of Justice introduces more and more new competences of EU institutions from the treaties.
Otherwise, it would not make sense to include in the Treaty on European Union Article 4, which states that the Union respects the political and constitutional structures of the Member States. There would be no point in including in the Treaty Article 5, which states that the EU may act only within the limits of the powers conferred. Both of these articles would be meaningless if no one other than the Court of Justice could have a say in this matter from the constitutional point of view of the national order.
I am aware that the recent judgment of the Polish Constitutional Tribunal has been the subject of a fundamental misunderstanding. If I myself heard that the Constitutional Tribunal in another country had invalidated the EU treaties, I would probably be surprised myself. But above all, I would try to find out what the Court actually ruled.
And it is also for that purpose that I have asked to speak in today’s debate. To present to you what is the real subject of the dispute. Not the politically motivated fairy tales about “Polexit”, or the lies about alleged violations of the rule of law.
That is why I want to present you the facts in the next section of my speech. And to do this, it is best to present some quotes directly:
- In the [national] legal order, the primacy of Union law does not apply to the provisions of the Constitution – it is the Constitution that sits at the top of the internal legal system.
- The principle of the primacy of European Union law (…) cannot undermine in the national legal order the supreme force of the Constitution
- The Constitutional Court may examine the ultra vires condition (…) that is, determine whether the actions of the institutions of the Union violate the principle of conferral when the institutions, bodies, organs and agencies of the Union have exceeded the scope of their powers in a way that violates that principle.
As a result of such a decision ultra vires acts do not apply within the territory [of the member state].
- 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.
I will skip the next few quotes so as not to take up too much of your time. I will move on to the last two.
- The Constitution is the supreme law of Poland in relation to all international agreements binding it, including agreements on transfer of competence in certain matters. The Constitution shall enjoy the primacy of validity and application within the territory of Poland
And last quote
- The transfer of competences to the European Union may not violate the principle of supremacy of the Constitution and may not violate any provisions of the Constitution
I can see the agitation on your faces, I understand that you disagree with it, at least in part, in this Chamber.. But I do not understand why. Because these quotations come from decisions of the French Constitutional Council, the Danish Supreme Court, the German Federal Constitutional Court. I omitted the quotations from the Italian and Spanish court.i.
And the quotations from the Polish Tribunal’s judgments concern 2005 and 2010. So after Poland became a member of the European Union. The doctrine we defend today has been well established for years.
It is also worth quoting Professor Marek Safjan, former president of the Polish Constitutional Tribunal and today a judge at the Court of Justice: “On the grounds of the Constitution, there are no reasons for the thesis of the supremacy of EU law in relation to the entire national order including constitutional norms. There are no grounds! According to the Constitution itself, it is the supreme law of the Republic of Poland (Article 8 par.1). The aforementioned regulation contained in paragraph 2 of article 91 provides expressis verbis for the primacy of the EU law in the case of a collision with a statutory norm, but not with the constitutional norm”.
This stance of national courts is not new. I could quote dozens more rulings from Italy, Spain, the Czech Republic, Romania, Lithuania and other countries. I also hear voices that some of these judgments dealt with other cases, of lesser scope. It is true – each judgment always concerns something different. But – for Gods’ sake! – they have one thing in common: they confirm that national constututional tribunals recognise their right of control. The right to control! So much and so much more! To control whether Union law is applied within the limits of what has been entrusted to it. I will now dedicate a few sentences to the Union as a space for constitutional pluralism.
Honourable Members. There are countries among us where constitutional courts do not exist, and those where they do. There are countries that have their presence in the European Union written into their constitutions, and there are countries that do not. There are countries where judges are chosen by democratically elected politicians, and there are countries where they are chosen by other judges.
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. We have been functioning in this way for seven decades. Perhaps sometime in the future we will make changes that will bring our legislation even closer together. But for that to happen, a decision by sovereign Member States, is necessary.
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, to the “silent revolution” taking place not on the basis of democratic decisions but through court rulings – 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.
I will repeat once again: the supreme law of the Republic of Poland is the Constitution. It precedes other sources of law. No Polish court, no Polish parliament and no Polish government can depart from this principle.
However, it is also worth emphasizing 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. On the contrary! Poland fully respects the Treaties.
That is why the Polish Tribunal stated that one very specific interpretation of certain provisions of the Treaty, resulting from recent case law of the Court of Justice, was incompatible with Constitution.
In order to clarify this, I will now move on in the next part of my speech to outline the risks to the entire social system when a judge’s status is challenged by another judge.
.According to interpretation of Tribunal form Luxemburg, judges in Polish courts would be obliged to apply the principle of the primacy of European law not only over national statutory regulations – which is not in doubt – but also to violate Constitution and the verdicts of their own Constitutional Tribunal!
Adoption of this interpretation may consequently result in millions of judgments handed down by Polish courts in recent years being overturned arbitrarily, and thousands of judges could be removed from office. Milions of judgements! This may be contrary to the principles of independence, immovability, and the stability and certainty of the right to a court, all of which derive directly from the Polish Constitution. Don’t you realize what this could lead to?! Does anyone of you really want to introduce anarchy, confusion and lawlessness in Poland?
The consequence would be a fundamental lowering of the constitutional standard of judicial protection of Polish citizens and unimaginable legal chaos.
No sovereign state can agree to such an interpretation. To accept it would mean that the Union ceased to be a union of free, equal and sovereign countries – and that it would transform itself, by the method of accomplished facts, into a centrally administered parastatal organism, whose institutions may force upon its “provinces” whatever they consider right. This was never agreed to.
This is not what we agreed to in the Treaties. It is certainly worth discussing whether the Union should change. Should it not create a bigger budget? Shouldn’t we spend more on common security? Shouldn’t defense spending be taken out of budget deficit procedures? That is what Poland is proposing! Shouldn’t we strengthen our resilience to hybrid dangers, to cyber threats? Shouldn’t we better control investments in strategic sectors of the economy? How to fairly and effectively finance the energy and climate transformation? How to make our decision-making process more effective? What can we do to prevent our citizens from feeling increasingly alienated in the EU?
I pose these questions because I believe that the answers to them will determine the future of the Union. We should discuss all this.
I will therefore now dedicate a few sentences to the issue of the limits of the competences of the Union and its institutions.
.Important decisions should not be taken by changing the interpretation of the law.
The success of European integration lay in this – that law was derived from the mechanisms linking our states in other areas.
The attempt to reverse this model by 180 degrees – and impose integration through legal mechanisms – is a departure from the assumptions that were at the root of the European Communities’ success.
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 there is a threat to member countries. 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. And this phenomenon has been growing for years.
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.
That is why we say YES to European universalism and NO to European centralism.
I – like all of you in this Chamber, am subject to democratic scrutiny. We will all be held to account in this way – for all our actions. I represent a government that was elected in 2015 and for the first time in Polish history achieved a single majority. That is why we have undertaken an ambitious social reform program
And the Polish people decided: in the next elections in 2018, 2019, 2020, they made a democratic evaluation of our government. With the highest voter turnout in history, we gained the strongest democratic mandate in history. For 30 years, no party has not achieved such an electoral result as Law and Justice. And this without the support of foreign countries, without the support of big business, without even a quarter of the influence on the media as our competitors, who shaped Poland after 1989.
We are being paternalistically lectured about democracy, the rule of law, about how we should shape our own homeland, that we are making wrong choices, that we are too immature, that our democracy is supposedly “young” – is a fatal course of narrative proposed by some.
Poland has a long democratic tradition. Indeed also a tradition of “Solidarity”.
Penalties, repression of the economically stronger countries against those that are still struggling with the legacy of being on the wrong side of the Iron Curtain – it is not a right path. We must all remember the consequences.
Poland respects the principles of the Union, but it will not be intimidated. Poland expects dialogue on this matter.
In order to improve the process of this dialogue, it is worth proposing institutional changes. A Chamber of the Court of Justice, consisting of judges nominated by the constitutional courts of the Member States, could be set up for permanent dialogue, in accordance with the checks and balances principle. I am presenting such a proposal to you today. The final decision must rest with the demos and the states, but the courts should have such a platform for finding common ground.
In conclusion, honourable Members, we must also answer the question where Europe has derived its advantage over the centuries. What made European civilization so strong.
History answers it like this: we became powerful because we were the most diverse continent on the planet.
Niall Ferguson writes that: “the monolithic empires of the Orient stifled innovation, while in mountainous, river-crossed western Eurasia numerous monarchies and city-states creatively competed and constantly communicated with each other.”
So Europe won by striking a balance between creative competition and communication. Between competition and cooperation. Today we need both again.
.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.
Statement by Prime Minister Mateusz Morawiecki in the European Parliament, 19.10.2021.