It is next to impossible that this reference will fail to ring a bell with you, but for the purposes of clarity, allow me to refresh your memory as to its key sentences: “1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. 2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union”. None of this should present any problems, as the mechanism has already been put to the test!
When Poland joined the EU (1 May 2004) – a move which had the support of more than 77% of the population (June 2003) – this article was set out in the Treaty Establishing a Constitution for Europe (article I-60), which was to be signed by all representatives of the Member States, including yours, in Rome on 29 October 2004. This was also the case with the articles concerning the establishment of the Union (I-1) and the Court of Justice of the European Union (I-29).
In April 2008, the Polish parliament ratified, by an overwhelming majority, the Treaty of Lisbon, which had been adopted unanimously by the Member States and which carried across the text of many articles from the constitutional treaty, including those quoted above. At the time, however, President Lech Kaczynski, a member of your party, made a bit of a name for himself by refusing to sign the treaty until Ireland had ratified it (which required a second referendum in the country); the President of the Commission, José Manuel Barroso, had to fire a warning shot across your bows: “I hope that the Polish authorities will be consistent with their own position”. That word, already …
The ultra-Conservative party, inappropriately named Law and Justice (PiS), went on to win the general elections of November 2015. Although not a member of the Parliament, you were immediately appointed vice-president of the Council of Ministers and joined the PiS in 2016.
All politicians setting out to create an authoritarian, or even totalitarian, regime start by removing or placing strict controls on all counter-powers. The judicial system was subjected to reforms that would erode its independence. It was as part of this initiative that the constitutional court was renewed, sparking waves of protest.
On 13 December 2017, you rose to the position of President of the Council of Ministers and a week later, the European Commission decided to launch proceedings against Poland for breaches of the rule of law, by virtue of article 7 TEU. This procedure, which is still underway, does not bother you, as a unanimous vote of the Council is required for it to lead to sanctions and you can count on the full support of a government with similar objectives to your own: that of Hungary. The Warsaw-Budapest axis again demonstrated its solidity in its steadfast opposition to the regulation making the payment of EU funds conditional upon the respect of the rule of law. The Commission launched fresh proceedings and the Court of Justice of the EU handed down several judgments against your country. You, however, continued undaunted on the same path.
We were then in a “funny kind of war”, but since 7 October, it has been a real war. The reactions of European political figures (see EUROPE 12808/1) and civil society are proof of this. In March of this year, you tabled a request to the constitutional court, chaired by Julia Przylebska, a member of the inner circle of Jaroslaw Kaczynski, the real leader of your regime. As the Court of Justice was becoming a nuisance, it became necessary to challenge its legitimacy. Your politics, furthermore, were starting to have a financial cost: fines imposed by the Court, freezing of European aid to the regions ‘with no LBGTI ideology’ (another sure-fire marker of illiberal regimes), likely implementation of the above-mentioned regulation, risk of the Polish recovery plan (manna of 36 billion euros) being blocked by the Commission Council. Domestically, you also need to consolidate your narrow majority by dint of sops to the Eurosceptic wing. After several delays, the constitutional court, a zealous servant of the regime, finally handed down its judgment at the point in time deemed the most politically opportune.
This judgment goes a very long way, as it decrees that articles 1 and 19 of the Treaty on European Union are incompatible with the Polish Constitution (see EUROPE 12807/1). It openly challenges the principle of the primacy of European law over national laws in areas falling under the scope of the treaties.
Article 1 obviously has a founding flavour: “By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN UNION, hereinafter called ‘the Union’, on which the Member States confer competences to attain objectives they have in common. This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizens. The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union (hereinafter referred to as ‘the Treaties’). Those two Treaties shall have the same legal value. The Union shall replace and succeed the European Community”. The text is lucid and written in such a way that its meaning is clear to the merest of mortals.
Article 19, for its part, describes the Court of Justice, which “will ensure that in the interpretation and application of the Treaties the law is observed”. If the pre-eminence of this Court should be abolished, the Union would go into freefall.
Neither of these two articles is new; they date back to the signature of the Treaty of Lisbon in 2007 and its entry into force in 2009; they have not been modified. Then, in October 2021, the constitutional court of a Member State suddenly decides that they infringe national sovereignty.
Mr President of the Council, you cannot have it both ways. Either you respect this judgment and draw the necessary conclusions from it, or you respect your country’s signature on the bottom of the Treaty of Lisbon and all consequences flowing from it. You stated briefly, and vaguely, that Poland wished to remain in the Union. But why does it? Conceptually, your government’s contribution to the future of the Union has been zero. In the fields of foreign policy, defence, climate, migration – what value has Poland added since it joined?
The values of the EU are a matter of indifference to your government, which is interested only in its money. Your country is the biggest net beneficiary of the budget. In the ideology of your majority, ‘Brussels’ is just the ‘cash cow” and needs to keep its nose out of the rule of law in the Member States.
Following the power grab of 7 October, which legitimises, and even intensifies, the continuation of your policy, what will be your next move? Will you close the Natolin College of Europe (just a stone’s throw from your chancellery!), which teaches European law to hundreds of students of many different nationalities? Will you ban opinion polls in Poland, as they confirm the high degree of popular support (80%) for the EU? Further inroads into the independence of the magistrates, of the press? Last Sunday saw pro-European demonstrations in Warsaw and other towns and cities. You will take no more notice of them than you did of the previous ones.
For the sake of the sovereignty of Poland, the restoration of its national grandeur, its perfect indigenousness, in short for the sake of achieving the dream of the Kaczynskis and going down in History, leave the European Union, which your regime compares, without irony, to the Soviet Union. Nobody is forcing you to stay in it: the Treaty comes with a parachute: all you have to do is trigger article 50!
And yet you hesitate. Would your constitutional court challenge that article as well?
Renaud Denuit