Thursday, October 07, 2021

Some EU laws are unconstitutional in Poland

The belief that Poland has transferred most of its sovereignty to unelected EU officials and declared the primacy of "EU laws" over the Polish constitution is legally incorrect

Some institutions of the European Union have been attacking Poland by saying that their judges didn't have enough independence. Well, the Polish constitutional tribunal just showed quite a lot of independence when it sensibly analyzed the legal conditions and concluded that many laws of the European Union are incompatible with the fundamental Polish law architecture.

OK, Evacuation just sounds as a good song for the talk about the "legal Polexit". ;-)

In particular, it is the laws that were constructed without a tangible influence of the authorities of the Republic of Poland. Note that in 2004, Poland and others joined the European Union which was conceptually still an international organization with a large number of multilateral treaties that are usually signed and obeyed by all member countries. The conversion of the EU to "something else" (a superstate or an empire) was already planned by the 1993 Maastricht Treaty but in 2004, the EU was still just an intense collection of treaties between sovereign countries.

That collection of new ties between countries has a simple interpretation of the legal priorities. The most fundamental law on the territory of Poland is the Polish constitution. International treaties may be signed that are compatible with the constitution and they are 2nd most powerful after the constitution. And then come other laws. The new ones are allowed to violate neither the Polish constitution; nor the international treaties including the EU treaties.

However, the Lisbon Treaty – the slightly softened edition of the failed European constitution – was signed by 2007 and came to force in 2009. This new system claimed to allow a majority vote and the production of new and modified laws that may also be in conflict with the national constitutions – and that may be imposed on all EU member countries, even against the will of their authorities. I mean production at the European Union level. Well, the Polish constitutional tribunal has figured out that this transition was an illusion. It couldn't have happened. The Polish constitution remained primary and the Polish court system generally stays above the European Court of Justice in Luxembourg. One may say that the ECJ verdicts have no power in Poland at all. This includes the recent weird and malicious verdict against the Turów coal mine. A related point of the verdict is that the EU doesn't have the right to order Polish courts to enforce EU-wide legislation (by demanding lawmakers to adopt it etc.).

It is a bold and potentially far-reaching verdict that shows that these Polish constitutional lawyers have quite some balls – especially Ms Přylebská has impressive testicles. It sounds really silly to question the independence of these lawyers. It may make more sense to say that they kept too much independence. To say the least, the European Union legal architects forgot about the need to make sure that the constitutional courts wouldn't insist on the continued absolute sovereignty of their countries. I think that they assumed that no one could have possibly had the courage to say that the "sovereignty still exists" because no one has the balls in contemporary Western Europe. But what is true about **gs in the Luxembourg's government doesn't necessarily apply to proud nations such as Poland.

This speech is rather boring, full of numbers labeling articles of treaties and constitutions.

The English-language media are relatively calm. It's different in Germany. A headline in Augsburg, Germany reads Poland has declared war on the European Union. Not really, the main court just communicated its conclusion that numerous people in the EU are confused concerning the fate of sovereignty of Poland in the wake of the assorted EU treaties and reforms. The sovereignty didn't disappear and couldn't really disappear.

The article 8 of the Polish constitution remained valid and it says and never ceased to say that the constitution is the supreme law of Poland. The Polish constitutional tribunal still has a more powerful word than the European Court of Justice. The Polish constitutional tribunal still decides about the compatibility of international treaties with the Polish constitution, as Article 188 says, and the Polish president may (and better should) ask the tribunal to check the compatibility before a treaty is signed. The loss of sovereignty would be a huge change and it would have to be done clearly and massively. The constitution of Poland would have to be changed (these three articles but many others, too) to reflect the new conditions that Poland is no longer a sovereign country. This big event has never taken place. Only some people clearly wanted everyone to believe that it did take place even without any explicit change of the constitution and any announcement that Poland has lost its sovereignty (it's similar to the trick that Hitler formally kept the democratic Weimar Republic constitution valid although he turned it into an absolute joke; the Czechoslovak constitution also formally held during the Nazi occupation!). Some people in Poland and outside Poland may have said that Poland has had transferred the sovereignty but these pronouncements were legally inconsequential babbling. The constitution says otherwise and it has simply never been modified – and a prime minister's signature somewhere in Brussels just wasn't enough to do that.

Needless to say, the sketch of the hierarchy of courts as envisioned by this constitutional tribunal is the last one in the European Union that mostly worked and everyone should return to it. National constitutions are at the top, the next most powerful laws are treaties that the countries actually sign – and the EU is at most a forum for an easier production of standardized treaties adopted by all countries or a big fraction of the EU countries – and then you still have other national laws like in the past.

If the European Union's institutions won't accept that this is the status quo, it is likely that after some tensions, Poland and other countries in the European Union will part ways. I sincerely hope that my country would join the new European bloc that includes Poland (and therefore truly deserves the adjective "European", unlike the "European" Union), not the sinking one, and the same decision would be made in many other EU member states. Meanwhile, the blackmail has been escalated to a new level. An unelected Eurosoviet commissary for "justice" Didier Something vowed to "use any tools" to defeat justice in Poland. Previously, other apparatchiks have blackmailed Poland and threatened by robbing Poland of its billions guaranteed by "EU laws" – clearly, this demanded obedience of the Polish constitutional lawyers and some subsidies is absolutely unjustifiable even by the "EU laws" and it is clearly "completely immoral". At that moment, the conflict really is at the level of one Third-Reich-like empire trying to occupy another country.

Obviously, the Czech constitution is also above the EU law, as lawyer Zdeněk Koudelka explained in this interview (mostly about our constitutional right to defend lives with the gun) I just linked to (I guess it is the case of most or all EU member countries). The Czech Constitutional Court has also stressed this point twice, in 2008 and 2012. The 2008 verdict was their analysis of the Lisbon Treaty. When a clear conflict occurs and can't be fixed by interpretations, especially when it affects the cores of the law, the Czech constitution has supremacy, our top judges found out. Unlike Poland which leaves the first sovereign statement to Article 8, the sovereignty of Czechia is Article 1.1 of the Czech constitution. I think that the Czech signature under the Lisbon Treaty (Klaus was the last one who resisted) would have been blocked if this clear "the sovereignty of our constitution is obviously still kept" weren't produced by these judges. In 2012, the Constitutional Court solved the case of a Czech train driver who worked in Slovakia before the split of Czechoslovakia. Czechia increased his pension to the Czech pension (10% above the Slovak one), an EU court called it a discrimination (of other foreigners by Czechia?), and the Czech Constitutional Court explained why the EU courts have no business of talking into such matters. The Velvet Divorce was a unique event and no EU law that Czechia is actually constrained by can possibly regulate it. It's a clear legal fact but it is also common sense. Some random officials in Brussels just can't constructively talk into such purely national or bilateral (Czech-Slovak) matters that they had nothing to do with and that they don't understand (technicalities of the Czech pensions or the special Czech-Slovak relationships are examples).

It is another level of "shameful" when the EU officials are masterminding a massive misinformation campaign to deceive a maximum number of people in Europe into thinking that the EU laws have gained supremacy over the national constitutions. They surely haven't, at least in countries that haven't introduced self-destructive articles into their constitutions. They haven't and they couldn't because the Polish, Czech, and other constitutions were carefully crafted and protected against the hijacking that some people want to perform. The fundamental changes of the constitution require a huge degree of the political consensus in each nation and the consensus to "surrender the sovereignty even at the most fundamental constitutional level" has never been strong enough. That's why it has never happened.

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