The resolution violates the basic principle of subsidiarity

On 13 April, 2016 the European Parliament, in a plenary meeting, adopted a resolution on the situation in Poland (2015/3031(RSP)). The adoption of the resolution significantly violates the founding principle of subsidiarity of the European Union. Furthermore, the act of Parliament contains an arbitrary assessment of the internal political situation of the Member State, which falls outside the scope of competence of the EU institutions. Thus, the act of the European Parliament is an unjustified usurpation of competence to interfere in the internal affairs of a Member State.

The position of the European Parliament recalls the european principle of loyal cooperation, omitting the fundamental and foundational for the European order principle of subsidiarity, which requires respect for the border between the spheres of national and Union competence. In accordance with the principle of subsidiary, actions on the EU level can take place only when they lie within the competence of the EU institutions and there is no more effective solution on the national level. However, neither the European Parliament nor the European Commission, an institution devoid of any democratic legitimacy from EU citizens, have any instruments of influence in matters of internal policy of the Member States.

At the same time, situations referred to the resolution go beyond the scope of powers of the EU institutions in the field of international cooperation between Member States, entering the area of sovereign domestic policy.

In adopting the resolution, the European Parliament usurps the competence to evaluate the effectiveness of the Member State. The resolution explicitly states that, „the actions of the Polish government and the Polish President of the Republic of Poland with regard to the Constitutional Tribunal represent a risk to constitutional democracy” (letter K of the Resolution). It makes reference to the framework procedure for the rule of law, in which the participation of the European Parliament has been excluded. The rhetoric used in the act does not show characteristics of objective reflection on the political situation in Poland. In fact, it tends to confirm the thesis that „‘rule of law safeguards’ which exist at national level no longer seem capable of effectively addressing these threats” (letter N of the Resolution).

The appeal to the Polish Government contained in the resolution referring to the immediate publication of the Constitutional Tribunal decisions motivated by an indiscriminate approval of the Venice Commission (section 4 of the Resolution) indicates ignorance of the legal and factual circumstances surrounding the release of this position. In the first place, the European Parliament unjustifiably gives a binding importance to the position of the Venice Commission, an advisory body which has been requested by the Polish government for a consultative opinion. The resolution makes no reference to the factual errors contained in the position of the Venice Commission, known and raised by the Polish government, rendering its recognition fruitless in the current dispute. In particular, the EP skips multiple statements of the Venice Commission that indicate ignorance of the analysed legal status (for instance, the incorrect assessment of the ability to control the constitutionality of the Rules of Procedure of the Polish Sejm).

The appeal to the European Commission contained in the final part of the resolution that the situation in all Member States be the subject of equal interest and avoid double standards (section 11 of the Resolution), while expressing concern for the modification of the rules of functioning of the Constitutional Tribunal, including the issue of case handling and their order, raising the majority quorum and majority necessary to adopt resolutions by the Tribunal (letter I of the Resolution) also requires commentary. It should be noted that the solutions introduced by the Polish government in the act on the Constitutional Tribunal are not unique in the European scale. The decision on their introduction was in the freedom of a sovereign legislator, in particular with the identified shortcomings of the previous legislation, which led to a significant extension to the handling of cases by the Constitutional Tribunal and the settlement of systemically ambiguous cases through a narrow majority, raising serious concerns about the politicisation of constitutional jurisdiction. It striking that the actions of Polish authorities calculated to strengthen respect for human rights, civil liberties and transparency of the work of the Tribunal are the subject of allegations of non-compliance with the Charter of Fundamental Rights of the EU.

It is unreasonable to refer to the „constitutional crisis” issues that go beyond the subject of controversy surrounding the Constitutional Tribunal, such as women’s rights (letter P of the Resolution). In the context of the ongoing debate in Poland on the issue of abortion, one cannot rely on the impression that the EU Parliament’s „serious concern” on the issue of abortion refers to the civic legislative initiative „Stop Abortion”. Criticism of civic legislative initiative reflects upon the anti-democratic nature of the resolution, bearing in mind that the EU institutions have already expressed reluctance to actions designed to remove democratic deficit at the EU level, rejecting, without any extensive reflection, for instance, the European Citizens’ Initiative „One of Us”.