At the 16/17 December 2010 European Council a political decision was taken to amend the Treaties through the simplified revision procedure of article 48(6) TFEU. On March 25, 2011 the European Council adopted the legal decision to amend article 136 TFEU by adding a new third paragraph: “The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made subject to strict conditionality.”
The process of approval of this decision by the member states in accordance with their respective constitutional requirements as prescribed by article 48(6) has been completed and the amendment has entered into force on 1 May 2013.
What political/legal difficulties did Poland encounter in the negotiation of the amendment of article 136 TFEU?
During the Sejm’s European Affairs Committee meeting on 8.04.2011, the government reported on the Belgian presidency of 2010. With regard to the Treaty amendment, the Undersecretary of State in the Ministry of Foreign Affairs underlined that Poland actively participated in the discussions, despite of not being a Member of the Eurozone. In the view of the Undersecretary of State, ‘the possibility for the non-Eurozone Member States to participate in the activities within the framework of the mechanism was a consequence of Poland’s intensive actions.’ This was highly appreciated by other non-Eurozone Member States. The issue was later repeated at the plenary sitting on 28.04.2011.
How has the 136 TFEU Treaty amendment been approved in Poland and on what legal basis/argumentation?
The Polish Constitution foresees three types of international agreements demanding ratification.
First, so-called “big ratification” pursuant to Art. 89 par. 1 PC demands a consent of parliament granted by statute, if an international agreement concerns, 1) peace, alliances, political or military treaties; 2) freedoms, rights or obligations of citizens, as specified in the Constitution; 3) the Republic of Poland’s membership in an international organization; 4) considerable financial responsibilities imposed on the State; 5) matters regulated by statute or those in respect of which the Constitution requires the form of a statute. Pursuant to Art. 89 par.1 PC, the ratification of international agreements demands a simple majority vote, in the presence of at least half of the statutory number of MPs (Cf. Art. 120 PC) and a similar majority in the Senate (Art. 124 PC). Art. 89 par.1 PC does not foresee a national referendum to grant consent for ratification of an international treaty.
Second, so-called “small ratification” pursuant to Art. 89 par. 2 PC demands that the Prime Minister informs the Sejm of any intention to submit for ratification by the President of the Republic any international agreements whose ratification does not require consent granted by statute (international agreement not covered by Art. 89 par. 1 PC).
Third, Art. 90 PC regulates ratification of international agreements which delegate to an international organization or international institution the competence of organs of State authority in relation to certain matters. According to Art. 90 par. 2 PC, the consent for ratification of such an international agreement must be expressed in the Sejm by a two-thirds majority vote in the presence of at least half of the statutory number of Deputies, and in the Senate by a two-thirds majority vote in the presence of at least half of the statutory number of Senators. Moreover, Art. 90 par. 3 PC provides that the consent for ratification of international agreements that delegate to an international organization or international institution competences of state organs in relation to certain matters may also be granted in a national referendum. According to Art. 90 par. 4 the Sejm choses, by an absolute majority vote taken in the presence of at least half of the statutory number of Deputies, which procedure (2/3 majority by Sejm and Senat or a national referendum) for granting consent to ratification will be applied.
The ratification procedure on the basis of Art. 90 was applied earlier only to the Accession Treaty (national referendum) and the Lisbon Treaty (2/3 majority vote in both chambers). Although in 1997 the Constitution drafters created Art. 90 for the purpose of Poland’s EU accession, this article does not refer specifically to EU Treaties. So in fact other treaties, which fulfil the conditions specified in this provision, can be ratified by 2/3 majority of the parliamentarians.
The Sejm and the Senat approved the Ratification Act for the Treaty change on the basis of Art. 89 par. 1 PC. On, 11 May 2012, in the Sejm out of 460 MPs: 294 MPs voted in favour of the Ratification Act (centre-right PO, centrist-agrarian PSL, social-democratic SLD, liberal Ruch Palikota), 155 MPs voted against (conservative PiS and SP and an indep. MP), 1 MP abstained (SLD), 10 were absent. On 30 May 2012, in the Senat out of 100 Senators: 55 voted in favour (51 PO senators, 1 PSL senator, 3 independent senators), 30 against (29 PiS and 1 SP senator), 15 were absent.
On 26 June 2012 the president signed the Ratification Act.
The division on the appropriate procedure for the Treaty change is also visible in the opinions of the legal scholarship (Cf. Question V.3).
What political/legal difficulties did Poland encounter during the ratification of the 136 TFEU Treaty amendment?
In general, the procedure of approval of the Treaty amendment itself was the main point of the discussion. The issue at stake was whether the agreement to the Treaty amendment would delegate to an international organization or international institution the competence of organs of State authority in relation to certain matters. To pass the ratification act of such a treaty, Art. 90 par. 1 of Polish Constitution demands a 2/3 majority vote in the presence of at least half of the Sejm MPs and 2/3 majority vote in the presence of at least half of the Senators in the Senat. Otherwise, the Constitution demands just a simple majority (as in Art. 89 ust. 1 of Polish Constitution, Cf. Answer to Question V.2).
The first reading of the government’s bill of the Ratification Act for the Treaty Amendment took place on 11 January 2012. The Undersecretary of State in the Ministry of Foreign Affairs highlighted that in the opinion of the government the correct way to ratify the treaty amendment is pursuant to Art. 89 par. 1 PC (Ratification of an international agreement which concerns Poland’s membership in an international organisation) that demands a simple majority vote. In this regard, the PiS (conservative party in the opposition) criticised the choice of Art. 89 par.1 and emphasised that the correct ratification procedure is the one expressed in Art. 90 PC, as Poland delegates the competence of State organs in relation to certain matters. In this regard, the PiS opposition highlighted that it submitted a resolution to the Sejm’s Marshal stating that the ratification act should be ratified according to the conditions indicated in Art. 90 PC. Additionally, in the view of the PiS opposition any Treaty amendment implies furthering of EU integration and, in consequence, a further transfer of competences to EU. Moreover, the PiS opposition highlighted that ratification of the ESM Treaty before Poland joins the Eurozone would also demand a ratification procedure according to Art. 90 PC. In this regard the party proposed an amendment to the Ratification Act at stake, expressing an obligation that the future ESM Treaty shall be ratified pursuant to the Art. 90 PC procedure.
To counter the opposition’s arguments, the Undersecretary of State in the Ministry of Foreign Affairs pointed at the recent changes of the Treaty, namely that the accession of Romania and Bulgaria and the “Spanish protocol” (concerning the EP) were ratified on the basis of Art. 89 par. 1 PC. Moreover, in the view of the Minister, the ratification of the Treaty amendment did not transfer any competence to the EU and Poland will not be able to join the ESM without being in the Eurozone.
On 25 April 2012, the joint meeting of the EU Affairs Committee and Foreign Affairs Committee in the Sejm discussed the project of the resolution concerning the Ratification Act proposed by the PiS opposition. The proposed resolution indicated that the legal basis for the Ratification Act should be Art. 90 PC. The PiS opposition insisted on a plenary debate of their resolution. Accordingly, ratification on the basis of Art. 90 PC would express “care about the sovereignty and safety of Poland”. Additional critical points of the opposition concerned the passerelle procedure as the basis for the Treaty amendment and that the Treaty change should be looked at jointly with the ESM Treaty. In reply, the Undersecretary of State in the Ministry of Foreign Affairs pointed that, first, there are some doubts with regard to Art. 90 PC highlighted especially by Sejm’s Expertise Office experts, but the correct procedure, according to the government is Art. 89 par.1 PC and, second, that the Treaty amendment does not imply an automatic ratification of the ESM Treaty. Further, in the view of the Undersecretary of State in the Ministry of Foreign Affairs also the passerelle was applied correctly. In response, one of the PiS members underlined that the fact that the EU has chosen a passerelle procedure outlines the probable future approach of the EU to European integration. In consequence, the majority of the MPs at the joint meeting of the Committees decided to opine the opposition’s resolution negatively. Next, the report of the joint Committees rejecting the project of PiS resolution was debated in the plenary sitting of the Sejm on 9 May 2012. The governing majority and the Ruch Palikota party voted in favour of the rejection of PiS proposal, whereas the left-wing opposition SLD abstained due to the doubts with regard to the application of Art. 89 par.1 PC.
The second and third (vote) readings of the governmental proposal for the Ratification Act took place at the plenary sitting of the Sejm on 10 and 11 May 2012.
The arguments in this debate were similar to the ones raised at the first reading and at the discussion of the PiS proposal. The representatives of the governing party, the PO, followed the position of the government, namely that Art. 89 par. 1 is the correct legal basis for the Ratification Act; there is no transfer of competences to the EU and the ratification of the Treaty amendment will show solidarity with other Member States. The governing coalition’s partner, the PSL, also expressed its support for the Ratification Act at stake. Moreover, the left-wing opposition (the Ruch Palikota) maintained that Art. 89 PC is the correct legal base for the ratification procedure and that the ratification is necessary for the “common good” of the EU. The left-wing opposition, the SLD took a similar position. On the contrary, the PiS opposition stated that it will vote against the Ratification Act, especially as its own project, demanding Art. 90 PC as the ratification procedure, was rejected earlier. Another right-wing opposition party, Solidarna Polska, raised the question, whether the introduction and existence of the ESM is in Poland’s interest, criticised the simplified Treaty amendment procedure and the national ratification procedure on the basis of Art. 89 par.1 PC, concluding that it will vote against the Ratification Act.
Further points of discussion in the Sejm were the consequences of the Treaty amendment on ratification of the ESM and the Fiscal Compact (how far all these mechanisms are interrelated); what financial burden does the Treaty amendment imposes on Poland and a possible ex-post complaint to the Constitutional Court.
On 22 May 2012 the Senat’s Foreign Affairs Committee and the EU Affairs Committee jointly debated the Ratification Act. The Undersecretary of State in the Ministry of Foreign Affairs expressed a similar position as previously that Poland will not be bound by the ESM Treaty unless it joins the Eurozone, the use of passerelle was correct as the Treaty change does not increase the competence of the EU and the right ratification procedure is according to Art. 89 par. 1 of PC. The representative of the Senat’s Legislative Office pointed at the opinions submitted by the Sejm’s Expertise Office (or ordered by parliamentarians with regard to ratification procedure). The opinions submitted by dr K. Kubuj, dr hab M.Szydło and prof. C. Mik indicated that the correct ratification procedure for the Treaty amendment is pursuant to Art. 90 PC, as the Treaty amendment increases the competences of the EU and also causes a transfer of Poland’s competences to the EU. Other opinions pointed that there is no transfer of competences and that the correct ratification procedure is Art. 89 par. 1 PC (dr hab Artur Kozłowski, dr Piotr Czarny). The Senat’s Legislative Office, pointing at the different positions, maintained that Art. 89 par.1 PC is the right ratification basis. The Commissions approved the Ratification Act without any amendments in a majority vote.
On 30 May 2012, the Senat debated the Ratification Act in the plenary sitting. The Senator rapporteur (governing majority PO) raised two arguments in favour of accepting the Ratification Act. First, the ratification according to Art. 89 par. 1 pt 3 PC is possible because member states agreed to the simplified Treaty amendment, hence the Treaty amendment does not increase of competence of the EU. Second, the Treaty amendment is a procedural change: the ESM is a separate international agreement, which will have to be ratified separately, if Poland joins the EU. The arguments raised in the debate were repeating the ones from the committees’ sitting. Additionally, the relation of the Treaty amendment to the Fiscal Compact was discussed.
Is there a (constitutional) court judgment in Poland on the 136 TFEU Treaty amendment?
Case signature K 33/12
1) Name of the Court: Trybunał Konstytucyjny (Constitutional Court)
2) Parties: Group of MPs (applicant), Sejm, Attorney General (participants)
3) Type of action/procedure: ex post review, on the basis of Art. 191 par. 1 in connection with Art. 188 PC: The Constitutional Tribunal shall adjudicate regarding, among other, the conformity of statutes and international agreements with the Constitution, following the application of the President of the Republic, the Marshal of the Sejm, the Marshal of the Senate, the Prime Minister, 50 Deputies, 30 Senators, the First President of the Supreme Court, the President of the Supreme Administrative Court, the Public Prosecutor-General, the President of the Supreme Chamber of Control and the Commissioner for Citizens’ Rights.
4) Admissibility issues: The application was admitted by the Court.
5) Legally relevant factual situation: Both chambers of the Polish parliament approved the Council decision on the basis of Article 89(1) PC. Shortly afterwards, the president signed the approved Ratification Act, without requesting the Constitutional Court to adjudicate on its conformity to the Constitution. Whereas constitutional review of international treaties before ratification (ex ante) is possible only at the request of the President, ex post review can be triggered in other ways, including a request from the parliament. This second possibility applied for the case in question.
The Treaty amendment Ratification Act entered into force on 17 July 2012. (Dz. U. poz. 748)
6) Legal questions:
In its application of 26 July 2012, the group of PiS MPs (opposition) asked the Constitutional Court to review whether the Ratification Act is compatible with Art. 90 PC in connection with Art. 120 first sentence PC (see answer to question V.2 for more constitutional background), taking into account the procedure in which the Ratification Act was approved. In the view of the applicants, the Ratification Act violates the Constitution because the ratification of the amended Art. 136 (3) TFEU creates a legal to transfer to an international organisation – the ESM – competences of state organs in some matters. These competences include the management of Poland’s participation in monetary union. Moreover, the decision-making power on Poland’s participation in the monetary union is conferred upon the ESM institutions. In addition, the jurisdiction of the CJEU and the Court of Auditors is extended with regard to Poland.
The argument was that the Council decision created a link in the TFEU to confer upon the international organisation, the ESM, competences of state organs in certain matters. The applicant argued that Poland had transferred competences concerning the terms of Poland’s participation in the monetary union to the ESM. Moreover, the ratification of Article 136 TFEU extended the jurisdiction of the Court of Justice of the European Union (Luxembourg Court) and the Court of Auditors with regard to Poland. The conferral of competence to the ESM also allowed the European Commission to specify the terms of a mechanism correcting the financial economy of states at the expense of the competence of the Sejm to exercise budgetary policy and the competence of the Council of Ministers to conduct economic policy. Additionally, the applicant argued that the ratification of the Article 136 TFEU amendment, which was a basis for the ESM Treaty, created an obligation for Poland to participate in the ESM upon its accession to the euro area. Finally, the applicant advocated the inclusion of the TSCG in the Court’s review. Namely, the TSCG referred to the ESM Treaty directly, as well as to regulated matters subject to the TFEU, such as the jurisdiction of the Luxembourg Court.
– whether the Ratification Act was compatible with Article 48(6) TEU?
In this context, in fact, the applicants ask the Constitutional Court to review national act against the EU Treaty. The applicants argued that the Ratification Act violates Art. 48(6) TEU, because the amendment of Art. 136 TFEU leads to an increase of the competences conferred upon the EU in the treaties. This increase takes place via the agreement to create a new international organisation, broadening the jurisdiction of the ECJ and the Court of Auditors and significantly changing the decision-making procedure (so-called reversed qualified majority). In consequence, the ratification of the Council decision allowed for legal provisions incompatible with EU law to flow into the Polish legal system thus violating the Polish Constitution (Art. 88 of the Constitution states that he condition precedent for the coming into force of statutes, regulations and enactments of local law shall be the promulgation thereof)
7) Arguments of the parties
Other parties’ positions:
The Marshal of the Sejm submitted its explanations stating that the Ratification Act is not contrary to Art. 90 PC and Art. 48 par. 6 TEU. The Marshall stated that the Ratification Act does not transfer any competences to the EU and the ESM is a separate Treaty, which also does not transfer any competences (Explanations of the Marshall of the Sejm, submitted on 11.02.2013, p.35). With regard to Art. 48 par. 6, the Marshall of the Sejm pointed out that it cannot be a benchmark to assess the constitutionality of the Ratification Act.
The Attorney General expressed a similar position in its explanations of 23 April 2013. In the view of the Attorney General, Art. 89 par. 1 PC is the correct ratification procedure. Namely, the change of Art. 136 TFEU is based on Art. 48(6) TEU which does not allow for an increase of competences by the EU. In consequence, ratification of the Treaty amendment does not transfer any competence to the EU and ratification on the basis of Art. 90 PC is not necessary.
With regard to the CJEU Pringle judgement the Attorney General and the Marshall of the Sejm underlined that the notion of “transfer of competences” in this judgement concerns the applicability of the EU simplified revision procedure, yet it may be an useful hint for the interpretation of the transfer of competences enshrined in Art. 90 PC.
8) Answer by the Court to the legal questions and legal reasoning of the Court:
The case was decided on 26 June 2013.
The Constitutional Court, with five dissenting opinions, did not declare the Ratification Act unconstitutional. The Court pointed out that Art. 136 par. 3 does not concern competences of the state organs, hence no transfer of such competences can be at stake. In consequence, a higher voting threshold indicated in Art. 90 par. 2 PC was not necessary for the approval of the Ratification Act.
On relationship between Art. 136 par. 3 TFEU and the ESM Treaty:
With regard to the meaning of Art. 136 par. 3 TFEU, the Court stated that this provision ascertains the competences of the Member States to create a mechanism aiming at protection of the Eurozone’s stability, using the instruments of international law. Art. 136 par. 3 neither creates a stability mechanism on its own, nor obliges the EU Member States to create such a mechanism. Moreover, Art. 136 par. 3 TFEU does not determine the legal character or the details of the stability mechanism’s construction. Art. 136 par. 3 TFEU only generally indicates that the stability mechanism may be created if it is necessary for the protection of the financial stability of the Eurozone and that the financial assistance will be subjected to a strict conditionality. This provision does not oblige the EU institutions to participate in the ESM and does not determine which competences the EU institutions may gain. Even if Art. 136 par. 3 created a basis for the modification of the requirements for Poland to access the Eurozone (obligation to participate in the ESM Treaty without any possibility to renegotiate it), the transfer of competences would formally take place only in the moment of the ratification of the EMS Treaty by Poland.
As the opposition argued that the ESM Treaty changes the conditions on which Poland will accede to the Eurozone in the future, the Constitutional Court maintained that the ESM Treaty is not binding for the non-Eurozone Member States and the creation of the ESM did not change the conditions for the accession to the Eurozone (the provisions on the derogation did not change), moreover, Member States do not automatically become parties to the ESM Treaty when accessing the Eurozone.
Further, as Poland is not a party to the ESM Treaty, the Court refrained from assessing the merits of the ESM Treaty whilst reviewing the compatibility of the Treaty Amendment Ratification Act with the Constitution.
In the view of the Court, its position corresponds with the CJEU case C-370/12 (Pringle) on the issue that the Treaty amendment does not transfer new competences to the EU, as well as with a similar position expressed by the German Constitutional Court (2 BvR 1390/12, 12.09.2012).
On the compatibility of the Ratification Act with Art. 90 PC
The Court indicated that Article 90 PC is applicable when a change of the scope or way of exercise of already conferred powers is at stake (and not only when the competences are transferred). Considering Article 136(3) TFEU, the Court stated that the new Treaty provision was very general and did not allow to state, whether the Union or its institution received new competences; none of the EU institutions was even mentioned in the new provision. The Court underlined that whereas Article 136(3) TFEU acknowledges the competences of member states to create a stability mechanism, only the provisions of the ESM Treaty regulate the competences of specific EU institutions in the ESM.
On the compatibility of the Ratification Act with Art. 48(6) TEU:
The Constitutional Court declared itself not competent to judge upon the legality of EU legal acts: the ECJ, acting within its competence, had already confirmed the legality of the Council decision. With regard to the review of the Ratification Act, the Court did not find Article 48(6) TEU to be an adequate benchmark for control and declared the Ratification Act not incompatible with Article 48(6) TEU. The Court did not analyse the merits of the applicant’s claim. The Court explained that it took into account the content of Art. 136 (3) TFEU as a ‘material content of the Ratification Act’ in order to control the constitutionality of the Ratification Act, but not to control whether Art. 136(3) was compatible with Art. 48(6) TEU. The Court underlined that Art. 48(6) TEU could have served only to check the legality of the Council decision, which is the competence of the ECJ.
9) Legal effects of the judgment/decision:
The Court declared the Ratification Act as not incompatible with Art. 90 PC and Art. 48(6) TEU. Otherwise, the ratification procedure would have restarted in Poland.
10) Shortly describe the main outcome of the judgment/decision and its broader political implications.
An issue worth noting is that five dissenting opinions (out of 15 judges adjudicating the case) were issued in the case at stake, even though the case seemed less problematic than the pending case on the ratification of the Fiscal Compact (Cf. Question IX.9).
What other information is relevant with regard to Poland and the 136 TFEU Treaty amendment?