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Elections 2023. Mueller on the referendum: it will give legitimacy not to implement EU regulations. Experts: it’s not true

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Law and Justice argues that the Polish government will not have to implement any provisions of the migration pact if Poles express their opposition in the referendum and the referendum is binding. This is not true. According to lawyers, the political act is intended to destroy the operation of EU law. They warn: the only situation in which Poland may not implement European Union law is to leave the community.

Along with the elections to the Sejm and Senate on October 15, a referendum will be held, one of the questions of which is: “Do you support the admission of thousands of illegal immigrants from the Middle East and Africa, in accordance with the forced relocation mechanism imposed by the European bureaucracy?”

According to the Polish government, the “forced relocation mechanism” is to result from the migration pact being discussed in the European Union, i.e. a number of provisions regarding asylum and migration to Europe. Its key element is the so-called crisis regulation that has been accepted on October 4 at a meeting of ambassadors of EU member states and will now be discussed in the European Parliament. The regulation introduces solidarity mechanisms: each country will be able to choose whether it wants to accept a certain number of migrants or provide financial or operational support (e.g. by sending its own border guards) to countries subject to migratory pressure. EU Commissioner for Home Affairs Ylva Johansson assured several times that Poland, due to the refugees it accepted from Ukraine and the tension on the Polish-Belarusian border, will be released from the need to participate in the mechanisms provided for in the regulation.

Ylva Johansson, EU commissioner: Poland will not be forced to accept any migrantsMichał Tracz/Fakty po Południu TVN24

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Despite this, the United Right government argues that the Polish government will not have to implement any provisions of the migration pact if Poles express their opposition in the referendum and the referendum is binding (i.e. turnout in the referendum is over 50%). This was repeated several times by government spokesman Piotr Mueller in the last days of the campaign.

For example, on October 6, Mueller was asked on RMF FM “what will happen if the migration package simply comes into force? How will Poland behave?” He replied: “That’s why we need the binding nature of the referendum, which takes place during the elections on October 15, because then we have social legitimacy not to implement the regulations that will be adopted by the EU.” When asked whether in such a situation Poland would not have to pay for each unaccepted migrant, he added: “We will not pay. We will neither pay nor accept illegal immigrants, because in our constitutional order, a referendum, if it exceeds fifty percent, is binding on the authorities in Poland. Therefore, if Poles decide in the referendum not to accept this package, we will simply not implement it.

Three days later, the government spokesman in Radio Gdańsk went further and stated that a binding referendum, in addition to providing social legitimacy not to implement EU regulations, would also give the government legal legitimacy. He assured:

If the referendum is binding and fifty percent of the votes are needed, then this democratic legitimacy will be put on the table, and we will have legal legitimacy not to implement the EU regulation.

However, in Program I of Polish Radio on October 11, Piotr Mueller added political legitimacy to social and legal legitimacy: “That is why the referendum this weekend is so important for us, because it will provide strong political and social legitimacy and will be binding on us as state authorities, if fifty percent will be exceeded. And he assured once again:

This weekend vote gives a chance that this (migration – ed.) package simply cannot be effectively applied in Poland.

On the same day, the Minister for European Union Szymon Szynkowski vel Sęk was asked about this issue on TVP 1. The interviewer asked him: “If the referendum was valid or binding, in the sense that more than half of the citizens took part in it, would it also be binding on the future government and, secondly, on the European institution? Maybe they could say to themselves that this is some there’s a kind of survey there, but relocations must be mandatory and that’s it? The minister replied: “The Constitution says clearly: the supreme power belongs to the nation, and the nation expresses itself through an instrument of direct democracy, the most obvious one, which is the referendum. And it also states that a referendum above fifty percent of the turnout is binding, so it must also be literally take the words seriously. If it is binding, it means that it has legal significance, and if it has legal significance, it obliges every government not to introduce the solutions that were questioned by potential citizens in this referendum.

We asked lawyers, specialists in European law, whether the referendum would really give the government legal legitimacy “not to implement the EU regulation.”

“A referendum cannot justify the non-application of EU law. There are simply no such mechanisms.”

Our questions were answered by: dr hab. Magdalena Słok-Wódkowska from the Department of European Law, Faculty of Law and Administration, University of Warsaw; prof. Robert Grzeszczak, head of the Center for Research on the European Union System, Faculty of Law and Administration, University of Warsaw; prof. Artur Nowak-Far from the Department of Integration and European Law at the Warsaw School of Economics.

Everyone agrees: a binding referendum result, in which the majority would answer negatively to the question about the relocation mechanism, will not give the government the legitimacy to not implement the provisions of the EU regulation. Prof. Robert Grzeszczak states directly:

It is obvious that the government will have no such legitimacy. This is political populism. There is no legal problem and no ambiguity here. From the beginning of our membership in the European Union, the principle has been as follows: no court ruling, not even the Constitutional Tribunal, or any other national procedure, such as a referendum, can justify the non-application of EU law. There are simply no such mechanisms.

There is no doubt about Prof. Artur Nowak-Far:

The referendum does not give the right not to implement EU regulations, because even such an intention is contrary to European Union law. We simply have an obligation to apply the regulations.

– The government’s logic here is more or less as follows, read by a lawyer, that it wants to destroy some effect of EU law with an essentially political act. But this is in contradiction with Poland’s treaty obligations, because they are very clear here – continues the lawyer. – At the same time, we must remember that with this political act we want to save our ineffectiveness in negotiating EU law – he adds.

Artur Nowak-Far and Magdalena Słok-Wódkowska point out that the obligation to implement EU regulations results, for example, from the principle of loyal cooperation enshrined in Art. 4 Treaty on European Union. It reads: “Member States shall facilitate the fulfillment of the Union’s tasks and refrain from taking any measures that could jeopardize the achievement of the Union’s objectives.”

“The only time we can not implement European Union law is after we leave it.”

Magdalena Słok-Wódkowska adds that, in addition to the obligations arising directly from European treaties, the Polish constitution also states that Poland complies with international law that is binding on it (Article 9). – A referendum certainly cannot allow someone not to implement EU law. It cannot invalidate the law, he explains. – The referendum can only be an indication of what can be done next – he explains.

The lawyer also states that the only situation in which Poland may not implement European Union law is if it leaves the community. – If the referendum were binding and if it showed that with a turnout of over fifty percent the majority was in favor of not implementing EU regulations, then the only way would be to leave the European Union – says Dr. Hab. Słok-Wódkowska. – In fact, such a path was suggested quite clearly by the Constitutional Tribunal in 2005, in one of the first two rulings regarding the accession treaty, in which it stated that if it is impossible to reconcile the constitution with EU law, there are three paths: either changing the constitution or a controversial attempt to changing EU law or leaving the EU. The only moment when we can not implement European Union law is after leaving it – he sums up.

“It can be appealed to the CJEU, but there is already a discussion of arguments there”

Three lawyers interviewed by Konkret24 said that the only institution that can consider an EU regulation defective and consequently invalidate it is the Court of Justice of the European Union. Any member state may submit a complaint to the CJEU. – If a state has any reservations about a legal act, it can only appeal against it to the CJEU, and only this tribunal can recognize an EU act, such as a regulation, as defective or adopted without proper competence, and consequently invalidate it. So everything else is demagogy – says prof. Robert Grzeszczak. – Therefore, you cannot refer to the result of the referendum and, for example, suspend the application of the regulation. The only path may be to file a complaint against the invalidity of the regulation. The referendum cannot comment on the application of EU law, he emphasizes. It recalls that until the CJEU issues a judgment, the contested act is still in legal circulation, so the complaint does not affect the obligation to apply it.

This is confirmed by Dr. Hab. Magdalena Słok-Wódkowska: – The government can only challenge the EU regulation, i.e. try to demonstrate that it violates some treaty provisions. However, this goes through the Court of Justice of the European Union and Article 263, which gives the state the right to file an action for the invalidation of secondary law. However, the complaint itself does not mean the temporary invalidation of such a regulation. This is a situation analogous to how the assessment of the constitutionality of Polish laws by the Constitutional Tribunal works.

Art. mentioned by the lawyer. 263 of the Treaty on the Functioning of the European Union states, among others, that:

The Court shall have jurisdiction to hear actions brought by a Member State, the European Parliament, the Council or the Commission alleging lack of competence, breach of essential procedural requirements, breach of the Treaties or of any legal rule relating to their application, or abuse of power.

On the possibility of filing a complaint to the CJEU, prof. Artur Nowak-Far says: – It can be appealed to the CJEU, but there is already a discussion of arguments there. And if you have no arguments, you grasp at straws such as saying that a referendum will allow us not to apply EU regulations. If the government does not respect the provisions of the regulation by invoking the referendum, it runs the risk of being punished.

Main photo source: PAP/Marian Zubrzycki

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