Karol Nawrocki: the migration pact should be “unilaterally terminated.” Is it possible?

Karol Nawrocki – president of the Institute of National Remembrance, PiS-supported presidential candidate – visited the village of Minkowce in Sokółka County (Podlaskie Voivodeship) on December 18, 2024, located on the Polish-Belarusian border. At a press conference organized there, he spoke about the barrier on the border, respect for the Polish services patrolling the border, as well as “the issue of geopolitical security.” “On the one hand, this is Alyaksandr Lukashenko's game, hybrid war, the game of the Russian special services on our eastern border, and on the other hand, migration threats coming from the west,” Nawrocki said, and added:

After this declaration, Nawrocki also said “that on issues as important as our security and the issue of illegal migration to the Polish state, we are all waiting for a national, civic referendum on illegal migration to take place.” He has already signed “the list to organize such a referendum.”

The concept of “unilateral termination of the migration pact” and a referendum on this matter was not invented by Karol Nawrocki. Already in June 2024, the president of PiS, Jarosław Kaczyński, at the convention in Pułtusk, announced the collection of signatures to organize a referendum on “denying this pact”. “From September we will be collecting signatures to demand a new referendum. Because it must be the basis for another demand, because we are convinced that if such a referendum takes place, we will win. To demands to terminate this pact“- Kaczyński said then.

After the president's declaration, numerous PiS politicians also wrote on social media about “terminating the migration pact.” “Together we can force the government to do what should have been done long ago: unilaterally break the migration pact. This is absolutely the most important issue because it concerns our safety” – handed over on the website X Mariusz Błaszczak. “The #13Decembercoalition government simply agreed to the immigration pact. Since September, we have been collecting signatures for a referendum in which We will reject this harmful mechanism“- he wrote in X Jacek Sasin. “We will not stand idly by as further actions of this government destroy the security of Poles. From September we will collect signatures demanding a new referendum on termination of the migration pact!“- announced also in X MP Kazimierz Smoliński (original spelling of all entries).

We asked lawyers, specialists in European law, whether such a move by Poland is possible at all and what the consequences might be.

Let us recall: the EU Migration Pact (Pact on migration and asylum) are in fact 10 different regulations and directives that are intended to introduce new rules for the EU migration policy. The aim of the pact is not only to improve procedures for dealing with migrants from outside the EU, but also to help countries struggling with the greatest migration pressure, i.e. those that process the most asylum applications. Such countries include, for example, Italy and Greece.

The idea to help these countries, as well as others that will be under migration pressure in the future, is to be the so-called solidarity mechanisms included in the pact. Member countries will decide whether they will help by: accepting some of the migrants while their applications are considered, financial assistance or operational assistance, e.g. sending border guards.

READ MORE IN KONKRET24: Six misleading claims by PiS about the relocation of migrants

In April 2024, all regulations were adopted by the European Parliament, and a month later they were accepted by the Council of the European Union – despite the opposition of representatives of Poland, Slovakia and Hungary. However, the provisions of the pact will come into force in 2026 at the earliest.

So if the majority of EU countries have agreed to adopt the migration pact, is it possible to terminate it unilaterally? In June 2024, when Kaczyński announced a referendum on this matter, Dr. Bartosz Rydliński, a political scientist from the Cardinal Stefan Wyszyński University in Warsaw, said in an interview with “Wprost”: “It is not the case that one country can terminate the migration pact” – explaining that the process has started.

Lawyers and EU law specialists interviewed by Konkret24 also have no doubt that the “unilateral termination” of the migration pact announced by PiS is not possible from the point of view of EU law. – The migration pact cannot be unilaterally terminated because it includes acts of the so-called secondary European Union law, which Poland has authorized EU institutions to adopt in the treaties. In these treaties, it gave these acts legally binding force and specific legal effect. Therefore, there is no possibility of unilaterally terminating the pact, says Dr. Izabela Skomerska, professor at the University of Łódź from the Department of European Constitutional Law.

The same opinion is expressed by Dr. Hab. Anna Doliwa-Klepacka, professor at the Department of European Law at the University of Białystok. “The 'Migration Pact' of April 26, 2024 is a package of 9 regulations and 1 directive. There is no procedure for unilateral 'termination' of this type of acts. Of course, it is possible to change the regulation/directive, but jointly by the EU Council and the European Parliament. Unilateral action by the state Member State has no effectiveness,” Konkret24 analyzes in the response sent.

Only prof. Jerzy Menkes from the Department of Integration and European Law at the Warsaw School of Economics states in an interview with Konkret24 that “it is the right of a sovereign state that it can terminate any international agreement to which it is a party.”

However, prof. Anna Wyrozumska from the Department of European Constitutional Law at the University of Lodz reminds that the regulations and directives included in the Migration Pact are “legal acts issued by the EU, not international agreements that can be freely denounced.” “All Member States except Denmark and Ireland (based on the derogations provided for in Protocols 21 and 22 to the TEU and the TFEU) are bound by these acts. These acts do not provide for any derogations. The rules of their validity and application are determined by the EU treaties” – explains Prof. Wyrozumska in response to Konkret24.

Experts also emphasize that the President of the Republic of Poland does not participate in the legislative process in the European Union, so any declaration of legal acts, even if it were possible, would not be within his competences.

“The president does not have the competence to enact EU regulations or directives. He does not participate in the legislative process in the EU. The government in the EU Council, a legislative body consisting of ministers of member states, and the European Parliament are involved in this process,” explains Prof. Anna Wyrozumska.

Prof. writes the same. Anna Doliwa-Klepacka: “The president has no competences to terminate the migration pact. Generally, the president has no competences in EU legislative procedures – the government operates here: the minister is a member of the EU Council adopting a legislative act, regulation/directive, together with the European Parliament” .

Donald Tusk and his ministers have been unanimously declaring for several months that they will not implement the assumptions of the migration pact. “We will not pay for anything, we will not have to accept any migrants from other directions, the European Union will not impose any migrant quotas on us,” Donald Tusk said in May 2024, immediately after the adoption of the pact. In October, he repeated his declaration: “The government will not implement European ideas that undermine Poland's security, such as the migration pact.”

READ MORE: The migration pact has finally been adopted. Poland was against, Tusk comments

Therefore, this is a different idea for approaching this issue than the one presented by Karol Nawrocki. The government does not want to “unilaterally terminate” the migration pact, but simply does not intend to implement its provisions.

But this will also cause problems. European law experts explain that member states have this option, but there are legal and perhaps also political consequences. “A country may, of course, not comply with the provisions of a binding EU legal act, but it runs the risk of the European Commission filing a complaint to the CJEU for violation of treaty obligations,” explains Prof. Anna Doliwa-Klepacka. “For example, we may not adopt regulations implementing an EU directive, but then we will again have a violation of treaty obligations, and therefore Poland may be sued to the CJEU for violation of treaties,” he adds.

Professor Izabela Skomerska, however, reminds that possible exclusions from the scope of application of individual acts could have been obtained in the legislative process before they were voted on and entered into force. Now, failure to execute the acts “constitutes a breach of obligations by the state.” – This has both legal and political consequences. In the case of the pact, if we continue such a violation after a possible CJEU judgment is issued, we will again be exposed to further fines – explains Prof. Skomerska. – There is also political responsibility, because in any negotiations in the EU you also need to have certain arguments and failure to fulfill obligations is not a good position to enter into negotiations with other member states – he adds.

Recently, politicians from the ruling coalition have begun to suggest that the migration pact may not enter into force at all due to current trends in European politics and possible reshuffles on the European political scene before 2026.

And so in October, after the summit in Brussels, Donald Tusk said: “It is becoming increasingly clear to European leaders that the current methods, including the migration pact, are not the answer to the threat posed by mass, illegal migration.” This thesis was repeated by, among others, KO MP and Secretary of State at the Ministry of State Assets Robert Kropiwnicki, who on December 22 on Radio Zet stated: “Today this pact is not functioning and is unlikely to function. Everything indicates that today, that there is no climate for accept it and there is an awareness in most European capitals that it is no longer acceptable in this version today.

However, such voices had already been voiced much earlier by some experts. Political scientist Dr. Bartosz Rydliński said in the above-mentioned interview with “Wprost” that he “would not be surprised if the migration pact did not enter into force and individual countries started to withdraw from it”, especially considering the good electoral results of the anti-immigrant right wing in various European countries. “I can imagine a huge political dispute related to the migration pact, in which individual prime ministers of member states will say that they will not implement it, even at the cost of financial penalties. Let me remind you that Poland has been paying fines for years for violating the EU rules of the rule of law and we have not seen a mass decline in economic growth. After all, the EU cannot force anything on a member country, it can only impose penalties on it, he said.