Europeanization of Law in Poland from the point of view of Constitutional Law

The article is devoted to the challenges and problems concerning the accession of the Republic of Poland in the European Union. The authors analyze the constitutional bases of the accession to the EU as well as basic legal acts which have regulated the mutual relations between Poland and the EU. 
The Republic of Poland has acceded to the European Union by virtue of the Accession Treaty which was signed on 16 April 2003 in Athens and entered into force on 1 May 2004. 
From the point of view of constitutional law, there were several issues which concerned the preparation for EU accession at the national level. They were especially related to: 1) the establishment of legal basis allowing for the integration the law of the European Union with Polish constitutional law, 2) the harmonization of the Polish legal system with the legal order of the European Union, 3) the establishment of the ratification procedure of the Accession Treaty. All these issues required new legal regulations to be implemented to the Constitution. That was why the new Constitution of the Republic of Poland adopted on 2 April 1997 included two provisions relevant for the issues concerning the integration with the European Union - art. 90 and art. 91 para 
The main problems presented in the article concern the relation of Polish national law (in particular the Constitution) to the sources of primary and secondary European law, the harmonization of Polish law with EU law (constitutional amendments referring to “EU matters”, necessary amendments of statutory law and the provisions of the Standing Orders of the Sejm and the Senate), as well as institutional changes in Poland determined by the EU membership.

Art. 91 para. 3 of the Constitution of the Republic of Poland stipulates that if an agreement, ratified by the Republic of Poland, establishing an international organization so provides, the laws made by this organization shall be applied directly and have precedence in the event of a conflict of laws (ordinary legislation).
3. To sum up, it may be said that the provisions of art. 90 of the Polish Constitution serve as a legal basis for the limited transfer of the competences of organs of state authority (including procedural frameworks). Art. 91 para. 3 determines the place of law established by an international organization in the national legal system. As it may be noticed, the above provisions do not directly apply to one, determined by its name, international organization 4 . They have been formulated in a universal way, although they were created with the intention to allow Poland to join the European Union. The scope of the constitutional regulation is quite narrow because of the political circumstances surrounding the adoption of the Constitution. The Constitution makers decided to limit the constitutional regulation concerning Poland's accession to the European Union to certain minimum that would allow the accession. Therefore, many important issues concerning "EU matter" were not regulated in the Constitution. In particular it concerns issues, praxeologically significant, which relate to the functioning of state organs within European Union structures 5 . In political practice, this approach led to political and legal conflicts, especially within the executive branch 6 .
Art. 90 of the Constitution -especially its para. 1 -has defined the essence and scope of integration, which is the possibility -by virtue of international agreement -to "delegate the competence of organs of state authorities in relation to certain issues" to an international organization or international institution. However, the transfer of the competence of state organs cannot mean the transfer of state sovereignty. In the judgment of 24 November 2010 (K 32/09) the Polish Constitutional Tribunal stated that the essence of art. 90 of the Constitution was to impose certain limitations important from the point of view of the sovereignty of the Nation and the state. The transfer of competences is acceptable only to an international organization (international institution), only in regard to certain issues, only with the prior consent of the parliament (alternatively expressed by the Nation in a referendum). This triad of limitations is perceived as a guarantee of preserving a constitutional identity. Respect for constitutional boundaries is necessary because of the principle of sovereignty. The Constitutional Tribunal has underlined in its judgment the particular role of art. 90 of the Constitution stating that "The principle of preserving sovereignty in the process of European integration requires respect for the constitutional limitations of competence transfer in this process. This principle is specified by a rule that the transfer of competences cannot have "universal character" and it cannot refer to "the whole of the most important competences (…), and in addition by the dependence of the transfer of competences from a special procedure regulated in art. 90 of the Constitution".
The provisions of the Constitution of the Republic of Poland do not regulate in which "areas" the competences may be transferred. Therefore, it may affect all areas of power -legislative, executive and judicial. The representatives of the doctrine of constitutional law strongly emphasizes that art. 90 of the Constitution does not limit the sovereignty but only limit the exercise of powers by state authorities. The "transfer" of competences results in the division of the exercise of sovereignty attributes between state organs and international organizations 7 .
4. The constitutional provisions as a whole allows to formulate a principle of favorability for the European integration process. It can be also deduced from the analysis of the legislative works on the current Constitution "during which the prospect of Poland's accession to the European Union was accepted" 8 . This principle of favorability determines the way of interpretation of constitutional provisions as well as other acts of Polish law. It has been emphasizes both by the doctrine of law and number of decisions of the Constitutional Tribunal 9 .
5. The problem of a "narrow" European dimension of the provisions of the Polish Constitution quickly became a subject of broad analysis of the doctrine of law. They have led to far-reaching consensus on the need, limits and merits of the desired additions and amendments to the Constitution. In principle, it was considered that this matter should be comprehensively regulated in a separate new chapter of the Constitution 10 , which was proposed in the draft of the Act on the amendment of the Constitution of the Republic of Poland of 30 June 2010. The draft was a result of the work of a scientific team established for this purpose by the Marshal of the Sejm 11 . Previously, there was no visible commitment -in this matter -of the entities provided by the Constitution with the right to initiate constitutional amendments. Only 12 years after the adoption of the Constitution, three drafts of its amendment referring to "EU matter" were submitted to the Sejm. However, none of them was adopted. The legislative works on all these amendments were subject to the rule of discontinuation of parliamentary work following the termination of the 6 th term of office of the Sejm. Nevertheless, they provide a significant picture of the vision and political aspirations concerning the constitutional regulations of EU matters. Probably, they will be still subject to scientific and legislative analyzes in future 12 .
6. Both the process of Poland's accession to the European Union and the subsequent presence in its structures and works required to pass many statutes as well as amendments to the current Standing Orders of the Sejm and the Senate. In particular, the following should be mentioned The process of harmonization of Polish law with EU law obtained its legal framework by the aforementioned Association Agreement. The interpretation of Polish law carried out by courts in accordance with the acquis communautaire was significant here, but the legislative process was also of particular importance. It was necessary, among others, to introduce certain distinctive features of the parliamentary legislative procedure in regard to the adoption of "adjustment laws". In the end of 2001 a separate European Committee was established in the Sejm to Правова система України й міжнародне право, порівняльне правознавство consider the drafts of adjustment laws in an accelerated mode, even without other (standing) committees of the Sejm. Moreover, the deadlines for individual stages of the Sejm's proceedings have been shortened and the requirements concerning the deputies' amendments to such draft laws have been raised.
7. The current constitutional system of the European Union with the limited role of the Parliament is the reason of accusations of a "democratic deficit" in the EU. This is accompanied by the reduced role of national parliaments in two dimensions. First of all, it is estimated that about two thirds of legislative matters has been transferred to the EU level. Secondly, also at the level of Member States, the main role in "EU matters" is played by governments. The role of parliamentary bodies is being strengthened in two ways -by strengthening the role of the European Parliament and by the introduction of new institutional forms to EU law that would allow national parliaments to participate in decision-making processed before European authorities. Such new instruments have been provided by the Treaty of Lisbon.
From the perspective of a Member State, it is particularly important to create specific procedures allowing the parliament to influence and control the activities of the national government in the organs of the European Union. In Poland, more profound changes in this area are not possible without amending the Constitution. However, minor changes could be introduced at the lower legislative levels -in statutes and Standing Orders of the parliamentary chambers. They concern changes in the structure of parliament's internal bodies, changes in the forms of cooperation between the parliament and the government on matters concerning the European Union and changes in the legislative procedure 17 .
8. According to the Standing Orders of the Sejm of the Republic of Poland 18 , the Committee on European Union Affairs (art. 18 para.1 p. 3a) is one of the standing committees of the Sejm 19 . The annex specifying the scope of action of individual committees provides that the Committee on European Union Affairs is responsible of matters related to the membership of the Republic of Poland in the European Union. Its competences are equivalent to the duties of the government, provided by the Act of 2010 on the cooperation of the Council of Ministers with the Sejm and the Senate in matters relating to the Republic of Poland's membership in the European Union. In particular, it may take a stance and express its opinions on: a) the drafts of European Union legislation; b) the drafts of international agreements to be concluded by the European Union; c) the work plans of the Council and annual legislative plans of the European Commission. The Committee on European Union Affairs is also responsible for: a) formulating recommendations to the Council of Ministers concerning the position of the Republic of Poland to be presented by the Polish government while considering the draft in the Council, b) examining information and other documents submitted by the Council of Ministers, c) issuing opinions about candidates to certain posts in the European Union. However, the Committee has no power to take actions that would ultimately bind the government or to act outside on behalf of the Sejm.
The Standing Orders of the Sejm devote the whole chapter 13a to the Committee on European Union Affairs (art. 148a-148e). The composition of Committee should proportionally reflect the representation of clubs and teams of at least 15 Deputies in the Sejm. Clubs and teams shall announce to the Presidium of the Sejm candidates to the Committee in a number and dates specified by the Presidium of the Sejm. The Sejm shall adopt a resolution on the election of the Committee members by a joint vote.
The Committee take its decisions by a formal vote. If there is an equal number of votes at the meeting of the Committee, the vote of the President of the Committee (unless he/she is abstaining from voting) shall decide on the adoption or rejection of the resolution. If proceedings conducted by the Committee are not completed before the end of the term of office of the Sejm, they may be continued by the Committee appointed by the Sejm of the next parliamentary term of office. So the principle of discontinuation of parliamentary works is not applied to that case.
It should be noted that the scope of action of the analogous Committee on European Union Affairs in the Senate of the Republic of Poland is somewhat narrower than that of the Sejm Committee. It includes, among others, adopting opinions on the drafts of EU legal acts and requesting the government to provide information on mattes defined by the Committee which relate to the membership in the European Union 20 . This role has been strengthened by the Constitutional Tribunal's judgement of 12 January 2005 21 . The Tribunal held that issuing opinions on the government's viewpoints on the drafts of EU legislation was an expression of a legislative function rather than a control function of the parliament. As a consequence, the Tribunal stated that the Senate should take part in the opinion procedure 22

10.
The provisions of the Standing Orders of the Sejm expressly recognize two important issues concerning the legislative procedure related to the European Union. First of all, they provide solutions which ensure that Polish legislation complies with EU regulations. Secondly, there are provisions aimed at promoting the urgent (timely) implementation of EU solutions to Polish law.
In the first case, the Standing Orders of the Sejm requires (art. 34 para.2 p.7) that the explanatory statement submitted with each draft law should contain a statement of conformity of the bill to European Union law or a statement that the subject matter of the proposed legislation is not governed by the law of the European Union. The Marshal of the Sejm, before referring the bill for its first reading, shall order the preparation by experts of the Chancellery of the Sejm of an opinion on the conformity of the introduced bill to the law of the European Union, with the exception of bills introduced by the President of the Republic or the Council of Ministers (art. 34 para.9). The Marshal of the Sejm, after seeking the opinion of the Presidium of the Sejm, may refer any bill or draft resolutions which raise doubts as to their consistency with European Union law, to the Legislative Committee for its opinion. The Committee may, by a 3/5 majority vote in the presence of at least half of the members of the Committee, find the bill (draft resolution) inadmissible. The Marshal of the Sejm shall be free not to initiate the proceedings in relation to any bill (draft resolution) which has been found inadmissible (art. 34 para. 8). All legislative proceedings relating to the bills or draft resolutions shall be attended by a representative of the legal service of the Chancellery of the Sejm, who may make conclusions and remarks within the field of matters of the conformity of bills to the legislation of the European Union (art. 70). In the event that a bill raises doubts as to its consistency with European Union law, committees may submit a motion for an opinion in this regard to the minister competent for the Republic of Poland's membership in the European Union. The time limit for presenting an opinion shall be specified by committees (art. 42 para. 4).
The second issue concerns adopting statutes implementing EU law. In that respect the legislative procedure has some distinctive features in comparison to an average legislative process. However, it should be mentioned that the Sejm's Committee on European Union Affairs does not have exclusive right to consider such bills. The Standing Orders of the Sejm devote the whole chapter 5a (art. 95 -art. 95f) to the proceedings in relation to bills implementing European Union law. The Council of Ministers, when submitting a bill, declares whether it is a draft of this kind. In case of other drafts, the Marshal of the Sejm, before ordering the first reading, decides whether it is a bill implementing the law of the European Union or not. The Marshal of the Sejm, when deciding on the start of legislative proceedings, always determines the timetable of the Sejm's work on the draft, taking into account the deadline for the implementation of the EU law. Also, the relevant Sejm's standing committee, prior to a detailed examination of the draft, shall establish an appropriate timetable of its work. With regard to this type of drafts, the deputies' right to propose amendments is limited and the proceeding with a request to reject the draft is more difficult. The second reading of the draft as a rule must take place at the next sitting of the Sejm after the delivery the committee's report to the Deputies. Also, the potential amendments introduced by the Senate to this type of laws are considered by the Sejm at the next sitting after the delivery of the committee's report.
11. Unfortunately, there is still no comprehensive regulation of issues concerning the "notification" of some draft laws to the European Commission. European Union law contains a rather extensive system of "notification" obligations concerning national law. These obligations stem from both primary and secondary EU law. They cover many areas of law and have different legal effects. The notion of the "notification" has not been uniformly defined. In general, however, it should mean the national obligation to inform the EU institutions about the draft legislation and provide them with the texts of the respective drafts. More qualified notification procedures -for example in the area of public aid or technical regulations -require the suspension of national legislative work until a positive decision made by competent EU authorities. This also applies to legislative works at the parliamentary stage. The failure to comply with notification obligations is punished by sanctions.
The main areas of notification obligations concern: a) public aid, b) technical regulations, c) harmonization of national law with EU law, d) environmental protection and consumer protection measures, e) areas within the competence of the European Central Bank, f) national implementation measures.
It should be noticed that the government much earlier signaled to the parliament that certain changes were required in the legislative procedure. The point is to adopt regulations that would allow to notify drafts at the last stage of legislative work, just before their adoption. However, there is no regulation in the Standing Orders of the Sejm concerning the notification procedure.
Currently, the comprehensive statutory regulation concerns only the "public aid". It is included in the Act of 30 April 2004 on proceedings in matters concerning public aid 24 . It includes a specific procedure, which includes proceedings concerning the preparing of "assistance" drafts for notification. However, it is limited to the proceedings before the bodies of public administration. The statutory reference to the Sejm's Standing Orders still remains unfulfilled. In the political practice there is a need for extremely broad and flexible interpretation of the provisions of the Standing Orders to the extent necessary to establish the framework for the notification procedure in the Sejm. The problem is particularly important when it comes to deputies' bills. In practice there is a problem whether applicants would be able to prepare the appropriate documentation for the purpose of notifying the bill. Without such documentation it is not possible to issue an opinion and make a notification in the mode implementing European Union legislation. The current shape of the procedure regulated in the Standing Orders of the Sejm is not adequate for the relevant notification requirements. Poland's membership in the European Union should therefore provoke to rethink the legislative procedures.

Правова система України й міжнародне право, порівняльне правознавство
In Poland, the regulation of the Council of Ministers of 23 December 2002 on the functioning of the national notification system of norms and legal acts 25 is also important for matters concerning the notification obligations. It implements the relevant directive of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (Directive 98/34/EC). This directive has also established a notification requirement. However, above mentioned regulation does not determine the status of parliamentary acts and acts related to the notification. Only in the light of general principles, it can be assumed that, according to the mode provided by this regulation, the notification could be made in respect to governmental bills before their submission to the Sejm. However, these drafts may later, in the course of parliamentary work, be subject to substantial substantive changes. What is also important, the right of legislative initiative is not only granted to the Council of Ministers. The lack of appropriate provisions in the Standing Orders of the Sejm is even too much visible 26 . In Poland, for example, a lot of attention was drawn by the public dispute over the notification of the Act on Gambling 27 .
European law does not specify a national authority responsible for the notification in EU Member States. It is important that the failure to notify or failure to stop the legislative procedure is an infringement of EU law leading to legal sanctions. The drafts which have been substantially changed after the notification should be renotified. In Poland, the lack of the comprehensive regulation of the fulfilment of notification obligations is important from the legal point of view. Especially, difficulties are caused by the lack of appropriate regulations in this respect with regard to the parliamentary proceedings regulated in the Standing Orders of the Sejm (or the Senate respectively).
12. The specificity of the European Union's influence -as a transnational entity -on the national law of a Member State should be perceived from the perspective of its broad and internally differentiated system of the sources of law. Its division into primary and secondary law is well established and widely accepted. The importance of the Community acquis (acquis communautaire) should be emphasized. The acquis refers to all EU legal institutions, their judicial and doctrinal interpretation as well as underlying values. It is assumed that the Member States of the European Union are obliged to respect and accept it.
Primary law consists of the founding treaties (Treaty on European Union, Treaty on the Functioning of the European Union, also the Charter of Fundamental Rights of the European Union) and subsequent accession treaties. These are international agreements with specific features. They should be perceived as quasi -EU Constitution. Common law plays a modest role. However, the category of general principles of law defined by the case law of the Court of Justice of the European Union is significant. General principles set standards for the functioning of the Union and its organs.
Secondary law is established by the European Union's authorities on the basis of the powers conferred by primary law. It is a specific separate European legal order placed next to the system of international law and the system of national law. The acts of secondary law do not require the approval of Member States. Importantly, they may contain directly applicable provisions. They can be a direct source of rights and obligations of legal entities. European Union legislation includes regulations, directives, recommendations and opinions (art. 288 TFEU). The last two categories have no binding force. It is also important that European law prevails over national law. In case of the collision of norms, EU law should be applied and the provisions of national law should be disregarded.
The position of EU law in the national legal order is therefore determined by the principle of direct effectiveness, the principle of primacy and the principle of uniform application of EU law in all Member States. In Poland, the conflict between EU law and national law is resolved in the aforementioned art. 92 of the Constitutionart. 92 para. 2 refers to primary law and art. 92 para. 3 refers to secondary law.
The jurisprudence of the Court of Justice of the European Union clearly states that European law takes priority even over national constitutions. The point is different from the perspective of the Polish Constitution as well as doctrine and constitutional jurisprudence in Poland. Primary EU law takes a form of international agreements. According to art. 188 para. 1 of the Constitution of the Republic of Poland, international agreements must comply with the basic law. When it comes to secondary European law, the Constitution guarantees its priority in the event of a conflict with statutes (art. 91 para. 3). However, it cannot be extended to the Constitution as an act of higher legal force. This intention can be confirmed by the historical analysis of legislative work on the preparation and adoption of the Constitution. The Constitutional Tribunal has also stated in its judgements that the conflict between EU law and the provisions of the Constitution "cannot be resolved in the Polish legal system by recognizing the superiority of a norm of Community law in relation to a constitutional norm" 28 .
In the light of the Polish Constitution, the competences of the Constitutional Tribunal concerning primary EU law is unquestionable. Art. 188 para 1 of the Constitution explicite provides for the jurisdiction of the Constitutional Tribunal in respect to international agreements. Nevertheless, the Polish Constitution does not mention about national jurisdiction with regard to secondary EU law. The Constitutional Tribunal has recognized for several years that the constitutional determination of its jurisdiction leaves the EU secondary law beyond the jurisdiction of the Tribunal 29 . The judgment of 16 November 2011 in case SK 45/09 was a certain breakthroughs. The Constitutional Tribunal found out that the exclusion of its jurisdiction refers only to the procedure of abstract control of norms. Thus, the Tribunal recognized its jurisdiction to control EU secondary law in the procedure of constitutional complaint. This strengthens the national control over EU law.
13. As it has been already mentioned, three attempts have been made so far to change the provisions of the Constitution of the Republic of Poland related to EU issues. However, none of the them was adopted.
The most significant from the political and substantive point of view was the draft amendment submitted by the President of the Republic of Poland on 12 November 2010 which had a comprehensive nature. It provided for a separate chapter of the Constitution entitled "Membership of the Republic of Poland in the European Union" (art. 227a -art. 227k) which was not supposed to universally refer to all international organizations but strictly concerned the EU. In addition, the proposal separately contained regulations allowing for the introduction of the euro in the future. It indicated, among others, the affiliation of the National Bank of Poland to the European System of Central Banks and emphasized the independence of the National Bank of Poland from other state authorities.
The above mentioned separate chapter regulating Poland's membership in the European Union contained a number of essential provisions. They were supposed to regulate such matters as: a) the conditions of EU membership (the so-called limit clause), b) the procedure of transferring powers of state authorities in certain cases, c) the status of an EU citizen residing in Poland; d) relations between the Council of Ministers, the Sejm, the Senate and the President of the Republic of Poland in the field of Polish policy in the EU, f) special requirements for draft laws implementing EU law, g) the procedure of Poland's withdrawal from the European Union. The new provisions were intended to be incorporated into art. 90 of the Constitution.
The detailed solutions included in proposed regulations will not be presented here 30 . However, it is important to point out an important "limitation clause" defining the axiology (art. 227a): "The Republic of Poland is a member of the European Union which respects the sovereignty and national identity of Member States, respects the principles of subsidiarity, democracy, rule of law, respect for the inherent and inalienable dignity of a man, liberty and equality and ensures the protection of these freedoms and rights in the Constitution". This provision defined the axiological basis of Poland's participation in the processes of European integration -legitimating it within the borders determined by law. This provision was intended to strengthen the protection of the most important values in the sphere of European integration. The values mentioned in the proposed art. 227a were identical to those listed in art. 2 of the Treaty on the European Union. Such regulation was aimed to prevent conflicts between EU norms and the norms of the Constitution of the Republic of Poland. It was addressed to Polish public authorities and determined the constitutional boundaries of Poland's membership in the European Union. In other words, Poland does not have a constitutional obligation to participate in the Union which would not respect these values. Nor it have a constitutional obligation to enforce EU law which would violate these values. The provision was a clear normative novelty on the background of the current art. 90 of the Constitution of the Republic of Poland. It gave an explicit constitutional basis for Poland's membership in the European Union.
The presidential draft amendment of the Constitution passed almost the whole legislative path in the Sejm, only without the final vote (adoption). The suspension of legislative work was caused, in principle, by nonsubstantive reasons concerning more current political calculations within the ruling majority. Since then (August 2011), the EU issues have not been subject to any constitutionally-relevant legislative work in Poland.