Europaudvalget 2021-22
EUU Alm.del Bilag 63
Offentligt
/courtesy translation/
Warsaw, 2021
Dear Mr Speaker,
I would like to present this letter to you in a spirit of mutual respect, guided by concern for the
good of our common project, the European Union. As the Speaker of the Polish Sejm I have
the duty to guard the Polish legal system, which comprises both the Constitution and EU
legislation that is in conformity with the Constitution. Settlement of disputes, not by arbitrary
means, but by building compromises achieved through debate conducted with respect for the
arguments of all states, is one of the foundations of the European Union. Such a debate is only
possible when it is underpinned by reliable information, and therefore I feel empowered and
obliged to present to you a set of documents concerning the judgment of the Polish
Constitutional Court of 7 October 2021. I considered it imperative to provide you with this
information because of the disturbing signals I received in Greece that the judgment of the
Constitutional Court would result in the denunciation by Poland of all the Treaties of the
European Union.
Firstly, it is necessary to emphasise that the Polish Constitutional Court has not declared any
provision of the Treaties establishing the European Union to be inconsistent with the Polish
Constitution. The ruling of the Court does not undermine a single provision to which Poland
and other states adhered when accessing the European Union. It was not the content of the
Treaties that the Constitutional Tribunal declared unconstitutional, but content that is not found
in the Treaties but has been generated by the Court of Justice of the European Union, which has
thus gone beyond the scope of the competences granted by the Treaties.
In particular, the Polish Constitutional Court did not declare Article 1 or Article 4(3) of the
Treaty on European Union inconsistent with the Constitution, but these provisions were
inconsistent with the Constitution to the extent that they authorised Union bodies to act outside
the scope of competence granted to these bodies in the Treaties. Furthermore, the Court did not
declare unconstitutional Article 19(1) of the Treaty on European Union, but Article 19(1)
insofar as the Court of Justice of the European Union held that this provision implied the right
of national courts to disregard the provisions of the Constitution and to rule on the basis of non-
binding provisions. Finally, the Polish Constitutional Tribunal did not challenge either Article
19(1) or Article 2 of the Treaty on European Union, but those provisions interpreted as
empowering Polish courts to review the legality of the procedure for the appointment of judges
by the President of Poland.
A careful reading of the ruling of the Polish Constitutional Court demonstrates unequivocally
and beyond any doubt that the Court did not even in the slightest degree question the content
of the Treaties, but declared statements that are not contained in the Treaties to be
unconstitutional. In practice, it was the Polish Constitutional Court by handing down its verdict
of 7 October 2021 that upheld the actual provisions of the Treaties and the will of the citizens
who had approved them in a referendum, defending the Treaties from being modified in a way
 EUU, Alm.del - 2021-22 - Bilag 63: Henvendelse til Folketingets formand fra formanden for det polske underhus vedr. den polske forfatningsdomstols afgørelse af 7/10-21
that was incompatible with democratic principles. By acceding to the European Union, the
Polish people gave their consent to the actual wording of the Treaties. Unfortunately, in recent
years we have witnessed attempts to change these principles and to give EU bodies, in particular
the Court of Justice, new powers, including in the area of the judicial system, to which EU
citizens and Member States did not agree.
The best evidence that the ruling of the Polish Constitutional Tribunal does not pose a threat to
the functioning of the European Union, the common market and the implementation of other
EU objectives and policies is the very fact that the content deemed unconstitutional by the Court
was never present in the text of the Treaties, but was "discovered" in the jurisprudence of the
Court of Justice of the European Union only in recent years. This means that the European
Communities, and later the European Union, have successfully developed and functioned for
over half a century without these contents. To date, the European Union and its institutions have
not interfered in the way in which the judiciary system is organised in the Member States, as
this competence has never been conferred on the Union by the Member States.
The competence of the Constitutional Court to rule on the compatibility of the Treaties with the
Constitution is not questionable, as the Polish Court has already done so in the past in judgments
of 11 May 2005 and 24 November 2010. Those judgments did not evoke any negative reaction
from the European Union. The jurisprudence of the Polish Constitutional Court is not
precedential in this respect, it is consistent with the jurisprudence of constitutional courts of
other Member States. The possibility to control the compliance of EU law with the Constitution
was recognised by the German Federal Constitutional Court as early as in 1974 (the Solange I
judgment). The existence of this competence was reaffirmed in the judgment of 22 October
1986. (Solange II). The most recent example of this long-established line of case law is the
judgment of the German Federal Constitutional Court of 5 May 2020, in which the Court
explicitly stated the possibility of disregarding a judgment of the Court of Justice of the
European Union that goes beyond the scope of the competence conferred on the EU.
The issue of the lawmaking activity of the Court of Justice of the European Union is not a new
problem, it has been pointed out in legal studies for a long time, but recently it has become even
more evident. I would like to draw your attention to the fact that acceptance of this practice will
mean that in the future every country, not just Poland, may be treated in an object-like manner.
If the practice of unlimited modification of the content of the Treaties by the Court of Justice
of the European Union is allowed to continue, the fundamental principle on which the Union is
based, that is the resolution of disputes by seeking compromise and consensus through debate,
will be lost.
Please find enclosed an English translation of the judgment of 7 October 2021 prepared by the
Constitutional Court's services as well as a comprehensive explanatory statement on the
judgment issued by the Constitutional Court.
Please accept the assurance of my highest consideration.
/-/ Elżbieta Witek