Comment by weakwarm | Hacker News Reader

Comment by weakwarm | Hacker News Reader

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ARTICLE 1

1. The Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic hereby become members of the European Union and Parties to the Treaties on which the Union is founded as amended or supplemented.

2. The conditions of admission and the adjustments to the Treaties on which the Union is founded, entailed by such admission, are set out in the Act annexed to this Treaty. The provisions of that Act shall form an integral part of this Treaty.

3. The provisions concerning the rights and obligations of the Member States and the powers and jurisdiction of the institutions of the Union as set out in the Treaties referred to in paragraph 1 shall apply in respect of this Treaty.

See also: Treaty of Lisbon, which Poland also signed. Specifically, Declaration 17: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A...

17. Declaration concerning primacy

The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.

Edit:

You may want to also have a look here: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM...

"According to the precedence principle, European law is superior to the national laws of Member States. The precedence principle applies to all European acts with a binding force. Therefore, Member States may not apply a national rule which contradicts to European law.

The precedence principle guarantees the superiority of European law over national laws. It is a fundamental principle of European law. As with the direct effect principle, it is not inscribed in the Treaties, but has been enshrined by the Court of Justice of the European Union (CJEU)."

None of that claims that EU laws override Polish laws or that EU judges can override Polish judges when interpreting Polish law.

From the treaty: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CEL...

"To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom."

Rather, it is an agreement in which national parliaments agree to pass national laws in harmony with certain EU laws, or face some penalties. The reason why national parliaments need to do that is because national laws and national constitutions as interpreted by national judges remain the supreme law of the land, and so this treaty was required in order to provide a framework to urge members states to harmonize or give up various EU funding perks.

Look, I get that a lot of people want a Federal Europe, but you can't get there by pretending you've already arrived and being outraged at those who point out you haven't. The EU as presently constituted is basically the articles of confederation, where states need to pass local versions of EU laws, rather than something like a true Federal Europe.

"the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law."

This does not read ambiguously. You asked for a citation, it was given, and now you're ignoring it. Unless you specifically show why this doesn't say what we think it does, you've lost your audience.

Just some of the carve-outs for Poland

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CEL...

" 1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law."

See my other reply: https://news.ycombinator.com/item?id=28806878

I believe you’re confusing this reference to the Charter of Fundamental Rights — a separate document — with the treaty itself.

No, what is called the Charter of Fundamental Rights is part of the Lisbon Treaty (which itself is just a series of amendments to the previous treaties on the European Union). It is, btw, what the European Court of Justice is intended to enforce.

You can see this from the (lengthy) title:

"Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union - Consolidated version of the Treaty on European Union - Protocols - Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 13 December 2007 "

Now you are right that what prompted these carveouts was fear that the EU would promulgate various human rights provisions and force them on Poland, specifically abortion/gay marriage and other measures inconsistent with Polish Catholicism.

This is part of the strategic ambiguity of the Lisbon treaty, with conflicting claims in the treaty meant to satisfy different parties. Thus in one section it states that national laws will be respected, and in another it has a supremacy clause, and in a third it says the area of competence is subordinate to national parliaments.

All meant to create strategic ambiguity to get the thing signed.

But even more importantly for Poland as well as other countries, national Supreme Courts must enforce the constitution of each nation and that constitution is the Supreme Law of the land. A treaty cannot abbrogate a constitution. Thus Polish judges cannot side with a treaty when it conflicts with the Polish constitution. Recognition of this is respecting the rule of law, not violating it.

And when there is a conflict between a law and a treaty, the judges need to side with the law rather than the treaty. The treaty is an outward promise to the rest of the EU and the EU can find that Poland violated its treaty obligations, which would be a matter for the Polish Ambassadors and representatives to deal with, but unless the Polish constitution is amended to recognize the acts of the EU parliament as having the force of law in Poland, then the judges have to enforce the Polish law as enacted by the legitimate law creating mechanisms spelled out in the constitution.

Ironically, this insistence on enforcing the law and the constitution is what the EU calls "violating the rule of law".

And the same thing is true in the Czech republic -- when there is a conflict between an EU law and the Czech constitution, then judges have to side with the Constitution:

https://journals.muni.cz/cpvp/article/view/6637

This came up as the Czechs are seeking to enshrine the right to bear arms in the constitution, so it is very relevant to know who ends up winning: EU gun regulations or Czech regulations. Well, the Czech regulations win.

This should be obvious, if the EU requires its rulings to override national law without being enacted by the national Parliament, then it should have required Constitutional changes to delegate the creation of lawmaking to the EU before letting the nation sign the treaty.

But then no nation would join the EU.

Therefore you have this strategic ambiguity and feigned outrage whenever a supreme court says it is beholden to its national constitution rather than to a treaty (in those cases where there is a conflict).

There is a process for changing the constitution, and it is much harder than the process for signing a treaty. This is because the constitution specifies how laws are to be created and interpreted, not treaties.

Treaties are agreements between nations, but within a nation, the constitution is supreme, and that will remain the case unless the Polish constitution is changed. Polish judges are expected to enforce that constitution, and if the EU finds that Poland has not respected its treaty obligations, it can try to withhold aid or take some other EU specific measure against Poland, but it's not the job of judges to allow treaties to change constitutions.

As others have said, you’re seemingly ignoring the existence of EU regulations which apply automatically without needing to be transposed into local law, and of the Court of Justice of the EU whose decisions are binding for local courts.

Both of these were established by the treaties that were in place when Poland joined, and further reaffirmed in the Treaty of Lisbon (which was supposed to be the clarified and rewritten European Constitution, but that was a bridge too far for some countries’ voters, so instead it became a web of amendments over the existing treaties).

Look at the promises made to Poland:

1. https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CEL...

"To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom."

" 1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms."

"In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law."

“Charter” referred here is a separate document mentioned in Article 6 of the treaty:

The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.

So the Charter is about human rights, and as the treaty makes clear, doesn’t extend the competences of the Union. Poland and UK wanted to put a further point on this for some reason. It is not a carve-out from the treaty.

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