The Sejm and the European Union
1. The position of the Sejm in the light of the EU Treaties
2. The position of the Sejm under the Act on the cooperation of the Council of Ministers with the Sejm and the Senate in matters relating to the Republic of Poland's membership of the European Union
2.1. Providing information of Poland's participation in EU work, including the exercise of
2.2. Cooperation in the making of EU law
2.3. Cooperation in the revision of the Treaties
2.4. Cooperation in implementing EU law
2.5. Lodging complaints with the European Court of Justice
2.6. Giving opinions on candidates
The Treaty on European Union (TEU) and the Treaty on the functioning of the European Union (TfEU), which entered into force on 1 December 2009 under the Treaty of Lisbon, significantly strengthen the democratic parliamentary legitimacy of the European Union, both at the European level (increased role of the European Parliament, expanded scope of the ordinary legislative procedure), and at the national parliaments' level. In particular, the strengthening of the position of national parliaments in EU matters is considered as a major systemic reform of the Union. It concerns their relations with their own governments, leveraged for the first time by the opportunity to make their voice heard directly at the EU level (e.g. the early warning mechanism as part of subsidiarity checks or the right of veto under the simplified Treaties revision procedures), as well as cooperation with national parliaments of other Member States and with the European Parliament.
The Treaty of Lisbon has expanded and reinforced the tools made available to national parliaments. In particular, for the first time national parliaments were provided for in the text of the treaties themselves:
- in Article 5 (3) of the TEU, which provides that national parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol [No 2] on the application of the principles of subsidiarity and proportionality,
- in Article 12 of the TEU, which states that national parliaments actively contribute to the good functioning of the Union, and lists all relevant competences, and
- in Article 10 (2) of the TEU, which emphasises democratic accountability of governments to their national parliaments.
Specific provisions on the competences of national parliaments are contained in the TEU, TfEU, and in two Protocols, Protocol [No 1] on the role of national parliaments in the EU and Protocol [No 2] on the application of the principles of subsidiarity and proportionality, annexed to the TEU and TfEU under the Treaty of Lisbon.
In brief terms and with some simplification, the new powers given to national parliaments under the Treaty of Lisbon can be grouped as follows:
- a strengthened right to receive information – the mechanism of communicating information was enhanced by expending e.g. the list of documents and types of information transmitted directly to parliaments (e.g. draft legislative acts, applications for EU accession, proposals for the revision of the Treaties) and a list of EU institutions obligated to directly forward information and documents (previously only the Commission),
- the right to monitor compliance with the principle of subsidiarity, a process based on the early-warning system involving parliaments directly in the implementation of the principle: the "yellow card" may lead to a change or withdrawal of a legislative proposal which parliaments consider inconsistent with the principle of subsidiarity, and the "orange card" – to interrupting the ordinary legislative procedure in a simplified way either by the European Parliament or by the Council. So far, parliaments could examine legislative proposals for compliance with the subsidiarity principle under rules of general application and forward their opinions to their governments or formulate them in COSAC; however, COSAC's position was not binding on the Community institutions or on parliaments. The national parliaments can also bring an action (through its governments) with the Court of Justice on a legislative act that in their opinion infringes the principle of subsidiarity.
- the right of veto – opposition from a single parliament blocks one of the following procedures: the general passerelle procedure under Article 48 (7) of the TEU (forming a simplified revision procedure of the Treaties) and the sector-specific passerelle procedure under Article 81 (3) concerning family law with cross-border implications; previously, no such tool was available to national parliaments,
- monitoring the area of freedom, security and justice (AFSJ) – which means the parliaments' participation in mechanisms evaluating the implementation of the Union's AFSJ policies, and in political monitoring of Europol and evaluation of the activities of Eurojust; previously the right to provide opinions on the Union's activities related to the AFSJ fell within the remit of COSAC,
- participation in expanded parliamentary cooperation – the new cooperation mechanisms may include organising debates on matters of common foreign and security policy, including common security and defence policy; COSAC may provide a forum for cooperation not only for European Affairs Committees, but also for specialised committees; mandate to define the framework of effective and regular interparliamentary cooperation within the Union was given to national parliaments and the European Parliament.
What remains the basic way of compensating national parliaments for the loss of some of their legislative powers in favour of EU institutions is – as before the Treaty of Lisbon entered into force – their power to influence their own governments in EU affairs, especially on positions taken by the government in the course of the EU legislative procedures.
The regulatory framework currently in force in Poland is enshrined in the Act of 8 October 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 of the European Union, hereinafter referred to as the Cooperation Act (Dziennik Ustaw 2010, No 213, item 1395), which entered into force on 13 February 2011. It provides for all changes made by the Treaty of Lisbon and replaces the Act of 11 March 2004.
The Act sets forth the responsibilities of the President of the Republic of Poland, the Council of Ministers or the Prime Minister, as well as the responsibilities and powers of the Sejm and the Senate or bodies of each chamber competent under their rules of procedure. In the Sejm, the competent body is the European Union Affairs Committee (SUE), composed of a maximum of 46 Deputies representing, on a proportional basis, the Sejm clubs and alliances consisting of at least 15 members (Rules of Procedure of the Sejm ).
Outlined below are the provisions of the Act relating to the Sejm. They cover the following areas:
- providing information on the Republic of Poland's participation in EU work, including the exercise of the Presidency;
- cooperation in the making of EU law;
- cooperation in the revision of the Treaties:
- ordinary procedure – seeking opinions prior to a decision not to convene the Convention,
- simplified procedure – under Article 48 (7) of the TEU ("general passerelle clause") and in the cases treated on a par, in terms of effect, with that clause under Articles 14 and 15 of the Act,
- cooperation in implementing EU law;
- cooperation in the lodging of complaints by the Sejm with the European Court of Justice;
- cooperation in expressing opinions on candidates for certain posts in the EU.
It is one of the main obligations of the Council of Ministers to inform the Sejm, at least once every six months, of Poland's participation in the activities of the EU. Such information must also be provided, on each request, to the chamber or to its competent body.
In view of the forthcoming Polish Presidency of the EU Council, the Cooperation Act has imposed additional information obligations on the Council of Ministers in relation to the EU Affairs Committee. No later than one month before the commencement of the Presidency, the Council of Ministers is required to present to the SUE information on the priorities of the Presidency, and, during the Presidency, the government must keep them informed about the progress in the exercise of the Presidency and provide an evaluation of the achievement of the priorities, and attach the evaluation of the Presidency priorities to the report submitted under Article 3 (1) of the Act, covering the Presidency period.
2.1.1. Responsibilities of the Council of Ministers
126.96.36.199. Transmission of EU documents and information:
- draft EU legal acts under Article 352 (1) of the TfEU (flexibility clause), Article 7 (2) of the Cooperation Act,
- draft EU legal acts other than legislative acts (which the Sejm receives directly from the competent EU institutions), Article 8 of the Act,
- information on positions of other EU Member States under the specific EU law-making procedures mentioned in Article 6 of the Act, together with a submitted explanation,
- draft international agreements of the EU or the EAEC, decisions of representatives of the Member States' governments meeting in the Council, draft EU acts which have no legal effect, as well as EU acts bearing significance on the interpretation or application of EU law (Article 9),
- all (except those transmitted directly by EU bodies) documents and their evaluations made by competent EU institutions or bodies, subject to consultation with the Member States (Article 4),
- work programmes of the Council and evaluations of annual legislative programmes of the European Commission drawn up by the European Parliament and by the Council (Article 5) (annual legislative plans are transmitted to the Sejm directly by the Commission).
188.8.131.52. Transmission of draft positions of the Republic of Poland, information on the Republic of Poland's positions and seeking opinions of SUE:
- transmission of a draft position of the Republic of Poland on draft legislative acts and draft legal acts under Article 352 (1) of the TfEU following the submission of a draft act by an authorised EU institution, within the time limits prescribed by the Act (Article 7 (1) and (2)),
- transmission of a draft position of the Republic of Poland on a draft act other than legislative act on request of the SUE (Article 8 (1)),
- seeking opinions of the competent body of the Sejm and the Senate:
- prior to the consideration in the EU Council of a draft legislative act or draft legal act under Article 352 (1) of the TfEU (Article 11 (1)) and
- prior to the presentation in the EU Council or the European Council of a position on the matters mentioned in Article 12 (1) and (2),
- transmission of information in writing on the progress of EU law-making procedures and information on the Republic of Poland's positions taken in the course of those procedures (Article 10 (1)).
Re 1) The Council of Ministers, presenting a draft position of the Republic of Poland on an EU draft legislative act or draft legal act under Article 352 (1) of the TfEU, attaches an explanation including an evaluation of legal consequences of the EU act for the Polish legal system and its social, economic and financial consequences for Poland, as well as information on the type of law-making procedure and voting procedure in the Council, and on the compliance of the draft act with the principle of subsidiarity (Article 7 (3)).
Re 2) The Council of Ministers, presenting a draft position of the Republic of Poland on a draft act other than legislative act on demand of the SUE, attaches an explanation containing the elements mentioned in Article 7 (3), (see Re 1 above).
Re 3) The Council of Ministers, seeking the opinion of the SUE:
- before considering a draft legislative act or draft legal act under Article 352 (1) of the TfEU in the EU Council, presents written information on the Republic of Poland's position that the Council of Ministers intends to take (Article 11 (1)). The government attaches an explanation containing the elements mentioned in Article 7 (3), except information on the procedure and on compliance with the principle of subsidiarity (Article 11 (2)).
- before presenting the Republic of Poland's position in the Council on the issues mentioned in Article 12 (1), and before the presentation of the Republic of Poland's position on a matter mentioned in Article 12 (2) to the European Council, provides information in writing containing an explanation of the Republic of Poland's position.
In certain cases specified by the Act, the Council of Ministers may refrain from seeking the opinion of the SUE before a meeting of the EU Council or the European Council, in which case its representative should immediately explain to the Committee the reasons for failing to seek such opinions (Article 11 (3) and 12 (3)).
2.2.2. Competences of the SUE
The European Affairs Committee of the Sejm may express its opinion on:
a. an EU draft legislative act or draft legal act under Article 352 (1) of the TfEU (Article 7 (4)),
b. other draft legal act (Article 8 (2)),
failure to express an opinion within the statutory time limit being deemed to be an absence of comments on the draft act (Article 7 (6), Article 8 (2))
c. positions taken in the course of EU law-making procedures (Article 10 (2));
d. the Republic of Poland's position to be taken or presented in the Council or in the European Council (Article 11 (1), Article 12 (1) and (2)).
184.108.40.206. Consequences of an opinion expressed by the SUE
An opinion expressed by the SUE within the time limits set forth in the Act, on any of the draft acts mentioned in point a) or b) above and on the positions mentioned in points c) and d), should provide a basis for the Republic of Poland's position. If a position taken or presented by the government in the Council or in the European Council has not taken into account the SUE's opinion, a member of the Council of Ministers (Article 13 (2) or a representative of the Council of Ministers (Article 11 (3) and 12 (3)) are required to explain the reasons for such discrepancy to the SUE.
- ordinary revision procedure
The Prime Minister is required to seek the opinion of the Sejm prior to the European Council's decision not to convene the Convention under Article 48 (3) of the TEU (Article 16). If the Sejm has issued an opinion, it should provide a basis for the Republic of Poland's position. If it is not taken into consideration, the Prime Minister is required to immediately explain to the chamber the reasons for the discrepancy.
- simplified revision procedure
The Act imposes additional tasks on the parliament in connection with the simplified Treaty revision procedure under Article 48 (7) of the TEU (general passerrelle clause) and with regard to certain other provisions of the TEU and the TfEU, enumerated in Articles 14 and 15 of the Act, which apply to the Sejm, in terms of effect, on a par with Article 48 (7) of the TEU.
Article 14 concerns decisions of the EU Council (taken unanimously) on:
- authorisation of the Council, in matters provided for in the TfEU or in Title V of the TEU (with the exception of military and defence matters), to take decisions by qualified majority instead of unanimity or to move from special to ordinary legislative procedure (Article 48 (7), 31 (3) of the TEU, 312 (2) of the TfEU),
- the establishment of common defence (Article 42 (2) of the TEU),
- the European Council's position (adopted by consensus) on a draft revision of the Council Decision of 13 December 2007 concerning the Ioannina Compromise (change of the blocking minority test; the text of the decision is agreed in Declaration No 7, and the procedure in Protocol No 9).
Article 15 applies to the Council's decisions (taken unanimously) on moving from special to ordinary legislative procedure and deciding by qualified majority instead of unanimity (Article 81 (3), 153 (2), 192 (2), 333 (1) or (2) of the TfEU).
With regard to both Article 14 and 15 of the Act, the basis for the Republic of Poland's position is a decision of the President of the Republic of Poland taken on proposal of the Council of Ministers subject to consent given by statute. The CM's proposal provides what position (for the adoption of a draft legal act or abstention) the CM's representative is required to take in the European Council (Article 14) or in the Council (Article 15). In the absence of a statute or the President's decision, the representative of the Republic of Poland is required to vote for the rejection of the EU draft legal act.
The Council of Ministers is the body competent to submit to the Sejm, within the time limits prescribed by the EU and set forth in the Act of 8 October 2010, bills implementing EU law (Article 18). The SUE has the exclusive right to express opinions on the submission by the Council of Ministers of a bill implementing EU law beyond the time limits specified in Article 18 (1) and (2).
The Council of Ministers is also required to inform the Sejm, no less than once every 6 months, on legislative work related to the implementation of EU legal acts, for which the time limit for implementation has expired or will expire within 3 months of the presentation of such information.
The Treaty of Lisbon has granted a new right to national parliaments – to lodge complaints with the European Court of Justice concerning the breach by a legislative act of the principle of subsidiarity. According to Article 8 of the Protocol [No 2] on the application of the principles of subsidiarity and proportionality, annexed to the TEU, TfEU and TEWEA under the Treaty of Lisbon, the parliament or its chamber has the right to lodge a complaint. The Cooperation Act specifies the manner in which the right may be exercised by the Sejm, obligating the Prime Minister to lodge a complaint with the Court immediately upon receipt from the Marshal of the Sejm of a resolution together with a document confirming a mandate to represent the Sejm in proceedings before the Court (Article 17).
The Sejm EU Affairs Committee is the only parliamentary body that may give opinions, within the time limits provided for by the EU law and the Act, on candidates proposed by the Council of Ministers for certain EU posts (Article 19).
Such opinions are not binding on the Council of Ministers. However, the government may not designate candidates before the expiry of the time limit for expressing such opinion, unless an opinion on the matter has been expressed earlier. If the opinion is not taken into consideration, the Council of Ministers informs the EU Affairs Committee about the designation of the candidate concerned, including an explanation of the reasons why the opinion has not been taken into consideration.