The Act on the ratification of the European Council Decision of 25 March 2011 amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro (2011/199/EU) K 33/12
At the hearing on 26 June 2013 at 9.00 a.m., the Constitutional Tribunal (full bench) considered an application, submitted by a group of Sejm Deputies, concerning the Act on the ratification of the European Council Decision of 25 March 2011 amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro (2011/199/EU).
The Constitutional Tribunal adjudicated that the Act of 11 May 2012 on the ratification of the European Council Decision of 25 March 2011 amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro (2011/199/EU) was not inconsistent with Article 90 in conjunction with Article 120, first sentence in fine, of the Constitution as well as with Article 48(6) of the Treaty on the Functioning of the European Union. As to the remainder of the application, the Tribunal discontinued the proceedings.
Dissenting opinions were submitted by the following Judges of the Constitutional Tribunal: Zbigniew Cieślak, Mirosław Granat, Marek Kotlinowski, Teresa Liszcz, and Marek Zubik.
The Constitutional Tribunal considered the application, submitted by a group of Sejm Deputies, which challenged a procedure for the enactment of the Act of 11 May 2012 on the ratification of the European Council Decision of 25 March 2011 amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro (2011/199/EU).
The granting of consent in the form of the Act preceded ratification carried out by the President of the Republic of Poland.
The amendment to Article 136 of the TFEU consisted in adding the following paragraph: “The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made subject to strict conditionality”.
According to the applicant, the enactment of the Act on the ratification of the European Council Decision 2011/199/EU created procedural bases for conferring competences vested in the organs of state authority, in relation to certain matters, upon an international organisation – the European Stability Mechanism (hereinafter: the ESM), and therefore the Act should have been enacted in accordance with the procedure set out in Article 90 of the Constitution (i.e. by a two-thirds majority vote in the presence of at least half of the statutory number of Deputies/Senators), and not in accordance with the procedure provided for in Article 89(1) of the Constitution (i.e. by a simple majority vote taken in the presence of at least half of the statutory number of Deputies/Senators).
The Constitutional Tribunal did not share the view of the applicant. The Tribunal stated that the amendment to Article 136 of the TFEU did not concern competences vested in the organs of state authority, and therefore that was not the case of conferring such competences upon an international organisation or an international authority.
Due to the non-fulfilment of the general premiss set out in Article 90(1) of the Constitution (the conferral of competences vested in the organs of state authority in relation to certain matters), the application of the procedure provided for in Article 90(2) of the Constitution was not justified. The Act on the ratification of the European Council Decision 2011/199/EU had been enacted pursuant to Article 89(1) of the Constitution, which stipulated that ratification of an international agreement by the Republic of Poland, should require prior consent granted by statute if such an agreement concerned Poland’s membership in an international organisation (Article 89(1)(3) of the Constitution).
The Constitutional Tribunal drew attention to procedural circumstances. Amended Article 136 of the TFEU was in the chapter of the said Treaty entitled “the Provisions Specific to Member States Whose Currency is the Euro”, and thus the said provision did not currently refer to Poland. The European Council Decision amending Article 136 of the TFEU had been adopted in accordance with the procedure set out in Article 48(6) of the Treaty on European Union (the so-called bridging clause), and that meant that such a decision might not expand the scope of competences conferred upon the UE in the Treaties. Moreover, the Constitutional Tribunal stressed that there was no chronological link between the Council Decision amending Article 136 of the TFEU, which had entered into force on 1 May 2013, and the Treaty establishing the European Stability Mechanism (the ESM Treaty), which had been signed on 12 September 2012, i.e. before Article 136(3) of the TFEU had entered into force. This proved that the European Stability Mechanism functioned regardless of the amendment to Article 136 of the TFEU.
Above all, the Constitutional Tribunal examined the meaning of Article 136(3) of the TFEU and concluded that it consisted in recognising the competences of the Member States as regards the introduction of a mechanism which served the purpose of protecting the stability of the euro area by means of the instruments of international law. The said provision neither established a stability mechanism which was subject to EU law, nor did it impose the obligation to do so on the EU Member States, or even on the Member States of the euro area. The norm set out in Article 136(3) of the TFEU did not specify the legal character or detailed construction of the stability mechanism. It only contained a general provision that the established stability mechanism might only be activated if that was indispensable to safeguard the stability of the euro area as a whole, and if the granting of any required financial assistance under the mechanism would be made subject to strict conditionality. The said provision did not oblige the EU institutions to cooperate within the scope of the newly established mechanism, nor did it specify what competences were to be assigned to those institutions. Even if it was assumed that Article 136(3) of the TFEU provided grounds for modifying the terms of access to the euro area (by creating a basis for establishing the mechanism and an obligation to adopt the ESM Treaty, without a chance to renegotiate it), then the conferral of competences from a formal point of view would take place only together with the ratification of the ESM Treaty.
Bearing in mind that the cited European Stability Mechanism –pursuant to the ESM Treaty – had the character of a mechanism referred to in Article 136(3) of the TFEU, the Constitutional Tribunal made reference to the content of the ESM Treaty in the context of the applicant’s allegation that the said Treaty also determined the conditions of accession to the monetary union. The Constitutional Tribunal indicated that the provisions of the ESM Treaty did not bind a Member State whose currency was different than the euro. The introduction of the European Stability Mechanism had not changed the terms of adopting the common currency; nor had it changed the Treaty provisions determining the terms of the abrogation of the derogation. The procedure for adopting the ESM Treaty was commenced upon the application of a Member State whose currency was the euro. Thus, one might not speak that the ESM Treaty was automatically binding.
The decision whether to adopt the ESM Treaty - and in accordance with what (ratification) procedure - would be taken in the future. Also, the potential evaluation of the constitutionality of the ESM Treaty might occur only at the moment of accepting the binding force (i.e. when signing) the said international agreement. Currently, Poland was not a signatory of the said Treaty (it had not signed it and had not commenced the ratification process). Thus, an analysis of the content of the EMS Treaty might not determine the assessment of the Act on the ratification of the European Council Decision 2011/199/EU. What was of primary significance was a regulation provided for in the European Council Decision, which had introduced Article 136(3) of the TFEU and the assessment that the said Decision did not entail conferring the competences of the organs of state authority upon an international organisation.
The issue of the ratification of the ESM Treaty would become one of essential elements of the future political decision concerning accession to the euro area, provided that the Treaty would still be binding at that time. Currently, the ESM Treaty did not impose any obligations on Poland, and did not cause any changes in the way the Polish organs of public authority exercised their competence in financial matters.
The stance of the Constitutional Tribunal corresponded to the stance of the Court of Justice of the European Union, which had been presented in the statement of reasons for the Judgment of the Court (Full Court) of 27 November 2012 in the case C-370/12 (Thomas Pringle), that the amendment to Article 136(3) of the TFEU conferred no new competences upon the European Union. A similar view had been presented by the Federal Constitutional Court of Germany, expressed in the judgment of 12 September 2012, ref. no. 2 BvR 1390/12.
In the opinion of the Constitutional Tribunal, the amendment to Article 136 of the TFEU, which consisted in adding paragraph 3, fell within the scope delineated in Article 89(1)(3) of the Constitution. At the same time, the analysis of the character of the new regulation led to the conclusion that the said change did not imply the conferral of competences within the meaning of Article 90(1) of the Constitution. No presumption followed from Article 90 of the Constitution within the meaning of which an amendment added to an agreement concluded in accordance with that procedure would always require the same procedure. This would be inconsistent with the wording of Article 90 of the Constitution as well as with the interpretation thereof arrived at on the basis of the fundamental constitutional principles, which confirmed that Polish law had been open to international law. Therefore, the Constitutional Tribunal deemed that Article 90 in conjunction with Article 120, first sentence in fine, of the Constitution as well as Article 48(6) of the Treaty on European Union were inadequate higher-level norms for the review.
In the present case, the Constitutional Tribunal did not examine – from the point of view of conformity to the Constitution – the Treaty establishing the European Stability Mechanism (the ESM Treaty) or the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (the fiscal compact).
The hearing was presided over by the President of the Constitutional Tribunal, Judge Andrzej Rzepliński, and the Judge Rapporteur was Judge Piotr Tuleja.
The judgment is final and its operative part shall be published in the Journal of Laws.