Papers
It works! The European Union in the Wake of 2004 and 2007 Enlargements
in A. Lazowski (ed.), The Application of EU Law in New Member States. Brave New World, The Hague, T.M.C. Asser Press 2010
The fifth and sixth enlargements of the European Union are generally considered to be unprecedented historical events, leading to the unification of Europe. At the same time, it is argued that the accession of ten countries from Central and Eastern Europe as well as the Mediterranean islands of Malta and Cyprus have changed for good the shape and functioning of the European Union. By the same token, some say that the “big bang” expansion has undermined the ability of the EU to function properly, and the EU is suffering from enlargement fatigue or blues. Clearly the dynamics of the European Union have changed. With twenty-seven Member States on board, the European Union has had to go through several adjustments; yet it proved to be flexible enough to operate fairly successfully in this new environment. The purpose of the first part of this book is to look at how the West met the East, and how that has changed the European Union. This will lay the systemic foundations for the analysis of application of EU law in the new Member States.
LikeLearning the Hard Way: Bulgaria and EU Law
co-authored with Svetla Yosifova, published in A. Lazowski (ed.), The Application of EU Law in New Member States. Brave New World, The Hague, T.M.C. Asser Press 2010
After almost two decades of an ever-developing relationship, Bulgaria joined the European Union on 1 January 2007. From the Bulgarian perspective, membership seemed to be a ‘dream come true’ scenario. With the country’s weak economy, unstable political system and considerable poverty, many Bulgarians had regarded the accession as a magical panacea for all domestic problems. Following the signature of the Accession Treaty, the political elites were doing all they could to demonstrate their commitment to membership and by the same token to the fulfilment of the Copenhagen criteria. For the European Union, the accession of Bulgaria (together with Romania) was considered as a real test for the absorption capacity. Over two years after the sixth enlargement voices are heard that both countries were admitted too soon and by the time when neither of them complied with necessary criteria. Being fully aware of the challenges ahead the European Union decided not to activate the membership postponement clause available under the Accession Treaty, but opted for a post-accession monitoring mechanism instead. Seemingly the rationale behind this decision was correct. It was based on a premise that legal and political instruments available in the membership environment will be far more effective than largely political tools of the pre-accession phase. The experience thus far proves that neither legal, nor extraordinary political mechanism have been an incentive enough. The case of Bulgaria is particularly daunting. Due to high levels of mismanagement and corruption, the European Union had no choice but to suspend financial assistance to Bulgaria in late 2008. Also, as the recent Commission's report demonstrates, the performance in pursuing necessary reforms to combat corruption, organized crime and reform the judiciary is not very spectacular. At the same time one can see clear indications that there is light at the end of the tunnel. Bulgaria has a very positive record in transposition of EC directives and tops the Commission's charts. EU law is slowly paving its way in Bulgarian courts, which - on step by step basis - are getting used to this new legal order. With three references for preliminary ruling submitted up till end of June 2009, they are also learning their way of communicating with the European Court of Justice. Arguably then the bad experience can be – at least potentially - balanced out by a bit of good news. This is exactly what this chapter aims to achieve. Two years of membership is naturally a very short period of time thus the experience is fairly limited, yet one can clearly see that Bulgaria is learning the hard way. In order to understand idiosyncrasies of Bulgarian rapprochement towards Europe it is fitting to present it from a multidimensional perspective. That’s why the chapter starts by an overview of EC/EU relations with Bulgaria and proceeds to the Accession Treaty 2005. That part is followed by the analysis of Bulgarian Constitution and multiple revisions which had been introduced, inter alia, to meet the requirements of EU membership. Case law of Bulgarian courts is presented in two separate sections. First we will look at the pre-accession experience when EU legislation had not applied to Bulgaria, yet had on occasion been used as an interpretation tool by domestic judiciary. This will lead to the first post-accession experiences, including the references for preliminary ruling submitted by Bulgarian courts.
Towards the reform of the preliminary ruling procedure in JHA Area
published in S. Braum, A. Weyembergh, Le contrôle juridictionnel dans l’espace pénal européen, Editions de l’Université de Bruxelles, 2009, pp. 211-226
The aim of this paper is to take a closer look at two proposals for the reform of the preliminary ruling procedure. The point of departure is the Commission’s attempt to abolish Art. 68 EC Treaty. This is part of the exegesis is followed by the analysis of newly introduced urgent preliminary ruling procedure. The article offers a critical appraisal of both proposals.
Enhanced multilateralism and enhanced bilateralism: Integration without membership in the European Union
published in Common Market Law Review, vol. 45 (2008) pp. 1433–1458
Over the years the European Union and the European Communities have developed political and legal relations with third countries. Yet, legal integration with third countries without their membership in the club is a relatively new phenomenon employed, inter alia, in the relations with the EEA countries, the Swiss confederation and countries of Western Balkans (within the framework of the Energy Community). To reflect the nature of these new frameworks in the field of external relations, the notions of “enhanced multilateralism” and “enhanced bilateralism” are used. Arguably, the shared legal framework has led to the creation of the European Union Legal Space whereby selected pieces of acquis are applicable between the EU and the third countries. This, being a fascinating jigsaw puzzle of legal regimes, may be a source of concern as such forms of integration are capable of undermining the coherence of the EU legal order in the long run. This article looks at these models of integration and makes an attempt to identify the main benefits and risks.
From EU with Trust: the Potential and Limits of the Mutual Recognition in the Third Pillar from the Polish Perspective
in G. Vernimmen-Van Tiggelen, L. Surano, A. Weyembergh (eds), 'The future of mutual recognition in criminal matters in the European Union / L’avenir de la reconnaissance mutuelle en matière pénale dans l’Union européenne', Bruxelles, Editions de l’Université de Bruxelles, 2009, pp. 419-444
The principle of mutual recognition in its third pillar alter ego remains one of the most puzzling concepts of contemporary EU law. What took the European Court of Justice over twenty years to develop in the context of free movement of goods was proclaimed by the European Council in Tampere in 1999. This is clearly one of the crucial idiosyncrasies of the police and judicial co-operation in criminal matters. The initiative coming from the top of political hierarchy, making a rather bold declaration of trust in everyone else is now facing the biggest challenge - the test of effectiveness. Unfortunately, the reality bites. With twenty seven Member States of very diverse legal orders and legal cultures several questions emerge as to the best way forward. In more general terms, by looking at the pace of transposition and level of implementation of all third pillar framework decisions one may even question the sustainability of the entire project. Frequent delays in transposition, limited implementation substantiate this argument. The only legal instrument that survives the test is the Framework Decision 2002/584/JHA on the European Arrest Warrant. It may not be perfect and certainly is quite problematic, nevertheless it works. Being the guinea pig of the mutual recognition it has proved its usefulness so many times that its mere existence is not being questioned. The discourse, however, develops at another level and turns to defense rights as well as the relationship between the EAW machinery and human rights, which the European Union declares to respect pursuant to Art. 6 EU. This triggers a great deal of new questions which have already emerged and are emerging almost on daily basis in domestic courts. Some of them have been raised over the past five years in Poland - the biggest new Member State of the European Union. Poland, as all recent newcomers, had no opportunity to contribute to the creation of principle in question, moreover no requests for transitional periods had been made. Quite to the contrary, the new Member States had no option but to accept the acquis as a part of the accession package. Both, the Framework Decision on the European Arrest Warrant and the Framework Decision 2003/577/JHA on Freezing of Property and Evidence Orders had been adopted before the enlargement. On the other hand, Polish representatives participated in the negotiations that led to the adoption of the Framework Decision 2005/214/JHA on financial penalties, the Framework Decision 2006/783/JHA on confiscation orders, the Framework Decision 2008/978/JHA on the European Evidence Warrant as well as all the remaining mutual recognition instruments. It is fitting to acknowledge that Poland, together with the Czech Republic, Sweden, Slovakia and Slovenia, is one of the authors of the recent proposal for a Framework Decision on jurisdiction in criminal proceedings. Clearly then Polish authorities contribute on regular basis to the shaping of the police and judicial cooperation in criminal matters. The latter example proves that the contribution goes beyond mere approval of measures proposed by the European Commission or other Member States of the European Union. The question is how the activities at EU level translate into domestic implementation of the principle of mutual recognition. The five years of participation in the JHA endeavor give an interesting record. The reception of the principle of mutual recognition by the political, decision making and practitioners circles is mixed, to say the least. Arguably, mutual trust imposed from the above is negotiating its way, yet a degree of resentment is clearly visible. At the same time, as in most other EU Member States, the only legal instrument that really works in practice is the European Arrest Warrant. In fact, as explained later in this contribution, it is a victim of its own success as Polish authorities like it far too much. Indeed they like it to the point when, quite rightly, they are accused of the overuse. Not surprisingly, it is the European Arrest Warrant that will serve as the main point of reference in this analysis. By following the Cervantes’s law of statistics the author is going to engage in a critical appraisal of the principle of mutual recognition and its reception in Poland. Cervantes argued that “by a small sample we may judge of the whole piece”, so by the EAW sample we are going to judge the mutual recognition in police and judicial cooperation in criminal matters. More general conclusions are presented in the final part of the chapter.
WITH BUT WITHOUT YOU … THE EUROPEANISATION OF LEGAL ORDERS OF THE NEIGHBOURING COUNTRIES
forthcoming in A. Ott and E. Vos (Eds.), 50 Years of European Integration: Foundations and Perspectives, T.M.C. Asser Press & Cambridge University Press, The Hague, 2009, pp. 247-270
It is a phenomenon that over the fifty years of its existence the European Community has been able to shape the new legal order, as defined by the European Court of Justice in the famous Van Gend en Loos judgment. This unique legal order has served as one of the pivotal mechanisms making possible the legal, economic and political integration of ever growing number of Member States. For a number of reasons several components of the EU legal order have also become exportable to third countries which are not members of the European Union. It is fitting to acknowledge that substantive law of the European Union sets legal standards to which external actors often express a desire to adhere. In most of the cases it looks like a major policy choice – not an accidental extravaganza. The process in question is often referred to as: ‘Europeanization of legal orders’, ‘Legal Europeanization’ or, as Petrov puts it, ‘export’ of the acquis communautaire. Both terms seem to be descriptive enough to serve as the point of reference for proper understanding of the phenomenon, yet, being mere umbrella terms, they fall short of determining in a clear cut way the legal nature of the process. The truth is that Europeanization is not based on uniform model. On the contrary, Europeanization is a multi-faced and dynamic process, which may develop as parts of complex policies serving different purposes. In order to grasp its legal nature one has to take a broader look at the plethora of frameworks wherein Europeanization plays a vital role. The focus will be on the relations with the selected neighbouring countries.
For the purposes of this contribution the dividing line between different models involving the process in question is the legal nature of the obligation to follow EU law. It cannot be overlooked that policy reasons are always the pivotal factors determining the intensity of relations between the European Union and its neighbours. They in turn have tremendous impact on the choice of model to be followed. It is fitting to divide them into three major groups. The first comprises of Europeanization employed in the relations with third countries which express a desire to have a degree of legal integration with the European Union, yet for one reason or another decide not to be members of the club. The textbook examples of such models are the European Economic Area and Swiss Bilateral Model. In both cases, although to varying degrees, the third countries have the obligation to apply selected pieces of EU legislation. This leads to yet another phenomenon which can be referred to as the European Union Legal Space. Arguably, such legal integration without membership may be referred to as ‘enhanced multilateralism’ or/and ‘enhanced bilateralism’. The second species of Europeanization is the process of approximation leading to membership in the European Union. This is based on voluntary harmonization as a tool employed in order to meet some of the conditionality requirements set by the EU as accession criteria. As the fifth and sixths enlargements have proven, the approximation of domestic law with the acquis communautaire is a major exercise. In case of countries in transition, like most of the recent newcomers, it turns (to a certain degree) into a law creating process. This is even more so with the current candidate and pre-candidate countries of the Western Balkans, which are used as examples in this contribution. The third group comprises of countries that at this point in time either do not meet the political and legal accession criteria or for geographical reasons cannot be considered as potential members of the European Union.
The EU Agency for Fundamental Rights - the Limits and Potential
in J. Barcz (ed.), Strengthening of the protection of fundamental rights on the basis of the Treaty of Lisbon (C.H. Beck, Warsaw, 2009)
The aim of the chapter is to analyze the role and potential of the European Union Agency for Fundamental Rights (established in 2007). From the early days the political and scientific discourse was undermined by very diverse positions as to rationale behind its creation as well as the future mandate. Arguments presented by critics as well as supporters had merits, however at this point in time it is for the Agency to prove in action that its existence is not Shakespearean “much ado about nothing”.
This chapter starts with an overview of debate which had preceded the creation of the Agency. This will facilitate the analysis of political and legal environment that influenced the final decision of the Council on the reincarnation of the European Monitoring Centre for Racism and Xenophobia into the Agency. Such approach will also help to appreciate the reasons for limited mandate of this new kid on the block. Arguably, even superficial yet comparative analysis of the initial Commission’s proposal and the arrangement approved by the Council leads to the inevitable conclusion that the final product is a typical fruit of a political compromise. When one takes a closer look at the developments related to the mandate of the Agency in the current third pillar then one more phenomenon is exposed - the realpolitik of the EU decision-making process. To this end it is yet another example of Member States reluctance to strengthen the area, which paradoxically bears the title of Freedom, Security and Justice. Once the genesis of the Agency is presented, this analysis will turn to the competences and the working plan for 2007-2012. Throughout this contribution it is argued that the existing legal framework considerably limits the effective functioning of the Agency, which may result in the Agency being turned into a facade without a real impact on the protection of fundamental rights in the European Union.
And Then They Were Twenty-Seven… A Legal Appraisal of the Sixth Accession Treaty
published in Common Market Law Review, vol. 44 (2007) pp. 401-430
On 1 January 2007 the European Union expanded to twenty seven Member States. In political terms the accession of Bulgaria and Romania is an important step in the unification of Europe, bringing the post war divisions of the continent to the end. However, it also raises questions of the future of the European Union and its unity. The sixth enlargement has been overshadowed by the economic and legal preparedness of the newcomers. The Accession Treaty makes this wave of enlargement possible; the question remains if it will be sufficient to secure smooth integration of the two least developed and poorest members of the European Union. This article provides an overview of the key provisions of the Accession Treaty. It starts with the analysis of the structure and institutional provisions of the Treaty. This is followed by parts devoted to safeguard clauses and transitional periods. Finally, the legal implications for the EU’s external commitments are taken on board.
Two Sides of the Same Coin? Framework Decisions and Directives Compared
Co-authored with B. Kurcz, published in 25 Yearbook of European Law (2006) pp. 177-204
Being the most important legal instrument in the third pillar, framework decisions so far have not been very successful in attracting attention of academic writers. This fact comes to a surprise bearing in mind a number of theoretical and practical problems they lead to. Since entry into force of the Treaty of Amsterdam on 1 May 1999, the European Union has been equipped with powers to adopt framework decisions in the third pillar. Their introduction was part of much broader reform tailored to strengthen the Justice and Home Affairs area. In
practice, framework decisions have proved to be very useful and a commonly used tool for approximation of laws of the Member States. Nevertheless, this practice has also shown a variety of drawbacks undermining considerably the effectiveness of EU law. This phenomenon is not new. Numerous challenges of a similar type have been experienced for many years in the first pillar when it comes to EC directives. A mere similarity of definitions of both instruments and adequacy of purposes they serve draws attention. It also leads to numerous theoretical and
practical questions. It boils down to the question: are framework decisions and directives two sides of the same coin? The leitmotif and the main argument of this article is that despite formal belonging to different ‘species’, framework
decisions and directives are in process of a step-by-step merger.
Poland: implementation without transposition
A. Weyembergh, V. Santamaria, The evaluation of European Criminal Law. The example of the Framework Decision on combatting trafficking in human beings, Editions de l’Université de Bruxelles, pp. 285-300
Trafficking in human beings has regrettably become a part of everyday life in Central and Eastern Europe. No doubt it remains an element of the legacy of years of totalitarian regimes and, at the same time, the price one has to pay for a rapid transition from Communism to market economy. At the same time, it remains an element of a wider phenomenon that has managed to attract the attention of several international organizations, including the United Nations, the Council of Europe and the European Union. This contribution is tailored to evaluate the level of compliance of Polish law with the EU’s Framework Decision 2002/629/JHA on combating of trafficking in human beings. The nature of this piece of legislation, combined with a number of international treaties dealing with the fight against trafficking, has influenced the structure of this contribution. Indeed, in order to appreciate the complexity of legal regimes aimed at combating the criminal activity in question and the role of the EU legislation in this respect, one has to take a broader approach bearing in mind the plethora of legal acts. Thus before looking at issues strictly related to the Framework Decision a basic overview of relevant international treaties to which Poland is a party is made. This will lead to the analysis of main legal issues associated with the transposition and implementation of the Framework Decision in Poland. The main argument of this contribution is that a degree of implementation has been achieved, despite the lack of a tailor made piece of legislation aimed at the transposition of the Framework Decision. While in legal terms such modus operandi - based on pre-existing legislation being turned into transposition measure for a piece of EU secondary legislation - is not a problem in itself, the risk of incompleteness of transposition is daunting. Arguably, the main drawback of the existing Polish law is the lack of a statutory definition of the term 'trafficking in human beings'. This, as explained in this chapter, is a great source of headache and uncertainty for academics and practitioners alike. If only for this reason (not to mention the obligation stemming from the Framework Decision as such) it is necessary to fill the legislative lacunae at the earliest convenience.
The Polish Constitution, the European Constitutional Treaty and the Principle of Supremacy
in A. Albi, J. Ziller (eds.), The European Constitution and National Constitutions: Ratification and Beyond (Kluwer Law International, The Hague 2006), pp. 171-181
At the time of writing, the ratification of the Treaty Establishing a Constitution for Europe (TCE) seems to be rather unlikely. The pause for reflection has not proved to be very successful and, despite new initiatives proposed by the European Council, some alternative scenarios are being discussed. Nevertheless, it is fitting to take into account the TCE itself and the potential consequences of the supremacy clause enshrined in Article I-6 for the Polish legal system.
Article 90 of the Polish Constitution provides for two alternative ratification procedures for agreements leading to transfer of certain sovereign powers. The first procedure involves Parliament and the President only. In the second, voters may in a nationwide referendum permit the President to ratify such agreements. For this purpose, the participation of at least 50 per cent of those entitled to vote is required. The latter modus operandi would have been followed for the purposes of the accession referendum. The decision on the choice of the procedure belongs to the Sejm (lower chamber of Parliament). Formally speaking, by the time of the referendums in France and The Netherlands, the decision on the method of ratification of the TCE had not been made. However, most of the political parties strongly argued for the second option leading to a referendum.
With the referendum fiascos as well as the change of Government and the President in Poland, the TCE almost disappeared from the public debate. Up till that moment, there had been a fair degree of general public discourse about the TCE, however its scope had been mainly limited to scholarly and political circles.
On the scholarly side, the discourse had been quite lively, with a considerable number of conferences and publications. All led to an in-depth analysis of the TCE, starting with some early drafts prepared by the European Convention and ending with the final product signed by the Member States. However, the political debate had been rather superfluous, and based upon a much selected choice of topics. The primary concern was the voting system in the Council of the European Union, as well as the allocation of seats in the European Commission. The principle of supremacy was also discussed, though it certainly was not one of the prime concerns. Activities of the Sejm, the lower chamber of the Polish Parliament, may serve as a good example in this respect. Apart from regular briefings and debates with members of the Government, it adopted two resolutions encouraging the Government to oppose any attempts to revise the Council voting system that had been approved in Nice. In the first resolution, the Sejm concluded that the ambitious aims of the European Convention were met. It argued that in the future, the TCE would be a strong foundation for the EU, based on respect for fundamental rights. The Sejm presented a very strong stand for a ‘one Commissioner per Member State’ rule and on the voting system in the Council. It explicitly stated that it expected a tough stance from the Government, suggesting that the Government should use the right of veto if necessary. The last argument was repeated in the subsequent resolution adopted on the eve of the critical European Council in Brussels in December 2003. Interestingly enough, a similar resolution was adopted by the higher chamber, the Senat, on 19 September 2003.
However, following the referendums in France and The Netherlands, the majority of political elites in Poland shelved the TCE. Moreover, the current developments in the EU make the entry into force of the Treaty rather unlikely. What seems to be more probable is a new treaty taking on board most of the arrangements set forth in the TCE. Bearing this in mind, it is fitting to take a closer look at Article I-6 of the Constitution codifying the principle of supremacy. It is submitted that following the recent developments in the jurisprudence of the Polish Constitutional Tribunal, this very provision could have been troublesome for the ratification efforts in Poland.
Polish Parliament and EU Affairs: An Effective Actor or an Accidental Hero?
in J. O’Brennan, T. Raunio (eds) National Parliaments Within the European Union: From Victims of Integration to Purposive Actors? (Routledge, London and New York 2007), pp. 203-219
This contribution is tailored to provide readers with an overview of the state of affairs regarding parliamentary control of EU affairs in Poland, one of the new member states of the European Union (EU). In the course of the last two decades, the role of its Parliament has changed dramatically. From a Communist democratic façade it has developed into a full fledged legislator. Since the early 1990s it has become involved in EU matters in a variety of ways. Membership in the European Union has required far reaching modifications in its relations with government. They are discussed at some length in this chapter. The chapter begins with a presentation of basic facts about the Polish Parliament. The evolution of its involvement in EU affairs in the period preceding the EU accession is analysed in the next paragraphs. This leads to an overview of the existing legal framework and recent jurisprudence of the Polish Constitutional Tribunal on that framework. The final part of the chapter attempts to answer the question set forth in the title, whether the Polish Parliament with respect to EU related matters is effective actor or just an accidental hero.
Although it may be a bit premature to formulate a definite answer to this question, an evaluation of parliamentary activities demonstrates certain tendencies that allow some preliminary conclusions. It is argued that the existing legal framework gives the Polish Parliament a relatively strong position vis-à-vis the Government. This is strengthened further by political realities, where all governments since the fall of Communism have been based on weak and unstable coalitions. Since accession to the European Union, Poland has been governed by two minority cabinets. This fact in itself has made them vulnerable to political pressures from the Parliament. This extends to both the domestic and international arenas and influences actions undertaken at the EU level. The experience so far proves that in most cases parliamentary involvement is undermined by populist argumentation reflecting limited expertise and even less understanding of EU related issues. To this end it is argued, that despite its capacity and advantageous legal framework, the Polish Parliament is more an accidental hero than an effective actor in EU matters.
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