Legal Eye: Whose law governs?

"The activities of the Community shall include … a common commercial policy, an internal market characterized by the free movement of goods, persons, services and capital …" article three, EU Treaty

The editor's instructions were simple enough … describe to what extent EU law trumps the law of a member state in 600 words or less. Never mind that the Treaty of Accession signed by Poland contains more than 5,000 pages of legal text. Hmmm… this is definitely going to be a 'brief' overview.

As of accession the legal system in Poland took a turn, by which the legislative, executive and judicial branches of government are now charged with enforcing not only Polish law, but also EU law. Polish citizens are now able to turn to a higher force, such as the European Court of Human Rights, if a Polish court is unable (or unwilling) to adjudicate his or her grievance.

In many instances, Poland is now required to implement EU law verbatim as drafted. In still other instances, Poland simply needs to amend existing laws or adopt new laws in order to implement EU Directives. Despite their title, Directives do not have direct affect. In other words, Poland is only required to adopt the spirit of the Directive, and not the exact legislation.

EU primacy

EU law now has primacy (some would disagree with me) over Polish law with respect to establishing and preserving the internal market. With respect to the euro, some confusion seems to exist on whether Poland is in fact required to adopt the euro. Let me set the record straight - the answer is yes. Poland and each member state is obligated to take the necessary fiscal actions needed to adopt the euro. Adoption of the single currency is an obligation, not an option, the key requirement being a budget deficit at or below three percent of GDP.

Shared powers

Poland now shares jurisdiction with the EU over matters involving consumer protection, transport, energy, agriculture, environment, social policy, security and justice. For the most part, the EU has established minimum standards in each of these areas. However, Poland is free to enhance such laws and provide for more protections, as long as such enhancements do not adversely affect the free flow of goods, services, capital and/or workers.

The recent debate over the German-Russian gas line illustrates the lack of central EU power with respect to energy policy throughout the EU. Each member state is free to secure outside sources of energy without the intermediation of the EU (atomic energy being a notable exception).

Retained powers

Poland retains exclusive jurisdiction, among others, with respect to taxation, reproductive health, family, judicial and criminal law. Poland is free to set its own rate of personal and corporate income tax, to maintain limits on a woman's ability to obtain an abortion, and the administration of the judiciary.

Additionally, Poland negotiated several transition periods within the Treaty of Accession by which Poland is permitted to maintain certain laws, which otherwise would be in violation of EU regulations. For instance, contrary to article 18 of the Treaty Establishing the EU, Poland maintains restrictions on the ability of EU nationals to purchase Polish farm land for up to 12 years following accession.

Other transition periods won by Poland include a delay in the implementation of most EU environmental regulations. For instance, EU Directive 91/271 requires each member state to reduce the level of contaminants in urban waste water. However, Poland will not have to fully comply with this requirement until 2015.

Paul Fogo is a senior attorney with Miller, Canfield, W Babicki & Partners. fogo@pl.millercanfield.com