One into two (or even three) will go
By the time this article goes to press the EU and the candidate countries will have concluded their final set of negotiations in Copenhagen prior to deciding whether each country will be offered membership. Poland has for the most part harmonised the vast majority of its laws to comply with the EU's entry requirements. This process is called complying with the acquis communautaire, the accumulated body of EU law. After accession, legislative, executive and judicial branches of government will be charged with enforcing not only domestic but also EU law. A citizen and not infrequently a company, large or small, will hence be subject to two legal systems, and in many instances will now be able to turn to a "higher force," such as the European Court of Justice - the EU court sited in Luxembourg - if a national court is unable (or unwilling) to adjudicate a grievance. A court here will also have the power to refer a matter directly to the Court of Justice if it decides it is a priori under Union law. The country's adoption of the Charter on Human Rights can be said to have introduced a third legal force.
Warning: the Court of Justice is not to be confused with the utterly and confusingly separate European Court of Human Rights (ECHR), which is a part of the Council of Europe, a mainly human rights body, to which cases concerning national citizens have also gone on the basis they were unsatisfied with a judgement at home. All but one has so far been upheld. To add to the confusion in matters European, the Council of Europe sits in Strasbourg, next door to the European Parliament.
In some instances Poland will be required to implement EU laws as drafted, including regulations issued by the European Council and the European Central Bank, whose powers are already extensive in terms of ensuring enforcement with the growth and stability pact, and will increase yet further when the country starts to shadow the euro before finally swapping currencies (see feature, page 14). Regulations are the ultimate weapon in the EU legislative armoury: they are done and dusted the moment they are agreed by the Council of Ministers and can be safely compared to an edict.
In still other instances, national legislators will simply need to amend existing laws or adopt new laws in order to implement directives. The name implies what they are, namely an instruction to proceed in a given direction agreed after an exhaustive process in Brussels and Strasbourg. There is some flexibility, but MPs and senators are not allowed to strike out anything which alters the thrust of what the directive is about. Nor can they vote to reject it entirely. Most parliaments set up special committees to vet such laws. And of course, national courts cannot under any circumstances overturn European law.
There's also a harmless sounding instrument called a recommendation, which means just that. But, as all Euro insiders know, it is often deployed by the EU executive commission to test the waters and invariably grows up to become a directive. Failure to implement a recommendation is also frowned upon mightily.
Remember, the legislative process within the EU is both highly political and complex, with a great deal of input from different quarters. So the future Polish executive commissioner and staff, Euro MPs elected to the Strasbourg parliament, nominees to the Economic and Social Committee (ECOSOC) - comprising employers, unions and small businesses - the delegate to the Council of Permanent Representatives (COREPAR) - and a whole bunch of lobbyists, get to chew the cud. Some laws get lost in this process for years - those on hostile takeovers and insider dealings are classic examples. There are no-go areas where national sensibilities (abortion is a good example) prevail or where it's silly and heavy-handed to get the EU involved. Opinions adopted independently by the European Parliament do not automatically convey the force of law. But moral weight is a different matter.
There's a provision to deal with ticking time bombs, namely any current legal statutes that remain on the books will be voided if found contrary to the terms of the EU Accession Treaty. Specifically, the Treaty of Rome, and its subsequent and many amendments, will trump all national and local laws.
The open question, however, is what will happen if a particular piece of EU legislation is in conflict with the national constitution. If you ask a national attorney, the answer will most likely be that the constitution will prevail. But if you ask a lawyer from the EU Commission, the answer will definitely be the EU legislation, which is the right answer. A national constitution is not inviolate if it breaches the treaties, and the court in Luxembourg could require it to be changed. Reassuringly, the current constitution is at no such risk. If it was, collars would have been felt in Warsaw long before now.
Paul Fogo is a senior attorney at Miller, Canfield, Paddock & Stone.
Warning: the Court of Justice is not to be confused with the utterly and confusingly separate European Court of Human Rights (ECHR), which is a part of the Council of Europe, a mainly human rights body, to which cases concerning national citizens have also gone on the basis they were unsatisfied with a judgement at home. All but one has so far been upheld. To add to the confusion in matters European, the Council of Europe sits in Strasbourg, next door to the European Parliament.
In some instances Poland will be required to implement EU laws as drafted, including regulations issued by the European Council and the European Central Bank, whose powers are already extensive in terms of ensuring enforcement with the growth and stability pact, and will increase yet further when the country starts to shadow the euro before finally swapping currencies (see feature, page 14). Regulations are the ultimate weapon in the EU legislative armoury: they are done and dusted the moment they are agreed by the Council of Ministers and can be safely compared to an edict.
In still other instances, national legislators will simply need to amend existing laws or adopt new laws in order to implement directives. The name implies what they are, namely an instruction to proceed in a given direction agreed after an exhaustive process in Brussels and Strasbourg. There is some flexibility, but MPs and senators are not allowed to strike out anything which alters the thrust of what the directive is about. Nor can they vote to reject it entirely. Most parliaments set up special committees to vet such laws. And of course, national courts cannot under any circumstances overturn European law.
There's also a harmless sounding instrument called a recommendation, which means just that. But, as all Euro insiders know, it is often deployed by the EU executive commission to test the waters and invariably grows up to become a directive. Failure to implement a recommendation is also frowned upon mightily.
Remember, the legislative process within the EU is both highly political and complex, with a great deal of input from different quarters. So the future Polish executive commissioner and staff, Euro MPs elected to the Strasbourg parliament, nominees to the Economic and Social Committee (ECOSOC) - comprising employers, unions and small businesses - the delegate to the Council of Permanent Representatives (COREPAR) - and a whole bunch of lobbyists, get to chew the cud. Some laws get lost in this process for years - those on hostile takeovers and insider dealings are classic examples. There are no-go areas where national sensibilities (abortion is a good example) prevail or where it's silly and heavy-handed to get the EU involved. Opinions adopted independently by the European Parliament do not automatically convey the force of law. But moral weight is a different matter.
There's a provision to deal with ticking time bombs, namely any current legal statutes that remain on the books will be voided if found contrary to the terms of the EU Accession Treaty. Specifically, the Treaty of Rome, and its subsequent and many amendments, will trump all national and local laws.
The open question, however, is what will happen if a particular piece of EU legislation is in conflict with the national constitution. If you ask a national attorney, the answer will most likely be that the constitution will prevail. But if you ask a lawyer from the EU Commission, the answer will definitely be the EU legislation, which is the right answer. A national constitution is not inviolate if it breaches the treaties, and the court in Luxembourg could require it to be changed. Reassuringly, the current constitution is at no such risk. If it was, collars would have been felt in Warsaw long before now.
Paul Fogo is a senior attorney at Miller, Canfield, Paddock & Stone.
