“The European Commission cannot claim ignorance or pretend to be unaware of the lack of legal authorization on the part of the Polish government to sign the SAFE loan agreement offered by the Commission,” presidential advisor Jacek Saryusz-Wolski told Gazeta Polska Codziennie.
“I have prepared a draft letter to Ursula von der Leyen informing her that both the government and the European Commission, by signing any such agreement, would be violating the Polish Constitution as well as EU treaties,”
Saryusz-Wolski said.
Zbigniew Bogucki, Head of the Chancellery of the President, emphasized that Poland is currently witnessing an “unprecedented smear campaign” against Karol Nawrocki, comparing it to the “industry of contempt unleashed against President Lech Kaczyński when he was denied the ability to make decisions.”
Formally, officials of the European Commission have not commented on President Karol Nawrocki’s veto concerning the legislation on the EU SAFE program.
“This is not even about the Commission refraining from involvement in political disputes within member states; rather, from our perspective, Nawrocki’s veto is irrelevant to further work on SAFE, because the government, our partner, continues to declare its willingness to participate in the program,”
an anonymous Brussels official told PAP.
European Commission spokesperson Thomas Regnier also commented, reiterating yesterday that, in the Commission’s assessment, Poland’s plan for implementing the SAFE loan is “very strong,” and that the Commission intends to proceed with its implementation.
“The implementation of SAFE in Poland lies within the competence of the Polish authorities. We are finalizing the loan agreement, with a 15% advance payment planned as early as April,”
Regnier said.
Von der Leyen’s awareness
“Brussels cannot be unaware that any agreement on the EU SAFE loan signed with the Polish government after the president’s veto would be unlawful. That is why I have prepared a draft letter to the President of the European Commission, Ursula von der Leyen,” Saryusz-Wolski told GP Codziennie.
“We hereby inform that Poland cannot make use of the SAFE loan being offered. The Polish government lacks the proper legal authorization to sign the proposed agreement, as it has not fulfilled the constitutionally required procedure, namely, obtaining consent expressed in a statute. Article 89(1)(4) of the Constitution of the Republic of Poland clearly requires statutory consent, as stated below:
Article 89. [Ratification of international agreements]
1. Ratification by the Republic of Poland of an international agreement, as well as its termination, requires prior consent expressed in a statute if the agreement concerns:
4) a significant financial burden on the state.’”
“This is not only a matter of the Tusk government violating the Polish Constitution. A breach of law would also occur on the side of EU institutions,” Saryusz-Wolski argues.
“It is further emphasized that the EU is obliged under the EU treaties to respect the constitutional order of the Member States, in accordance with Article 4(2) TEU, which states:
‘The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.’”
It would be an ‘unenforceable loan’
In the proposed letter, Saryusz-Wolski stresses that if the European Commission were to sign such an agreement despite the Polish government lacking legal authorization (“as it acted by way of a resolution of the Council of Ministers, which has purely internal legal effect, instead of, as required by the Constitution, by means of a parliamentary statute ratified by the president”), it would fail to exercise due diligence, which obliges the lender to verify the legal validity of the borrower’s representatives, in this case, the Minister of Finance and the Minister of National Defence.
“The Commission would thereby expose the EU side and its budget to entering into an unenforceable and unlawful contractual relationship, against which we hereby warn. We expect loyal cooperation from the European Commission in this matter with Poland as a Member State and with all its constitutional bodies, including the parliament as an indispensable legislative authority and the president as an indispensable executive authority. This obligation arises from Article 4(3) of the Treaty on European Union,”
the presidential advisor wrote.
“If, despite the obvious facts and legal requirements, officials in Brussels still intend to sign an agreement with a Polish government lacking the authority to do so, such a letter could be sent by the president or his office. I do not wish to prejudge whether or when this would be the final form. However, Brussels must be aware of the existing facts and cannot pretend otherwise, and that is how it is behaving at present,”
Jacek Saryusz-Wolski said.