1. EEC – Community institutions and bodies; Parliament - Elections – Polish legislation – Right to vote and eligibility of non-Polish citizens residing in Poland – Temporary extension of this right to nationals of EU candidate countries - Non-compliance with the principle of national sovereignty - Exclusion – Difference between the European Parliament and national parliaments (role, functions, mandate)

2. EEC - Harmonisation of legislation; - Elections to the European Parliament – Polish legislation – Right to vote and eligibility of non-Polish Community nationals residing in Poland - Conditions - Compatibility with Council Directive 93/109/EC

Orzecznictwo Trybunału Konstytucyjnego : zbiór urzędowy 2004 p.655-667

Texte allemand: Entscheidungen des Verfassungsgerichtshofes der Republik Polen seit dem Inkrafttreten der neuen Verfassung bis zum Urteil über die EU-Mitgliedschaft (1997-2005) : eine Übersicht 2006 p.250-253 et p.367-368

On 31 May 2004, the Constitutional Court of Poland handed down a ruling on an application concerning the constitutionality of the law of 23 January 2004 on elections to the European Parliament. The purpose of said law was to transpose into Polish law Council Directive 93/109/EC of 6 December 1993 laying down detailed arrangements for the exercising of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals. The application, lodged by a group of Polish MPs, pertained to Articles 8, 9 and 174 of the law in question. It related specifically to provisions laying down, under certain conditions, the right to vote (Article 8) and to stand as a candidate (Article 9) in elections to the European Parliament for citizens of the European Union residing in Poland and who are not Polish nationals. Article 174 of the law contained a provisional measure extending this right, during the period prior to enlargement, to nationals of EU candidate countries. The constitutionality of all these provisions had to be examined on the basis of Article 4(1) of the Constitution under the terms of which the supreme authority belongs to the Nation. The authors of the application were alleging that in view of the wording of Article 4 of the Constitution, only Polish citizens had the right to vote in European elections. Moreover, the appellants claimed that the argument based on the need to render Polish law compatible with Community law was invalid since the law in question had been voted on and had entered into force prior to Poland becoming a member of the European Union and at a time when Poland's accession to the European Union was uncertain. Its entry into force, set at 1 March 2004, would therefore be "premature". In its judgement, the Constitutional Court ruled that Articles 8 and 9 of the law on elections to the European

Parliament, and Article 174 of the same law "were incompatible" with Article 4 of the Constitution. The Court's wording revealed that it had not deemed that the constitutionality of the provisions in question should be considered in the light of Article 4 of the Constitution. In arriving at this conclusion, the Court had found, firstly, that the term "Nation", as used in the Constitution, should be understood in a political rather than ethnic sense, the concept thus indicating the community comprising all Polish citizens. It also considered that Article 4 of the Constitution enshrined the principle of the sovereignty of the Nation according to which the Nation's wishes have sole authority and are the only way of legitimising the exercising of power. However, the Court found that this article was only relevant in the context of the exercising of power within the Republic of Poland. The principles set out in the Constitution concerning the functioning of internal institutions and bodies could not be applied directly to the functioning of other structures, such as Community structures. Since the European Parliament was not a body exercising any powers within the Republic of Poland, but rather a body performing precise functions conferred upon it by the Community treaties, it would be wrong to use Article 4(1) of the Constitution in assessing the methods of election to the European Parliament. The method used to legitimise EU institutions would not be the responsibility of the Polish Constitution. Furthermore, the Court criticised the authors of the application for seeking to assimilate the role played by the European Parliament within the European Union to that of national parliaments within state structures. However, since the European Union was not a state, any analogy with a state organisational system would be groundless. The Court also noted the difference in the concept of the

representative mandate of European and Polish MPs. According to Article 4 of the law on elections to the European Parliament, "MEPs are representatives of the nation States of the European Union". It could be deduced from this article that voters electing members to the European Parliament did not form an homogenous group but rather a group of Member States. However, that would not mean, as the authors of the application were claiming, that the right to vote and eligibility to stand for election to the European Parliament should be exercised within the national community to which an EU citizen is linked by nationality. The right of EU citizens to take part in elections to the European Parliament, regardless of the Member State on whose territory they are resident, is one of their fundamental rights. With regard to the objection by the appellants concerning the "premature" entry into force of the law of 23 January 2004, the Court recalled Articles 68 and 69 of the Europe Agreement establishing an Association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part, concluded in Brussels on 16 December 1991. Based on the provisions contained therein, Poland – even before its accession to the European Union – was required to make every effort to ensure that its legislation complied with that of the Community. In this context, the Court also noted that: "[…] the interpretation of legislation in force should take account of the constitutional principle of a favourable attitude to the process of European integration and collaboration between States" (judgement by the Constitutional Court of 27 May 2003, K 11/03, OTK ZU no. 5/A/2003, p. 576). The Court had ruled that requiring the law in question to enter into force prior to Poland's accession to the European Union was crucial in order for elections to take place on the specified

date and in line with the relevant Community principles. For technical reasons, some preparatory steps had to be taken prior to Poland's accession to the European Union. If the law had entered into force on 1 May 2004, the schedule for elections would have fallen behind. The stipulation provisionally extending electoral rights to nationals of the nine candidate countries was justified by the fact that as from 1 May 2004, all the principles pertaining to elections to the European Parliament had to apply to the new member countries. It was therefore a question of enabling nationals of the countries concerned to take the necessary steps, in good time, to be able to exercise their right to vote and to stand for election, such as registering on the appropriate electoral roll, or registering as a candidate. In conclusion, the Court underlined that the problem raised in the application in question did not pertain solely to the question of reciprocal relations between the Polish Constitution and Community law. It would be inappropriate to call into question the primacy of one of these legal systems in relation to the other since the issue in the case in question was that of the principles arising from the two different legal systems. It appeared, nevertheless, that the Court would soon have to rule on relations between Community law and the Polish Constitution in the context of another application on which it had been asked to rule and which pertained to the non-Constitutionality of the accession treaty signed on 16 April 2003 in Athens (joined cases K 18/04, K 19/04 and K 34/04).

PL - Konstytucja Rzeczypospolitej Polskiej, art. 4 ust. 1, art. 90 ust. 1 i 3

Ustawa z dnia 23 stycznia 2004 r. - Ordynacja wyborcza do Parlamentu Europejskiego (Dz.U. Nr 25, poz. 219), art. 4, 8, 9 i 174