19th Feb 2019

Lisbon Treaty survived Polish comedy of errors

The late Polish president Lech Kaczynski made his ratification of the Lisbon Treaty into a piece of political theatre. But a little-known final scene could have posed a ticklish legal question for the EU, EUobserver has learned.

With the Irish Yes vote in the bag after a referendum on 3 October last year, Brussels held its breath for the final signatures from the eurosceptic Mr Kaczynski and his even more eurosceptic Czech counterpart, Vaclav Klaus, to wrap up the ratification process.

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Mr Kaczynski had promised that if Ireland voted Yes, he would ratify the text.

Two days after the Irish vote, the tension began to build. Mr Kaczynski's senior advisor said the president would first seek legal reforms in Poland. A party colleague said he would seek more EU funds. Mr Kaczynski himself stayed out of view.

Three days later, the president put Brussels out of its misery by inviting EU leaders to a ratification ceremony in his Warsaw palace.

On the big day on 10 October he even made a pro-EU speech, saying: "We feel good, we feel confident inside this fellowship." In a minor hiccup, the pen he tried to use to sign the Polish bill ratifying the EU treaty did not work, sending people scurrying for a new one. "It wasn't planned," a Polish official said.

What came next in the comedy of errors is less well known.

EUobserver has learned that when the Polish document came back to the foreign ministry, officials discovered that Mr Kaczynski had failed to put a date next to his signature, a formal legal requirement. They rushed back to the palace where a contrite president wrote in the numbers.

Later the same day, the head of the Polish protocol unit was to fly to Rome to deposit the Polish document in the EU archive at the Italian foreign ministry - the final act of ratification.

With the plane warming up, officials noticed, to their dismay, that the seal of state had not been stamped on the paper. The legal formula in the Polish ratification law specifically refers to the seal. In its absence, the document was null and void.

Officials again rushed off, this time to the seal room. Negotiating a maze of corridors in the basement of a government building in Warsaw, inputting PIN codes and swiping security cards at every turn, they reached the chamber where the embossing machine - a metal antique operated by means of a massive, vice-like screw - waited. The document made it to Rome intact.

It is hard to say what could have happened if the Polish document had entered the archives in its legally void state.

The EU institutions lost no time after the entry into force of Lisbon on 1 December 2009. They appointed a new EU Council president and EU foreign relations chief, who, in the following months, took legal decisions, such as the creation of a new diplomatic service.

But Lisbon could not enter into force until all 27 EU countries had completed ratification, posing the question if a dud ratification instrument could have put the whole new edifice in jeopardy.

Andrew Duff, a British Liberal MEP and a legal expert, said a dodgy Polish bill would simply have been put down to a clerical error and corrected.

But he added that the discovery of a dud ratification instrument could have emboldened eurosceptic politicians, such as the UK's Nigel Farrage, to launch a legal case against the Lisbon Treaty at the EU court in Luxembourg.

"[But] for something of this type, the court would be very grown up," Mr Duff said.

"Especially if it was some crazy Farragiste, the court would tell him to fuck off."

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