Timmermans takes Poland complaints to the people

Commissioner says Warsaw is acting ‘in clear disregard’ of the constitution.

Frans Timmermans, the European Commission’s first vice president, on Thursday opened up a new front in his campaign against “serious constitutional crisis” in Poland — a direct appeal to the people.

More than four months after the Commission first said it considers the rule of law in Poland to be at “systemic risk,” Timmermans sent a blunt, direct message about the refusal of Andrzej Duda, the Polish president, to swear in three judges appointed by the previous Polish government to the country’s constitutional court.

First published in Poland’s Rzeczpospolita, the letter is a sign that a year of diplomatic efforts by the Commission, aimed at getting the Polish government to change course, have failed.

Timmermans laid out his view that the Polish government’s handling of its independent courts “endangers the very foundations on which the European Union is built,” and rejected claims by Warsaw that the Commission is interfering in domestic politics.

“This is not a political question. The European Commission fully respects the right of the Polish government to implement its political program. That is how democracy works,” Timmermans wrote. But he added that the government’s refusal to swear in the three judges amounted to an attempt to destroy the rule of law.

He said it is “crucial that whatever the government’s program entails is done in full accordance with the Polish constitution and the law itself.”

Timmermans reserved particular criticism for the Polish government’s refusal since March to publish decisions by the Constitutional Tribunal.

Those verdicts relate to a series of laws passed by the ruling Law and Justice party aimed at governing the operations of the tribunal, but which the tribunal found in various ways violate the constitution.

Timmermans said the rule of law in Poland is now “in a state of partial paralysis” with worse to come. Three new laws regarding the Constitutional Tribunal are either on the desk of President Duda waiting for his signature, or near the final stages of parliamentary debate.

“These laws would give the president of Poland the right to appoint an ‘Acting President’ of the tribunal, in clear disregard of the provisions of the Polish constitution concerning the election of the president and vice president of the tribunal. I am deeply concerned by these new developments,” Timmermans said.

Timmermans’ letter (in English)

One year of constitutional crisis in Poland

Over the last year, what started as a relatively simple dispute over the composition of the Polish Constitutional Tribunal, has turned into a serious constitutional crisis related to the respect for the rule of law.

Before the parliamentary elections of 25 October 2015, the Sejm had decided to elect five new judges to the Tribunal. Three of them were elected for vacancies which, according to the existing law, should have been filled by the previous Sejm and two other judges should have been elected by the current Sejm. After review of a constitutional claim challenging legality of the provisions that formed a legal basis for these decisions, the Constitutional Tribunal, in its judgement of 3 December 2015, decided that the election of a first group of three judges was compatible with the Constitution whereas election of two other judges was not valid.

However, the Sejm decided that it would not only proceed to the election of judges to the two mandates still vacant, but also to annul the election of the three lawfully elected judges and elect three other candidates instead. The decision to elect three new judges was overturned by the Constitutional Tribunal in a ruling of 9 December 2015, which stipulated that, in line with the Constitution, the President of Poland should swear in the three judges which had been lawfully elected by the Sejm before the parliamentary elections. Unfortunately, the Polish authorities did not implement these judgments. To this date, the three judges, lawfully elected by the Sejm, have not been sworn in by the President.

In addition to this, the Sejm adopted on 22 December 2015 the Law amending the Law on the Constitutional Tribunal which contained numerous provisions that, if applied, would significantly hamper the functioning of the Tribunal. This law was declared unconstitutional by the Constitutional Tribunal on 9 March 2016. It was also criticised by the Venice Commission, advisory body attached to the Council of Europe, in an opinion that was explicitly requested by the Polish government. Yet again, the Polish government did not recognise the validity of this judgment, and refused to publish it. More seriously still, the Polish Government refused to recognise from then on the legitimacy of the judicial activity of the Constitutional Tribunal.

On 22 July 2016 the Sejm adopted a new Constitutional Tribunal Act which removed some of the problems, but also created new ones. The Venice Commission also criticised this new act, which was partially struck down by the Constitutional Tribunal on 11 August 2016. Again, the Government refused to recognise the judgment and refused to publish it. Worse still, since 11 August, the Government has not recognised nor published any of the judgments of the Tribunal.

It is in the light of these facts that the European Commission was compelled to activate, for the first time ever, its Rule of Law Framework. It adopted, on 27 July 2016, a recommendation to the Polish authorities and established that there is a systemic risk to the Rule of Law in Poland. The main elements of this recommendation were simple enough: that the dispute on the composition of the Tribunal should be resolved in accordance with the judgments of the Constitutional Tribunal, and that more generally, the Polish authorities should respect and implement all judgments of the Tribunal, including those concerning the reform of the Constitutional Tribunal Act, and not just those which appear politically suitable.

Regrettably, since the adoption of the above mentioned recommendation, the situation has not improved. The Tribunal is by now in a state of partial paralysis, as three judges of the Constitutional Tribunal elected by the previous Sejm are not participating in its work. This leaves the Constitutional Tribunal unable to decide cases in composition of a full bench, which requires participation of eleven judges. Moreover, currently, three new laws regarding the Constitutional Tribunal are in preparation introducing new provisions on the election of the President of the Constitutional Tribunal. Two of these laws are waiting only for a signature of the President of State and the third one is a subject of legislative proceedings in the Sejm. These laws would give the President of Poland the right to appoint an “Acting President” of the Tribunal, in clear disregard of the provisions of the Polish Constitution concerning the election of the President and Vice-President of the Tribunal.

I am deeply concerned by these new developments, which threaten to deepen the rule of law crisis in Poland. I therefore call on the Polish authorities not to put into force the new laws before the Constitutional Tribunal has had the occasion to examine their constitutionality. I also call on the President of Poland to urgently swear in the three judges elected by the previous Sejm. And I call on the Government of Poland to publish, and fully respect, all the previous judgments of the Constitutional Tribunal.

This is not a political question. The European Commission fully respects the right of the Polish Government to implement its political programme. That is how democracy works. However, the ballot can never be used to override respect for the rule of law, and it is therefore crucial that whatever the government’s programme entails is done in full accordance with the Polish Constitution and the law itself.

The Constitutional Tribunal is a central body for ensuring respect for the rule of law in Poland. It is only the Constitutional Tribunal which can ensure the constitutional review of the laws [Acts of Parliament] and other legal acts adopted by the constitutional organs of the Polish state. That is why the effective functioning of the Constitutional Tribunal is so important: to make sure that legal dispute can be settled at national level. However, a Tribunal which is not composed in accordance with the law, and which is not independent, will not be able to carry out this crucial function.

Poland is an important Member of the European Union. It contributes significantly to the Union, and benefits from its participation in the internal market. This Union can only work if all Member States accept the binding force of the EU law in all areas. This is crucial for the implementation of all Union policies, including the internal market, and it is the basis for the mutual trust between Member States.

All Member States signed up to the EU Treaties and the fundamental values that are enshrined therein, on which the Union is founded. And this is why I call on the Polish authorities to end the constitutional crisis which endangers the very foundations on which the European Union is built. Not because the Commission says it, but because it is the right thing to do for Poland, its citizens and the proper functioning of its democracy.

Frans Timmermans, First Vice-President of the European Commission, responsible for Better Regulation, Inter-institutional Relations, the Rule of Law and the Charter of Fundamental Rights