EU justice commissioner Didier Reynders, who is visiting Warsaw, said in the Senate on Friday that the European Commission “is examining all possible instruments to react to the recent rulings of the Constitutional Tribunal.” He expressed his concern that the Constitutional Tribunal’s purpose was to avoid applying the decisions of the Court of Justice of the European Union in various areas. Reynders also met in the Supreme Court with its First President, Małgorzata Manowska.
The EU commissioner, who has been visiting Poland since Thursday, met on Friday with members of the Senate committees: Foreign Affairs and European Union, Human Rights, Rule of Law and Petitions. KO deputies and experts also participated in the meeting.
The head of the human rights committee, Aleksander Pociej (KO), spoke about the “value dispute” between the Polish government and the EU. KO deputy Kamila Gasiuk-Pihowicz spoke about the status of the Constitutional Tribunal and its use as a tool of political struggle. She asked what actions were to be taken “in connection with the actions of the so-called double judges and the lack of independence of the Tribunal”. She stated that it was possible that the future of Polish democracy would be decided before the European institutions.
Gabriela Morawska-Stanecka (Left) asked the EU commissioner about the introduction of travel bans and obstruction of assemblies during the pandemic, incorrect, in her opinion, detention of their participants and journalists, and hindering the performance of the mandate of Polish deputies and senators. She asked about the assessment of the situation related to corruption – in the context of the NIK report on the Justice Fund in the Ministry of Justice.
Reynders: The Polish Constitutional Tribunal is a bypass to avoid the application of the CJEU decisions
Reynders assessed that the issue of the Constitutional Tribunal is a very important element of the analysis of the situation in Poland. He stated that the previous opinion of the European Commission indicated that there were concerns about his independence.
– Now we are talking in the Council about the independence of the Constitutional Tribunal, we can see what decision the European Court of Human Rights made in the situation that it is not an independent tribunal organized on a legal basis. It is also true that we are concerned about the way this court is used to challenge not only secondary legislation in the European Union but also the treaties. We want to confirm that we are currently analyzing all possible instruments at our disposal to react to the recent rulings of the Constitutional Tribunal, he said. He expressed concern that the Polish tribunal was “a bypass to avoid applying the CJEU’s decisions in various areas.”
The ECtHR, which was dealing with the case of Xero Flor v. Poland, ruled in May that there had been a violation of the European Convention on Human Rights regarding the right to a fair trial and the right to a fair trial established by law. The point was that in the Constitutional Tribunal, where the company’s complaint was finally lodged, a judge who had no right to do so ruled, the ECtHR found.
Reynders emphasized that the proportionality of all actions taken during the COVID-19 pandemic is also analyzed. Referring to the issue of corruption and the reports of the Supreme Audit Office, he stated that what matters is what kind of follow-up actions will be introduced as a result of disseminating these reports. He expressed the expectation that NIK would cooperate with OLAF in this situation. He expressed the expectation that Poland would also consider joining the EPPO (European Public Prosecutor’s Office). He indicated that the European Commission would like to be able to protect the use of European funds with the use of various instruments. He noted that the Supreme Audit Office “plays an important role here”.
Rzepliński on “cancerous growths in the legal order of the European Union”.
Former president of the Constitutional Tribunal, prof. Andrzej Rzepliński pointed out that there are institutions which, in his opinion, constitute “cancerous growths in the legal order of the European Union”. Among them, he mentioned the current National Council of the Judiciary and the Disciplinary Chamber of the Supreme Court.
He said there was a campaign against many lawyers. He argued that “for six years now, the more than 70-year-old ailing prosecutor Wojciech Sadrakuła, who often appeared before the Constitutional Tribunal, representing the Prosecutor General, has been harassing disgustingly and inhumanly.” He stressed that many other independent prosecutors and judges were in a similar situation. He estimated that in 2015 the government started a “ruthless war with the Polish legal system.”
The lawyer appealed for support and pressure on the Polish authorities so that it would be possible to restore the constitutional order in Poland and reverse the changes in the civil service.
“We must ask the Polish authorities to implement the CJEU decision”
Senator Krzysztof Kwiatkowski (independent) asked the commissioner what he would say to Poles in a situation of “systemic inactivity of bodies such as the prosecutor’s office”. He said that it was especially visible in the case of notifications to the prosecutor’s office sent by the Supreme Audit Office, which did not initiate any action.
Former ombudsman Adam Bodnar called for pressure on Poland to join the European Public Prosecutor’s Office. He stressed that although the decision depends on the Polish prime minister, it will not be made without pressure from the EU. He also asked how the European Commission imagines holding elections to the European Parliament, since in some EU countries – such as Hungary and Poland – the principle of equal competition is disturbed due to the state takeover of some of the media.
“As for the media situation, I would say that we have decided to be more committed to protecting media pluralism and freedom,” said Reynders. He assured that next year measures would also be taken in the European Commission to protect journalists and that a legislative initiative would be launched as regards the so-called SLAPPs – a situation where journalists, whistle-blowers or socially active people are discouraged by lawsuits from disclosing information.
The Commissioner assured that he had also familiarized himself with the situation of judges in Poland. – We have to ask the Polish authorities to implement the CJEU decisions, we are open to taking various initiatives to ensure that it will be possible – he said. He stressed that, in his opinion, it was also necessary to develop reforms that would stabilize the situation and lead to the application of European standards and the rule of law.
Meeting with the First President of the Supreme Court
Reynders also met on Friday in the Supreme Court with its First President, Małgorzata Manowska. This meeting was followed by a press conference by the spokesman of the court, Judge Aleksander Stępkowski.
– We exchanged views on the rule of law in general. Overall, there were no special surprises, the judge told reporters. As reported, the First President of the Supreme Court “reminded that Poland’s obligations towards the European Union are defined by Article 5 of the Treaty on European Union”.
Commissioner Reynders did not seem to notice the article. He emphasized the competence of the Court of Justice of the European Union to interpret the treaty. What is positive is that we had the opportunity to present our comments to the report on the rule of law, said Stępkowski.
Main photo source: PAP / Tomasz Gzell