Po zakończeniu debaty 15 listopada o stanie praworządności w Polsce, na internetowej stronie Trybunału Konstytucyjnego ukazał się komunikat, który cytujemy w całości. Odnosi się do wypowiedzi wiceprzewodniczącego Komisji Europejskiej Fransa Timmermansa. Ponieważ F. Timmermans zabierał głos dwukrotnie, a TK nie informuje, o którą wypowiedź chodzi, przedstawiamy w całości oba wystąpienia. (Niestety, po angielsku, ale Google Tłumacz bez większych błędów czytelnikom pomoże). Na wszelki wypadek dodajemy także odnośniki do zapisów video, w których doskonale słychać tekst tłumaczony na polski. Autora oświadczenia BTK odsyłam do uważnej lektury (i odsłuchania) końcowego wystąpienia Fransa Timmermansa.
Oświadczenie Biura Trybunału Konstytucyjnego w związku z wypowiedzią wiceprzewodniczącego Komisji Europejskiej
Fransa Timmermansa w dniu 15.11.2017 roku.
Biuro Trybunału Konstytucyjnego wyraża stanowczy sprzeciw wobec publicznej wypowiedzi wiceprzewodniczącego Komisji Europejskiej Fransa Timmermansa w Parlamencie Europejskim w dniu 15 listopada 2017 r., kwestionującej bez jakiejkolwiek podstawy prawnej i faktycznej niezawisłość i rolę konstytucyjnego organu suwerennego państwa.
Komisja Europejska nie jest podmiotem uprawnionym do kształtowania ładu prawnego suwerennego państwa. Nie posiada takiego umocowania w żadnym akcie prawnym. Polska jako członek Unii Europejskiej nie zrzekła się swojej suwerenności podobnie jak pozostałe kraje Unii.
Wypowiedzi Wiceprzewodniczącego Komisji Europejskiej na forum Parlamentu Europejskiego nie stanowią już publicznej debaty na argumenty, ale są stanowiskiem organu UE i dlatego – jako pozbawione podstaw prawnych – są nieuprawnione.
Biuro Trybunału Konstytucyjnego ponadto oświadcza, że Trybunał Konstytucyjny działa na podstawie i w granicach obowiązującego w Polsce prawa, w szczególności na podstawie Konstytucji, która jest najwyższym prawem Rzeczypospolitej Polskiej. Jego sędziowie są niezawiśli i niezależni.
Biuro Trybunału Konstytucyjnego
Frans Timmermans, First Vice-President of the Commission. – Mr President, I want to start by thanking this Parliament for its strong engagement on this issue, and especially the Committee on Civil Liberties, Justice and Home Affairs, which I had the honour to update on the issue on 6 November. It is not my intention to repeat everything I said then, it would take too much time, but let me start by saying that an issue pertaining to the rule of law never affects only the country concerned: it affects the whole construction of the European Union. That is the basis upon which I believe this Parliament’s engagement is so important.
I want to recall that on 26 July the Commission adopted a third Rule of Law Recommendation addressed to the Polish authorities. This was necessary after four laws adopted by the Sejm would have had a very significant negative impact on the independence of the Polish judiciary and would have increased the systemic threat to the rule of law. Two of the four laws were sent back to parliament by the President of the Republic.
The recommendation also recalled the situation of a systemic threat to the rule of law, resulting from the changes to the Constitutional Tribunal, which have led to a serious undermining of its independence and legitimacy as the result of its complete recomposition, contrary to the normal constitutional process for the appointment of judges. Moreover, the Polish executive persists in its refusal to publish a number of the Tribunal’s rulings.
Unfortunately, the Polish reply regarding the third recommendation did not announce any concrete measures to address the issues raised by the Commission. We have now sent four letters to the Polish authorities since July, inviting them to meet. Sadly, these invitations were not accepted. I have not had the opportunity to talk to Polish Ministers about the issue. So our exchanges have essentially been in writing. That said, my invitation still stands, and I hope I can have a dialogue with the Ministers of Justice or Foreign Affairs as soon as possible.
In parallel to the Rule of Law Recommendation, the Commission has also initiated infringement proceedings in relation to the Polish Law on the Common Courts Organisation, which discriminates against individuals on the basis of gender. This is contrary to Article 157 of the Treaty on the Functioning of the European Union and to the 2006 Directive on Gender Equality in Employment. In our reasoned opinion, the Commission also raised the issue that giving the Minister of Justice discretionary power to prolong the term of office of judges who have reached retirement age, as well as discretionary power to dismiss and appoint court presidents, would undermine the independence of Polish courts.
To be very clear: the Minister of Justice in Poland is also Chief Prosecutor and the Chief Prosecutor now has full discretionary powers to appoint and dismiss presidents of courts. Just let this sink in for a moment. The Commission understands that, on the basis of this law, a considerable number of court presidents have already been dismissed. The Commission is currently finalising its assessment of the Polish authorities’ reply, with a view to deciding on the next step.
President Duda also presented two new draft laws on the Supreme Court and on the National Council for the Judiciary. The Commission is now analysing these new draft laws very carefully and will follow closely the related developments. At this preliminary stage of our assessment, the Commission already notes that certain issues in connection with the new draft laws could raise serious concerns. The Commission will continue to assess these issues thoroughly and objectively, including in the light of the Venice Commission opinions which will be forthcoming in December.
The Commission is not alone in its assessment of the gravity of the situation. Other critical opinions have been issued on the draft laws, not only in Poland by the Supreme Court, the Council for the Judiciary and the ombudsman, but also at European and international level. I would refer to the recent opinions of the European Network of Councils for the Judiciary and the Consultative Council of European Judges.
I would refer, too, to the preliminary observations by the United Nations Special Rapporteur on the independence of judges and lawyers, who also takes the view that the independence of the judiciary is under serious threat in Poland today, and has expressed serious concerns about the two draft laws on the Supreme Court and the National Council for the Judiciary.
Every Member State carrying out judicial reforms must respect the rule of law as one of the fundamental values to which all Member States signed up when joining the EU. It is up to the Member States to organise their justice systems, including whether to establish a council for the judiciary, or not. However, where such a council has been established to safeguard judicial independence, as in the Polish constitution, the independence of that council must be guaranteed, in line with European standards.
So let me recall for the record what it is that the Commission expects from the Polish authorities to avoid further escalation. First, the Polish authorities should restore the independence and legitimacy of the Constitutional Tribunal as guarantor of the Polish Constitution. Second, the Polish authorities should bring the Law on the Common Courts Organisation into line with Union law by abolishing gender discrimination and by abolishing the Minister of Justice’s influence on judges through the retirement regime and the dismissal or appointment of court presidents. Third, the Polish authorities should bring the law on the National School of Judiciary into line with European standards on the independence of the judiciary by eliminating external influence on assistant judges, notably, again, by the Minister of Justice. And finally, the Polish authorities should bring the two new draft laws on the Supreme Court and on the National Council for the Judiciary, proposed by President Duda, fully into line with EU law and with European standards on the independence of the judiciary and the status of councils for the judiciary.
The legislative process on these two draft laws, which is about to commence, will provide a key test for the Polish authorities, to show to the outside world whether or not there is willingness to respect the rule of law and take full account of the Commission’s concerns and the forthcoming opinions of the Venice Commission.
The Commission is looking for real, constructive dialogue in order to redress the situation in Poland with regard to the rule of law. This Parliament’s support for our efforts is essential if we want to succeed.
Końcowe wystąpienie Fransa Timmermansa
Frans Timmermans, Vice-voorzitter van de Commissie. – Sta mij toe eerst een woordje in mijn moedertaal te zeggen, en wel rechtstreeks tegen mijnheer Annemans. Dat hij mij persoonlijk aanvalt, vind ik geen enkel probleem. Dat ben ik gewend, dat raakt mij niet. Maar dat hij de beweging waaruit ik voortkom aanvalt en de sociaaldemocratie beschuldigt van collaboratie met totalitaire regimes, kan ik niet laten voorbijgaan. Sociaaldemocraten waren de eerste slachtoffers van de bolsjewieken. Sociaaldemocraten waren de eerste slachtoffers van de fascisten. Sociaaldemocraten waren de eerste slachtoffers van de nazi’s. Ze hebben zich altijd verzet tegen totalitaire regimes. Ik laat dat dus niet passeren. Zeker niet uit de mond van iemand die misschien eens in de geschiedenis van zijn eigen beweging kan duiken voordat hij de geschiedenis van andere politieke bewegingen durft aan te kaarten.
Mr President, we are talking today about the rule of law in Poland. If you want to play football you abide by the rules of the game and you accept the fact that there is a referee that makes sure that those playing the game abide by the rules. If you join the European Union, you do this as a sovereign decision. You sign and ratify a treaty. Once you have signed and ratified a treaty, the rules of that treaty apply to you. Then if you simply say ‘I am a sovereign nation, I don’t care about the rules’, it is like saying: ‘I want to play football but I will determine for myself which rules I will apply and which rules I will not apply’. Then you cannot play football!
The European Union cannot function if Member States start saying ‘We pick and choose which rules we have adhered to, are applicable to us, yes or no’. I think this should be the starting point of our debate. Concretely, in Article 2 of the Treaty, all Member States have said very clearly that they will respect the rule of law. One of the fundamental elements of the rule of law is that you accept and maintain a separation of powers. An independent judiciary is essential in the rule of law. You cannot pick and choose and use the argument that you have the majority to simply ignore the law. You can use that majority to change the law. You can use a majority to change the Constitution if you have one, but you cannot simply say ‘I ignore it because I have a majority’. You cannot use democracy against the rule of law and this is the argument that is often used in this debate.
Just imagine, I would say to those of the European Conservatives and Reformists Group (ECR) who still remained in the room, just imagine the shoe were on the other foot, and in this Parliament a majority would say, ‘Hey, we have the majority, we don’t care about the Rules of Procedure of Parliament, we have the majority, we dictate what happens!’ In what position would you then be? The rights you now claim for yourself as a majority might not be granted to you once you no longer are a majority. This is a fundamental problem for Europe because, as some of you have said, once you have destroyed the independence of the judiciary, even if you lose an election, the new powers that be will have no other option but to try and revert it and then it becomes a perpetual machine of not respecting the rule of law. This will never stay limited to one Member State. If it happens in one Member State it affects the Union as a whole, and this should never be disregarded.
Had Mr Legutko still been here I would have said to him: you took seven minutes to say nothing, not one word, about the points I made about the independence of the judiciary. And I would also have said to him, after his vile attack on Mr Lewandowski, I would suggest to Mr Lewandowski to wear this as a badge of honour. Why? Because in the last two years, I have learned that if you have no arguments, if you have nothing to say, if you don’t know how to react, you start with personal attacks. This is also my experience in the last two years. So every personal attack on me is proof that they have no arguments, that they don’t know what to say and that they don’t have a point at all.
Finally, you know the old joke about the ‘ghost rider’ [driving the wrong way on the motorway]. Somebody is sitting in his car listening to the radio, and on the radio the announcer says ‘Be careful, on the A2 there is a ghost rider driving the other way’ and the person sitting in the car says: ‘One? I see hundreds!’
This is how I would react to Mr Legutko. It is not the European Commission only. It is not the European Parliament only. It is organisations of European judges, it is the Venice Commission, it is the United Nations. Are all these people wrong? Are all these people wrong? Is the only one who is right the PiS government in this? They will say yes! But if you want a real dialogue, at least have the courtesy to go into the points that are made.
And a final remark about what Guy Verhofstadt and others said about last Sunday. There is a very thin line between proud patriotism and terrible nationalism. It is a very thin line. I admire proud patriotism but I also believe that all those who believe in proud patriotism have a responsibility not to let that slide into terrible nationalism, because if we fall into the trap of nationalism we bring back to life the most terrible parts of European history, and some of this was seen on the streets of Warsaw last Sunday. I do applaud the fact that President Duda clearly said that he distances himself from the expressions of extremism, of anti-Semitism, and other expressions.