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27th Feb 2021

MEPs to warn of risk to Polish democracy

  • Polish PM Szydlo at the European Parliament in January. "The proceeding of the Polish government represents a risk for the constitutional democracy," the EP says. (Photo: European Parliament)

The European Parliament will vote on Wednesday (13 April) on a resolution that accuses Polish authorities of undermining "constitutional democracy" and calls for further action if they do not implement decisions by the country’s constitutional court.

The final text of the resolution was agreed on Monday evening by five groups - the centre-right EPP, the Socialist & Democrats, the liberal ALDE, the leftist GUE-NGL and the Greens - and is therefore likely to be adopted.

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The draft resolution, seen by EUobserver , says that the EU parliament "is seriously concerned that the effective paralysis of the Constitutional Tribunal in Poland endangers democracy, human rights and the rule of law".

"Recent events in Poland, in particular the political and legal dispute concerning the composition of the Constitutional Tribunal and new rules on its functioning … have given rise to concerns regarding the ability of the Constitutional Court to uphold the constitution and guarantee the respect for the rule of law," it says.

MEPs point their finger directly at prime minister Beata Szydlo and president Andrzej Duda, both of whom are members of the governing right-wing Law and Justice party (PiS).

"The proceeding of the Polish government and the president of the republic of Poland regarding the Constitutional Tribunal represents a risk for the constitutional democracy," the resolution adds.

Standards

Last November, a few weeks after coming to power, the PiS government and the president refused to confirm the appointment of five constitutional judges by the previous government and appointed five other judges.

In December, the Polish parliament passed a law that modified the composition and functioning of the court. The law was struck down by the court in March, but the government has refused to publish it in the official gazette or to implement it.

The draft resolution says European Parliament "urges the Polish government to respect, publish and fully implement the judgment" issued by the court and says it "shares the opinion of the Venice Commission that the Polish constitution and the European and international standards require the judgments of a constitutional court to be respected".

The Venice Commission, an advisory body to the Council of Europe in Strasbourg, said in a report last month that the constitutional crisis could "undermine" Polish democracy and issued a series of recommendations to ensure the proper functioning of the constitutional court.

The MEPs are to call on the Polish government to fully implement the recommendations of the Venice Commission.

Legal uncertainty

They are also to express support for the rule-of-law monitoring procedure launched by the European Commission in January and to say that they share the concerns of commission vice-president Frans Timmermans about "the possibility of having two parallel legal systems, which would lead to legal uncertainty".

The draft resolution asks the commission to go further if the Polish government refuses to change course.

The resolution "calls on the commission to activate, in case the Polish government does not comply with the Venice Commission recommendations in the course of the structured dialogue, the second stage of the rule of law procedure by issuing its 'rule of law recommendation'".

The recommendation would specifically ask Poland to change its laws, and the implementation may then be monitored by the commission.

The parliament resolution comes between two visits to Warsaw by Timmermans, who is leading the commission's monitoring procedure.

Last week, Timmermans said the commission was ready to do "whatever we can" to help find a solution, but warned that the government's respect for the constitutional court's judgment was a prerequisite.

Timmermans is due to visit Warsaw again next week, and a new assessment of the situation by the commission should follow.

'Not a Christmas tree'

The parliament, which held a debate with PM Szydlo in January, has been keen to play a role in the crisis. The strong wording of the resolution reflects that ambition.

There was a debate between political groups about the focus of the text. A direct reference to Poland’s proposed ban on abortion that was in a first draft of the motion has been taken out of the final version, as well as mentions of other controversial laws on public media and the civil service.

Parliamentary sources told EUobserver that some groups wanted to focus on the constitutional issue and the conclusions of the Venice Commission rather than on the general situation in Poland.

"The most important thing is that it is a short resolution, not a Christmas tree," a source said.

The final draft version says that "in addition to the constitutional crisis there are other issues that raise serious concern of the European Parliament insofar as they might be in breach of European law, fundamental rights, including women's rights".

Another part, on the responsibilities of the previous Polish government, was also removed from the final version.

The earlier draft had said that "the previous government had already proceeded to partially unconstitutional nominations, passing a law just before the elections which allowed the outgoing parliament to choose five judges in the attempt to ensure a majority in the court".

The previous government was led by the Civic Platform, a member of the EPP, the EU parliament's main group.

Domestic dispute

The ECR group, which includes Poland's PiS and the British Conservatives, is to present its own resolution. But this has no chance of being adopted.

In their text, seen by EUobserver, the ECR says that Polish authorities respected constitutional procedures and that the crisis is a domestic dispute.

The ECR's draft resolution "stresses that the president of the Venice Commission in its observations made it clear that the reform of Constitutional Tribunal remain an internal matter for Polish and should be carried out by the relevant national authorities".

"This issue can be addressed properly only if all participants of the Polish political scene act responsibly and reach a compromise," the draft resolution says.

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