Debate: Determination of a clear risk of a serious breach by the Republic of Poland of the rule of law - LGBTI-free zones in Poland within the scope of the Rete Lenford case
Date: MONDAY, 14 SEPTEMBER 2020
Speaker: Věra Jourová
Language: EN

Let me start with the new legislation on the judiciary of 20 December 2019, which entered into force in February this year. The Commission came to the conclusion that this law undermines the judicial independence of Polish judges and is incompatible with the primacy of EU law. In particular, it prevents Polish courts from directly applying certain provisions of EU law protecting judicial independence and from putting references for preliminary rulings on such questions to the Court of Justice. For this reason, on 28 April 2020, the Commission opened a new infringement proceeding against Poland by addressing to it a letter of formal notice. The Commission has received the reply from the Polish authorities and will soon decide on the next steps in this procedure.  As regards the new disciplinary regime for judges in Poland, upon the Commission’s request for interim measures, on 8 April 2020, the European Court of Justice ruled that Poland must immediately suspend the application of national provisions concerning the powers of the Disciplinary Chamber of the Supreme Court. The order applies until the Court has rendered its final judgment in the pending infringement procedure. Following this order, a judge of the Disciplinary Chamber referred a legal question to the Polish Constitutional Tribunal contesting the constitutionality of treaty provisions on which the order for interim measures is based. The referral is still pending with the Constitutional Tribunal.  I would like to underline that the order of the European Court of Justice is binding. It takes immediate effect and must be implemented by the Member State concerned. As made clear by the case-law of the European Court of Justice, the binding nature of the orders of the Court cannot be questioned on the basis of national laws or rulings of national courts, even on the basis of national constitutional provisions. Commissioner Reynders sent a letter to the Polish authorities regarding the implementation of the interim measures order, expressing concerns and asking for clarifications and further information. The Commission is currently analysing the reply from Poland and the situation on the ground as regards the arrangements put in place to comply with the order.  A further development is that the Disciplinary Chamber has been seized by the prosecution services in cases requesting the lifting of the judicial immunity of judges for the purpose of pursuing criminal investigations, including in cases which concern the contents of judicial decisions. On 6 June 2020, the Disciplinary Chamber rejected such a request and it is expected to re-examine this case in appeal in October. Other such cases have also been scheduled by the Disciplinary Chamber. The Commission is closely following these developments. As regards the situation in the Supreme Court, a number of further developments have taken place. On 20 April 2020, the Constitutional Tribunal held that the resolution of the Supreme Court of 23 January 2020, implementing the preliminary ruling of the European Court of Justice of 19 November 2019, was void. That resolution found that judges appointed at the request of the new National Council for the Judiciary are not permitted to adjudicate cases, and also invalidated all the rulings handed down by members of the Disciplinary Chamber. As regards the appointment of the new First President of the Supreme Court, the new law on the judiciary amended the procedure for appointment. Following the expiration of the mandate of the previous First President on 25 May 2020, the President of the Republic appointed a new First President of the Supreme Court.  There was also a relevant development relating to the execution of European Arrest Warrants with regard to Poland. In the course of this year, some Member State courts suspended the execution of the European Arrest Warrant due to further concerns regarding judicial independence in Poland. Most recently, the court of Amsterdam temporarily suspended the execution of two European Arrest Warrants to Poland submitted to it until the European Court of Justice has rendered its answers regarding two requests for a preliminary ruling. This shows that there is a real concern of mutual trust in the judiciary, which is very worrying. Finally, let me note that recently the Ministry of Justice announced that works are under way to prepare a second part of the justice reform. So far no legislative proposal is on the table. While justice reforms to improve its efficiency are always welcome, the manner in which the judiciary in Poland might be further reformed should not deepen the existing rule-of-law concerns. To conclude I regret to say that the recent developments show that the situation has not improved since the last plenary debate in February. Rule-of-law concerns still persist, and let me state clearly that the Commission will use all the instruments at its disposal to address them. This includes infringements in cases of breach of EU law, but infringements are only one tool and not all rule-of-law concerns can be addressed through infringements.  It is therefore essential also to have an open dialogue with the Polish authorities and stakeholders. Since the beginning of the mandate, the Commission has expressed its readiness for dialogue. We are open to having such a dialogue with the Polish authorities in an objective manner and with a mutual aim of solving existing problems. The upcoming first annual Rule of Law Report, covering all Member States, which the Commission will adopt soon, can be a further basis for such dialogue. This report has been prepared through a transparent process with the engagement of Member States, based on a common methodology and in an objective manner. A joint effort is needed to address the rule-of-law matters involving all the European institutions and the Commission appreciates the continuous support of the European Parliament in that respect. I also welcome the fact that the German Presidency has put on the agenda of the General Affairs Council on 22 September 2020 a state-of-play item concerning the situation of the rule of law in Poland. We also need to reinforce our rule-of-law toolbox by a mechanism in the framework of protecting the future EU budget, and the Commission made a proposal in this regard in 2018.  I am also grateful for the opportunity to react to your oral question on the situation of the LGBTI community in Poland. The Commission has received numerous petitions and letters about discriminatory language, false accusations and hate speech used in Poland. We are also fully aware of the fact that more than a hundred regions and municipalities have adopted charters, declarations and resolutions, several of which regrettably demonstrate the aim to deny fundamental rights and freedoms to LGBTI people. I want to stress the following: equality for all and equality in all of its senses is one of the major priorities of President von der Leyen. The Commission strongly condemns any form of discrimination, violence and hatred against LGBTI people and activists and is committed to fighting any form of discrimination in the EU. It has always made clear that discrimination against LGBTI people has no place in the European Union. All EU Member States and state authorities alike, without exception, must respect EU values and fundamental rights. As indicated by the honourable Members, the Court of Justice of the EU has recently clarified the interpretation of the Equal Treatment Directive with regard to public declarations expressing a discriminatory opinion or intention about the potential recruitment of LGBTI persons. The Court referred to several factors which have to be taken into consideration in assessing whether such declarations are covered by the directive. The Court pointed out that these issues are of a factual nature.  The declarations issued by Polish regional or municipal councils vary in their nature. Some seem mainly to focus on education or so—called ideology, whereas others also refer to the selection of employees, albeit in a rather vague way. The Commission has not yet received any specific complaint by any person alleging violation of his or her rights derived from EU law following the adoption of the above declarations. However, the Commission is thoroughly examining the situation in the light of the prohibition of discrimination enshrined in the EU  The Commission has already, on several occasions, encouraged the Polish authorities to revoke discriminatory resolutions, charters and similar statements. It has reminded the Polish authorities of the importance of promoting respect for fundamental rights and freedoms, social inclusion, gender equality and combating discrimination.  We stand ready to support the Polish authorities in combating discrimination, including on the basis of sexual orientation. The Commission – my colleague Helena Dalli – will present an LGBTI equality strategy in November this year. Within this framework, the Commission will continue to provide appropriate funding to foster a conducive and sustainable environment for LGBTI civil-society organisations. In addition, the Commission will maintain and encourage a structured and open dialogue and consultation with civil society. EU values and fundamental rights must be respected by Member States and state authorities alike. Discrimination against LGBTI people has no place in the EU and the Commission will continue to fight against all kinds of discrimination.