The permanent pulse between Poland and the European Commission has registered another episode this Thursday. Hours after the Court of Justice of the Union ruled that the judicial reform promoted in 2019 by the Government of Warsaw, and battled since then, was contrary to common law, Brussels has announced the opening of a new infringement procedure against the country for what is now popularly known as the “anti-Tusk law”, in reference to the former president of the European Council, Donald Tusk, who leads part of the opposition that aspires to come to power in this year’s elections.
Although today it has sent a formal notification letter, the first step strictly speaking for this new file, the European Commission had already made it clear that it was totally opposed to the new legislation, which lays the foundations for the creation of a State Committee for the Examination of Russian influence on the internal security of Poland between 2007 and 2022 and which has been in force since President Andrzej Duda sanctioned it on May 31.
Among the opposition, all kinds of civil society organizations and institutions, there is no doubt that this legislation goes completely against Community law and is a desperate attempt to get Tusk out of the way, who was elected Prime Minister in 2007 precisely and that achieving re-election in 2011 became the only case of repetition of mandate since the fall of communism.
The Objective of that State Committee is no secret. Its powers include obtaining classified information, modifying or repealing administrative decisions (even if upheld by a court), and depriving people, by administrative decision, of the right to hold public office for 10 years.
The Polish government of the conservative Freedom and Justice party, controlled in the shadows by Tusk’s staunch enemy Jarosaw Kaczyski, maintains that Tusk’s management of the Civic Platform allowed the country to become unduly influenced by Russia and, as a result, dependence energy caused vulnerabilities. “In a normal democratic country, a president would never sign such a Stalin-style law,” denounced deputy Marcin Kierwinski, in statements collected by Reuters. That committee plans to make a first report public in September, very shortly before when the elections will be held.
The previous opinion of the European Commission is devastating and pioneering, since for the first time it invokes the “principle of democracy”. With the Treaty of Amsterdam, a new sanction mechanism was created to guarantee respect for fundamental rights, as well as other European principles and values, such as democracy, the rule of law, equality and the protection of minorities beyond the (legal) limits imposed by the powers of the Union. In this way, the door was opened for the institutions to act in areas without direct powers, a priori, but in which situations of “serious and persistent violation” of said values ??were identified.
In its letter, Brussels considers that the law and the Polish Investigative Committee therefore violate the principle of democracy (articles 2 and 10 TUE); the principles of legality and non-retroactivity of sanctions (article 49 of the Charter) and the general principles of legal certainty and res judicata; the rights to effective judicial protection (article 47 of the Charter), the ‘ne bis in idem’ and the protection of professional secrecy (article 7 of the Charter); as well as the requirements of the EU legislation in relation to data protection (GDPR and article 8 of the Charter).
It is an amendment to the whole, from all points of view and appealing not to a specific element, but to the essence of the Treaties and of the Union itself. “More specifically, the Commission considers that the new law unduly interferes with the democratic process, since the activities of the Committee, for example, investigations and public hearings, risk creating serious damage to the reputation of the candidates in the elections ( …) and could limit the effectiveness of the political rights of people elected in democratic elections”.
According to the Commission’s legal services and the teams of the affected commissioners, the controversial law, although the president of the country has asked for amendments to refine it, “provides a very broad and unspecified definition of what is or was Russian influence. Thus, for For example, it could impose sanctions that prohibit a public official from performing functions related to the use of public funds for a period of up to 10 years.” And since these sanctions would be applicable today to possible measures that at that time were perfectly legal, the principles of legality and non-retroactivity are also violated. As if that were not enough, the decisions of the criticized Committee are subject to review only by administrative courts, and, says Brussels, the legislation “does not provide an adequate legal basis for processing or the necessary guarantees for sensitive data. It is therefore , incompatible with EU data protection rules”.
Poland now has 21 calendar days to reply to the letter of formal notice. If you do not address the Commission’s complaints, Ursula Von der Leyen’s team can send a reasoned opinion, the next step in the infringement procedure, which can ultimately end up in the Court of Justice of the Union.
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