Activities of Hilde VAUTMANS related to 2017/0360R(NLE)
Shadow opinions (1)
OPINION on the determination of a clear risk of a serious breach of the rule of law by the Republic of Poland
Amendments (42)
Amendment 9 #
Draft opinion
Citation 3 a (new)
Citation 3 a (new)
- having regard to the European Parliament resolution of 13 February 2019 on Experiencing backlash in women’s rights and gender equality in the EU (2018/2684(RSP)),
Amendment 11 #
Draft opinion
Citation 4
Citation 4
- having regard to the Charter of Fundamental Rights of the European Union, in particular Articles 1, 2, 3, 10, 11, 21 and 35 thereof,
Amendment 12 #
Motion for a resolution
Citation 22
Citation 22
— having regard to the four infringement procedures launched by the Commission against Poland in relation to the reform ofchanges to the Polish judicial system, of which the first two resulted in judgments of the Court of Justice finding violations of the second subparagraph of Article 19(1) of the Treaty on European Union enshrining the principle of effective judicial protection, while the two other procedures are still pending,
Amendment 12 #
Draft opinion
Citation 4
Citation 4
- having regard to the Charter of Fundamental Rights of the European Union, in particular Articles 1, 2, 3, 10, 21, 35 and 345 thereof,
Amendment 13 #
Draft opinion
Citation 4 a (new)
Citation 4 a (new)
Amendment 14 #
Draft opinion
Citation 5
Citation 5
- having regard to Article 8 of the Treaty on the Functioning of the European Union (TFEU), on equality between women and men, and Article 9 TFEU, on combating social exclusion and a high level of education, training and protection of human health, Title IV TFEU on free movement of persons, services and capitals and Title V TFEU on area of freedom, security and justice,
Amendment 16 #
Draft opinion
Recital A a (new)
Recital A a (new)
Aa. whereas the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities, as set out in Article 2 TEU and embedded in international human rights treaties; whereas those values, which are common to the Member States and to which all Member States have freely subscribed, constitute the foundation of the rights enjoyed by those living in the Union; whereas Article 7 TEU foresees the possibility to suspend certain rights deriving from the application of the Treaties to a Member State, including voting rights in the Council, where there has been a determination of the existence of a serious and persistent breach by a Member State of the values referred to in Article 2;
Amendment 18 #
Draft opinion
Recital A b (new)
Recital A b (new)
Ab. whereas provision of accessible and affordable sexual and reproductive health and rights, including contraception and safe and legal abortion, is related to multiple human rights, including the right to life and dignity, freedom from inhuman and degrading treatment, the right to access healthcare, the right to privacy, the right to education and the prohibition of discrimination; whereas the denial of sexual and reproductive health and rights services is a form of violence against women and girls; whereas the European Court of Human Rights has ruled on several occasions that restrictive abortion laws and lack of implementation violates the human rights of women;
Amendment 20 #
Draft opinion
Recital A c (new)
Recital A c (new)
Ac. whereas age-appropriate and evidence-based comprehensive sexuality education is key to building children’s and young peoples’ skills to form healthy, equal, nurturing and safe relationships, free from discrimination, coercion and violence as well as having a positive impact on gender equality outcomes, including transforming harmful gender norms and attitudes towards gender-based violence, homophobia and transphobia and contributes to decreased adolescent pregnancy, reduced risk-taking, and increased use of condoms and other forms of contraception;
Amendment 21 #
Motion for a resolution
Recital B
Recital B
B. whereas, in contrast to Article 258 of the Treaty on the Functioning of the European Union, the scope of Article 7 of the Treaty on European Union is not limited to the obligations under the Treatiescomprises all foundational principles of the European Union referred to in Article 2 of the Treaty on European Union, as indicated in the Commission Communication of 15 October 2003, and whereas the Union can assess the existence of a clear risk of a serious breach of the common values in areas falling under Member States’ competences;
Amendment 23 #
Draft opinion
Recital B
Recital B
B. whereas two draft laws stemming from citizens’ initiatives are before the Polish Parliament, one of which seeks to tighten up even further a law on abortion which is already one of the most restrictive in the EU, and the other to make providing comprehensive sexuality education to minors a criminal offence punishable by imprisonment;
Amendment 24 #
Motion for a resolution
Recital C a (new)
Recital C a (new)
Ca. Underlines that the Member States of the European Union have, in accordance with Article 49 of the Treaty on European Union, freely and voluntarily committed themselves to the common values referred to in Article 2 of the Treaty on European Union;
Amendment 33 #
Draft opinion
Recital D
Recital D
D. whereas in 2016 an attempt to introduce a total ban on the right to abortion sparked a mass mobilisation of women and civil society organisations and the ‘Black Monday’ women’s strike; whereas in 2018 the draft law imposing restrictions on abortion triggered massive protests throughout Poland and beyond;
Amendment 35 #
Draft opinion
Recital D a (new)
Recital D a (new)
Da. whereas since the beginning of 2019 in Poland, there were over 80 instances, where regions, counties or municipalities have passed resolutions declaring themselves free from so-called “LGBT ideology”, or have adopted "Regional Charters of Family Rights” or key provisions coming from them, discriminating in particular single-parent and LGBTI families; whereas the creation of LGBTI free zones, even if it does not consist in the introduction of a physical border, represents an extremely discriminatory measure limiting the freedom of movement of the EU citizens;
Amendment 43 #
Draft opinion
Paragraph 1
Paragraph 1
1. Welcomes the fact that on 16 April 2020 the Polish Parliament voted to refer back to committee the two draft laws stemming from citizens’ initiatives on access to abortion and on thcomprehensive sexuality education ofor minors;
Amendment 48 #
Motion for a resolution
Paragraph 5
Paragraph 5
5. Takes the view that the latest developments in the ongoing hearings under Article 7(1) TEU once again underline the imminent need for a complementary and, preventive and binding Union mechanism on democracy, the rule of law and fundamental rights as put forward by Parliament in its resolution of 25 October 2016;
Amendment 63 #
Draft opinion
Paragraph 3
Paragraph 3
3. Is concerned at the loss of women’s rights and at the level of protection in Poland of the right of women and adolescent girls to health, of which their sexual and reproductive health and rights is an essential component, and of the rights of young LGBTI people, whose healthmental and physical health and safety are particularly at risk; deplores the government’s continuing attacks on women’s rights activists and organisations through raids, defunding and intimidation, heavily impacting their work and creating an environment of fear;
Amendment 77 #
Draft opinion
Paragraph 4
Paragraph 4
4. Calls on the Polish Government to condemn and take appropriate legal measures against the resolutions adopted by regional and local authorities concerning the establishment of ‘LGBTI- free areas’ in Poland, which violate fundamental rights and fuel more hatred, fear and threats against LGBTI + people in Poland; calls on the Commission to assess whether the creation of LGBTI free zones consists in a violation of the freedom of movement and residence in the EU, infringing Article3 (2) TEU, Article 21 TFEU, Title IV and V TFEU and Article 45 of the Charter of Fundamental Rights of the European Union; calls on the Commission to assess whether Poland has failed to fulfil an obligation under the Treaties and it shall deliver a reasoned opinion on the matter, in accordance with Article258 TFEU; urges the Polish Government to take steps to protect LGBTI + people and to combat all human rights violations faced by them in Poland;
Amendment 79 #
Draft opinion
Paragraph 4
Paragraph 4
4. Calls on the Polish Government to condemn and take appropriate legal measures against the resolutions adopted by regional and local authorities concerning the establishment of ‘LGBTI- free areas’ in Poland, which violate fundamental rights and fuel more hatred, fear and threats against LGBTI + people in Poland; urges the Polish Government to take steps to protect LGBTI + people and to combataddress all human rights violations faced by them in Poland;LGBTI+ people and organisations in Poland; call on the Polish Government to ensure the rights and freedoms of the civil society organisations working to ensure representation of women’s and LGBTI+ peoples interests in public policy and society at large.
Amendment 81 #
Motion for a resolution
Paragraph 13
Paragraph 13
13. Is concerned, while recognising the extraordinary circumstances created by the COVID-19 health crisis, about the amendments to the electoral legislation being considered in the Polish parliament shortly before the presidential elections which change the practical organisation of the elections in order to proceed to a vote by postal services, which could impede the elections from taking a fair, secret and equal course, respectful of the right to privacy and Regulation (EU) 2016/679 of the European Parliament and of the Council23 and which moreover run counter to the case law of the Polish Constitutional Tribunal when constitutional review was still effective; stresses, moreover, that it is very difficult to organise a genuine election campaign giving an equal share of attention and equal opportunities to all candidates and programmes and allowing for real public debate in the midst of an epidemic24 ; _________________ 23Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1). 24OSCE/ODIHR, Opinion on the draft act on special rules for conducting the general election of the President of the Republic of Poland ordered in 2020 (Senate Paper No. 99), 27 April 2020.
Amendment 81 #
Draft opinion
Paragraph 4
Paragraph 4
4. Calls on the Polish Government to urgently condemn and take appropriate legal measures against the resolutions adopted by regional and local authorities concerning the establishment of ‘LGBTI- free areas’ in Poland, which violate fundamental rights and fuel more hatred, fear and threats against LGBTI + people in Poland; urges the Polish Government to take steps to protect LGBTI + people and to combat all human rights violations faced by them in Poland;
Amendment 84 #
Motion for a resolution
Subheading 6
Subheading 6
Amendment 85 #
Motion for a resolution
Paragraph 14
Paragraph 14
14. Recognises that while the organisation of the justice system is a national competence; reiterates that, all the same,in the Member States falls within their competence, the Member States are required to comply with their obligations under Union law when exercising this competence, as repeatedly held by the CJEU; reiterates that national judges are essentially also European judges, applying Union law, which is the reason why the Union, including the CJEU, has to watch over the independence of the judiciary in all the Member States as one of the exigencies of the rule of law and as laid down inmaking their independence a common concern for the Union, including the Court of Justice; calls on the Polish authorities to uphold and maintain the independence of Polish courts; calls on the Commission and the Council to take all necessary measures to ensure that Polish courts remain independent and are able to ensure effective judicial protection as required by Article 19 TEU and Article 47 of the Charter;
Amendment 89 #
Draft opinion
Paragraph 5
Paragraph 5
5. Calls on the Polish Government to include sexual orientation, gender identity and sex characteristics as a protected personal characteristics in the Criminal Code to ensure the rights of all LGBTI+ people in Poland;
Amendment 90 #
Motion for a resolution
Paragraph 15
Paragraph 15
15. Recalls that the acts concerning the Constitutional Tribunal adopted on 22 December 2015 and 22 July 2016 seriously affected the Constitutional Tribunal’s independence and legitimacy and were therefore declared unconstitutional by the Constitutional Tribunal on respectively 9 March 2016 and 11 August 2016; recalls that those judgments were not published at the time nor implemented by the Polish authorities; seriously deplores the lack of independent and effective constitutional review in Poland25 ; invites the Commission to consider launching an infringement procedure in relation to the legislation on the Constitutional Tribunal, its current unlawful composition and its active role in preventing compliance with the preliminary ruling of the Court of Justice of 19 November 2019; _________________ 25Venice Commission Opinion of 14-15 October 2016, para. 128; UN, Human Rights Committee, Concluding observations on the seventh periodic report of Poland, 31 October 2016, paras 7-8; Commission Recommendation (EU) 2017/1520.
Amendment 94 #
Draft opinion
Paragraph 6
Paragraph 6
6. Calls on the Polish Government to comply with the recommendations made by the European Parliament in its resolution of 14 November 2019 on the criminalisation of comprehensive sexuality education in Poland, as well as with those of the Council of Europe and the WHO.
Amendment 99 #
Draft opinion
Paragraph 6 a (new)
Paragraph 6 a (new)
6a. Believes that safeguarding democracy and guaranteeing respect of the rule of law and fundamental rights are essential values of the European Union; believes that EU funding under the next MFF should be conditional on adherence to these principles;
Amendment 100 #
Motion for a resolution
Paragraph 18
Paragraph 18
18. Recalls that the CJEU found in its judgment of 24 June 201928 that lowering the retirement age of sitting judges of the Supreme Court is contrary to Union law and breaches the principle of the irremovability of judges and thus that of judicial independence, after it had earlier granted the Commission’s request for interim measures on the matter by order of 17 December 201829 ; notes that the Polish authorities passed an amendment to the act on the Supreme Court in order to comply with the CJEU’s Order, the only instance so far in which they undid a reform ofchanges to the justice system following a decision by the CJEU; _________________ 28Judgment of the Court of Justice of 24 June 2019, Commission v Poland, C- 619/18, ECLI:EU:C:2019:531. 29Order of the Court of Justice of 17 December 2018, Commission v Poland, C- 619/18 R, ECLI:EU:C:2018:1021.
Amendment 102 #
Draft opinion
Paragraph 6 b (new)
Paragraph 6 b (new)
6b. Recalls that Article 7 TEU can be triggered where there is determination that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2; strongly believes that contraventions of women’s, LGBTI+ people’s and other minorities’ rights seriously breach the values of equality and respect for human rights, including the rights of persons belonging to minorities enshrined in Article 2 TEU and that such contraventions should trigger the Article 7 procedure; urges the Commission to monitor the situation of these values in the Union closely and launch proceedings under Article 7(1) where there is evidence of a clear risk of a serious breach of these values by a Member State;
Amendment 104 #
Draft opinion
Paragraph 6 c (new)
Paragraph 6 c (new)
6c. Strongly regrets recent legal changes by the Sejm, under which medical facilities would no longer be legally obliged to indicate another facility in case of denial of abortion services due to personal beliefs; calls on the Polish government to urgently reverse these changes, to address gaps in service provision resulting from doctors who refuse healthcare services on conscientious objection grounds, and to legislate to ensure that in the event of refusal to perform a medical procedure, the medical facility must indicate another specialist or facility which will perform the procedure;
Amendment 105 #
Draft opinion
Paragraph 6 d (new)
Paragraph 6 d (new)
6d. Reiterates its concerns about already ongoing, extensive, and inappropriate use of conscientious objection including the absence of a reliable referral mechanism for access to abortion in practice, and lack of timely appeals processes for women who are denied abortions; notes that under human rights law, the right of conscientious objection is not absolute and is subject to limitations to protect the rights of others and that concerning healthcare, conscientious objection is also constricted by articles protecting the right to life, health and privacy;
Amendment 110 #
Motion for a resolution
Paragraph 23
Paragraph 23
23. Recalls that it is up to the Member States to establish a council for the judiciary, but that, where such council is established, its independence must be guaranteed in line with European standards and the constitution; recalls that, following the 2017-2018 reform of the NCJ, the body responsible for safeguarding the independence of the courts and judges in accordance with Article 186(1) of the Polish Constitution, the judicial community in Poland lost the power to delegate representatives to the NCJ, and hence its influence on recruitment and promotion of judges; recalls that before the 2017 reform, 15 out of 25 members of the NCJ were judges elected by their peers, while since the 2017 reform, those judges are elected by the Polish Sejm; strongly regrets that, taken in conjunction with the immediate replacement in early 2018premature termination in early 2018 of the mandates of all the members appointed under the old rules, this measure led to a far-reaching politicisation of the NCJ34 ; _________________ 34Consultative Council of European Judges, Opinions of the Bureau of 7 April 2017 and 12 October 2017; OSCE/ODIHR, Final Opinion on Draft Amendments to the Act of the NCJ, 5 May 2017; Venice Commission, Opinion of 8-9 December 2017, p. 5-7; GRECO, Ad hoc Report on Poland (Rule 34) of 19-23 March 2018 and Addendum of 18-22 June 2018; Venice Commission and DGI of the Council of Europe, Urgent Joint Opinion of 16 January 2020, paras 42 and 61.
Amendment 118 #
Motion for a resolution
Paragraph 26
Paragraph 26
26. Calls on the Commission to start infringement proceedings against the act of 12 May8 December 20117 on the NCJ and to ask the CJEU to suspend the activities of the new NCJ by way of interim measures;
Amendment 125 #
Motion for a resolution
Paragraph 29 a (new)
Paragraph 29 a (new)
29a. Deplores the abuse of disciplinary proceedings against judges and prosecutors in Poland; is deeply concerned by the motion filed by the National Prosecution Office to the Disciplinary Chamber of the Supreme Court to waive the immunity of Judge Igor Tuleya; is similarly concerned by the disciplinary proceedings initiated against other judges, including Krystian Markiewicz, Chairperson of the Polish Judges’ Association “Iustitia”, and Paweł Juszczyszyn; calls on Polish authorities to stop using disciplinary proceedings to disguise politically motivated reprisals against specific judges and prosecutors for applying EU law or their public defence of the rule of law in Poland;
Amendment 133 #
Motion for a resolution
Paragraph 33
Paragraph 33
33. Concurs with the Commission, the Parliamentary Assembly of the Council of Europe and, the Group of States against Corruption and the United Nations Special Rapporteur on the independence of judges and lawyers that the aforementioned separate reformchanges to the judicial system, considering their interaction and overall impact, amount to a serious, sustained and systemic breach of the rule of law, enabling the legislative and executive powers to influence the functioning of the judiciary in a critical manner, thereby significantly weakening the independence of the judiciary in Poland43 ; _________________ 43Recommendation (EU) 2018/103; condemns the destabilizing impact on the Polish legal order of the measures taken and appointments made since 2016; _________________ 43Recommendation (EU) 2018/103; United Nations, Special Rapporteur on the independence of judges and lawyers, Statement of 25 June 2018; GRECO, Follow-up to the Addendum to the Fourth Round Evaluation Report (rule 34) – Poland, 6 December 2019, para. 65; PACE, Resolution 2316 (2020) of 28 January 2020 on the functioning of democratic institutions in Poland, para. 4.
Amendment 142 #
Motion for a resolution
Paragraph 35
Paragraph 35
35. Is concerned that, since the entry into force on 14 February 2020 of the amendments to the act on the Supreme Court, only the Extraordinary Chamber, whose independence and impartiality itself is in question, can decide whether a judge or tribunal or court is independent and impartial, hence depriving citizens of an important element of judicial review at all other instances45 ; _________________ 45Venice Commission and DGI of the Council of Europe, Urgent Joint Opinion of 16 January 2020, para 59; recalls that according to the case law of the Court of Justice, the right to a fair trial obliges every court to check of its own motion whether it fulfils the criteria of independence and impartiality; 45a _________________ 45Venice Commission and DGI of the Council of Europe, Urgent Joint Opinion of 16 January 2020, para 59. 45aJudgment of the Court of Justice of 26 March 2020, Simpson v Council and HG v Commission, Joined Cases C-542/18 RX-II and C-543/18 RX-II, ECLI:EU:C:2020:232, para 57.
Amendment 155 #
Motion for a resolution
Paragraph 37 a (new)
Paragraph 37 a (new)
37a. Expresses concern over use and threat of libel litigation against academics and the Polish Ombudsman; calls on Polish authorities to respect freedom of speech and academic freedom; denounces attempts to silence the Polish Ombudsman, an independent institution enshrined in the Polish Constitution;
Amendment 228 #
Motion for a resolution
Paragraph 46
Paragraph 46
46. Recalls its stance expressed in its resolution of 18 December 2019, when it strongly denounced any discrimination against LGBTI people and the violation of their fundamental rights by public authorities, including hate speech by public authorities and elected officials, in the context of elections, as well as the declarations of zones in Poland free from so-called ‘LGBT ideology’, and called on the Commission to strongly condemn such public discrimination; notes the lack of any improvement in the situation of LGBTI people in Poland since;
Amendment 235 #
Motion for a resolution
Paragraph 47
Paragraph 47
47. Notes that the lack of independence of the judiciary in Poland has already started affecting mutual trust between Poland and other Member States, especially in the field of judicial cooperation in criminal matters; points out that mutual trust between the Member States can be restored only once respect for the values enshrined in Article 2 TEU is ensured; considers the threat to the uniformity of the Union legal order posed by rule of law deconsolidation in Poland to be particularly serious;
Amendment 241 #
Motion for a resolution
Paragraph 48
Paragraph 48
48. Calls on the Polish government to comply with all provisions relating to the rule of law and fundamental rights enshrined in the Treaties, the Charter of Fundamental Rights, the ECHR and international human rights standards, and to engage directly in honest dialogue with the Commission; calls on the Polish government to swiftly and fully implement the rulings of the CJEU and to respect the primacy of Union law;
Amendment 242 #
Motion for a resolution
Paragraph 48 a (new)
Paragraph 48 a (new)
48a. Calls on the Council and the Commission to refrain from narrowly interpreting the rule of law principle, and to use the Article 7(1) TEU procedure to its full potential by addressing the implications of the Polish government’s action for all the principles enshrined in Article 2 TEU, including democracy and fundamental rights, such as freedom of association, women’s rights, media freedom and the right to free and fair elections;
Amendment 246 #
Motion for a resolution
Paragraph 49
Paragraph 49
49. Calls upon the Council to resume the formal hearings - the last one of which was held as long ago as December 2018 - as soon as possible and to include in those hearings all the latest and major negative developments in the areas of rule of law, democracy and fundamental rights; urges the Council to finally act under the Article 7(1) TEU procedure by finding that there is a clear risk of a serious breach by the Republic of Poland of the values referred to in Article 2 TEU, in the light of overwhelming evidence thereof as displayed in this resolution and in so many reports of international and European organisations, the case-law of the CJEU and the European Court of Human Rights and reports by civil society organisations; strongly recommends that the Council address concrete recommendations to Poland, as provided for in Article 7(1) TEU, as a follow-up to the hearings, and that it indicate deadlines for the implementation of those recommendations; calls on the Council to keep Parliament regularly informed and closely involved; furthermore on the Council to commit to assessing the implementation of these recommendations in a timely manner and, should conditions warrant it, move forward under Article 7(2) TEU; calls on the Council to keep Parliament regularly informed and closely involved; points out the need for informing, in a transparent manner, about the proceedings in the Council in order to allow for meaningful participation and oversight by all European institutions and civil society;