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Open letter from Marek Jurek to Frans Timmermans: Anticipating the European Council’s actions and taking over its powers is abuse and a usurpation of power

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European Union – On Wednesday 15 morning, there will be a debate about Poland at the European Parliament. Marek Jurek, a Polish MEP and former speaker of the Sejm, has sent the letter below, before the debate, to Frans Timmermans, First Vice-President of the European Commission and European Commissioner for Better Regulation, Inter-Institutional RelationsRule of Law and Charter of Fundamental Rights.

In his letter, Marek Jurek reproaches the First Vice-President of the European Commission his violations of European law and his free interpretations of European treaties while he claims to protect the rule of law in Poland.

Strasbourg, 13 November 2017

Dear Vice-President Timmermans,
At two consecutive LIBE committee meetings (31 August 2017 and 6 November 2017) I requested you to present the legal basis behind the instructions the European Commission wishes to issue to governments, in this case to the Government of Poland. The competences of the European Commission regarding Member States’ compliance with the values set out in Art. (2) of the Treaty on the European Union come down to the filing of a request to the European Council for it to declare a breach of those standards by a particular state in the event those values are believed to have been infringed. The Commission has the right to make such a request but cannot hold that such a condition exists until it has been formally stated by the Council. The Council cannot issue instructions to states or, in general terms, to take actions exclusively reserved for the Council.

Should it formally consider a request by the Commission, it is the sole right of the European Council to “hear”, “address recommendations” and “regularly verify” whether the reasons for its actions remain valid. These powers are vested neither in the Commission nor in two of the other entities entitled to file a similar request with the Council. Theses competences belong solely to the Council, i.e. to states acting through their governments at the European Council. Such are the provisions of the Treaty.

In answering my question about the legal basis of your actions, you stated that since Article 7 makes mention of the Commission, then the Commission may take such action. However, Mr Vice-President, Article 7 speaks about various subjects of EU power, and in accordance with the principles of the separation of powers, it defines and demarcates their competences. Anticipating the European Council’s actions and taking over its powers is abuse and a usurpation of power. The principle of “everything which is not forbidden – is allowed”, and thus the presumption of competence, is a privilege of the citizen in a free society. Public authorities must adhere to an opposite principle, which states that “everything which is not allowed (which is not delegated by law) – is forbidden (the authorities must not do so).

I understand your intentness to pursue your own vision of EU interests, but the Commission is only one, albeit a very important, body of the EU, and as such must limit itself to the powers vested in it. You cannot treat the boundaries the Commission is confined to as “loopholes in the system” (as previously stated by you), because no “system” you may envision is able to replace treaties nor laws. It is not possible for you to “amend” treaties where you believe they are wrong. The treaties’ restraint is not their weakness. It is a deliberately agreed form of reconciling community powers with the sovereign powers of states.

In response to my questions, you ventured to make repeated use of one more argument, the nature of which filled me with utmost surprise. As evidence of the legality of your actions, you pointed to “the support of the overwhelming majority of governments and the Parliament”. I am unable to understand how one can remind individual governments that the majority does not have the right to everything, while at the same time recognize the support of an undefined and informal “majority” as the legal basis for ones actions. You should really refrain from formulating such a radically populist argument, all the more so because the Treaty on the European Union states that not just a simple majority, but only a qualified majority of 4/5 of the states may conclude that there is a “a clear risk” that EU values may be violated in a given state, while only a majority of 27/28 states (all without the state in question) may conclude that such a condition actually does exists. In addition, such a majority can exercise its powers only within the Council, as the Council, and not, for example, by tacit approval for the non-treaty activities of another EU body.

If you believe the existing treaty provisions are unsatisfactory, it is your right as a politician to seek to amend them. However, you cannot pursue to do so from the position of your currently held office. The role of the Commission is to “ensure the application of the treaties” and not to undermine them. This, by virtue of your position, Mr Vice-President, is a responsibility that belongs to you more than to any other commissioner.

Of course, I would be grateful to become familiar with your position on the matter, even more so since your previous responses have only confirmed the lack of legal basis for your actions.
Yours sincerely,

(-) Marek Jurek