Status of elected MEPs in Poland (debate) 
President
The next item is the debate concerning an oral question to the Commission from Giuseppe Gargani, on behalf of the Committee on Legal Affairs - B6-0002/2008) concerning the status of MEPs elected in Poland.
Giuseppe Gargani
author. - (IT) Mr President, ladies and gentlemen, the issue that we are discussing tonight has been examined in detail, on more than one occasion I may say, by the Committee on Legal Affairs, which I have the honour to chair, and that Committee has asked me, through this question, to open a discussion and to exchange views with the Commission.
The question relates to the status of MEPs elected in Poland, who are not in the same position from the point of view of elections and all the provisions that govern the elections of other parliamentarians in other Member States. Elections to the European Parliament in Poland are in practice governed by the Act of 23 January 2004, Article 9 of which sets out eligibility requirements: candidates must be aged 21 on the day of the poll, must not have been convicted of criminal offences, must be resident in Poland and must satisfy various other criteria.
Chapter 17 of that Act sets out the circumstances in which Polish MEPs may lose their seats: their eligibility, that is the eligibility requirements on the day of the poll, may be invalidated, giving rise to the possibility of forfeiture if these requirements were not met, and various other matters, which I shall not cite in order to get to the crux of the matter that I should like to discuss here.
On the basis of a number of combined provisions, as we lawyers say, an MEP automatically loses his seat - that is, an MEP automatically forfeits that seat - if he or she has received a criminal conviction; in the case of members of the Polish Parliament, the law of 12 April 2001 - both as regards elections to the Sejm and to the Senate of the Republic - contains no provision of this type, with the result that these provisions relate to Polish MEPs but not to Polish MPs.
For that reason, we discussed the question and asked ourselves a question, a question which among other things has repercussions as regards requests for immunity; as you know, we have - as Commissioner Frattini is very well aware - the power to decide on this question. Clearly, if a member automatically forfeits his or her seat as a result of an event for which immunity cannot be upheld, there is obviously a further problem, a further uncertainty.
For that reason, we ask, and I ask on behalf of the Committee, the Commissioner whether or not he considers that the Polish legislation on elections to the national parliament breaches Article 10 of the Protocol on Privileges and Immunities, which states that during the sessions of the European Parliament, its members shall enjoy the immunities accorded to members of their Parliament in the territory of their own State. There is therefore a clear inconsistency if provision is made for a Polish member to lose his or her seat, when members of the national parliament are not treated in the same way.
I would also ask the Commission if it intends to bring proceedings before the Court of Justice with a view to Poland amending this legislation and correctly applying the treaty, as it would seem that the treaty is not being applied as it should be. As an exception is involved, and as the comparable and equal treatment of members from all the Member States means that this exception for members from the Polish state runs completely counter to what may be provided and is provided for all other members from the Member States, I would ask the Commission these two things and put this information before Parliament and ask whether the Commissioner can reply to these two questions and whether it is possible to find a remedy to the questions I have put.
Franco Frattini
Vice-President of the Commission. - (IT) Mr President, ladies and gentlemen, the issue which Mr Gargani has brought up is undoubtedly an important one: it is important because two principles, both of which are relevant and important in my view, are at stake.
The first principle is undoubtedly that referred to in Article 10 of the Protocol on Privileges and Immunities and on the status of the members of the European Parliament, which specifies that in the States to which the members of the European Parliament belong, they must be accorded the same prerogatives as members of the national parliament of that country.
However, another provision is also involved - a provision which is also important in my view - and that is Article 13 of the European Act of 1976 relating to the election of members of Parliament. That article very clearly states that when a Member State introduces national legislation covering the case in question here, that is the loss of the status, the loss of the position of member of the European Parliament, termination of the European parliamentary mandate in that country is subject to national law.
In other words, there is an apparent conflict, because the rules set out in the Protocol on Privileges, as cited by Mr Gargani, speak of equal prerogatives for members of the Polish Parliament and members of the European Parliament elected in Poland, but at the same time the European Act of 1976 on the election of members of the European Parliament, as regards the loss of the status of member of the European Parliament, apparently - or explicitly, I would say - governs the loss of the status of MEP and establishes that the loss of that status is governed by national law.
In my opinion, the problem here is more one of the infringement of a third guiding principle for the European Union: whether or not the principle of equal treatment is enshrined in Polish domestic legislation. The principle, enshrined in the constitutional legislation of all the European countries, that establishes that similar situations must be treated in similar ways. It is rather that general principle that is at issue; but that general principle does not, however, allow the European Commission to establish the way in which the Polish legal order should change its legislation, because, as the issue is subject to national law, if it were wished in national law to govern the loss of the status of national MP rather than the loss of the status of MEP in a different way, that would be possible, the important factor being that the provisions on one are brought into line with the provisions on the other.
This is my personal opinion in that the Commission cannot now say 'we are turning to the Court for a ruling that Polish national law has to be amended in a particular way', but I am of the view that a general principle can be drawn. The general principle is that the Polish legal order must act to amend this difference in treatment and that, I believe, is a matter for the Polish legislator. As this is a question that has never arisen and is too delicate to be dealt with in any summary way, I believe that the first step is to reach an understanding: if the Polish legislator, as I believe, should remove this difference in treatment, that is a matter for the Polish Parliament.
Second: does Polish legislation comply with the provisions of the European Act of 1976 which I cited earlier? I can tell you, Mr Gargani, that I have commissioned a comparative study for the 12 new Member States to ascertain whether the legislation, not just Polish legislation, but the legislation of the 11 Member States which acceded to the European Union between 2004 and 2007, whether the national legislation in those Member States complies with the provisions of the European Act of 1976.
In conclusion, two tasks need to be undertaken. First: a review, which I am undertaking, of the conformity of Polish national legislation, and not just Polish legislation, because the fact that Mr Gargani has brought up the case of Poland does not mean that there are not comparable situations in other Member States. My view is that this review is needed for all of them.
The second task is to assess whether the Polish Parliament can, though legislation, remove what is objectively an apparent conflict, since there is an apparent discrimination between the status, regulated by law, of MEPs elected in Poland and Polish MPs. There is an apparent conflict, and the only aspect that I believe would be difficult to accept is that it is up to the European Commission to ask the Court of Justice what action the Polish legislator should take.
Were Parliament to agree with this stance, we could simply point out that there is apparent discrimination in Poland between the status of two types of parliamentarian. This is a very new exercise and we should try to make progress with it in a spirit of cooperation.
Tadeusz Zwiefka
on behalf of the PPE-DE Group. - (PL) Mr President, Chairman Gargani presented the situation of Members of the European Parliament in the context of Polish law very clearly, as also their unequal treatment in this same context as regards Members of Parliament in Poland, and also with regard to senators. I would agree with the argument put forward by Commissioner Frattini that this violates the principle of equal treatment of Members of Parliament before the law.
I would like to inform you that the present ruling coalition in Poland, the Platforma Obywatelska and the Polskie Stronnictwo Ludowe, has already begun work on changing this law so as to make it the same for Members of the European Parliament, Members of Parliament in Poland and for Senators. This change will follow the same direction as the provision that is contained in the European Parliament's electoral law, so that the same principle also applies to Polish Members of Parliament and Polish Senators.
However, in this context, as Mr Gargani said that we are opening a discussion concerning a problem that may be a wider issue, I wonder whether it may be worth thinking about a common electoral law, at least in terms of general principles, a common electoral law for the European Parliament for all Member States of the European Union, as today there are very different circumstances in the 27 Member countries. It is difficult to disagree, and of course I accept all legal restrictions as regards MEPs, but it is difficult for me to agree with a situation where, on being sentenced to a fine in a case brought by the public prosecution service for a deliberate crime, or for being charged with such a crime, a person automatically loses their mandate to the European Parliament.
Lidia Joanna Geringer de Oedenberg
on behalf of the PSE Group. - (PL) Mr President, today's debate raises the issue of unequal treatment of Polish Members of the European Parliament and Members of the Sejm as regards election criteria, as well as that of loss of mandate.
In Article 9 of the Act of 23 January 2004 concerning the electoral ordinance for the European Parliament, we see that the right to stand for election to this institution is given to persons who, among other criteria, have not been convicted of a deliberate crime or charged by the public prosecution service, and Article 142 states that one's mandate can be withdrawn as a result, for example, of the member's election to the European Parliament being invalidated. This means that the conviction of a Member (this refers to a Member of the European Parliament, as has been mentioned earlier) for a crime committed deliberately is equivalent to their automatically losing their mandate, while for members to the national parliament this does not act as an obstacle to them standing for election, nor does it result in the loss of their mandate.
As regards the privileges of Members of the European Parliament, Rule 5(1) of the Rules of Procedure of the European Parliament states that 'Members shall enjoy privileges and immunities in accordance with the Protocol on the Privileges and Immunities of the European Communities'. In the Preamble, the Protocol states that it regulates the issue of privileges and immunities that are necessary to carry out responsibilities for the European Communities, and, in Article 10(a), states that, during the sessions of the Assembly, 'in the territory of their own State, its members shall enjoy the immunities accorded to members of their Parliament'. Members of the Polish Parliament and the European Parliament are protected by the same immunity. According to Article 11, 'Representatives of Member States taking part in the work of the institutions of the Communities, their advisers and technical experts shall, in the performance of their duties and during their travel to and from the place of meeting, enjoy the customary privileges, immunities and facilities'.
There is no doubt that a Member of the European Parliament is a representative of a Member State who is taking part in the work of the institutions of the Union. Since Members of the European Parliament and of the Polish Parliament should benefit from the same immunities and privileges, then the rules as regards their eligibility to stand for election as well as for loss of mandate should also be the same.
In acceding to the European Union Poland assumed a responsibility to respect laws in force in the EU, especially those laws having a direct impact on the internal legal system in Member States. I would encourage the fastest possible standardisation in legislation relating to the status of Members of the Polish Parliament and Members of the European Parliament in Poland, and I fully agree with the view taken by Commissioner Frattini in this regard.
Jens-Peter Bonde
on behalf of the IND/DEM Group. - Mr President, the Polish electoral law on elections to the European Parliament is truly unfair and undemocratic compared to the law on elections to the national parliament. The forfeiture of a seat of a deputy to the European Parliament by laws of eligibility is an easy way to put pressure on political opponents and gives the opportunity to settle an account politically with those who have more authority.
Unfortunately, although being in the European Union, the law is still abused in many former Communist countries. This is the case for Mr Tomczak as well. As Members of the European Parliament, Polish MEPs represent not only the Poles but also all Europeans.
It is unacceptable that these people's representatives are discriminated against by maintaining different legislation with regard to Members of the Polish Parliament. A Polish MEP, if convicted, will be punished not only by Polish law but will also lose his seat as a Member of the European Parliament. That fact clearly shows the discrimination of Polish Members of the European Parliament in comparison to members of national parliaments. That situation is unacceptable and shows clearly how unjust and unfair the Polish electoral law is.
May I urge Poland to change its electoral law?
Aloyzas Sakalas
Mr President, this oral question is a consequence of the debates in the Committee on Legal Affairs on the immunity of Mr Tomczak.
The immunity of Mr Tomczak was raised by Parliament a few years ago. Recently the Committee on Legal Affairs received a request from Mr Tomczak to defend his immunity. The committee discussed this request and a draft decision has been prepared. Nevertheless, the adoption of the final decision was postponed as the committee received information that, in the event of his immunity being waived, the legal consequences for Members of the European Parliament from Poland and Members of the Polish Parliament would be different.
According to the Polish Act of 23 January 2004, a Member of the European Parliament from Poland will lose his or her seat automatically in the event of criminal conviction. For Members of the Polish Parliament this provision is not applicable. Such a difference is in breach of European Community law, by maintaining different legislation with regard to members of the national parliament and Polish Members of the European Parliament. This discrepancy between Polish and European Community laws needs to be clarified.
Therefore, I fully support the formulation of an oral question to the Commission. I hope Mr Frattini will use all his influence to aim to eliminate this discrepancy between Polish and European Community laws.
Paul Rübig
(DE) Mr President, Commissioner Frattini, ladies and gentlemen, I believe that democracy in Europe needs to be constantly developed, and we are seeing many attacks on our democratic system from outside Europe. The Members of the European Parliament take decisions, of course, on very many issues that have a direct and immediate effect on the European public. Members of parliaments do not take decisions for themselves but represent their voters.
For this reason the Members of the European Parliament must not be inferior in status to members of national parliaments nor, conversely, should national deputies have a lesser status than MEPs.
For this reason I believe that the Commission should examine the impact on Poland's MEPs of the new statute that will apply from 2009 onwards and investigate what changes the statute will make and whether there is not some scope for its principles to be applied in order to remove these disparities.
Manuel Medina Ortega
(ES) Mr President, as ever, Commissioner Frattini has performed an intricate legal analysis. As he said, in the current circumstances there would appear to be no grounds for bringing proceedings before the Court of Justice directly.
However, after listening to Mr Zwiefka, who has been telling us about a proposal from the current Polish Government to amend the law, I would ask the Commissioner whether he believes that the Commission could in fact approach the Polish Government on the basis of the debate we are having in Parliament at present to see whether the Polish Government is indeed proposing to amend the law to harmonise the status of MEPs with that of members of the national parliament.
Marek Aleksander Czarnecki
(PL) Mr President, the proposal put forward by Mr Zwiefka to make the situation of Members of the European Parliament the same as Members of the Parliament in Poland does not provide a solution to the problem. I believe that the best solution, which is in fact already part of Polish law, would be that in circumstances where a person is convicted of a deliberate crime, the court should also decide to deprive them of public rights, meaning that the person in question cannot stand for election.
This solution exists, for example, in France. I would like to give you a specific example: our colleague, Mr Onesta, the Vice-President of the European Parliament, was sentenced a few months ago by a court in France to a suspended sentence of several months for an act that, under Polish law, would automatically mean the loss of one's mandate to the European Parliament. I see the present situation as being completely wrong. I think we should go in the direction of the solution proposed by Mr Frattini.
Giuseppe Gargani
(IT) Mr President, ladies and gentlemen, some further brief comments: I am pleased that the debate overall has recognised that there is a significant and thorny problem. I should like, in particular, to thank Commissioner Frattini who, as the good lawyer that he is, has looked in more detail at the matter, which, as he rightly says, does not just relate to Poland. There is a general principle at stake and I am therefore very content, as is the Committee, that you are undertaking an overall review to monitor compliance and to check whether laws are consistent as regards the national and the European question.
One fact is certain, however, there is not an apparent conflict since, as regards guarantees, the Polish law is contrary to the Treaty; if a Polish MEP were to lose his seat, obviously the article of the treaty which provides for the possibility of taking part in the sessions would fall. From the Committee's own point of view, as you have heard in the debate just now from Mr Medina, and from me personally, the issue is not one of bringing proceedings, but of following up the question in order to resolve it. If our Polish colleague, Mr Zwiefka, says that this matter has already been brought to the fore in Poland, some progress has already been made.
Comparability is what is needed, as that comparability makes Europe the guarantor of the unity of States that are working together, of citizenship and of equal rights from the point of view of freedom and everyone's status.
Sylwester Chruszcz
(PL) Mr President, just to add my support to the speeches, most of which I support, I believe that of course we should harmonise our regulations as soon as possible. To illustrate how necessary this, is I would like to draw attention to the story of our colleague, an MEP, who is present here with us: Mr Tomczak, who has been involved in a criminal case in Poland for many years, which is now approaching a conclusion and could impact on his future as a Member of the European Parliament. A case which does not involve much harm, and in which witnesses deny that the event took place. A case that at one time was closed, which perhaps under the influence of some political turbulence has been reopened; and now, Mr Tomczak, who has twice been elected (our colleague became an MP in 2005, and an MEP in 2004), now, his immunity as well as his mandate may be removed. This is something that is unbelievable, harmful and which should, as quickly as possible, be cut short and removed from this forum.
Franco Frattini
Vice-President of the Commission. - (IT) Mr President, ladies and gentlemen, I feel that tonight's debate has shown two things: the first is that there is a widespread view, which is shared, I would say, by all those who have spoken - and a view which I believe to be right - that the disparity of treatment between MEPs elected in Poland and Polish national MPs should be removed and that this analysis should be extended to all the other new Member States of the European Union whose compliance with the European Act of 1976 has not as yet been checked.
The second conclusion, and I refer to the proposal by Mr Medina Ortega, with which I agree, is to pass on the outcome of this debate to the competent authorities of the Polish Government, informing them that this disparity of treatment needs to be removed through national legislation. I shall do that. I can tell you that I shall certainly make formal contact with the Minister of Justice of the Polish Government in order to pass on the widespread opinion of this House - which I share - that while the Polish national legislator has sovereign powers over the way in which the elimination of this disparity of treatment is to be achieved, the objective of removing that disparity of treatment must be pursued.
That is the opinion that I put forward at the beginning: I do not consider that I can tell the Polish legislator how to proceed, but I do consider that I can spell out the objective, and that objective is to remove the disparity of treatment between the status of Polish national MPs and the status of MEPs elected in Poland.
I shall certainly pass on that information and I would add that I shall report back to this House, in view of the interest of Mr Gargani and the Committee on Legal Affairs, on the review of the other 11 new Member States so that the governments of other Member States that might be affected can then be notified accordingly.
President
The debate is closed.

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