Rule of law update – September 2021

In our rule of law updates, we look back at the most important rule of law news of the last month. We give an overview of current events per Member State and will also mention important events, seminars and webinars on the rule of law situation in the European Union. Furthermore, we will list some important and interesting articles, books and publications concerning the rule of law. If you have any suggestions, corrections or events that you want us to mention, do not hesitate to contact us!

General

On 24 September 2021, the European Commission presented its Recommendation on ensuring the protection, safety and empowerment of journalists and media professionals in the European Union. The recommendation includes a series of measures to improve journalists’ safety, to end attacks against journalists and to stop the legal and other types of harassment that journalists regularly face, such as SLAPPs. Press organisations, such as IPI, welcome the recommendations but also warn that the efficiency of such recommendations might be hampered by insufficient implementation.

Rule of Law Report will include specific recommendations in the future. The Commission has announced that it is changing its Rule of Law Report to include country-specific recommendations. Many have criticised the limited value of the rule of law report due to its descriptive nature and its lack of impact on the rule of law situation in the EU.


Upcoming Events in October

6 October: the CJEU will publish its judgment in the case C‑487/19 W.Ż. (a referral from a Polish Court). C-487/19 concerns the question whether a panel composed of a judge from one of the new Chambers of the Polish Supreme Court is an independent and impartial tribunal established by law, according to EU law. It thus touches crucial rule of law aspects such as judicial appointments, the status of neo-National Council of Judiciary and the independence of judges that were appointed with its participation.

7-8 October 2021: Probing Democracy organised by the Central European University, can be followed online as well, more information here. We can especially recommend the panel Robustness of the Rule of Law: Past and Present on Friday.

7-8 October 2021: Justice and Home Affairs Council, which will, amongst others, deal with SLAPPs (Strategic Lawsuits against Public Participation) and EPPO.

8 October 2021, 09:30 (CET); Democracy Reporting International: Overshadowed by neighbours? Rule of law in the Czech parliamentary elections, registration via this link.

11-12 October: CJEU hearing in cases C-156/21 (v Parliament and Council) and C-157/21 (Poland v Parliament and Council) – these cases concern the Conditionality Regulation 2020/2092.

19 October 2021: General Affairs Council, which will discuss the Annual Rule of Law Reports.


Bulgaria

In 14 November 2021, Bulgarians head to the polls putting hope in new political force. Bulgaria will hold a third parliamentary election this year after two previous votes failed to produce a government. The parliamentary elections will be held on the same day as the presidential elections. You can follow the most current polls and trends for the parliamentary elections on Politico.


France

According to Emmanuel Macron, compliance with Rule Of Law will be among the priorities of the 2022 French EU Presidency. Read more on Politico Brussels Playbook, 7 September 2021.


Germany

Wolfgang Schäuble (President of the German parliament) does not want to be too harsh on Poland and Hungary. He warned the EPP congress about the risks in causing too much row with Poland and Hungary concerning the rule of law and treaty infringements. Withholding EU funding is agreeable for a certain time, but going too far in this row might turn out to be counteproductive. Read more on Euractiv, 9 September 2021.


Hungary

European Parliament delegation on the rule of law to carried out a fact-finding mission to Budapest from 29 September to 1 October. The delegation under the lead of MEP Gwendoline Delbos-Corfield was especially concerned about the use of spyware on journalists and oppostion that was revealed by the Pegasus Project. You can watch the press conference given by Delbos-Corfield about the fact-finding mission to Budapest here.

On 26 September 2021, the primary elections of Hungary’s opposition alliance took place. Hungary’s opposition parties have formed an alliance in an attempt to defeat Prime Minister Viktor Orbán’s Fidesz party next year’s election. There were reports about hacking of the opposition primary as online voting was disrupted for days, some claim Chinese hackers are responsible for this. Klara Dobrev, the leftist Democratic Coalition’s candidate, won the first round of opposition primary vote just ahead of another leftist, Budapest mayor Gergely Karacsony, both campaigned on a pro-European agenda. Read more on Reuters, 1 October 2021.

The Hungarian Parliament extended the force of the Authorization Act until 31 December 2021 and thus prolongues the rule-by-decree emergency regime introduced due to the Covid-19 pandemic. Read more about how this grants the government excessive regulator powers in this regularly updated article by the Hungarian Helsinki Committee, 27 September 2021,

New revelations about the Pegasus spy-ware that was used on journalists and opposition members. Direkt36 revealed that Dániel Németh has been recently targeted and surveilled with the Pegasus spy-ware – the spying occured after the revelations were made public. Direkt36 also found out that a publisher of an anti-Orbán news site came under surveillance on the same day Hungary’s largest opposition party uploaded information about a contract with this news site to the parliament’s website (Tweet by Direkt36 on 13 September 2021). The Hungarian government in the meantime has been doing its best to block parliamentary hearings about the Pegasus Project from taking place. In a recent hearing, Orbán’s cabinet members not only refused to give clear answers about the use of spyware against journalists, the opposition and other targets, it also classified everything they have said in this hearing until 2050 (Tweet by direkt36-journalists Szabolcs Panyi on 20 September 2021). On 15 September 2021, the European Parliament discussed the Pegasus project. Read more on Direkt36, 21 September 2021, and The Guardian, 15 September 2021.

Baka v. Hungary: the Committee of Ministers of the Council of Europe calls on Hungary to present the steps taken by the Hungarian government aimed at executing the judgment issued in 2016 in the Baka v. Hungary case, Hungarian Helsinki Committee, 20 September 2021.

EU anti-fraud watchdog OLAF loses access to documents case against Hungarian civil association after Court finds the protection of inspections cannot serve as a reason to refuse access after such inspections are closed. Read more about the case on Open Government in the EU, 13 September 2021.

Businesses with close ties to Fidesz and Orbán land government deals favourable to them. Recently, reports by Telex showed that a Fidesz-allied businessmen (namely the husband of government spokesperson Alexandra Szentkirályi)  secretly won 35-year casino rights. Furthermore, Lőrinc Mészáros, a childhood friend of Prime Minister Orbán, has won a big infrastructure tender for Budapest’s most significant railway development project (Southern Circular Railway). Mészáros has scored other important government contracts before that.

Hungary extended its migration emergency for the fifth year again by six months due to growing migratory pressure at the border and events in Afganisthan. This state of emergency has been introduced in March 2016 and has been extended every six months since then. Read more on Euractiv, 5 September 2021.

T517/19 (Homoki v. Commission): The EU General Court annuls OLAF’s decision not to grant partial access to the final report of its investigation relating to street-lighting projects implemented by the company Elios in Hungary with financial participation from the EU (these were the projects in which Orbán’s son-in-law has been involved). Read more here, 1 September 2021


Slovakia

A special committee of the European Parliament led by Sophie in ‘t Veld paid a working visit to Slovakia to see how the fight against corruption is going. The independence of the media and the state of democracy were also on the agenda for this country visit. The EP delegation also visited the parents of journalists Ján Kuciak and Martina Kušnírová, who were murdered three years ago.


Slovenia

Supreme Court decides in row about Slovenian Press Agency. 21 organisations signed a joint statement calling for an end of the STA (Slovenian Press Agency) crisis. It has been more than 250 days since the STA has last received state funding from the government of Janez Janša. The funding has been stopped because of a row over its management and reporting. In the beginning of September, the Slovenian Supreme Court ruled that the government must resume financing the country’s only news agency, read more here on Euractiv, 7 September 2021.


Poland

Poland’s KRRiT extended the license of broadcaster TVN24 4 days before the deadline on 26 September after a 19-month delay after the TV station. Earlier in September, the PiS government signed a bill that would block companies that are owned by entities outside the EEA . The bill seemed to particularly aim at the discontinuing the license of American-owned TVN, whose coverage is often critical of the government.

Morawiecki government considers breaking up ‘sincere cooperation’ principle. As the standoff between the Polish government and the European Commission is continuing, Morawiecki’s  government is considering all possible retaliations to use against the Commission’s gridlock of EU funds. The Polish government has allegedly made a list of EU projects it intends to block if the EC freezes the EU recovery package. Read more on Euractiv and euobserver 29 September 2021.

The European Commission sent letters to five regions controlled by the ruling Law and Justice (PiS) party, urging them to remove the anti-LGBT declarations adopted by their local governments, otherwise they’d lose EU funding (Euractiv, 7 September 2021). After these warnings, several Polish regions revoked their anti-LGBT declarations – however, 16.5% of Polish territory is still covered by “LGBT-ideology free zones” (around 100 towns, regions and villages). Read more on euobserver, 23 September 2021.

Polish Court Case K 3/21 about the primacy of EU law over Polish law continues. After several postponements, Case K 3/21 finally continued on 22 September. To freshen up the memory: K 3/21 at the Polish Constitutional Court has become a crucial case about whether Polish judges have to apply EU law before the Polish Constitutional Court and whether EU law enables Polish judges to assess other judges’ independence. The case has been lodged by Prime Minister Morawiecki and could lead to a general rejection of the primacy of EU law (one of the core principle of the EU legal order). It could thus be the end of judicial dialogue and a first step of a “Polexit” from the EU legal order. Jakub Jaraczewski from Democracy Reporting International has summarised both hearings of K 3/21 (you can read the thread about the hearing on 22 September here and here the one one 30 September). The case will continue on 7 October.

European Arrest Warrant, Poland and Rechtbank Amsterdam: for the third time, the Rechtbank Amsterdam submits preliminary questions to the CJEU concerning the European Arrest Warrant and Polish courts. This referral concerns the status of Polish judges appointed with the participation of the neo-National Council of Judiciary. The Rechtbank Amsterdam also refers to the questions asked by the Irish Supreme Court in Case C-480/21 (Minister for Justice and Equality).

Disciplinary Chamber: Commission has found that Poland failed to implement the CJEU interim order C-204/21 and judgment C-791/19. On 7 September, the European Commission asked the CJEU to impose a daily financial fine for Poland’s non-compliance with temporary measures that the CJEU ordered in July 2021in Case C-204/21. The Commission furthermore initiated the procedure to establish the fact of non-compliance with the C-791/19 judgment. Didier Reynder stated that the Commission is “at the end of the road” with Poland and that the penalties should be as high as €1m a day (although that is up to the CJEU). Read more on Financial Times, 9 September 2021, and Politico & Notes From Poland, 7 September 2021. Poland’s PiS government did not hesitate to respond to the Commission’s decision, calling for “drastic solutions” and promising that they will “fight the Brussels occupier”, read more on Notes from Poland, 10 September. The situation at the Disciplinary Chamber remains chaotic: as Jakub Jaraczewski points out, one panel suspended its proceedings due to the ECtHR judgment in the Reczkowicz case and the CJEU’s interim order, some panels continue their work. Another interesting read is the Verfassungsblog-article by the Members of the Free Courts Civic Initiative based in Poland.

Despite the interim order and the penalty for non-compliance, the suspension of judges continue: Ziobro breached the CJEU judgment and suspended Judge Synakiewicz for challenging the status of neo-judges and implementing the judgments of the CJEU and ECtHR, Rule of Law in Poland, 10 September 2021. Some days later, Judge Piotr Gąciarek from the Regional Court in Warsaw was also suspended for implementing EU law because he refused to adjudicate alongside a judge promoted by the National Council of the Judiciary, read more on Themis, 13 September 2021.


Romania

Romanian socialist MEPs vote against LGBTIQ rights, read more on euobserver, 15 September 2021.


News articles, Podcasts, Etc.

Article by Radosveta Vassileva about the situation of media freedom in Bulgaria, New Eastern Europe, 21 September 2021.

6 reasons why the EU should use the approval of National Recovery and Resilience Plans to enforce the rule of law in Hungary and Poland by the Good Lobby Profs, available here.

Interview with John Morijn and Dariusz Mazur about the threat of a legal Polexit, de Volkskrant, 21 September 2021 [in Dutch language!]

The Guardian about the Tour de Konstytucja” and Judge Igor Tuleya, 20 September 2021.

Notes from Poland podcast: Rule of law and the spectre of Polexit with Notes from Poland editor-at-large Stanley Bill and legal expert & journalist Anna Wójcik.


Papers, reports, Seminars

Respect for the Rule of Law in the Case Law of the European Court of JusticeA Casebook Overview of Key Judgments since the  Portuguese Judges Case, written by Laurent Pech and Dimitry Kochenov, Published by the Swedish Institute for European Policy Studies (SIEPS), you can find this casebook overview here.

Europe’s Free Press Under Siege, Association of Independent Journalists with support from the Committee for Editorial Independence, link to report.

Unleashed dialogue or captured by politics? The impact of judicial independence on national higher courts’ cooperation with the CJEU, Juan A. Mayoral and Marlene Wind, September 2021, link to paper.

Freedom Lecture with Veronika Munk (and John Morijn on the panel, alongside Emilie van Outeren, Yoeri Albrecht and Pieter Klok) about the status of media freedom in Hungary, you can watch the recording of the Freedom Lecture here in case you missed it.

Our Rule of Law Festival

On 17 and 18 September, students of the Law Faculty of the University of Groningen have organised a festival about the rule of law situation in Poland – the “Our Rule of Law Festival”. The panel included Polish guests that play an important role in the fight for the rule of law in Poland, such as the judges Igor Tuleya and Dariusz Mazur, journalists Anna Wójcik and Mariusz Jałoszewski, lawyer Michał Wawrykiewicz, former Ombudsman for Civil Rights Adam Bodnar, lawyer and founder of Free Courts Civic Initiative Paulina Kieszkowska, law professor Aleksandra Gliszczyńska-Grabias, and many more. The Meijers Committe (together with NGIZ Noord) also hosted one of the panels, namely a discussion about academia’s role in the context of rule of law backsliding.

You can watch all the panels on the Youtube-channel of the Our Rule of Law Festival.

The panel by the Meijers Committee and NGIZ Noord is available here:

Rule of law update – August 2021

In our rule of law updates, we look back at the most important rule of law news of the last month. We give an overview of current events per Member State and will also mention important events, seminars and webinars on the rule of law situation in the European Union. Furthermore, we will list some important and interesting articles, books and publications concerning the rule of law. If you have any suggestions, corrections or events that you want us to mention, do not hesitate to contact us!

General

The deadline set by the Parliament for the European Commission to fully apply the Rule of Law Conditionality Regulation was set for 24 August. If the European Commission does not act, the European Parliament would bring an Article 265 TEU procedure (failure to act) before the CJEU, that at least was the ultimatum set by the EP. In the last week of August, the Commission responded to the European Parliament’s request. In her letter, the Commission President von der Leyen underlines the need to operate carefully and thoroughly, and to have a “detailed analysis” on the table before Brussels takes action. The call to action, she said, is ‘not clear and precise enough’, and case law indicates that it should be. In its resolution and subsequent letter, the parliament stated that Brussels should act in the “most obvious cases”, writes Von der Leyen furthermore – and claims subsequently that the European Parliament does not mention what cases those are. Parliamentarians were not happy with the EC’s letter: Dutch MEP Sophie in ‘t Veld calls the letter “legalistic rubbish” and “a provocation and insult”, German MEP Daniel Freund calls out the EC to act immediately, saying that the Commission has enough proof to act against member states based on the Conditionality Regulation, such as in the case of Hungary where there is plenty of proof that Hungary meets the legal requirements to activate the rule of law mechanism (as can be read here in this legal opinion written by our very John Morijn, alongside Daniel R. Kelemen and Kim Lane Scheppele).

Hungary

Complaints to the Hungarian media regulator (NMHH – National Media and Infocommunications Authority) have risen significantly due to the new LGBTQI+ law, namely 69 reports since June (seven times more than in the same period last year). NMHH’s governing body, the Media Council, is made up entirely of members nominated by the ruling party. The NMHH is expected to release guidelines on the implementation of the discriminatory LGBTIQ+ law. Read more here on Euractiv, 31 August 2021.

Hungary restricts products “promoting homosexuality”, including books that “promote gender change” and containing “explicit” depictions of sexuality. The law also bans any sale of such products within 200 metres of a school or a church. euobserver, 9 August 2021.

Opinion in the euobserver by Judit Varga about a ‘politcal EU Commission’ and the rule of law report as a tool of ‘political blackmail’ that makes claims about the rule of law situation in Hungary without evidence, euobserver, 6 August 2021.


Poland

The Polish Constitutional Tribunal has postponed (for the fourth time!) to 22 September its hearing and ruling on the motion of Prime Minister Mateusz Morawiecki regarding the supremacy of the Polish constitution over the EU treaties. The reason for the suspension was the request of the Polish Ombudsman who was involved in the proceedings, to exclude a constitutional judge from the hearing, 31 August 2021.

EU Commissioner Věra Jourová met the Polish MP Morawiecki to discuss the situation of media freedom in Poland. She also met with the new Ombudsman Marcin Wiącek. Jourová addressed the worsening situation for media freedom in the whole of Europe but also stressed that the Polish media are under increased economic and political pressure. Concerning LexTVN, Jourová said that the EC will “certainly respond” as the proposed law is an “attempted monopolization” that the EU cannot accept. Read more here on Euractiv, 31 August 2021.

Poland is building a fence along its border with Belarus, following Lithuania in its border protection against migrants sent through by Belarus. Reuters, 24 August 2021. How this fits within the bigger picture of the decline of the rule of law and the loss of “European values” as a whole, can be read in Dimitry Kochenov and Barbara Grabowska-Moroz’ article on Verfassungsblog from 25 August 2021.

16 August 2021: deadline for the Polish government to explain in writing to the European Commission how it plans to fully comply with two judgments from the EU’s top court over its disciplinary regime for judges (C‑791/19 and C-204/21). Earlier this month,  the College of Commissioners authorized Didier Reynders to trigger financial sanctions against Poland if Poland does not comply with these rulings.

Polish region upholds anti-LGBTIQ+ “declaration” announcing a “LGBTIQ+ free zone” in the Małopolska district, read more here on euobserver, 20 August 2021.

Poland responded to the European’s Commission call to suspend the activities of the Disciplinary Chamber and promised dissolve the disciplinary regime in its current form “as part of a further reform of the justice system, which will begin in the coming months”. However, the Polish government also asked the EC to waive its July interim order (C‑204/21 R) as it disregards the primacy of EU law in this matter. Unclear remains what will happen with currently pending cases of the Disciplinary Chamber and what exactly such a reform will entail. Read more here on Politico, 18 August 2021. However, experts are wary as it appears that Poland is only willing to compromise on a small part of bigger rule of law problem (including issues concerning the appointment of the Constitutional Tribunal and the National Council of Judiciary). Kaczyński however announced the introduction of a new disciplinary chamber. Read more about how this is not an all-encompassing victory for the rule of law in Poland in a  Twitter-thread by Jakub Jaraczewski, 9 August 2021. You can read what the dissolving of the Disciplinary Chamber will mean for Poland, or rather what won’t change, in this Verfassungsblog-article by Wojciech Sadurski, 11 August 2021.

Dispute between Poland and Israel over restitution law. Israel recalled its top diplomat from Warsaw and Foreign Minister Yair Lapid accused Poland of being a country  “that does not honor the greatest tragedy in human history.” This came after Polish President Duda signed a controversial law to restrict reparations for Holocaust victims. Read more here on Politico, 16 August 2021.

Poland’s new media law sparks criticism by EU. The new media rules will bar companies from beyond the EEA from owning a majority stake in Polish media companies. It is seen as a new blow against media freedom as it will likely force the American media company Discovery to sell its TVN broadcaster, one of the last local networks considered independent and critical of the PiS government’s politics. TVN’s media license expires on 26 September. What is at stake become visible when looking at the aftermath of the Orlen take-over: several editors in chief were sacked respectively replaced, journalists were forced out or left voluntarily. The Senate (led by the opposition) has 30 days to vote on the law, if it votes against the law (highely likely), PiS needs to gather an absolute majority to overpower the Senate’s veto. And finally the President has to agree. The Polish President Duda, however, recently said that he prefers media reforms based on market decisions rather than compulsory rules (Reuters, 26 August 2021). Pawel Marcisz (University of Warsaw) has more information about the inner workings of the Polish media and how the new media law threatens – the already bruised – state of media freedom in Poland, Verfassungsblog, 15 August 2021.

A recent poll by the state survey agency CBOS shows that Polish citizens are becoming more socially liberal and supportive of the LGBTIQ+ community while at the same time being more critical of the privileged the Catholic Church holds in Poland. Read more here on Notes from Poland, 6 August 2021.

The Commissioner for Human Rights, Marcin Wiącek, requested the Constitutional Tribunal to postpone a hearing planned for August 31 in the case based on Prime Minister Morawiecki’s request to examine if the CJEU rulings regarding judiciary are valid in Poland. Wiącek argues that the Constitutional Tribunal should first whether the Constitutional Tribunal is a court within the meaning of Article 6 ECHR (a case brought Prosecutor General Ziobro). Rule of Law in Poland on Twitter, 6 August 2021.

Polish Minister of Justice Ziobro: Poland should not be part of the European Union at any cost and “EU aggression should be met with a tough response”. He made those remarks in an interview in which he complains about the “blackmailing” of the EU with regard to Polish judicial reforms. Read more on Politico, 6 August 2021.

The head of Poland’s Supreme Court Manowska has ordered that no new cases to be sent to the Disciplinary Chamber that was recently ordered to be suspended by the CJEU. Poland has until 16 August to disband the activities of the Disciplinary Chamber. However, ongoing cases are not suspended by the Supreme Court, so that the head of the Disciplinary Chamber has to decide about the freezing of ongoing cases. Reuters, 5 August 2021. Justice Minister Ziobro has criticized Manowska’s decision and even claims that she is violating law, even though there has been talk of Prime Minister Morawiecki and ruling party chairman (as well as de facto-leader) Kaczyński changing their mind about a compromise with Brussels regarding the Polish judicial reforms. Read more here on Notes from Poland, 9 August 2021.

Polish politicians are concerned about rule of law situation in Germany: a court in Cologne imposed a penalty on a Polish theologian for inciting hatred through describing gay people in the Catholic clergy as “parasites” in an article. Poland sees the freedom of science in danger and is concerned about the state of the German judiciary. Read here on Politico, 2 August 2021.

Poland’s president Duda changes his opinion about the situation of the Polish judiciary and dispute with EU concerning rule of law situation in Poland. Duda said Poland has to change the way the judiciary is disciplining judges and agrees that legislative changes are needed. Read more here on Euronews, 30 July 2021.


Malta

IPI and other organisations are warning about the increased spreading of disinformation surrounding the assassination of Daphne Caruana Galizia in 2017 and journalists critical of thee handling of Galizia’s assassination are afraid of hate campaign and other repercussions. Read more here on IPI and on euobserver, 31 August 2021.

Malta has published a report about the public inquire about the case around Daphne Caruana Galizia’s death. The inquiry is seen as a milestone in the fight for accountability, press freedom and justice but many organisations urge the government to implement the recommendations made in the report. Read more on IPI, 3 August.


Romania

Romania is hoping that the EU will return soon to the issue of accession to the Schengen area. Romania says that it has fulfilled all criteria for Schengen membership since 2011. However, Romania has struggled with the Cooperation and Verification Mechanism (CVM) which looks at the country’s progress in the areas of corruption and rule of law.


Slovenia

Slovenia is struggling with its appointments for the EPPO and is currently the only participating Member State that not made any appointments yet for the new EU agency that will investigate and prosecute crimes against the financial interests of the EU. Jure Vidmar (Maastricht University) wrote an article about the legal framework of the nominations, how the blockade by Slovenia came about and explains why no nominations should be expected from Slovenia in the near future. Read more here on Verfassungsblog, 27 August 2021.


Czech republic

The European Commission might halt subsidies for the Czech Republic if it does not solve the issue of conflict of interest due to Prime Minister Andrej Babis’ control of the Agrofert holding. Read more here on Euractiv, 31 August 2021.


Articles, papers, publications

6 reasons why the EU should use the approval of National Recovery and Resilience Plans to enforce the rule of law in Hungary and Poland, The Good Lobby Profs (John Morijn, Alberto Alemanno, Laurent Pech, Daniel Sarmiento), 30 August 2021, read here.

Threats to the Rule of Law: The Pitfalls of the Cooperation and Verification Mechanism, Radosveta Vassileva (Middlesex University), June 2021, read here.

Authority, legitimacy and the Rule of Law in EU migration policy, Julinda Beqiraj, Katri Gadd and Barbara Grabowska-Moroz, RECONNECT, August 2021, read here.

Inside the system Ziobro built, ESI Background Paper, 5 August 2021, read here.


Events in september

13 September: Freedom Lecture by Veronika Munk (deputy-in-chief index.hu, founder telex.hu) about Hungary’s continuing struggle for media freedom and plurality, panel guest include our member John Morijn, Pieter Klok (de Volkskrant), Yoeri Albrecht (de Balie, Amsterdam) and Emilie van Outeren (NRC). The event will take place in de Balie, Amsterdam, tickets are available here.

17 and 18 September: Our Rule of Law Festival at Groningen University. Students from the International and European Law programme at the Faculty of Law of the University of Groningen are organising the Our Rule of Law Festival on the rule of law in Poland. During the two-day festival, nine Polish representatives, including the Polish judge Igor Tuleya, who has been stripped of immunity, will come to Groningen to share their stories. The Meijers Committee has contributed to this festival and John Morijn (chair of the subgroup rule of law) will chair a panel on Saturday on what role academia should play in the rule of law discourse. Tickets for the events in Groningen are limited, some events can be followed online (buy your tickets here).

23 and 24 September: Conference “Tradition, Constitution and European Integration” organised by the French and Dutch Embassies in Hungary, programme and registration (the event will take place in Budapest but some parts of the conference can be followed online).

Rule of law update – July 2021

In our rule of law updates, we look back at the most important rule of law news of the last month. We give an overview of current events per Member State and will also mention important events, seminars and webinars on the rule of law situation in the European Union. Furthermore, we will list some important and interesting articles, books and publications concerning the rule of law. If you have any suggestions, corrections or events that you want us to mention, do not hesitate to contact us!

At a glance: important dates in July

8 July 2021Advocate General Michal Bobek presented his opinion in case C-132/20, Getin Noble Bank
13 July 2021Hearing in K 3/21, an application from Prime Minister Mateusz Morawiecki concerning the primacy of EU law. The second hearing was planned for the end of July but was rescheduled
14 July 2021 – Ruling in P 7/20: application from the Disciplinary Chamber of the Polish Supreme Court asking if the CJEU interim orders with regards to the judiciary in Poland are compatible with the Polish constitution
14 July 2021
– The term of Ombudsman Adam Bodnar ends
14 July 2021 – Interim order
in C‑204/21 (only available in French and Polish for now)
15 July 2021 – The CJEU issued its ruling in the case Commission v Poland (C-791/19) concerning the disciplinary regime for judges, the CJEU ruled that the regime for judges in Poland is not compatible with EU law
20 July 2021 – The European Commission published its 2021 Rule of Law Report
22 July 2021 – The European Court of Human Rights issued its judgement in the case Reczkowicz v Poland (no. 43447/19) regarding the status of the sham Disciplinary Chamber and National Council of the Judiciary. A great article about the ruling’s consequences for the Polish judiciary by Marcin Szwed can be read on Verfassungsblog.

The week of 13 July was a busy week considering all the rule of law-related news and court hearings in Poland. Democracy Reporting International posted a great overview with explanations about the cases heard by the Constitutitonal Court in Poland and the cases at the CJEU regarding the Disciplinary Chamber of the Supreme Court.


General

The European Commission published its 2021 EU Justice Scoreboard on 8 July 2021.

The European Greens presented its study ”The EU Commission has to cut funding to Hungary: The Legal Case.” Our member John Morijn is one of the authors of this study (alongside Kim Lane Scheppele and R. Daniel Kelemen). They write about how Hungary’s rule of law breaches put the EU budget and financial interests at risk because of its lack of transparent management of funds, the lack of an effective national prosecution service to investigate and prosecute fraud allegations, and because of a lack of guarantee of independent courts to ensure that EU Law is enforced. They also provide a sample for a written notification to Hungary under the Conditionality Regulation 2020/2092. You can read the study here.

Far-right parties planning to cooperate: Orbán, Le Pen, Salvini, Kaczyński join forces to impact on the future of EU, 2 July 2021, read more on Euractiv


Poland

Poland and foreign-owned media: the case of TVN, a US-owned broadcaster. Earlier in July, Poland’s ruling coalition pushed a media bill through parliament that allegedly is an attempt to strip the broadcast license of a U.S.-owned television station (TVN) that is often critical of the government. Polish activists are appealing to Kamala Harris protesting against the restrictions on press freedom in Poland and especially the move against the broadcaster TVN. Read more here on Politico and on Euractiv.

The Deputy Minister of Justice urges the government to request the Court of Justice, on behalf of Poland, to comply with the judgement of the (unlawful) Constitutional Tribunal and repeal interim measures. 28 July 2021, Tweet by Rule of Law in Poland.

And the Polish government didn’t stop there – the Polish Prosecutor General/Minister of Justice has requested the Constitutional Tribunal to examine whether Article 6 ECHR (right to a fair trial) applies to the Polish Constitutional Tribunal. In this informative Twitter thread, DRI’s Jakub Jaraczewski explains what exactly is at stake.

EU funds: Poland’s assessment period — already extended by two months — expires on 3 August 2021.

Reform to the Polish judiciary after all? A senior member of Poland’s PiS ruling party has reportedly said that a “reform” to the government’s judicial overhaul is “ready” and that a compromise with Brussels would be prepared if Brussels threatened Poland with sanctions. Read more on Notes from Poland, 26 July 2021.

The Supreme Court in Ireland is asking the EU Court in Luxembourg whether Ireland should continue to execute European Arrest Warrants from Warsaw because of the rule of law problems in Poland. Read more here, 26 July 2021.

On 22 July 2021, the judgment in Reczkowicz v. Poland was published. You can read the whole judgement here, for those who do not have the time to read all 138 pages of this judgement, our colleague Jakub Jaraczewski from Democracy Reporting International has written an informative Twitter-Thread with the most important take-aways of the judgment. In the beginning of this post, we already mentioned the Verfassungsblog-article by Marcin Szwed about the consequences of this ruling.

Also on 22 July 2021, Poland elected a new ombudsman: Marcin Wiącek, lawyer and professor at the University of Warsaw. Wiącek was elected by the Polish Senate to the post of ombudsman, with 93 votes in favour, none against and five abstentions. He will take over Bodnar’s staff and is said to not be PiS-affiliated.

Poland’s Law and Justice party (PiS) is about to leave the European Conservative Party. Read more on Euractiv, 20 July 2021.

The European Commission wants to set an ultimatum for Poland: unless Warsaw implements/accepts the judgments of the European Court of Justice on the judiciary within the next weeks, it has to prepare for financial penalties. 20 July 2021, read on Politico’s Brussels Playbook.

15 July 2021: The CJEU issued its ruling in the case Commission v Poland (C-791/19) concerning the disciplinary regime for judges, the CJEU ruled that the regime for judges in Poland is not compatible with EU law.

14 July: Interim order in C‑204/21 (only available in French and Polish for now).

14 July: P 7/20Polish Constitutional Tribunal rules on Disciplinary Chamber of the Supreme Court.
The Disciplinary Chamber is asking the Tribunal whether CJEU interim measures (such as the one CJEU issued regarding the Disciplinary Chamber) are in line with the Polish Constitution.

13 July: K 3/21 – Polish Constitutional Court rules on EU law primacy. On Prime Minister Mateusz Morawiecki’s request, the Polish Constitutional Court will rule whether certain provisions in the EU’s Treaties are compatible with Poland’s Constitution and whether the EU Court in Luxembourg (CJEU) can force the country to suspend part of its judicial reforms.

The Polish government is looking for candidates for the position of judge of the Court of Justice of the EU. Applications are accepted until 19 July 2021. Judge Marek Safjan’s term ends in October.

Council of Europe’s Secretary-General Marija Pejčinović Burić has sent a letter to the Polish Justice Minister Zbigniew Ziobro, in which she expressed the Council’s “concern and disappointment” with the statements of the Polish government on a recent judgement of the European Court of Human Rights. Read more on Euractiv, 2 July 2021

Józef Iwulski, senior judge on Poland’s Supreme Court, has been stripped of immunity by the Disciplinary Chamber from prosecution to face potential charges over issuing an unlawful conviction during the communist era 1982. He has been suspended and receives a 25% less salary. Read more here on Notes from Poland and Iustitia.


Hungary

Politico’s Lili Bayer reporting about the LGBTIQ+ march in Budapest which attracted thousands of participants, 24 July 2021.

Orbán announces a referendum on LGBTQI+ discriminatory law with questions such as whether Hungarians “support that media programs which influence children’s development shall be aired without restrictions,” or whether they are in favor of including “different sexual orientations” in sexual education material “without parental consent.” You can read the suggested text for the referendum here.

EUI Media Freedom Country Report on Hungary was published on 20 July 2021. The study identifies high risks to media pluralism in Hungary.

Following the news about the Pegasus hack, PM Viktor Orbán is suspected to have used spyware to hack the phones of investigative journalist, read the whole story here on The Guardian. In response to these allegations, the Hungarian government claims that it has no information about the alleged data hacking of some of Hungary’s investigative journalists, wealthy businessmen and local politicians. Foreign Minister Péter Szijjártó told a press conference with his V4 counterparts in Komárom. Read more on Euractiv.

On 15 July 2021, the European Commission announced that it wants to investigate the possibility of infringement proceedings against Hungary concerning anti-LGBTIQ+ law.

On 13 July 2021, the European Commission extended its examination of the Hungarian recovery plan. The Hungarian recovery plan and the €7.2 billion in grants requested from Brussels for post-pandemic reconstruction is thus still being examined. Read more here on Euractiv.

Hungarian Prime Minsiter Viktor Orbán has claimed that EU institutions are planning to send LGBTIQ+ activists into the country’s schools, Telex reported. Read more on Euractiv, 9 July 2021.

Hungarian Prime Minister Viktor Orbán is the first EU head of state or government ever to make a list, made by Reporters Without Borders (RSF), of enemies of the media — or “predators of press freedom.” Orbán and the ruling Fidesz party have “brought Hungary’s media landscape under their control step by step” since coming to power in 2010, RSF says, with government-friendly businesses taking over media outlets and targeting independent media. 6 July 2021, Politico Brussels Playbook Newsletter.

The Hungarian ombudsman Ákos Kozma, announced that he won’t review controversial LGBTQI+ law claiming that a controversial law prohibiting the “portrayal or promotion” of LGBTQI+ content to minors does not prevent LGBTQI+ issues from featuring in public education. Read more on Euractiv, 6 July 2021.

The Hungarian judge Gabriella Szabó filed a complaint at the European Commission claiming she was pushed out for political reasons, namely questioning strict asylum rules. Szabó has already asked preliminary questions about this issue in 2018, the ECJ in March 2020 ruled the new Hungarian rules were indeed contrary to EU legislation. Read more on euobserver, 6 July 2021.

A government decree abolishes anonymous donations to NGOs as the decree will end the possibility of anonymous donations to civil society in Hungary from Thursday. Read more on Euractiv, 2 July 2021


Slovenia

Slovenia’s rejected EPPO candidates make a new bid for EPPO position. Matej Oštir and Tanja Frank Eler, the candidates picked for Slovenia’s two European delegated prosecutors before the nomination process was annulled by the government, have resubmitted their applications in a new attempt, apparently the only candidates to do so. Read more on Euractiv, 28 July 2021.

On 6 July, the Slovenian President Janez Janša presented his plans for the Slovenian Council presidency, you can read his speech here.

The NGO European Civic Forum recently added Slovenia to its latest watch-list of countries witnessing a decline in civic rights — alongside Colombia, Chad, Ethiopia and Myanmar. According to the European Civic Forum, Ljubljana has curtailed freedom of association and media freedom in the course of the past few years. Read more here.


Czech Republic

Czech Prime Minister Andrej Babiš did not sign a letter backed by 18 EU Member States supporting sexual minorities in response to a controversial new Hungarian law banning LGBT promotion among children.
More on Euractiv, 12 July 2021.


Romania

Romania’s recovery plan: the topic of Romania’s recovery and resilience plan is far from being settled as the Commission is still waiting for clarification on a series of important issues. Read more on Euractiv, 30 July 2021.

The Romanian government is split over judiciary investigation section. Parties that form Romania’s centre-right coalition disagree over the proposal of abolishing the section that investigates offences within the judicial system (SIIJ). Read more on Euractiv, 13 July 2021.


Malta

In Malta, a public inquiry came to the conclusion that the state should be held responsible for the death of journalist Daphne Caruana Galizia. Although the inquiry found no evidence that the government was directly involved,  it was damning of the government, led at the time by former MEP Joseph Muscat, as it created a  “favorable climate” for anyone who wanted to “eliminate” the journalist. Daphne Caruana Galizia was killed by a car bomb near her home in October 2017. Read more here on Politico, 29 July 2021.


Events

2 July 2021: Reconnect Annual Conference – Earning EU citizen’s trust rethinking democracy and strengthening the rule of law. Videorecordings of all panels available here.

13 July 2021: Launch of ‘How to fight corruption and uphold the rule of law‘, video recording available here.


Articles, Publications, papers

European Parliament Research Briefing: European Court of Justice case law on judicial independence, read here
(Based on a research article by Petra Bard, Laurent Pech and Dimitry Kochenov which can be found here)

Constitutional Populism versus EU Law: A Much More Complex Story than You Imagined, by Barbara Grabowska-Moroz and Dimitry Kochenov, RECONNECT Working Paper (Leuven) No. 16, July 2021, read it here.

The rhetoric of inaction: failing to fail forward in the EU’s rule of law crisis, by Cassandra Emmons and Tommaso Pavone, PluriCourts Research Paper, read here.

The government takes on Polish NGOs, by Anna Wójcik, Legal Dialogue Playbook, read here.


News from the Courts

Notification of 12 applications at the European Court of Human Rights concerning abortion rights in Poland and the composition of the Constitutional Court : KB and Others v. Poland (1819/21), KC and Others v. Poland (3639/21) and A.L.-B. and Others v. Poland (3801/21)
– Another case about the forced retirement of a Polish judge was communicated by the ECthR: Jezierska v. Poland (43949/19, for now only available in French)

Rule of law update – June 2021

In our rule of law updates, we look back at the most important rule of law news of the last month. We give an overview of current events per Member State and will also mention important events, seminars and webinars on the rule of law situation in the European Union. Furthermore, we will list some important and interesting articles, books and publications concerning the rule of law. If you have any suggestions, corrections or events that you want us to mention, do not hesitate to contact us!

General:

Didier Reynders warns that the proliferation of member state challenges to the supremacy of EU law could destroy the Union, Financial Times (30 June 2021).

22 June 2021 – Article 7 hearings continue in Council of the European Union under the Portuguese Presidency.

C-156/21 and C-157/21: the President of the CJEU grants the use of the expedited procedure in cases concerning conditionality for the protection of the EU budget in the event of violation of the rule of law principles in a member state – the hearings will take place on 11 and 12 October, ECJ (11 June 2021)

Parliament’s assessment of the Commission’s 2020 report on the rule of law, read more here.

Poland:

Decision in ECtHR cases Broda and Bojara v. Poland. The European Court of Human Rights ruled a violation of Article 6 § 1 (right of access to a court) of the European Convention on Human Rights in Broda and Bojara v. Poland (applications no. 26691/18 & 27367/18) regarding dismissal of vice-presidents of courts by justice minister Ziobro. The Polish justice ministry said that it “regrets that the court took a politically motivated decision against Poland” and prime minister Morawiecki said that Poland will “implement judicial system reform in line with our priorities” (read more here on Euractiv, 30 June 2021). In Mathieu’s Leloup Verfassungsblog-article you can also read more about the Strasbourg judgment Broda and Bojara on the premature termination of Polish court (vice) presidents.

Polish Constitutional Court again postpones review of CJEU provisional measures. The Polish Constitutional Court has postponed for the third time its review of whether Poland must comply with a ruling by the Court of Justice of the EU (CJEU) to suspend regulations on judicial reforms implemented by the ruling Law and Justice Party (PiS) which the CJEU found to be contrary to EU law. Read more on Euractiv (15 June 2021).
The Polish government has already initiated 4 cases before the unlawful Constitutional Tribunal to challenge various aspects of EU law – you can see an overview of these cases here (Rule of Law in Poland Twitter, 20 June 2021).

Orlen continues its editorial purge at Polska Press. Eight editors-in-chief were dismissed or pushed out after a takeover by state-controlled oil conglomerate Orlen. Read more on IPI (10 June 2021). Article 19 submitted an amicus curiae to the court of competition for the appeal of the Ombudsman against the decision by Poland’s competition regulator to approve the purchase of Polska Press by state-controlled oil giant PKN Orlen.

NCJ attacked the court in Bydgoszcz for reinstating Judge Paweł Juszczyszyn.
Read more on Rule of Law Poland (31 May 2021)

17/06 (O): Disciplinary proceedings against foreign lawyers #Poland #RuleOfLaw (C-55/20)

Hungary:

Hungarian parliament prepares to pass discriminatory LGBTQI+ bill. After passing through the legislative committee on Thursday, Hungary’s parliament is set to debate on Monday (14 June) legislation that bans content promoting or portraying sexual and gender diversity under the pretext of combating paedophilia (an unofficial English translation of the law can be found here). Read more on Euractiv (14 June) and on Politico about the EU’s reaction to the anti-LGBTQI+ law. 16 countries have published a letter condemning the law. The European Commission has also condemned the Hungarian law, contesting its legality under EU law in this letter – the Hungarian has until 30 June to respons, otherwise the EU will take action. Polands’ MP from Law and Justice just told journalist that the Chancellery of Prime Minister is working on a bill that will ressemble the anti-LGBT legislation from Hungary.

What has happened to the rule of law situation in Hungary since the last Article 7 hearings? The Hungarian Helsinki Committee has published an overview over the most significant qualitative changes in Hungary’s illiberal regime since 2019.

C650/18: the CJEU dismisses Hungary’s action against the Parliament resolution triggering the procedure for determining the existence of a clear risk of a serious breach, by a Member State, of the values on which the European Union is founded. Read more here.

Czech Republic:

Czech PM calls the European Prosecutor a ‘new whip’ following EPPO’s investigation into his Agrofert conglomerate. Czech authorities have shifted the case of Czech Prime Minister Andrej Babiš and his conflict of interest onto the European Public Prosecutor’s Office (EPPO), which has confirmed they have taken the case. Babiš responded by calling the EPPO a “new whip” that is being used against him. Read more on Euractiv (14 June).

Romania:

Craiova Court of Appeal notified the Court of Justice of the European Union regarding the effects of the Constitutional Court of Romania Decision no. 390/2021 concerning the independence of judges, read more here (29 June 2021).

Events:

EU Rule of Law Case-Law: Crucial Recent Developments, organised by CEU Democracy Institute – video available here.

Strengthening the rule of law and press freedom in the EU, organised by Democracy Reporting International – video available here.

Important Upcoming dates:

8 July 2021: judgment in Koleje Mazowieckie (C-120/20): first ever response to a referral from a panel of three unlawful members of the Supreme Court

8 July 2021: AG Bobek opinion in Getin Noble Bank (C-132/20)

15 July 2021: the Court of Justice will issue its ruling in the case Commission v Poland (C-791/19) concerning disciplinary regime for judges

Articles, publications, papers:

Non-Regression: Opening the Door to Solving the ‘Copenhagen Dilemma’? All the Eyes on Case C-896/19 Repubblika v Il-Prim Ministru by Mathieu Leloup, Dimitry Kochenov and Aleksejs Dimitrovs. Download here.

Gazeta Wyborcza recently published a report describing the legal harassment of free media in Poland by the ruling PiS party. You can read the report here.

Podcast on Polish democracy with Laurent Pech and Adam Bodnar, listen here.

Respect for the Rule of Law in the Case Law of the European Court of Justice: A Casebook Overview of Key Judgments since the Portuguese Judges Case, Dimitry Kochenv and Laurent Pech, download here.

Polish Ruling Party’s Education Reforms: God and Country, Claudia Ciobanu for Balkan Insight.

Ordo Iuris: The Ultra-Conservative Organisation Transforming Poland, Claudia Ciobanu for Balkan Insight.

The Antidemocratic Turn, Zselyke Csaky for Freedom House.

Alberto Alemanno and Laurent Pech have submitted a request for access to the documents prepared for the Council’s hearings under Article 7(1) (meeting no 3805) – you can follow this request here

VIDEORECORDING FROM OUR SEMINAR ‘The rule of law in the EU: lessons for the future?’ on 5 march 2021

On Friday 5 March, we organised a seminar about the rule of law and invited three amazing speakers to talk about possible lessons for the future and the discussion was led by our member John Morijn. Márta Pardavi (co-chair of the ​Hungarian Helsinki Committee) talked about the situation in Hungary and what she sees as avenues that organisations such as the Meijers Committee can take to tackle this issue efficiently. Anna Wójcik (researcher at the Institute of Legal Studies of the Polish Academy of Sciences, co-founder of ​ruleoflaw.pl and coordinator of The Wiktor Osiatyński Archive) talked about the current situation in Poland and what she sees as promising tools and instruments to address and change the current rule of law backsliding in the EU and particularly Poland. Kim Lane Scheppele (Professor of Sociology and International Affairs at Princeton University) reflected on what (more) can be done and by whom concerning the democratic backsliding happening in several EU member states. Kim stressed furthermore that we cannot longer speak of ‘backsliding’ but should rather call it a ‘concerted assault on democracy in Poland and Hungary’. After the speeches, the participants had the opportunity to ask questions. We want to thank all speakers and participants for joining us for our first seminar organised within the project ‘Safeguarding the Rule of Law in the EU’.

Seminar rule of law: The rule of law in the EU: lessons for the future? – 5 march 2021

Information

The state of the rule of law in the EU has significantly deteriorated in recent years. In several Member States, rule of law deficiencies are clearly visible but concerns about systemic violations of the rule of law especially persist in Poland and Hungary. These countries face a severe undermining of the rule of law, a threat to the independence of the judiciary and subsequently severe risks to civil liberties.

The EU has various means at its disposal to take action against this deterioration of the rule of law, but their use is limited. Where they are used, they appear to be ineffective so far. The gradual dismantling of fundamental achievements in some Member States in relation to the rule of law situation is a cause of great concern to the Meijers Committee. Therefore, the Committee organizes a seminar on the rule of law in the European Union to learn what the lessons are for the future of the rule of law situation, where more action is needed and where coordination and cooperation is possible.

The Meijers Committee has thus invited three speakers to discuss relevant issues and promising tools for the current rule of law situation in Hungary and Poland. Our member John Morijn will lead the discussion.

Programme

12:30 – 12:40John Morijn – Introduction
12:40 – 13:00Márta Padavi – The rule of law situation in Hungary – what are the main issues?
13:00 – 13:20Anna Wójcik – The rule of law situation in Poland – what are the main issues?
13:20 –
13:40
Kim Lane Scheppele – Reflection: What (more) can be done, and by whom?
13:40 – 14:30Discussion

Registration

You can register for free by sending a mail to ​t.karg@commissie-meijers.nl.​ We will send you a link for the seminar in the week of the event.

Information about speakers

John Morijn

John Morijn is professor of law and politics in international relations and assistant professor of European human rights law at the University of Groningen. John Morijn has also worked as a civil servant at both the Ministry of Justice and Security and the Ministry of Interior and Kingdom Relations, including as the Head of the Home Affairs Division at the Permanent Representation of the Netherlands to the EU in Brussels. He is also a Commissioner of the Netherlands Institute for Human Rights as well as a member of the Advisory Committee on Migration Affairs (ACVZ). Since November 2019, John Morijn has been a member of the Meijers Committee.

Márta Pardavi

Márta Pardavi is co-chair of the ​Hungarian Helsinki Committee.​ She has a law degree from the ELTE Law Faculty in Budapest. Márta Pardavi is part of the board of the PILnet Hungary Foundation and the Verzio International Human Rights Documentary Film Festival. Furthermore, Márta has served as board member and vice-chair of the European Council on Refugees and Exiles. She has been awarded the 2018 William D. Zabel Human Rights Award from Human Rights First, Civil Rights Defender’s Civil Rights Defenders of the Year 2019 award and was chosen to be a member POLITICO28 Class of 2019

Anna Wójcik

Anna Wójcik is a researcher at the Institute of Legal Studies of the Polish Academy of Sciences. Her Ph.D has the topic “Memory Laws in European and Comparative Perspective MELA” research consortium established between T.M.C.Asser, Queen Mary University of London, University of Bologna, and the Polish Academy of Sciences. Previously, she obtained a law degree from University of Warsaw and a sociology degree from the Central European University in Budapest. Anna Wójcik regularly writes about the current rule of law situation in Poland, such as for the ​Verfassungsblog or Notes from Poland​. She is furthermore a co-founder of ​ruleoflaw.pl and coordinator of The Wiktor Osiatyński Archive​, a rule of law monitoring initiative.

Kim Lane Scheppele

Kim Lane Scheppele is Laurance S. Rockefeller Professor of Sociology and International Affairs in the Princeton School of Public and International Affairs and the University Center for Human Values at Princeton University. Previously, she was Director of the Princeton University Program in Law and Public Affairs for 10 years, after serving on the faculty of the University of Pennsylvania School of Law for nearly a decade. There she held the John O’Brien Professorship of Comparative Law and the Professorship of Sociology. Kim Lane Scheppele concentrates on comparative constitutional law, using ethnographic, historical and doctrinal methods to understand the emergence and collapse of constitutional systems. She regularly writes about the authoritarian regimes and the law and politics of Hungary and Poland, for example for ​Verfassungsblog.​