Author: commissie_meijers

NEWS FROM THE COURTS

CASES CJEU

• Judgments

C-817/21 – Inspecţia Judiciară ECLI:EU:C:2023:55 11/05/2023 (Romania)

In this judgment, the Court of Justice confirmed that, while the organization of justice is a matter for the Member States, the exercise of that power must comply with EU law. As such, the disciplinary regime applicable to the judges who may be called upon to apply EU law must provide the necessary guarantees in order to prevent any risk of its being used as an instrument of political control over their activities. Article 2 TEU and the second subparagraph of Article 19(1) TEU, read in conjunction with Commission Decision 2006/928/EC of 13 December 2006 must be interpreted as precluding national legislation which confers on the director of a body competent to conduct investigations and bring disciplinary proceedings against judges and prosecutors the power to adopt acts of a normative and individual nature.

C-40/21 – Agenția Națională de Integritate (ANI) 04/05/2023 ECLI:EU:C:2023:367 (Romania)

The Court ruled that Article 49(3) of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that it does not apply to national legislation which provides, following an administrative procedure, for a measure prohibiting the holding of any elective public office for a predetermined period of three years against a person who has been found to have a conflict of interest in the holding of such an office, in the event that that measure is not criminal in nature. Furthermore, the principle of proportionality must be understood to mean that it does not preclude national legislation that establishes a measure prohibiting the holding of any elective public office for a predetermined period of three years against a person who has been discovered to have a conflict in holding such an office provided that, in light of all relevant circumstances, the application of that legislation results in the imposition of a penalty.

• Requests for preliminary ruling:

C-53/23 – Association Forumul Judecătorilor din România 31/01/2022 (Romania)

Action for annulment of a decision that has been issued by the Prosecutor General of the Public Prosecution Service at the Supreme Court of Romania, which appointed within this body the public prosecutors who were charged with the criminal prosecution in corruption cases involving judges and prosecutors.

The question is, inter alia, whether Article 2 and Article 19(1), second subparagraph, TEU, read in conjunction with Article 12 and Article 47 EU Charter, preclude the submission of certain legal claims by professional associations of magistrates are subject to limits the introduction of the condition that there is a legitimate private interest, which is excessively limited, requiring in cases similar to the present one a direct connection between the administrative act subject to judicial review of legality subject and the direct purpose and objectives set out in the articles of association of the professional associations of magistrates are established.

C-146/23 – Sąd Rejonowy w Białymstoku 10/03/2023 (Poland)

A judge has filed a claim for payment of an amount as compensation for work that he performed in the period from 1 July 2022 to 31 January 2023. The question is, among other things, whether the principle of the independence of the judges stands in the way of a national law that gives rise to a derogation from the mechanism for the fixing the remuneration of the judges.

C-114/23, C-115/23 and C-132/23 – Sapira and Others 18/02/2023 and 06/03/2023 (Poland)

The verdict has been rendered by a judicial formation of the Court of First Instance, which consists of one judge, namely LM. LM was appointed judge by decree of the Polish President, on the recommendation of the National Council for the Judiciary. The question is, inter alia, whether EU law and the general EU law principles of legal certainty, inviolability of res judicata, proportionality, and procedural autonomy preclude national regulations that prevent a court from investigating in proceedings for the enforcement of a final criminal conviction whether the judgment to be enforced was rendered by a court that meets the requirements of a legal institution, independence, and impartiality.

C-119/23 – Valancius 09/02/2023 (Lithuania)

The applicant is a Lithuanian judge at the General Court of the European Union. Due to the expiry of his term of office, a national procedure for the selection of candidates for the position of Judge at the General Court was announced in March 2021. In the context of this procedure, the applicant has been identified as the most suitable candidate by a working group of independent experts. However, on 4 May 2022, another candidate was nominated by the government of Lithuania. By his claim, the applicant seeks, inter alia, an injunction ordering the defendant to reopen, in accordance with the procedure laid down by law, the procedures for the negotiation and nomination of candidates for the post of judge at the General Court of the European Union and the candidate ranked highest by the independent review group for negotiation and nomination. The court asks what requirements EU law (particularly Article 254 TFEU and Article 19(2) TEU) imposes on the national procedure for the selection of candidates for the position of judge at the General Court.

• Orders

Order – 21-04/2023 – Commission v Poland () and vie privée des juges) C-204/21 ECLI:EU:C:2023:334 (Poland)

In light of the circumstances of the case and the ability of the Republic of Poland to pay it, the amount of the periodic penalty payment which the Republic of Poland was ordered to pay to the European Commission by the order of the Vice-President of the Court of 27 October 2021, Commission v Poland (C‑204/21 R, EU:C:2021:878), is reduced to EUR 500 000 per day, from the date on which the present order is signed.

• AG Opinions

Opinion AG Emiliou 16/02/2023 in case C-216/21 – Asociaţia “Forumul Judecătorilor din România” ECLI:EU:C:2023:116 (Romania)

According to the AG, a procedure for the promotion of judges based on an assessment of their work and conduct by a board composed of the president and judges of the relevant superior court is compatible with EU law. However, even if the members of that board are independent, the criteria applied must be sufficiently objective, relevant, and verifiable and the body must justify its decisions. He concluded that article 47 of the Charter on Fundamental Rights of the European Union and the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU, must be interpreted as meaning that the principle of judicial independence is applicable to procedures for the promotion of judges. Moreover, article 47 of the Charter of Fundamental Rights and the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU and Commission Decision 2006/928/EC of 13 December 2006, must be interpreted as not precluding the introduction of judicial reforms in Romania in circumstances where such reforms comply with the requirements arising from EU law.

Opinion AG Rantos 02/03/2023 in case C-718/21 – Krajowa Rada Sadownictwa ECLI:EU:C:2023:150 (Poland)

The AG doubts whether the mechanism by which the National Court Register (KRS) authorizes Polish judges to continue to exercise judicial office after retirement age offers sufficient guarantees of independence. In his view, the second subparagraph of Article 19(1) TEU must be interpreted as prohibiting national legislation that requires approval from a body that has been shown to lack independence from the legislative or executive branches and that bases its decisions on criteria that are vague and difficult to verify. Regardless of the circumstances surrounding the failure to observe the time limit and the significance of that failure for the proceedings concerning authorisation for his or her continued appointment, the second subparagraph of Article 19(1) TEU must be interpreted as not precluding, in principle, the adoption of an interpretation of national legislation under which a judge’s belated declaration of his or her intention to continue holding a judicial office beyond the retirement age is ineffective.

Opinion AG Collins 26/01/2023 in case C-817/21 – Inspecţia Judiciară ECLI:EU:C:2023:55 (Romania)

According to the AG, EU law precludes national legislation making the Deputy Chief Inspector responsible for supervising the investigation of complaints against the Chief Inspector. He believes that Article 2 TEU, the second subparagraph of Article 19(1) TEU and Commission Decision 2006/928/EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption must be interpreted as precluding national legislation or regulations that provide for the oversight of disciplinary investigations and proceedings against the Chief Inspector of the Inspecţia Judiciară (Judicial Inspectorate, Romania) by its Deputy Chief Inspector and the investigation of such complaints by Judicial Inspectors of that body in circumstances where that Deputy Chief Inspector is appointed at the Chief Inspector’s sole discretion; the term of office of the Deputy Chief Inspector depends upon and coincides with that of the Chief Inspector, and all Judicial Inspectors are subordinate to the Chief Inspector upon whom the progress of their careers depends.

CASES ECTHR

• Judgments

Cotora v. Romania Application no. 30745/18 07/01/2023 ECLI:CE:ECHR:2023:0117JUD003074518

The term “court” within the meaning of Article 6(1) of the ECHR covers not only courts but also bodies with the competence and task to resolve matters and disputes based on law. The Court notes that the National Council of Judges and Prosecutors is established by law, namely the Constitution and specific law. The Board has the power to conduct investigations, to refer disciplinary matters to the Board’s Disciplinary Committee, which has the power to make decisions in disciplinary matters. There are rules regulating disciplinary proceedings and judges and prosecutors against whom disciplinary proceedings have been instituted can seek legal assistance. They are heard and have access to evidence. It is therefore a court established by law within the meaning of Article 6(1) ECHR and the court also has full jurisdiction. The Court concludes that there is no violation of Article 6(1) ECHR.

News from the courts

Cases CJEU

• Requests for preliminary ruling:

C-373/22 – NE 08/06/2022 (Bulgaria)

Charges were brought against NE in proceedings before the Spetsializiran nakazatelen sad (Specialised Criminal Court; ‘the referring court’). At the preliminary hearing in this case, NE sought the disqualification of the court, since he questions the impartiality of both the judge to whom the case has been assigned and all the judges of the referring court.

C-603/22 – M.S. e.a. 26/08/22 (Poland)

In the period from 9 February to 8 March 2022, the judge speaking alone in the present case was removed from her judicial office by order of the Minister of Justice. The referring court doubts whether an executing authority such as the Minister of Justice may, at the pre-trial phase and during the judicial proceedings, intervene in the process of direct application of EU law by linking powers of supervision of the courts with the powers arising from the exercise of the office of Attorney General.

C-711/22 – Advance Pharma 26/05/22 (Poland)

On 3 February 2022, the ECtHR found a violation of Article 6(1) ECHR. The ECtHR also stated that the judicial formation involved in the case is not a “court established by law”. Subsequently, in May 2022, the applicant requested the reopening of the national procedure. The applicant claims that refusal to reopen as a result of the ECtHR judgment may lead to the deprivation of the guarantee of effective judicial protection.

C-634/22 – O.T. e.a. 28/09/22 (Bulgaria)

While the criminal proceedings against O.T. were pending in 2019, the proposal for the Bulgarian law amending and supplementing the law on the judiciary, which provides for the abolition of the Bulgarian special criminal court (SNS), was the subject of public debate. The court is of the opinion that the dissolution of the SNS, in the way it has been carried out and with the reasons put forward, is contrary to the principle of the rule of law, undermines the independence of that court and the separation of powers, and that pressure is thus exerted by the legislature and the executive. The question is, inter alia, whether EU law should be interpreted as undermining the independence of a court that is abolished by the adopted amendment to the Bulgarian law on the organization of the judiciary, whereby the courts must, however, continue to deal with cases until that time, and must also subsequently continue the handling of cases in which preliminary hearings have already taken place.

C-658/22 – Sąd Najwyższy 02/09/22 (Poland)

Given that the majority of judges of the Civil Chamber – namely judges appointed before 2018 – had expressed doubts about the regularity of the appointments of judges in the Sąd Najwyższy (Supreme Court) by the Polish President since 2018, the Sąd Najwyższy considered it justified to to ask a preliminary question about the regularity of the composition of the judicial formation. The question is, inter alia, whether a court of a Member State adjudicating at last instance, which includes persons appointed as judges in breach of that Member State’s fundamental rules of law on the appointment of judges, is an independent, impartial tribunal that pre-established by law and which ensures effective legal protection for individuals in the fields covered by Union law.

• Orders:

Order – 07/11/2022 – FX and Others (Effet des arrêts d’une Cour constitutionnelle III)
Case C-859/19 (Joined Cases C-859/19, C-926/19, C-929/19)

Preliminary questions about i.a. the interpretation of art 2 TEU, art 19(1) TEU and Decision 2006/928. The Court decided national law/practice is not precluded which prescribes that the decisions of the national constitutional court are binding on ordinary courts, provided the independence of that constitutional court is guaranteed by national law. Yet, precluded is national law that can trigger disciplinary liability of national judges of ordinary courts when they fail to comply with the decisions of the national constitutional court.

• AG Opinions

Opinion AG Collins 15/12/22 in GC cases C-615/20 and C-671/20 – Y.P. e.a. and M.M. ECLI:EU:C:2022:986 (Poland)

The preliminary questions concern the compatibility with EU law of certain aspects of the recent reform of the Polish judicial system, more specifically, the permission granted by the Disciplinary Chamber to prosecute and suspend a judge, thereby depriving him or her of the right to adjudicate certain criminal cases assigned to that judge. AG Collins argues that Article 2 TEU and the second subparagraph of Article 19(1) TEU and the principles of primacy of Union law, sincere cooperation and legal certainty require all public authorities to reverse the unlawful effects of decisions of the Disciplinary Chamber authorizing the prosecution, detention and suspension of judges in criminal matters and thereby enable a suspended judge to sit on that court, except in cases assigned to another formation which has the capacity of an independent, impartial tribunal pre-established by law.

Opinion AG Collins 15/12/22 in GC cases C-181/21 and C-269/21 – G. en BC en DC ECLI:EU:C:2022:990 (Poland)

The referring court raises questions regarding the independence and procedure of appointment of a judge before an ordinary court. According to the AG, the condition that a court must be established by law applies to all courts in a national legal order, regardless of the level at which they exercise their jurisdiction. The AG concludes that there are structural doubts about the independence and impartiality of the judges appointed under the present procedure.

Opinion AG Collins 15/12/22 in GC case C-204/21 (Commission v. Poland) ECLI:EU:C:2022:991

Infringement proceedings by the Commission against Poland on the basis that provisions of the Polish amending law are contrary to Article 19(1) second subparagraph TEU, Article 47 EU Charter, Article 267 TFEU, the principle of primacy of Union law. In its action, the Commission puts forward five pleas in law. The AG also argues that the Polish law amending the rules on the organization of ordinary courts and of the Sąd Najwyższy (Supreme Court) is contrary to EU law. The breach of Union law consists, inter alia, of depriving national courts of the ability to ensure that Union law is applied in all cases by an independent and impartial tribunal.

Opinion AG Collins 26/01/23 in case C-817/21 ECLI:EU:C:2023:55 (Romania)

The referring court raises questions regarding whether a body, such as the Judicial Inspectorate, must offer the same guarantees of independence and impartiality as are required of courts under EU law. According to AG Collins, EU law precludes national legislation making the Deputy Chief Inspector responsible for overseeing the investigation of complaints against the Chief Inspector

Cases ECtHR

• Judgments:

Rutar en Rutar Marketing D.O.O. t. Slovenië (21164/20),15/12/22 ECLI:CE:ECHR:2022:1215JUD002116420

The Court notes that neither the Nova Gorica Court nor the Constitutional Court responded in any way to the applicants’ request for a preliminary ruling from the CJEU, nor to any other legal argument. The Court therefore concludes that there is a violation of Article 6 § 1 of the Convention.

Kalda v. Estonia (No. 2) (Application no. 14581/20) 06/12/22 ECLI:CE:ECHR:2022:1206JUD001458120

In the case concerning the blanket ban on prisoners’ voting in Estonia, the court decided there had been no violation of Article 3 of Protocol 1 (right to free elections) to the ECHR. As a result of the ban, the applicant, a prisoner serving a life sentence for various serious crimes, had been prevented from voting in the 2019 European Parliament Elections.

• Referral to Grand Chamber:

Grosam v. the Czech Republic (19750/13), 14/11/22 ECLI:CE:ECHR:2022:0623JUD001975013

The Czech applicant in the present case complains, inter alia, that no appeal was possible against the decision of the Disciplinary Chamber of the Supreme Administrative Court, despite the fact that it could not be considered the “supreme tribunal” given its composition and the lack of sufficient safeguards with regard to its expertise and independence. In its Chamber judgment of 23 June 2022 (https://hudoc.echr.coe.int/eng-press?i=003-7367334-10067243), the Court ruled that the Disciplinary Chamber did not meet the requirements of an “independent and impartial tribunal” and that the complainant was therefore denied a fair trial.

News from the Member States and the EU

• Bulgaria

A large protest was held in front of the Bulgarian National Assembly against legislative amendments to the Bulgarian Electoral Code, which returns voting with paper ballots despite that machine voting has eliminated electoral problems in Bulgaria in the recent years (EURACTIV).

In response to criticism by the European Commission, Bulgaria has revoked 12 golden passports (which grant citizenship to wealthy third-country investors). Five procedures are still pending (EURACTIV).

Bulgarian Chief Prosecutor Geshev has been alleged of conducting corrupt actions by facilitating the blackmailing of incumbent ministers with criminal charges – potentially jeopardizing “the stability and security of NATO allies in Europe” (EURACTIV).

• Czech Republic

Former Czech PM Andrej Babiš has been acquitted for alleged fraud to facilitate building a congress center with EU subsidies (EURACTIV).   

• Cyprus

Also spyware issues in Cyprus, were the authorities allegedly engaged in surveillance activities that benefitted powerful Russians (EURACTIV).

• Greece

A new list of wiretapped journalists and politicians was published, as part of a big spyware scandal that has put the incumbent Greek government in trouble (EURACTIV). Androulakis, MEP and head of Greek socialist party, whose phone was bugged, filed a complaint before the CJEU (EURACTIV). In response to the “Greek Watergate”, the troubled Greek Government has banned the sale on spyware (EURACTIV). But press freedom and the rule of law in general are at stake here, according to different interest groups (EURACTIV; EURACTIV).

The Greek Watergate, in combination with Qatargate (which led to the arrest of Greek MEP and EP Vice-President Eva Kaili), might have significant effects to upcoming Greek elections, which will be held in toxic circumstances (EURACTIV; EURACTIV; EURACTIV)

The Greek privacy authority (ADAE) has decided to check the records of telecommunications companies to find out who is under surveillance by Greek secret services (EURACTIV). However, the Greek chief prosecutor Ntogiako ruled that based on new law, ADAE cannot conduct such audits and criminal penalties could be applicable (EURACTIV).

It caused a wave of reactions. Strong responses followed from the European Parliament (EURACTIV), some suggesting Greece is heading towards autocracy (EURACTIV). The European Parliament’s PEGA committee stressed the importance of protecting the independence of the authority of the ADAE (EURACTIV).

Main opposition leader Alexis Tsipras announced he would reveal names of Greek politicians that have been wiretapped by the secret services (EURACTIV).

Meanwhile a criminal trial of NGO humanitarian workers on Lesbos has started. They face charges concerning espionage, assisting smuggling networks, membership of a criminal organisation and money laundering (EURACTIV). In a 2021 LIBE report, the trial was called “the largest case of criminalisation of solidarity in Europe” (LIBE Report).

The Greek government faced a no-confidence vote on January 27 (EUOBSERVER; EUOBSERVER).

• Hungary

According to some sources, Hungary agreed with the EU on unlocking the covid recovery funds (5.8 billion Euros) in exchange for judicial reforms, relating to the strengthened National Judicial Council that will ensure the appointment to key judicial positions (POLITICO; POLITICO; EURACTIV). Hungary needs the money, as it is facing high inflation and ongoing economic difficulties (EURACTIV). In the meantime, Hungarian teachers have been striking for better working conditions, to which the government responded by firing some who participated in civil disobedience (EURACTIV; EURACTIV).

The EC decided to unblock the funds, provided the fulfilment of 27 supermilestones by Hungary, aimed at strengthening the independence of the judiciary, auditing rules and control on the utilization of the EU funds (which notably include the 17 commitments on the basis of the conditionality mechanism). These supermilestones can be regarded as an incentive for the Hungarian government to reform (EURACTIV).

Apart from the recovery funds, Hungary is not likely to receive a substantial part (7.5 billion Euros) of the cohesion funds. The European Parliament adopted a resolution urging the Commission to stay with its earlier proposal to suspend the funds (EURACTIV). While the Hungarian government had taken 17 measures relating to public procurement, conflicts of interest and corruption, the European Commission recommended the freezing of the EU funds under the rule of law conditionality mechanism, since “important weaknesses and risks remain” to the EU’s budgetary interests (POLITICO; EURACTIV ; EUOBSERVER).

During the Council meetings, the Hungarian government had put pressure on the Member States to unfreeze the cohesion funds by vetoing the EU Ukraine aid (18 billion Euros) as well as a directive ensuring 15% minimum corporate tax, which caused anger with other Member States (POLITICO; POLITICO; EURACTIV; EUOBSERVER; EUOBSERVER) Orban’s reputation was already damaged in surrounding Member States after wearing a nationalist scarf (EURACTIV). Eventually, the Hungarian government agreed on Ukraine loan and minimum tax, in exchange for a freeze of 6.3 billion Euros (instead of 7.5 billion Euros) (POLITICO; EURACTIV; EURACTIV; EURACTIV; EURACTIV ; EUOBSERVER). The Hungarian government nonetheless explains the low EU corruption rating as a conspiracy (EUOBSERVER).

Hungary has blamed a conspiracy for coming bottom in an EU corruption rating as it seeks to unfreeze European funding.

• Poland

Whereas Poland has been cooperative concerning its stance to Ukraine (EURACTIV), the country had nonetheless been blocking the minimum tax directive to force the unfreezing of the EU recovery funds (35 billion euros) (EURACTIV). After Poland had received a concrete pathway to unblock the funds by addressing rule of law issues aimed at judicial independence (the “milestones”) (EURACTIV), the Member State agreed to drop its veto on the minimum tax (EURACTIV; POLITICO). Many Polish citizens are in favor of implementation of the reforms (EUARACTIV) and regard the further legislative development critical for outcome upcoming Polish elections (EURACTIV; POLITICO). The Polish Parliament discussed the milestones and started working on it on January 11 (EURACTIV; POLITICO; POLITICO).

Meanwhile, Igor Tuleya – who has been very critical of the current rule of law situation in Poland – can resume his office as judge again after being suspended for over two years for allegedly enabling public disclosure of information (EURACTIV).

• Romania

According to the European Commission, Romania’s progress on judicial reform and anti-corruption measures has been sufficient. Hence, it has stopped the monitoring under the Cooperation and Verification Mechanism (CVM) (EURACTIV)

• Slovakia

Several Slovak political parties have forwarded the idea to create a constitutional block on electoral system reforms, to prevent future situations in which a longtime rule, such as in Hungary, can be made possible (EURACTIV)  

• EU-wide

European Court of Auditors (ECA) has started an investigation into the European Commission’s effective defense of the EU’s financial interests in the ongoing rule of law issues in some Member States (EUOBSERVER).  

MEPs are worried about the expanding surveillance spyware in the EU, but new rules are unlikely according to experts, as the Member States are probably not in favor of increasing oversight (EURACTIV). The EP’s special PEGA committee has adopted recommendations to address the spyware scandal, including some country-specific recommendations (EURACTIV).

Over to another scandal: Qatargate.

One of the biggest corruption scandals in EU history was revealed on December 9 concerning criminal organizations infiltrating the EP and interference of EU politics by Qatar. The Belgian secret service for more than a year to uncover the scandal, working closely with other Member States (EURACTIV). Several raides were performed discovering suitcases full of cash money. Vice president to the EP Eva Kaili was charged with corruption, taken into custody (EURACTIV) and unanimously removed as vice president (EURACTIV). She exposed herself after voting and speaking in favor of Qatar several times (EURACTIV). Former MEP Antonio Panzeri, arguably the mastermind behind Qatargate, was also arrested but has decided to collaborate with Belgian prosecutor office to lower his sentence (EURACTIV; EURACTIV; EURACTIV).MEP Marc Angel, has replaced Kaili as vice president of the EP (EURACTIV).

In response, many urged for critical debates on improving rules of ethics (EURACTIV; POLITICO), as the Qatargate scandal exposed “an ecosystem of corruption in the European Parliament” (EURACTIV; EURACTIV; EUOBSERVER). The president of the EP, Roberta Metsola, forwarded a plan on financial declarations and contacts with lobbyists to restore trust (EURACTIV; EUOBSERVER). The Parliament’s Constitutional Affairs committee unanimously adopted amendments to the EP Rules of Procedure to grant EPPO discretion to lift legal immunity for MEPs suspected of grave offences (EURACTIV).

Further readings and media

• No reasons given by a first-instance court for its refusal to seek a preliminary ruling: judgment of the ECHR in the case of Rutar and Rutar Marketing D.O.O. v. Slovenia (Johan Callewaert) https://johan-callewaert.eu/no-reasons-given-by-a-first-instance-court-for-its-refusal-to-seek-a-preliminary-ruling-judgment-of-the-echr-in-the-case-of-rutar-and-rutar-marketing-d-o-o-v-slovenia/

• Bridging the gap between facts and norms: mutual trust, the European Arrest Warrant and the rule of law in an interdisciplinary context. European Law Journal https://onlinelibrary.wiley.com/doi/full/10.1111/eulj.12436

• Jakab, András: Three misconceptions about the EU rule of law crisis, VerfBlog, 2022/10/17, https://verfassungsblog.de/misconceptions-rol/, DOI: 10.17176/20221017-162426-0.

• Lübbe-Wolff, Gertrude: How to Prevent Blockage of Judicial Appointments, VerfBlog, 2022/10/07, https://verfassungsblog.de/how-to-prevent-blockage-of-judicial-appointments/, DOI: 10.17176/20221007-230820-0.

• Juszczyszyn v. Poland: Article 18 ECHR’s Conservative Contribution to the Polish Rule of Law Crisis. strasbourgobservers https://strasbourgobservers.com/2022/11/23/juszczyszyn-v-poland-article-18-echrs-conservative-contribution-to-the-polish-rule-of-law-crisis/

• Secretary General’s Article 52 ECHR Report on Poland (ECHRblog) https://www.echrblog.com/2022/11/secretary-generals-article-52-echr.html

• EU 2.0 Revisited: Between Vetocracy and Rule of Law Concerns (European law blog) https://europeanlawblog.eu/2022/11/15/eu-2-0-revisited-between-vetocracy-and-rule-of-law-concerns/

• Reforming judicial review with respect for democracy (Leiden law blog) https://www.leidenlawblog.nl/articles/reforming-judicial-review-with-respect-for-democracy

• Rechtsstaatstoets constitutioneel keerpunt EU (NJB) https://njb.nl/blogs/rechtsstaatstoets-constitutioneel-keerpunt-eu/

• Jaraczewski, Jakub: Unexpected Complications: The impact of the Russian invasion of Ukraine on the rule of law crisis in the EU: An anti-rule of law alliance, VerfBlog, 2022/12/23, https://verfassungsblog.de/unexpected-complications-the-impact-of-the-russian-invasion-of-ukraine-on-the-rule-of-law-crisis-in-the-eu/, DOI: 10.17176/20221224-001629-0.

• Nguyen, Thu: The Hungary Files: Untangling the political and economic knots, VerfBlog, 2022/12/08, https://verfassungsblog.de/the-hungary-files/, DOI: 10.17176/20221209-001524-0.

• Ruiz Robledo, Agustín: An Institutional Crisis that Dissolved Like a Sugar Cube, VerfBlog, 2023/1/05, https://verfassungsblog.de/an-institutional-crisis-that-dissolved-like-a-sugar-cube/, DOI: 10.17176/20230106-001557-0.

• EUOBSERVER, When the EU found the political will to act on rule of law (28/12/22): https://euobserver.com/rule-of-law/156556

News from the courts

• Decisions CJEU

C-480/21 (Order of Court, 12 july 2022): Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Article 1(3) – Surrender procedure between Member States – Conditions for execution – Charter of Fundamental Rights of the European Union – Second paragraph of Article 47 – Fundamental right to a fair trial before an independent and impartial tribunal previously established by law – Systemic or generalised deficiencies – Two-step examination – Criteria for application – Obligation of the executing judicial authority to determine, specifically and precisely, whether there are substantial grounds for believing that the person in respect of whom a European arrest warrant has been issued, if surrendered, runs a real risk of breach of his or her fundamental right to a fair trial before an independent and impartial tribunal previously established by law

• Decisions ECtHR

No relevant decisions rendered.

• Communicated cases CJEU

No relevant communications rendered.

• Communicated cases ECtHR

The ECtHR has communicated 37 cases against Poland relating to “judicial decisions rendered by various chambers of the Supreme Court in civil or criminal cases, following appeal with regard to application for vacant judicial post, or regarding a disciplinary case involving a lawyer, or decisions by the National Council of the Judiciary (NCJ). It is alleged that the judicial formations dealing with the applicants’ cases were not “independent and impartial tribunals established by law” since they included judges who had been appointed by the new NCJ. The NCJ is the constitutional body in Poland which safeguards the independence of courts and judges. It has been the subject of controversy since the entry into force of new legislation in 2017 providing, among other things, that its judicial members are no longer elected by judges but by the Sejm (the lower house of Parliament).” Note also the communication of a similar case (Botor v Poland). The latter case resembles the 2021 case of Xero Flor w Polsce sp. z o.o. v. Poland, were the Court eventually held unanimously that article 6(1) (right to a fair trial and right to a tribunal established by law) had been violated.

Another communicated case against Bulgaria (C-373/22 – N.E) also concerned the question whether the court at hand could be regarded an independent or impartial tribunal in the meaning of EU law. It concerned a court, seised in a criminal case and at the same time a defendant in a claim for damages brought by a suspect in this criminal case, which is based on an unlawful act by this court.

News from the Member States and the EU

• Czech Republic

On 12 September, the trial against former Czech prime minister Babiš opened concerning his alleged role in the misuse of EU funds worth two million euros (EUObserver).

• Greece

Following several comments by MEPs and the EC on the wiretapping scandal in Greece – involving the use of the illegal spy-software Predator to wiretap the phone of an opposition leader in Greece by the administration of PM Mitsotakis (EUObserver) – the Greek government claimed the EU lacked competence to dwell on security measures taking place within the Member State (Politico). In the recently created special inquiry committee on spyware (PEGA) by the EP, the Predator revelations in Greece were also discussed. Some argued it undermines the rule of law in Greece (EUObserver).   

• Hungary

Over the rule of law dispute, Hungary has been blocking the legislative proposal for a global minimum corporate tax rate. Alternatively, the EC is considering to inititate an enhanced cooperation deal on a global minimum corporate tax rate of 15 percent, which would not require unanimous voting (Politico).

After the historical step by the EP to publicly declare Hungary ‘no longer a democracy’ as European values are under systematic threat in the Member State (Politico; EUObserver), the EC has proposed a suspension of 65 percent of funds allocated to Hungary under three EU programs (EU cohesion policy). This cut comes down to 7.5 billion euros. (EUObserver)

However, the EC has also announced it will monitor during the fall the Hungarian progress on 17 promised reforms aimed to counter fraud and corruption in the country (EUObserver; Euractiv)). The Council will bear these findings in mind when finally deciding on the matter (Politico; Politico; Politico; Politico; EUObserver). MEPs have criticized the EC’s plan for providing Hungary an easy way out of the mechanism (EUObserver).

• Italy

The far-right Giorgia Meloni of Fratelli d’Italia was elected as prime minister of Italy (EUObserver), a result cheered by EU’s right wing but despised by others (Politico; Politico). It could have implications for the balance in Brussels (Politico), although others argue that it will not change the internal dynamics of the EU (EUObserver). It has caused internal struggle in the EPP, as Berlusconi – also member of the EPP – supports the Meloni coalition (Politico).

The PEGA inquiry committee of the EP will start looking into Italian firm Tykelab and parent company RCS Lab in the wake of the media revelations by Lighthouse Reports, Der Spiegel, Domani and Irpimedi about mass surveillance activities by these Italian entities (EUObserver).

• Poland

Poland has threatened to violate its EU legal obligations if the recovery funds are not soon provided to the Member State (Politico). After the EC regarded the few Polish legislative changes (intended to meet the “milestones”) insufficient, the Polish government and the EC have not reached a compromise. The EC furthermore shrugged off the threats made by Poland (EUObserver). Although generally applauded, some have argued the lack to reach consensus might damage public faith in the EU’s neutrality (Politico).  Others condemned the milestones-option in the first place for disregarding ongoing rule of law concerns. In this light, four European associations of judges have lodged proceedings before the CJEU against the Council for approving Poland’s corona recovery plan (Politico). However, there might be standing problems before the CJEU. An exception to the standing requirements may be needed in the exceptional circumstances of this case “where a Member State fails to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection” (see Verfassungsblog).

Despite cooler relations due to different stances on the war in Ukraine, Poland has announced it would oppose EU rule of law sanctions on Hungary (Euractiv).The Polish government has also refused to cooperate in another case: it did not show up for the EP inquiry into the use of Israeli spyware Pegasus to target Polish opposition politicians, lawyers, and prosecutors (EUObserver).

• Spain

Věra Jourová has warned the Spanish government in a letter to urgently renew the National Council for the Judiciary (CGPJ). This body, which guarantees the independence of courts, has been acting on an interim basis for four years now. Similar concerns were stressed in the annual rule of law report by the EC (EUObserver).

• EU-wide

On 13 September, EC President Ursula von der Leyen provided the State of the Union address. Whereas it predominantly focused on the situation in Ukraine, VDL dedicated one small part on rule of law in the EU, stressing the importance of upholding judicial independence and protecting the budget through the conditionality mechanism. According to some, VDL should have stressed more the urgency to protect democratic values (EUObserver). The announced plan for a new “Defense of Democracy package” addresses corruption and interference from outside of the EU, hence less relevant for the internal rule of law situation (Politico; Politico). A couple days after the State of the Union speech, the EC shared their proposal on a new European Media Freedom Act (EMFA), which sets new rules and standards to safeguard media freedom and pluralism in the Union (Politico; EUObserver). Not everyone shares the same enthusiasm about the draft regulation: publishers are worried the new rules enhancing the power of media regulators could limit publishers’ editorial control over their publications (Politico). The Meijers Committee organized a Conference on Media Freedom and Pluralism in EU law on 11 October 2022 in Brussels, as a response to the brand new EMFA proposal. In two panel discussions, the existing EU legal instruments as well as the draft act were discussed (find the report and recordings of the event here).

Responding to several revelations on the use of illegal spyware instruments by Member States against the political opposition, civil society, lawyers and even MEPs, Commissioner Schinas urged for legislative action to prevent intelligence and security services at a national level from violating EU fundamental rights (Politico; EUObserver). In another privacy related issue, the European Data Protection Supervisor took legal action against the Council and EP for adopting legislation that would retroactively legalize the very data-handling practices by Europol that the EDPS had earlier ruled unlawful (Politico). 

In the quest to prevent gridlock-situations on sanctions or human rights matters, EU affairs ministers have tried to get rid of the unanimity voting. Yet, they failed to reach agreement, facing too much opposition (EUObserver).

The Fundamental Rights Agency (FRA) released its 2022 report on Europe’s civil society. Civil society is essential for upholding the rule of law, but it also faces multiple challenges (such as harassment and restrictive legislation) in EU Member States, according to the Agency (see FRA report)

Further readings and media

France’s new EU minister in Bled to stand up for Europe, rule of law (Euractiv, 29.08.22): https://www.euractiv.com/section/politics/short_news/frances-new-eu-minister-in-bled-to-stand-up-for-europe-rule-of-law/

Scholz pitches major EU enlargement — with reform  (Politico, 29.08.22): https://www.politico.eu/article/scholz-eu-enlargement-reform-prague-charles-university/

Lesbian conference planned for Budapest to defy Orban (EUObserver, 22.09.22): https://euobserver.com/rule-of-law/155938

‘We must take back institutions’, Orban tells US conservatives (EUObserver, 05.08.22): https://euobserver.com/rule-of-law/155715

The EU and its hybrid regimes are poisoning each other (Politico, 23.08.22): https://www.politico.eu/article/eu-hybrid-regime-poison-each-other-democracy-spitzenkandidaten/

Łętowska, Ewa: Defending the Judiciary: Strategies of Resistance in Poland’s Judiciary, VerfBlog, 2022/9/27, https://verfassungsblog.de/defending-the-judiciary/

Halmai, Gábor: Coping Strategies of the Hungarian Constitutional Court since 2010, VerfBlog, 2022/9/27, https://verfassungsblog.de/coping-strategies-of-the-hungarian-constitutional-court-since-2010/

Çalı, Başak; Costello, Cathryn: Coping Strategies: Domestic and International Courts in Times of Backlash, VerfBlog, 2022/9/26, https://verfassungsblog.de/coping-strategies-domestic-and-international-courts-in-times-of-backlash/

Steinbeis, Maximilian: Wholly Autonomously, VerfBlog, 2022/9/16, https://verfassungsblog.de/wholly-autonomously/

Marin, Luisa: Frontex and the Rule of Law Crisis at EU External Borders: A Question of Legal Design?, VerfBlog, 2022/9/05, https://verfassungsblog.de/frontex-and-the-rule-of-law-crisis-at-eu-external-borders/

Kovács, Ágnes: Defective Judicial Appointments in Hungary: The Supreme Court is Once Again Embroiled in Scandal, VerfBlog, 2022/9/27, https://verfassungsblog.de/defective-judicial-appointments-in-hungary/

Kochenov, Dimitry Vladimirovich; Roy, Suryapratim: Putinism is Contagious: Blanket Visa Bans on Russian Citizens and the Rule of Law, VerfBlog, 2022/8/19, https://verfassungsblog.de/putinism-is-contagious/

Szwed, Marcin: Testing judicial independence: On the recent developments in the Polish rule of law crisis, VerfBlog, 2022/8/18, https://verfassungsblog.de/testing-judicial-independence/

Sadurski, Wojciech: Extinguishing the Court: Why There Is No Salvation for the Current Polish Constitutional Tribunal, VerfBlog, 2022/8/14, https://verfassungsblog.de/extinguishing-the-court/

Boone, Miranda: Judges on politically sensitive descisions, Leiden Law Blog 19.07.22:https://www.leidenlawblog.nl/articles/judges-on-politically-sensitive-descisions

Ucín, María Carlota: And what if the courts could strengthen our democracies? Leiden Law Blog 09.07.22: https://www.leidenlawblog.nl/articles/and-what-if-the-courts-could-strengthen-our-democracies

News from the courts

No remarkable news from the CJEU and ECtHR.

Poland

Rule of law report 2022, Country chapter Poland:

The report expressed serious concerns regarding the independence of the Polish judiciary (in particular, the perpetuating irregularities in the appointment of judges in Poland, as well as the separation of the roles of the justice minister and prosecutor general). Whereas the implementation of the anti-corruption program was finished, essential parts remained uncompleted, and concerns and risks of corruption remain. Media freedom and pluralism deteriorated, causing the EC to urge the polish government to ensure a fair way to decide on operating licences for media. Issues on checks and balances also continue, which are to be resolved.

Despite these rule of law concerns, the EC gave green light to the 35 billion euro recovery plan for Poland in June, provided that the Polish government meets certain conditions (“milestones”) to ensure an independent judiciary in Poland (on that note, see Politico article on controversial Polish judge). Whereas the Polish government has meanwhile adopted a law abolishing the controversial disciplinary chamber for judges, commissioners Jourova and Reynders as well as MEPs have deemed it insufficient to meet the milestones as Polish law lacks safeguards against the penalization of judges and the distribution of public funds is increasingly politicized (see EU Observer; EU Observer).

Hungary

Rule of law report 2022, Country chapter Hungary:

The report expressed ongoing concerns over corruption risking “clientelism, favouritism and nepotism in high-level public administration”, while the anti-corruption strategy has been postponed. The EC also raised concerns regarding the lack of judicial independence (which remains “unaddressed”), urging the Hungarian government to strengthen the role of the National Judicial Council and rules for the judicial appointments of Hungary’s Supreme Court. The system of checks and balances should be improved, as well as the media freedom and pluralism (as the independent public media is under threat).

Unlike the conditional approval of the recovery budget for Poland, Hungary has not been authorized by the EC to utilize EU recovery money, pending the rule-of-law mechanism which was triggered in April this year. According to Commissioner Reynders, the Hungarian government has still reforms to make on the rule of law and anti-corruption. (see EU Observer). Meanwhile, Hungary aims to reach agreement with the EC to unlock the pandemic funding by the end of August (Reuters; EU Observer; Euractiv), since domestic economy is facing difficult times (EU Observer; EU Observer). However, Prof. Scheppele has raised concerns about such agreement, as it would “throw away” the rule of law in Hungary (see Verfassungsblog), and other experts are also cautious (see Euractiv). Moreover, the Member State’s antagonistic stance on sensitive issues such as Russian energy and global minimum tax might complicate negotiations in the first place (see EU Observer; see also this Politico opinion, and previous Rule of Law update). Orban’s comments on “race mixing” probably does not help either (see Politico).

At the same time, some critics have argued for even further-reaching measures. According to a legal study by professors Scheppele, Kelemen, and Morijn, the EC should suspend 100 percent of EU funds to Hungary. Assessing the appropriate and proportionate financial consequences to the fundamental and widespread rule of law problems in Hungary, the report concluded that “[f]or rule of law breaches covered by the Regulation that are so fundamental, frequent or widespread that they represent a complete failure of the budgetary implementation and monitoring system in a Member State, the only measures in response that could be considered both appropriate and proportionate, would be suspensions, reductions and interruptions of 100% of the flow of EU funds.” The report was solicited by Freund (MEP Greens/EFA) and supported by MEPs from the centre right EPP, socialist S&D and the liberal Renew Europe (see EU Oberver; see also more generally, Euractiv).

Other Member States

The rule of law report also illustrates problems in other EU Member States, concerning for instance the protection of journalists (Slovenia, Malta, Greece, Ireland) and reporters (Italy), the independence of the prosecutor general (Spain), and independence of governance (Slovenia). More specifically, after the controversy of Neelie Kroes with Uber, the EC recommended the Netherlands to develop a lobbying code of conduct for ministers and other officials.

Jourova: “The EU’s rule of law report shows that there is no country or system that is perfect. Everyone has its own challenges and Germany is no exception, even though the overall situation in the country is positive.” (…) “This is why, for the first time in the report, each member state got homework to do.” (see Politico) However, the situation in Hungary and Poland is the most concerning (see Politico)

Note the very critical remarks by former Prime Minister Fico of Slovakia on the country report of his country (Euractiv).

See all country chapters as part of the Rule of Law Report 2022 here.

EU wide

On 7 July, the EP discussed the issue of Russian ties to EU political parties, turning out in a heated debate. Commissioner Jourová stressed the importance of new EC proposals on political advertising, electoral rights, and party funding (see here), as well as a new EC toolkit to help mitigate foreign interference in research and innovation (see here). Mikulas Bek of the new Czech EU presidency regarded the issue a top priority (EU Observer). Note that the EC proposed last year to allow EP political parties and foundations to collect contributions from member parties or organisations located in States beyond the EU borders, belonging to the Council of Europe (see Euractiv).

Meanwhile, apart from the Pagasus controversy (see Euractiv and Politico) several EU Member States are employing mass surveillance techniques, despite CJEU rulings (see Politico). This comes in the wake of the Pegasus scandal Defiance of EU law amongst many EU Member States appears to be a more general and widespread concern (see documentation by Politico).

Further readings and media

Scheppele, Kim Lane: Will the Commission Throw the Rule of Law Away in Hungary? , VerfBlog, 2022/7/11, https://verfassungsblog.de/will-the-commission-throw-the-rule-of-law-away-in-hungary/

NEWS FROM THE COURTS 

• CJEU

On 28 and 29 June the hearings took place of the joint case relating to the independence of the judiciary and the state of the rule of law in Poland (C-204/21, C-615/20 C-671/20, C-181/21, C-269/21).

The AG’s opinions in these cases will be delivered on 15 December 2022.

• ECtHR

On 16 June, the ECtHR rendered a decision in the Żurek v. Poland case.

“The applicant in this case, a judge, was also spokesperson for the National Council of the Judiciary (NCJ), the constitutional body in Poland which safeguards the independence of courts and judges. In that capacity, he had been one of the main critics of the changes to the judiciary initiated by the legislative and executive branches of the new Government which came to power in 2015. The case concerned his removal from the NCJ. He alleged in particular that he had been denied access to a tribunal and that there had been no procedure, judicial or otherwise, to contest the premature termination of his mandate. He further submitted that his dismissal as spokesperson for the regional court, combined with the authorities’ decisions to audit his financial declarations and to inspect his judicial work, had been intended to punish him for expressing criticism of the Government’s legislative changes and to warn other judges off of doing the same. The Court held that there had been a violation of Article 6 § 1 (right to a fair trial) and a violation of Article 10 (freedom of expression) of the Convention in the present case. Following the same reasoning as in the case Grzęda v. Poland, it found that the lack of judicial review of the decision to remove the applicant from the NCJ had breached his right of access to a court. The Court also found that the accumulation of measures taken against the applicant – including his dismissal as spokesperson of a regional court, the audit of his financial declarations and the inspection of his judicial work – had been aimed at intimidating him because of the views that he had expressed in defence of the rule of law and judicial independence. In finding these violations, the Court emphasised the overall context of successive judicial reforms, which had resulted in the weakening of judicial independence and what has widely been described as the rule-of-law crisis in Poland.”

Later in June, the ECtHR issued another significant judgement on a Spanish case regarding the rights of judges: M.D. et al. v. Spain. “[T]he European Court of Human Rights held, unanimously, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. The case concerned the compiling of files by the police in Catalonia on judges who had expressed certain views on that region’s independence from Spain. Material from the files, including photographs, had been subsequently leaked to the press. The Court found in particular that the mere existence of the police reports, which had not been compiled in accordance with any law, had contravened the Convention. As for the investigation into the leak, the Court found it to have been inadequate owing to the failure to interview a person crucial to the investigation, the Senior Chief of Police of Barcelona.”

The Strasbourg Court also found in Haščák v. Slovakia that Slovakia had violated Article 8 (right to respect for private and family life), in a case concerning a “Gorilla operation” carried out in 2005 and 2006 by the Slovak Intelligence Service and the intelligence material obtained by it. The Court found deficiencies in the applicable rules and procedures of the surveillance operation, and the lack of external oversight.

In the case of Grosam v. the Czech Republic, the ECtHR decided that the latter was in violation of Article 6(1), as the Czech Supreme Administrative Court – sitting as a disciplinary court for enforcement officers – had issued a fine in disciplinary proceedings despite it not being an “independent and impartial tribunal” due to the lack of transparency and independence.

Poland

Despite widespread internal and external criticism, the European Commission has approved on 1 June a plan for Poland to unlock the roughly 36 billion Euros from the EU recovery fund. To access the money, Poland should meet certain conditions (“milestones”) aiming to guarantee an independent judiciary within the Member State. This includes dismantling a controversial disciplinary body for judges by the end of June, which the CJEU had declared illegal in July 2021 (the Court later imposed a daily €1 million fine when Poland failed to suspend the system). Furthermore, Poland should ensure that judges suspended by the chamber have their cases reviewed. These are the conditions for the first disbursement. An additional third milestone for the end of 2023 should guarantee a completion of the review proceedings, with a view to the reinstatement of the dismissed judges. (See Politico, EU Observer, and Euractiv).

Commission President Ursula von der Leyen defended the plan in Warsaw on 2 June, in spite of unprecedented dissent by five prominent commissioners. (See Politico and Euractiv; see the leaked five dissenting letters on Twitter)

MEPs disapproved the plan and expressed their “grave concerns”. They called on the Council to only approve the recovery plan once Poland has implemented the recent CJEU judgement, including the reinstatement of dismissed judges. (EU Observer, Euractiv)

Von der Leyen responded to the criticism by pledging not to disburse funds before Poland delivers on the first two of three conditions: abolishing the disciplinary chamber for judges and reforming the disciplinary regime. She reiterated that the third milestone – the reinstatement of dismissed judges – should be done by the end of 2023. The MEPs thought this was not enough. (EU Observer). Some MEPs even considered drawing up a motion of censure, which eventually failed support (See Euractiv, Euractiv)

Meanwhile, the Polish people seems to be split on the matter, as a third of the Poles believes that the money should not be granted until the Polish government fulfils the conditions concerning judicial independence. (Euractiv).

There was also division within the ruling PiS party on the plan, as the agreement allegedly had not been agreed on within the ruling coalition. (Euractiv). Simultaneous other concerns were expressed, for instance regarding the LGBT-free zones in Poland. Justice Minister Zbigniew Ziobro argued that the EU was blackmailing the local governments to withdraw these zones by depriving them of funding for i.a. infrastructure if they maintained the status quo. (Euractiv)

On that matter, a Polish appeals court ruled on 28 June that these zones were illegal and must be scrapped in four municipalities. (Euractiv)

Hungary

During the 23 May Council hearings regarding the Art 7 procedure in relation to Hungary, several concerns were expressed, i.a. on the perceived absence of a level playing field during the recent parliamentary elections, the recent state of emergency, the independence of the judiciary, and the effective access to the right of asylum. The Hungarian delegation denied all concerns. (Statewatch). On 21 June, the Unhack Democracy Conference emphasized the importantce of free and fair elections to ensure liberal democracy (EU Observer, including the recordings of the conference).

In the meantime, Hungary blocked the EU deal on minimum corporate tax rate. After Poland dropped its opposition, an agreement was expected. (EU Observer, Euractiv). Hungary allegedly uses this veto to exert pressure on the approval by the Commission of Hungary’s recovery plan (EU Observer), which is important to boost Hungary’s current problematic economic situation. (EU Observer)

Czech Republic

Just before the start of the Czech presidency of the Council, the Member State suffered a dent, as a member of the Czech coalition resigned as deputy mayor of Prague and was taken into custody on suspicion of running an organized crime operation (involving bribery) from the Prague City Hall. (EU Observer)

EU wide

During a hearing of the special inquiry committee in the EP, the Israeli NSO Group informed the MEPs that at least 5 EU Member States were using Pegasus spyware. It has been used against politicians in Poland, journalists in Hungary, and on EU level against several MEPs and commissioner Didier Reynders (EU justice). (Politico, EU Observer)

Further readings and media

Jaraczewski, Jakub: Just a Feint?: President Duda’s bill on the Polish Supreme Court and the Brussels-Warsaw deal on the rule of law, VerfBlog, 2022/6/01: https://verfassungsblog.de/just-a-feint/

Bornemann, Jonas: Green light or white flag? The European Commission’s endorsement of the Polish recovery plan and its implications for the rule of law crisis, European Law Blog, 2022/8/6: https://europeanlawblog.eu/2022/06/08/green-light-or-white-flag-the-european-commissions-endorsement-of-the-polish-recovery-plan-and-its-implications-for-the-rule-of-law-crisis/

LIBE–AFCO Joint Public Hearing on “Rule of law mechanisms in the EU 2022/6/20: https://www.europarl.europa.eu/news/en/press-room/20220620IPR33409/rule-of-law-in-the-eu-ways-to-better-protect-the-union-s-core-values

Pech, Laurent: Covering Up and Rewarding the Destruction of the Rule of Law One Milestone at a Time, VerfBlog, 2022/6/21: https://verfassungsblog.de/covering-up-and-rewarding-the-destruction-of-the-rule-of-law-one-milestone-at-a-time/

Morijn, J. (2022). The Law and Politics of Protecting Liberal Democracy. (Inaugural lectures University of Groningen). University of Groningen Press: https://pure.rug.nl/ws/portalfiles/portal/224636215/Oratie_John_Morijn.pdf

Dalkilic, Evin: Generation Action, VerfBlog, 2022/6/26: https://verfassungsblog.de/generation-action/