Rule of Law Update – April 2024

NEWS FROM THE COURTS

CJEU judgments

CJEU (GC) judgment of 9 January 2024, joined cases C-181/21 en C-269/21
Preliminary references by Polish courts (inadmissible in both cases)
The case concerns a consumer credit contract dispute focusing on fairness of terms. However, the referring court’s questions pertain to the judicial panel tasked with handling the case, including a judge appointed in violation of procedures requiring judicial self-governing bodies’ involvement. They inquire if panels with such judges qualify as independent “judicial bodies” under Union law (Articles 2 and 19(1) TEU and Article 47 of the EU Charter). Moreover, the referring courts inquire whether, due to lack of Polish legal remedies against irregular judicial appointments, they should, to ensure effectiveness of Union law, apply national rules on automatic disqualification of judges appointed unlawfully from handling cases. The Court declared both requests inadmissible for being hypothetical (C-181/21) and irrelevant to the pending case (C-269/21).

AG opinions

AG Collins opinion of 1 February 2024 in CJEU case C-53/23 (Asociaţia „Forumul Judecătorilor din România), ECLI:EU:C:2024:104
The applicants are NGOs established to ensure an independent, impartial, and effective judicial system and to undertake projects for its improvement, modernization, and reform. They filed a request for judicial review seeking partial annulment of a decision by the Prosecutor General at the PICCJ appointing several public prosecutors to investigate and prosecute all offenses allegedly committed by judges and prosecutors. The applicants argue that Law No. 49/2022, forming the legal basis for the contested decision, violates EU law. They question whether associations of judges and prosecutors, established to promote an independent, impartial, and effective judicial system, can invoke Articles 2 and 19(1) TFEU, read in light of Articles 12 and 47 of the Charter, to demonstrate locus standi to bring a case before a national court to promote these objectives. The Advocate General suggests to the Court that EU law does not preclude a national regulation requiring associations of judges and prosecutors to demonstrate a legitimate private interest, as defined in national law, when challenging actions incompatible with judicial independence and the rule of law.

New preliminary references

Case C-748/23 (Gekus)
referenced by Polish court concerning rule of law in Poland and execution of judgment from Polish judge in Ireland
The case involves a dispute between an Irish company and citizen over their obligations arising from actions in Poland. The defendant contests a judgment to be enforced in Ireland, alleging a violation of their right to access to court due to involvement of a judge delegated by the Polish Minister of Justice. They question the impartiality of Judge ‘JG’ at the highest Polish court. The referring judge seeks clarity on the standards of judicial impartiality and independence, particularly regarding JG’s appointment process. Prejudicial questions inquire if appointment circumstances can impact judicial impartiality and if judges implicated in such appointments can participate in assessing judicial independence.

C-96/24, C-103/24 and C-112/24 (Rzecznik Dyscyplinarny Sądu Najwyższego and Others)
reference from Poland on appointment of judge, independence and impartiality
The cases C-96/24, C-103/24, and C-112/24 concern Polish regulations allowing interested parties to request an assessment of the independence and impartiality of judicial panels. These requests were made in the context of criminal proceedings. The central question is whether judges appointed through flawed procedures can participate in the assessment. The preliminary questions focus on the interpretation of articles 19(1) and 47 of the Treaty on European Union and the Charter of Fundamental Rights of the European Union regarding the independence and impartiality of judicial bodies, particularly the Sąd Najwyższy (Supreme Court of Poland). They include issues such as the composition of judicial panels, the consequences of flawed appointment procedures, and the role of judges involved in such procedures.

C-158/24 (Rojcki)
reference from Romania on Article 47 Charter and judge and whether a decision of the president of the court has legal effects when the judicial formation is not an independent and impartial court within the meaning of European Union law
The case C-158/24 Rojcki concerns a preliminary ruling regarding the independence and impartiality of judicial panels and the appointment of judges. The referring court seeks clarification on whether a decision by the president of a court, forming a judicial panel, has legal consequences if the panel is not considered an independent and impartial court established by law. This question is crucial for determining whether a judicial body with such composition can effectively assess compliance with the standards ensuring the independence and impartiality of courts established by law, particularly in light of Article 47 of the EU Charter of Fundamental Rights. The case involves judges appointed in a manner inconsistent with national law and whether their presence affects the validity of decisions made by the panel.

C-119/23 (Valančius)
a reference Lithuania on concerns about the selection and appointment process of judges to the General Court of the European Union
Case C-119/23 (Valančius) involves a request for a preliminary ruling from the Vilniaus apygardos administracinis teismas (Administrative Court of Vilnius Region) in Lithuania. The applicant, Virgilijus Valančius, challenges the selection and appointment process of judges to the General Court of the European Union by the Lithuanian government. The case raises questions about the interpretation and application of EU legal standards regarding the independence and impartiality of judges in the EU judiciary. Specifically, it questions whether the selection criteria and procedures comply with EU law, particularly in ensuring the independence and impartiality of judges appointed to the EU judiciary. This case is significant for clarifying the standards and procedures governing the selection and appointment of judges to the General Court of the European Union, addressing concerns about ensuring the independence and impartiality of judges within the EU judiciary, fundamental principles for upholding the rule of law and protecting individuals’ rights within the European Union.

ECtHR judgments

ECtHR judgment of 20 February 2024, Danileţ v. Romania
Judicial Freedom of Expression on Social Media
The European Court of Human Rights ruled, by a majority, that Romania violated Article 10 of the European Convention on Human Rights in the case of Danileţ v. Romania. The case concerned a judge who received a disciplinary sanction for posting messages on his Facebook account. The Court found that the domestic courts failed to consider important factors, such as the broader context of the statements and the potential chilling effect of the sanction, thus not granting due weight to the judge’s freedom of expression. Additionally, the Court declared the complaint regarding Article 8 of the Convention inadmissible as the grounds for the sanction were unrelated to the judge’s private life.

ECtHR judgment 15 February 2024, Škoberne v. Slovenië, 19920/20
Privacy and Right to a Fair trial
The case involves a suspect allegedly bribed to influence a court case, with intercepted communications and location data used as evidence. The suspect’s conviction violates Article 6 (right to a fair trial) and Article 8 (right to privacy) of the European Convention on Human Rights. Regarding Article 8, the storage of telecom data lacked clear rules, breaching privacy rights. Regarding Article 6, the suspect’s conviction heavily relied on testimonies from witnesses who were not questioned during the trial, violating the right to a fair trial.

ECtHR judgment of 14 December 2023, Syndicat national des journalists e.a. v. France – L’impartialité objective de la Chambre sociale (Libertés cheries)
Impartiality Breach in Journalists’ Case
In a decision on December 14, 2023, the European Court of Human Rights (ECHR) found France in violation of Article 6 § 1 of the European Convention on Human Rights, due to the involvement of three members of the Cour de Cassation in a case where they had financial ties to the defending company. The case stemmed from a social conflict beginning in 2007 involving a restructuring by a Dutch publishing group, leading to a debt situation and refusal to pay employee bonuses. Despite initial rulings against the company, their appeal was accepted by the social chamber of the Cour de Cassation. However, it later emerged that three of the judges had ties to the company, raising doubts about their impartiality. Though the Council of the Judiciary acknowledged this, no serious sanctions were imposed. The matter was brought before the ECHR, which emphasized the importance of objective impartiality in legal proceedings. The ECHR ruled in favor of the complainant, highlighting the inadequacy of the judges’ justifications for not recusing themselves. The decision prompted improvements in recusal procedures but also raised concerns about transparency and potential conflicts of interest within the judiciary.

Rule of Law Update – January 2024

NEWS FROM THE COURTS

Cases ECtHR

Ikotity and Others v. Hungary – Application no. 50012/17 5/10/2023
Right to freedom of expression
Opposition members of parliament were sanctioned for using posters without permission during an interpellation speech by a colleague. The Court determined that the reasons behind the decisions were relevant to the legitimate aim pursued and were sufficient to demonstrate that the interference was deemed “necessary” in a democratic society. Therefore, the Court concluded that there was no violation of the right to freedom of expression (Art. 10 ECHR).

Takó and Visztné Zámbó v. Hungary – Application nos. 82939/17 and 27166/19 12/10/2023
Enforced separation during prison visits
Complaints were raised under Article 8 ECHR (Right to respect for private and family life) concerning the enforced separation from a relative during prison visits as a result of a 2017 Directive issued by the Hungarian Prison Service. Despite there being a recommendation against the separation, it persisted and complaints were dismissed by prosecutorial offices. Upon review, the Court found the complaints admissible while acknowledging the lawful interference with family life and at the same time stressing the necessity for proportionality in security concerns. The Court ruled that the application of the measure failed to balance prison security and the right to family life, therefore resulting in a violation of Article 8 ECHR.

S.S and Others v. Hungary – Application nos. 56417/19 and 44245/20 12/10/2023
Unlawful Removal of Asylum Seekers to Serbia
The applicants, including a mother and her five children, arrived at Budapest Airport using counterfeit diplomatic travel documents and were refused entry into Hungary. After requesting for asylum they were removed to Serbia before the examination of their claims. The Court found that Hungary violated its procedural duty under Article 3 ECHR due to failing to assess whether the applicants would have access to a fair asylum procedure in Serbia.

A.D. v. Malta – Application no. 12427/22 17/10/23
Unlawful and arbitrary detention of migrants and lack of timely and effective legal remedies
The applicant, a vulnerable individual due to his alleged minority and health situation, was held in various detention centres for different purposes over several months. The Court found a portion of his detention period to be arbitrary and in violation of Art. 5(1) ECHR, basing its findings on the fact that the Maltese courts did not issue any judicial order allowing for the detention as they are empowered to do under the national law. Furthermore, a violation of Art. 13 ECHR was established, highlighting deficiencies in Malta’s asylum system to address the applicant’s grievances, and basing such claim on, inter alia, its previous caselaw against Malta. 

Wałęsa v. Poland – Application no. 50849/21 23/11/2023
Systemic violations of the Polish judicial reform
The Court found a breach of the rights of the Polish former president Lech Wałęsa, namely the right to an independent and impartial tribunal established by law, the principle of legality and the right to respect for private and family life, because of the Polish reform of the judiciary. Most importantly, the Court seized the opportunity to apply the pilot-judgment procedure in this case, calling on Poland to implement measures to address “systematic violations” caused by the latest judicial reforms.

M.L. v. Poland – Application no. 40119/21 14/12/23
Composition of Constitutional Court, restrictive abortion laws
The ECtHR ruled that the Poland’s ban on abortion in cases of foetal abnormality, following a 2020 Constitutional Court judgment, violated the applicant’s right to respect for private life under Article 8 ECHR. The ECtHR emphasized the importance of the rule of law, stating that any interference with Article 8 rights must come from a “lawful” body. However, it found that the Constitutional Court’s composition involved judges appointed through a procedure previously deemed in breach of the Convention, undermining the legitimacy of the ruling.

Frankowski and Others v. Poland – Application nos. 32589/22, 35548/22 and 42267/22 14/12/23
Breach of fair trial rights in lengthy criminal proceedings
In the joined cases the Court found the complaints raised by applicants admissible regarding Poland’s excessive length of criminal proceedings as well as there not being any effective remedies in domestic law. The ECtHR ruled that Poland violated both Articles 6(1) and 13 ECHR guaranteeing the right to a fair trial as well as the right to an effective remedy.

Cases CJEU

C-81/21 Staatsanwaltschaft Aachen 9/11/23
Systemic or generalised rule of law deficiencies as an obstacle to mutual recognition
The CJEU addressed the concerns of a German Regional Court regarding the enforcement of a custodial sentence imposed by a Polish District Court, given that the Polish judicial system itself is no longer in conformity with the principle of the rule of law enshrined in Article 2 TEU. The Court ruled that a Member State may refuse to recognise and enforce a judgment imposing a criminal sentence delivered by a court of another Member State where it has evidence of systemic or generalised deficiencies in that Member State regarding the right to a fair trial, in particular so far as concerns the independence of the courts (in abstracto test), and where there are substantial grounds for believing that those deficiencies may have had a tangible influence on the criminal proceedings brought against the person concerned (in concreto test).

AG Opinions

Joined Cases C‑554/21, C‑622/21 and C‑727/21 Financijska agencija v HANN-INVEST d.o.o. (C‑554/21) and Financijska agencija v MINERAL-SEKULINE d.o.o. (C‑622/21) and UDRUGA KHL MEDVEŠČAK ZAGREB (C‑727/21)
According to AG Pikamäe’s opinion, national rules and practices which provide, as part of a single mechanism designed to ensure the consistency of a court’s case-law, for the intervention, in the judicial decision-making process at second instance, of the registrations judge and the section of judges, are compatible with Article 19(1) TEU. That is because the organisation of justice, including the course of the deliberation stage of proceedings, falls within the competence of Member States, which enjoy a certain degree of discretion in implementing the principles of the rule of law, as regards inter alia reconciling the requirements of legal certainty, as applied to courts of second instance, and the independence of those courts.

C‑634/22 OT, PG, CR, VT, MD intervener: Sofiyska gradska prokuratura
In its opinion, AG Bordona stated that the second subparagraph of Article 19(1) TEU must be interpreted as meaning that it does not preclude a national judicial reform according to which a specialised criminal court is abolished and its jurisdiction transferred to a different, ordinary, court, and which provides at the same time that the criminal cases being dealt with in the abolished court and in which a hearing has been held will continue to be heard by the formation that had jurisdiction until that time. Nor does it preclude, in the context of that reform of the judicial system, the reassignment of the judges of the abolished court to other courts with the same rank, on the basis of objective criteria free of any suspicion of arbitrariness.

Frontex Roundtables – 26 January, Brussels

📢 Announcement: Frontex Roundtables co-organized by the Meijers Committee (26/01)

We’re thrilled to invite you to a discussion of the aftermath of the General Court’s ruling in WS and Others v. Frontex.

📅 Event Details:
Topic: The aftermath of WS and Others v. Frontex: is the battle for accountability lost?
Organizers: Maastricht University, Free University Brussels, Meijers Committee
Date: 26 January 2024
Time: 13:15 – 18:30
Speakers: Esteemed legal academics and practitioners (see info link below)
Platform: Hybrid (Zoom and at the Free University Brussels, Belgium)

🔍 Background:
On 6 September 2023, the General Court delivered a significant ruling dismissing the action for damages against Frontex. This case, intertwined with the broader narrative of Frontex’s role as a coordinator in joint operations with Member States, raises pivotal questions about accountability within the EU’s integrated administration framework.

📌 Key Discussion Points:
Unpacking the legal challenges stemming from the WS and Others v. Frontex case-law.

Evaluating the accountability gaps arising from the evolving structure of EU integrated administration.

Exploring potential avenues, both judicial and non-judicial, to strengthen Frontex’s fundamental rights accountability.

📝 RSVP:
Want to join us? Find registration details (and more information) here: https://lnkd.in/eMdc8GDU

We look forward to your participation and contributions to this important conversation.

#MeijersCommittee #Frontex #EUlaw #Accountability #LegalDiscussion #WSvFrontex

Rule of Law Update – September 2023

NEWS FROM THE COURTS

CASES CJEU

Court of Justice judgments

C‑204/21 – European Commission v Poland ECLI:EU:C:2023:442 5/06/2023 (Commission)

In 2021, the Commission brought an action against Poland regarding the “Muzzle Law” and the Disciplinary Chamber. With this judgment, the Court of Justice decides in line with the Commission’s action, by first confirming that the value of the rule of law is given concrete expression in legally binding obligations, which Member States may not disregard by relying on national legislation or case law. Considering these premises, the ruling is based on the following findings: (i) the Disciplinary Chamber does not satisfy the requirement of independence and impartiality; (ii) the disciplinary regime applicable to judges is incompatible with the guarantees enshrined in the right to effective judicial protection; (iii) the national provisions requiring judges to submit a declaration indicating any membership of an association, non-profit foundation, or political party, and the placement of such information online, violates the rights to protection of personal data and the right to a private life of those judges.

For a complete timeline of this case, consult our Rule of Law Dashboard.

C‑823/21 – Commission v Hungary (Déclaration d’intention préalable à une demande d’asile) ECLI:EU:C:2023:504 22/06/23 (Commission)

With this judgment, the Court of Justice decides in line with the claims brought by the Commission against Hungary regarding the fulfilment of the obligations stemming from the EU Directive on common procedures for granting and withdrawing international protection, as interpreted in the light of Article 18 Charter. The Court recognises that by making the possibility, for certain third-country nationals or stateless persons present in its territory or at its borders, of making an application for international protection subject to the prior submission of a declaration of intent at a Hungarian embassy situated in a third country and to the grant of a travel document enabling them to enter Hungarian territory, Hungary has failed to fulfil its obligations under the Directive.

C-615/20, C-671/20 – YP and Others () and suspension d’un juge) ECLI:EU:C:2023:562 13/07/2023 (Poland)

In 2021, the Disciplinary Chamber of the Polish Supreme Court adopted a resolution authorizing the initiation of criminal proceedings against a judge of the Warsaw Regional Court, suspending him from his duties and reducing his remuneration for the duration of the suspension. This resolution was based on national provisions that the Court of Justice has found contrary to EU law in European Commission v Poland (C‑204/21). It stems from the primacy of EU law that any provisions or national case law contrary to EU law must be disapplied and this disapplication from a national judge cannot trigger his or her disciplinary liability.

C-107/23 – PPU Lin ECLI:EU:C:2023:606 24/07/2023 (Romania)

With this judgment, the Court of Justice further specifies the YP and Others () and suspension d’un judge ruling by stating that the primacy of EU law precludes ordinary national courts from being bound by the national constitutional or supreme courts’ case law which is contrary to EU law. No disciplinary consequences apply to judges who, under such circumstances, disregard the case law of these higher national courts.

General Court judgements

Case T-600/21 – WS and others v Frontex ECLI:EU:T:2023:492 06/09/23

The General Court dismisses the action of several Syrian refugees who had brought a claim for compensation against Frontex. The refugees claimed that Frontex had infringed, in the context of their return operation from Greece to Turkey, its obligations relating to the protection of fundamental rights, steaming from the Charter, Frontex’s Regulation, the Code of Conduct, and Frontex’s Standing Operating Procedure. The Court finds the EU agency not accountable since its task is solely to provide technical and operational support to the Member States, who, on the other hand, have the exclusive competence to assess the merits of return decisions and to examine applications for international protection. 

If you want to know more about the topic, here you can find our “Comment on Frontex and pushbacks: obligations and accountability (2021)”. For a more recent take, check out our “Comment on Frontex’s Status Agreements with Senegal and Mauritania (2023)” (Section D).

Requests for preliminary ruling

C-332/23 – Inspektorat kam Visshia sadeben savet 25/05/2023 (Bulgaria)

This preliminary reference concerns the independence of a Bulgarian judicial supervisory authority, as an institution with the power to call for the imposition of disciplinary penalties on judges. The referring court asks, inter alia, whether granting to such an institution an indefinite extension of powers after the constitutionally stipulated term of office has expired is capable, under Art. 19(1) TEU, of jeopardizing the independence of this authority. If the risk exists, the court further questions what criteria are to be used to assess whether extending the term of office is permissible, and, if so, for how long.

C-369/23 – Vivacom Bulgaria 9/06/2023 (Bulgaria)

This preliminary reference asks whether national rules on jurisdiction over actions for damage, arising from a sufficiently serious breach of EU VAT law allegedly committed by the Bulgarian Supreme Administrative Court, are compatible with Art. 19(1) TEU. The question was raised on the claim that these norms allocate the jurisdiction as court of last instance over these actions to the Bulgarian Supreme Administrative Court, albeit before a completely different chamber than the one these actions are brought against.

C-374/23 – Adoreike 13/06/2023 (Lithuania)

Is a determination of remuneration of judges, which is directly dependent on the political will of the national legislative and executive powers, compatible with the values of democracy and the rule of law, as set out by the Treaties? That is, in essence, one of the questions submitted with this preliminary reference by a Lithuanian court, whose reasoning highlights that the principle of the independence of the judiciary includes the independence of the judiciary’s funding from such powers.

C-390/23 – Rzecznik Finansowy 27/06/2023 (Poland)

After having submitted a previous preliminary reference on the possibility of setting aside final judgments using an extraordinary action to ensure the effectiveness of EU law, the Polish Supreme Court seeks further clarification on the matter. It is questioned if, considering the requirements set in Arts. 19(1) TEU and 47(2) Charter, the mechanism for reviewing final judgments in a Member State may be shaped in such a way that the court of last instance hearing such cases includes persons who (i) are not professional judges (or even lawyers), (ii) whose method of appointment differs from that of judges, and (iii) who do not benefit from all the guarantees of independence provided for in respect of judges.

CASES ECtHR

Tuleya v. Poland – Applications nos. 21181/19 and 51751/20 6/07/23

A well-known Polish judge, who had expressed his views against the judicial reform in Poland, was subject to a preliminary inquiry on suspicion of disciplinary misconduct, which resulted in the lifting of his immunity from prosecution, and suspension from his official duties by the Disciplinary Chamber of the Polish Supreme Court. According to the ECtHR, not only the Disciplinary Chamber failed to meet the requirement of an “independent and impartial tribunal established by law” (Art. 6 ECHR), but there had also been no lawful basis for the measures against the applicant, which interfered with his right to a private life (Art. 8 ECHR) and could be characterized as a strategy aimed at intimidating or even silencing him for his views (Art. 10 ECHR).

Lorenzo Bragrado and Others v. Spain – Applications nos. 53193/21, 53193/21, 53707/21, 53848/21, 54582/21, 54703/21, and 54731/21 22/06/2023

The ECtHR held that there had been a violation of the right to access to court (Art. 6(1) ECHR), in a case concerning the appointment process for membership of the governing body of the judiciary in Spain (“the GCJ”). The applicants, namely judges who were candidates to be new members of the GCJ, appealed with the Constitutional Court complaining about Parliament’s failure to follow through with the process for renewing the composition of the GCJ, but the appeal was rejected as out of time. The ECtHR found that the applicants could not have foreseen how the relevant law on time limits had been interpreted and applied in their case.

Rule of Law FAQs – Volume 2 (2023)

For over a year now, the Meijers Committee and Democracy Reporting International (DRI) have been helping politicians, journalists, and other actors navigate the tangled web of myths, lies, and half-truths surrounding the rule of law debates in Europe.

This is the purpose of our Rule of Law FAQs, a handy set of cards that help readers separate fact from myth and debunk the narratives constructed by those who muddy the waters of the European rule of law debates. We are now expanding the cards with updated information, covering more member states, adding new cards on European-wide issues, and offering them in more languages.

What’s new?

  • Updates of the previous cards with the latest information on the legal stand-off between the European institutions and member states Poland and Hungary over their rule of law crisis.
  • Expanded member state coverage, with cards about rule of law issues in Spain, Romania, and Greece.
  • New cross-cutting issues:
    • The war in Ukraine – sanctions on individuals and the rule of law implications  
    • Media pluralism
    • Secret surveillance/spyware and the rule of law crisis

Download the RoL FAQs 2.0 here

See also translated versions in German, French, Polish, Hungarian, Spanish, Greek and Romanian

Seminar on the Enforcement of the European Media Freedom Act (11 July 2023, online)

Introduction

The Meijers Committee and the Amsterdam Centre for European Law and Governance (ACELG) of the University of Amsterdam (UvA) organized on 11 July an online seminar on the enforcement of the European Media Freedom Act (EMFA).


Media pluralism reveals a complex puzzle in the EU’s legal order. While media pluralism features among the most important values of the EU, the Union lacks an explicit competence to regulate the media and media as a field of EU policy is absent from the Treaties.

In September 2022, the European Commission proposed the European Media Freedom Act (EMFA) to promote media freedom and pluralism. The initiative seeks to address contemporary practices which threaten the economic and democratic function of media in the EU. The proposal also contains several enforcement mechanisms. It is, however, highly questionable whether these mechanisms improve the effectiveness and credibility of enforcement of media law and policy in the EU.

This online seminar brought together policymakers, academics, and members of the EP to discuss the question how the EMFA and media law and policy could be better enforced across the EU. The participants drew on expertise from both media law and EU competition law that can offer tools or examples to safeguard media pluralism in the EU.[1]

Panelist contributions

Daniel Freund (MEP Greens) emphasized the importance of protecting journalism and journalists which comes with the rule of law backsliding in EU Member States. He mentioned that the EP is closely following developments that could undermine media pluralism in the EU, such as the abuse of spyware and attacks on independent news media and journalists. Noteworthy are several EP measures which aim to safeguard media pluralism, such as the PEGA report (investigating abuse of spyware (against journalists)).

Developments like state capture of media in some Member States threaten European interests of democracy and rule of law. With the EMFA proposal, the European Commission has exactly tried to accommodate these growing concerns. LIBE and CULT committees will soon vote on the EMFA.

According to Freund, the EC should go further to address the situation in Hungary. On top of the option to launch an infringement procedure, the Commission should use the available competition law tools. But how to address the concerns by States with more pluralist and free media who feel threatened by these strong tools? In general, what tool is to be used in each circumstance is contingent on the severity of the threat to media pluralism in the Member State at hand. Freund stressed that it is about finding the right safeguards.

Dr. Konstantina Bania (Geradin Partners and Brunel Uni) started with explaining the symbiotic relation between RoL and media pluralism: on the one hand, public powers act to protect media pluralism (see EU RoL definition), but on the other hand, pluralistic media should hold authorities to account (see examples in EC RoL reporting).

She noted that EC RoL reporting is not the only tool at the disposal of the EC to protect media pluralism.

Media pluralism is a very complex issue (complexity is reflected by multi-dimensional nature of media pluralism: supply diversity, content diversity, exposure diversity) in which the EU has significant limitations to regulate. Yet, she emphasized the importance of the cross-sectional clause in Treaty (art 167(4) TFEU) which stipulates that the EU should consider cultural diversity, incl. media, when implementing other Union policies (such as internal market and competition policies)

But how can competition law enforcement consider media pluralism? In the field of anti-trust and merger control, Bania observed that EC has been focusing on prices. But in media market, price is not most important parameter of competition, if at all (as much media we consume is for free…) Bania regretted that the EC refrains from discussing other important factors such as quality, originality, and variety, which happen to be very important in the media market and for media pluralism. Also, in the field of state aid control, Bania believed that the EU had potential to do more. As one example, she posed the rhetorical question whether public broadcasters shouldn’t be independent from the government.

Bania discussed the specific acts to safeguard media pluralism before turning to EMFA, such as the DMA and DSA, in which she sees possibilities to level the media market and hence media pluralism. She believed the EMFA is a notable initiative, as it also tries to level the playing field and it tries to regulate across the board: governments, but e.g., also obligations for platforms.

Bania then focused on two intertwined issues: (a) whether the EMFA is in the position to address the regulatory asymmetries between platforms and the rest, (b) whether the EMFA can indeed apply “without prejudice” to the rules that have recently been adopted to regulate the platform economy. In that respect, she made a few comments on the DMA, the P2B Regulation, and national prominence rules. Her main argument here was that if we try to reform the framework to inter alia make platforms (and others) more accountable to users, we need to ensure that tensions with other regulations are avoided to prevent clash (and perhaps pre-emption).

After Bania’s more substantive comments, Dr. Judit Bayer (Uni Münster) and Dr. Kati Cseres (UvA) delved into the actual enforcement of the EMFA and more generally how media law and policy could be strengthened across the EU. Specifically, they talked about how to improve the enforcement of the EMFA and more generally media law and policy, and what role competition authorities could play in this.

They started their presentation by stating that media pluralism is threatened by media capture (in illiberal member states) but also new media environment dominated by platforms (the latter also creates problems in liberal member states). This creates additional regulatory challenges. They noted that there are many different stakeholders involved and their relationship seems to be characterized by mutual distrust. Media owners mostly don’t trust the State, while media owners in some Member States have indeed very close (and unhealthy) relationships with politicians and big investors. Generally, all stakeholders distrust the EC because of its supranational sanctioning powers which could intervene with national media governance. It leads to a chaotic situation where the enforcement of media law is difficult.

According to Bayer and Cseres, the proposed enforcement framework in the EMFA however does not change much. The EMFA merely establishes friendly cooperation, rather than actual enforcement structured around the role and tasks of national regulatory authorities (NRA). It therefore does not really improve the effectiveness and credibility of media law and policy in the EU. This is particularly the case in situations of systemic non-compliance by national regulatory authorities or Member States (e.g., in Hungary).

Bayer and Cseres recommended an alternative way of how the EMFA is to be shaped. Their governance framework should create a transparent enforcement mechanism in which the different stakeholders control each other, like a system of checks and balances. Their framework should contain three essential elements: a) all decisions of the Board and Commission should be supported by a wider consensus of experts and stakeholders; b) post-merger assessment of media concentrations c) the Board’s opinion can ultimately trigger an extraordinary market investigation by the Commission which may lead to an infringement procedure within a specific deadline after a defined process of dialogue. They stressed that this recommended framework could address the systematic non-compliance by Member States and create stronger ties between the stakeholders.

Finally, Bayer and Cseres explained how the role of competition authorities, “with court-like functions” could be reconsidered in dispersing economic concentration, defending media pluralism, and enforcing the EMFA. Besides their role in safeguarding undistorted competition within the internal market, Bayer and Cseres mentioned that these competition authorities also defend effective judicial protection (Article 19 of the Charter of Fundamental Rights (CFR)) relevant to both defendants and victims in the competition context. Moreover, Bayer and Cseres highlighted recent EU case law, in which Article 2 values applied to the enforcement by competition authorities. In these decisions, the Courts emphasized the relevance of mutual trust and sincere cooperation in cases when competition authorities must cooperate with other administrative authorities responsible for other regulatory fields.

Attendees

30 people have attended the online seminar, with different backgrounds ranging from EU and Member States officials to lawyers, academics, media, journalists, and civil society.

Amsterdam, 18 July 2023


[1] NB: the search for alternative pathways to enhance media freedom in the EU is in line with the Meijers Committee’s earlier work on media pluralism. In our comment CM2113, we assessed amongst others avenues in which media freedom intersects with free and fair elections (note also CM2302), state aid and public broadcasting, state advertising as state aid, and specific services sectors.

Rule of Law Update – May 2023

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.

Our Rule of Law Academy (16-17 March 2023, Brussels)

On 16-17 March 2023, the Our Rule of Law Academy took place in Brussels, a project for-students-by-students. It was a bootcamp for 45 selected bachelor law students from 25 Member States about the question “how to safeguard the rule of law in the EU yourself?”.

In the weeks before the pitch in Brussels, the participants attended online plenary lectures and worked with inspirational mentors in small groups on important rule of law topics with the aim to draft concrete policy briefs. The covered topics were: the protection of NGOs; academic freedom; media freedom; legal methods to protect the rule of law; political methods to protect the rule of law; political methods to protect the rule of law; European political parties and political groups; protection of the EU budget and recovery funds; non-implementation of ECtHR and CJEU judgments; Amicus Curiae at the CJEU; and judicial independence.

In Brussels the students were given the opportunity to present their proposals to EU decision-makers and others, and to receive constructive feedback from experts to sharpen their ideas. The program also included inspiring speeches by the President of the European Court of Human Rights, European Commissioners Vera Jourova and Didier Reynders, MEP Daniel Freund, former Advocate-General Eleanor Sharpston, Vice-President Jourova Deputy Chief of Cabinet Simona Constantin, Free Courts co-founder Michał Wawrykiewicz, the Dutch Ambassador Robert de Groot, and first and foremost the four founding bachelor students of Our Rule of Law – Elene Amiranashvili, Tekla Emborg, Zuzanna Uba and Anna Walczak of the University of Groningen.

The unique end result of the Our Rule of Law Academy, a report created by 45 Ba students from all over Europe, can be found here: https://ourruleoflaw.eu/academy-report.

The project was sponsored and supported by Meijers Committee. Other sponsors and partners were Radboud University Nijmegen, Maastricht University Campus Brussels, The Good Lobby (Profs), and the Permanent Representation of the Netherlands to the EU.

Rule of Law Update – January 2023

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

  • 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.
  • 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.

Rule of law update – October 2022

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