Author: commissie_meijers

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/

NEWS FROM THE COURTS 

On 2nd May 2022 the ECtHR published the communicated case Rutkiewicz v. Poland about the suspension of a judge of the Elbląg District Court by decision of the Disciplinary Chamber of the Supreme Court. 

On 28 and 29 June, the Grand Chamber of th CJEU is to hear 6 cases concerning the Rule of Law in Poland. All hearings will be live-streamed via the CJEU website. Reported by Rule of Law in Poland.

EU DEVELOPMENTS

The European Commission presented a proposal to curb the rise of strategic lawsuits against public participation (SLAPPs) in Europe. It includes 

• A proposal for a directive limited to civil law proceedings with a cross-border nature
• A recommendation 

For more visit Euractiv.

The European Parliament has called on the Commission to systematically analyze data on non-compliance with judgements from the ECtHR. Full text adopted here.

SLOVENIA

At the end of April national elections were held in Slovenia, where the previous centre-right Janša government, was often criticised for having used the Covid-pandemic as a pretext to curtail personal freedoms and attack independent institutions such as the judiciary and the media. The outcome of the vote marked a shift toward a more progressive government, which, as far as the rule of law is concerned, will have to deal with issues like corruption, media freedom and SLAPPs. Read more in Euractive and Democracy Reporting International.

On Monday 30th May a one-day strike was organized by journalists at Slovenian public broadcaster RTV Slovenija amid an escalation of tensions between staff and leadership over a series of decisions their trade union says have been politically motivated. Read more at Euractive.

HUNGARY

On 27th April the Commission officially sent a written notification to Hungary because of concerns over persistent misuse of EU funds that ‘affect or seriously risk affecting’ the management of EU funds. According to the procedure foreseen in the Conditionality Regulation, when the Member state receives written communication, it provides the required information and may propose or adopt remedial measures to address the Commission’s findings set out in the written notification within a time limit specified by the Commission, which can be between one and three months from the date of the notification. Hungary will have a two-month deadline to reply to the letter. Read more at Euractiv.

On 24th May, the Hungarian parliament approved amending Article 53 of the Constitution to include “armed conflict, war or humanitarian disaster in a neighbouring country” as circumstances in which the government is empowered to declare a state of emergency. On the same day, Orbán used the powers granted by the amendment to proclaim a state of emergency. For more visit Euractiv.

POLAND 

An agreement between Poland and the Commission has been reached on measures to be taken to unblock funds. These involve abolishing the Disciplinary Camber, reforming the Disciplinary system and reinstating judges before the end of June, but also foresee economic and systemic reforms. Read more at Notes from Poland.

Donald Tusk, leader of the opposition announced the willingness to move a motion of no confidence to the Justice Minister Ziobro, who is considered responsible for the reforms in the judicial system, which proved detrimental to the rule of law and the independence of the judiciary. Read more at Euractiv.

GREECE

After intensifying laws against journalists, Greece has been listed as the lowest-ranked EU country for press freedom, World Press Freedom Index

ARTICLES, PODCASTS, PAPERS

CER PODCAST: unpicking the EU’s Rule of law conditionality mechanism with Camino Mortera-Martínez and John Morijn

“Daphne’s Law”: The European Commission introduces an anti-SLAPP initiative, Justin Borg-Barthet, eu rule of law analysis, 29 April 2022. 

mta law working papers 2022 – Series of articles on rule of law.  

The Battle for Democracy Can Be Won in Warsaw, By Anna Wojciuk, Foreign Policy Magazine, 3rd May 2022.

General

In an interview with Politico, Koen Lenaerts (President of the European Courrt of Justice) mentioned that the current deabte about the rule of law might sinkt the project of a united Europe. “The authority of the Court of Justice and the primacy of EU law have been challenged in various member states, not only by politicians, but also by certain constitutional courts,” Lenaerts said. “This is an extremely serious situation that threatens the survival of the European project.”.  You can read the whole interview here.

Recovery plans for Hungary and Poland on hold. The European Commission will not approve the Polish and Hungarian recovery plans in 2021, meaning the two countries will miss out on billions of advance payments under the bloc’s pandemic instrument. Approval by the European Commission and by a majority of peers in the Council by the end of 2021 is necessary to access  an advance payment equivalent to 13 percent of each country’s envelope of recovery funds. Which means that Poland misses out on  pre-payments of about €5 billion for Poland and Hungary will miss out on €1 billion. Read more on Euractiv, 13 December 2021.

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News from the Courts

Opinion of the advocate general in the case C-156/21 Hungary v Parliament and Council and C-157/21 Poland v Parliament and Council, regarding the conditionality mechanism of the EU budget and the rule of law.

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Bulgaria

The Bulgarian parliament approved a new government led by political newcomer Kiril Petkov. Petkov’s party (Change Continues) won November’s parliamentary election — the third this year — and brings a politcically tumultuous year to an end. Petkov’sh campaign focused on stamping out corruption and Petkov is considered a pro-European reformist. The government will be formed by a compley multi-party majority involving two coalitions: the pro-European “Change Continues” supported by the Bulgarian Socialist Party and “There is such a people”. Read more on Politico and Euractiv.

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Czech Republic

Due to the change in the Czech government, the Hungarian government could lose Prague’s backing in its disputes with the EU over the rule of law according to Czechia’s likely next EU Affairs Minister Mikuláš Bek (EPP) Read more in this interview with Euractiv, 1 December 2021.

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France

Upcoming French Council Presidency and the rule of law. In a debate with the European Committee of Regions, President Macron commited to defending rule of law, media freedom in Europe and said that defending the rule of law will be one of the major challenges when France takes over the rotating EU Council presidency in January, said President Emmanuel Macron. Read more on Euractiv, 2 December 2021.

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Hungary

Fidesz’ minority coalition partner (KDNP) complained about Tusk inviting Hungarian opposition leader Márky-Zay to join EPP. KDNP wrote a letter expressing its concerns to Donald Tusk, President of the European People’s Party (EPP), about the meeting with the Hungarian opposition’s joint candidate for Prime Minister, independent small-town mayor Péter Márky-Zay, in Warsaw. Read more on Euractiv, 6 December 2021.

Hungary blockes the EU position at US Democracy Summit and claims that the USA has bigger problems with democracy. Hungary wants to block the joint bloc participation after being the only EU country not invited to US President Joe Biden’s democracy summit next wee. Read more on Euractiv, 3 December 2021.

The last location with press access to Hungary’s ruling party Fidesz has closed. The street in front of the Viktor Orbán’s office and location of most cabinet meetings, the last place with meaningful press access to leading government figures in Budapest, has been closed off, Telex reported via 444.hu. Read more on Euractiv, 2 December 2021.

Fidesz is holding onto its ‘homophobic’ referendum. The Hungarian legislative will vote on what the ruling Fidesz calls a “child protection” referendum, but what is widely considered to be targeting the LGBTQI+ community. The vote will likely be held on the same day as the parliamentary elections upcoming spring. Read more on Euractiv, 1 December 2021.

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Slovenia

Slovenian’s Corruption Prevention Commission (anti-graft watchdog) has launched an investigation into Prime Minister Janez Janša over a suspected conflict of interest after a lawyer who has represented him and his party for over a decade was appointed to the board of the country’s ‘bad bank’. Read more on Euractiv, 17 December 2021.

Following a fact-finding mission by a group of MEPs in October, and an anti-semitic Twitter post by Slovenian Prime Minister Janez Janša, the European Parliament voted on a motion on fundamental rights and the rule of law in Slovenia, in particular the delayed nomination of EPPO prosecutors on 16 December 2021. Most EPP MEPs (to whom Janša’s party belongs) opted to stand by Janša in the vote, including group leader Manfred. However, 33 EPPmembers (amongst them vice chair Esther de Lange, Frances Fitzgerald and Paulo Rangel), abstained from the vote, showing the divide within the group on this issue. Read more on Politico, 17 December 2021.

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Poland

Row over Turów mine is deepening: Poland is persisting on its refusal to close the Turów mine and is also not paying the fine the EU’s top court has imposed (a €500,000 daily penalty). Read more on Politico, 30 December 2021.

MEPs want the European Commission to investigate the revelations concerning the use of the Pegasus spyware by Polish government entities against Roman Giertych, foremer Minister of Education and lawyer, and prosecutor Anna Wrzosek. The spying scandal may add fuel to the country’s ongoing conflict with Brussels over the rule of law. Some days later, the leader of the Polish opposition Civic Platform party’s 2019 election campaign alleged that his phone was hacked 33 times by Israeli spyware tool Pegasus and used by the government to “destabilize” his party’s plans. The government denied the allegations. Read more on Euractiv, 23 December 2021, and Politico, 27 December 2021.

Commission launched an infringement procedure against Poland for its violations of EU law by its Constitutional Tribunal, namely its rulings of 14 July 2021 and 7 October 2021 which considered the provisions of the EU Treaties incompatible with the Polish Constitution and thhus expressly challenge the primacy of EU law. The Commission questioned the validity of the Polish court itself, stating it had “serious doubts on the independence and impartiality of the Constitutional Tribunal” and considers that it “no longer meets the requirements of a tribunal previously established by law,” as required by the EU treaties. Poland has two months to reply to the letter of formal notice. Read more in the EC’s statement, 22 December 2021.

Thousands of Polish citizens protested against a new media law that is aimed at silencing the country’s main independent news channel TVN24. The bill would have prevented companies from outside the EEA from holding a controlling stake in Polish media companies, which would force the American group Discovery to sell its majority stake in TVN, one of Poland’s biggest private TV networks. However, on 28 December, Polish president Andrzej Duda vetoed the new media bill to avoid a row with Washington. Read more on Euractiv, 20 December 2021, and Politico, 27 December 2021.

Poland’s justice minister Zbigniew Ziobro has told the Financial Times that he favours suspending EU membership contributions if the European Commission withholds funding in the ongoing dispute over judicial reforms. Read more on Euractiv, 13 December 2021.

The Council of Europe demands answers from Poland following controversial  Constitutional Court ruling on primacy of EU law. Poland should explain how, in the context of the Constitutional Court’s recent judgment, it will ensure the effective implementation of its obligations under the European Convention on Human Rights. Council of Europe Secretary General Marija Pejčinović Burić has asked the Polish Foreign Minister Zbigniew Rau in a letter sent on Tuesday. Read more on Euractiv, 8 December 2021.

At the Warsaw Summit of European conservative and right-wing leaders, Jarosław Kaczyński (head of PiS) criticised the EU for moving towards a more federal EU and is calling Europe’s conservatives to come up with a new proposal for the European continent. Read more on Euractiv, 6 December 2021.

Poland curtails media’s access to its Belarus border. While the opposition advocated for unlimited media access, president Duda signed into law legislation that will limit the access of NGO’s, aid charities and journalists to its border with Belarus. Read more on euobserver, 30 November 2021. Several reports also showed that violence at the Polish-Belarussian borders is increasing systematically. Read more on Euractiv, 2 December 2021.

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Articles

The New Rule of Law Conditionality Mechanism clears its first hurdle –Analysis of AG Campos Sánchez-Bordona Opinions in Hungary v Parliament and Council (C-156/21) and Poland v Parliament and Council (C-157/21)

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Podcasts

Verfassungsblog-Podcast “EU v. Poland” (in German) about the roots of the rule of law conflict with Poland and an indepth-analysis of the EU law aspects of this conflict. You can listen to the podcast series here.

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Events

15 December, Reconnect, The Rule of Law in Europe: Insights from the 2021 Rule of Law Index:

Court news

Judgement in C-564/19: The CJEU found that EU law precludes a supreme court (in this case the Hungarian Kúria) from annulling a decision by a lower court to refer a case to CJEU. The principle of primacy of EU law means that the lower court should disregard the Kúria. Furthermore, the CJEU has found that EU law precludes a domestic disciplinary procedure against a judge over referring the case to CJEU, highlighting that such practice can lead to a chilling effect and ward off judges from sending cases over to CJEU.

Judgment in Case C-821/19 (Commission v Hungary) concerning the criminalisation of assistance to asylum seekers: the CJEU found that the 2018 ‘Stop Soros’ law breaches EU law, after the European Commission took Hungary to court. The CJEU made clear that threatening people with imprisonment who assist asylum-seekers to claim asylum violates EU norms. Read more about this in this article by the Hungarian Helsinki Committee, 16 November 2021.

Judgment in Joined Cases C‑748/19 to C‑754/19 (Prokuratura Rejonowa w Mińsku Mazowieckim and Others) EU law precludes the regime in force in Poland which permits the Minister for Justice to second judges to higher criminal courts. A secondment in itself might not influence the independence of judges, but under the current setup, where the Minister of Justice (who seconds the judges) is also the Prosecutor General (who might have interest in the outcome of a case, this system is problematic.  The Minister of Justic can terminate such secondments at any time without stating reasons or criteria, which can influence judges’ independence.

Judgement in Dolińska-Ficek and Ozimek v. Poland (49868/19 and 57511/19): the ECtHR has ruled that Poland’s Supreme Court’s Extraordinary Review and Public Affairs Chamber is not an independent court. The case concerned complaints brought by two judges that the Chamber of Extraordinary Review  and Public Affairs of the Supreme Court, which had decided on cases concerning them, had not been a “tribunal established by law” and had lacked impartiality and independence. Particularly, they complained that the chamber had been composed of judges appointed by the President of Poland on the recommendation of the National Council of the Judiciary (“the NCJ”), the constitutional organ in Poland which safeguards the independence of courts and judges and which has been the subject of controversy since the entry into force of new legislation providing, among
other things, that its judicial members are no longer elected by judges but by the Sejm (the lower house of Parliament). Read the whole judgement here.

Judgment in Polish case K 6/21: the Polish Constitutional Court found that Art. 6 (1) of European Convention on Human Rights is incompatible with Polish Constitution regarding the right to fair trail in proceedings before the very same Constitutional Tribunal. Read more on the court hearing and the decision in Jakub Jaraczewski’s Twitter threads and in this article by Notes from Poland.

Court hearing in case C-562/21 concerning a Dutch court (Rechtbank Amsterdam) asking the CJEU whether European Arrest Warrants can be executed with regards to Poland, given the state of the rule of law there. You can read more about the hearing in this Twitter-thread by Niels Kirst.

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General

The European Commission presented its plans for EU-wide media rules within the Media Freedom Act on 29 November. The law will include rules on cross-border functioning and ownership of media inside the EU to prevent government interference. The law will also include rules to prevent excessive concentration of media ownership. On Balkan Insight you can read about the Media Freedom Act’s ambitions and if these ambitions are maybe a case of “too little, too late”.

Germany’s incoming government plans to urge Brussels to get tougher on rule-of-law breaches, according to the coalition treaty. Germany’s new Foreign Minister Annalena Baerbock stressed  that “intensive discussions” on rule of law issues were necessary, when she visited Warsaw in the beginning of December.

The European Commisison sent letters to Hungary and Poland as a preliminary step before launching the formal procedure of the Conditionality Regulation. In its letter, is warning Poland and Hungary about concerns over judicial independence, ineffective prosecution of corruption, and deficiencies in public procurement could pose a risk to the EU’s financial interests, and could eventually lead to financial penalties. Read more on Politico, 20 November 2021.

Czechia and Poland failed to agree on a deal concerning Turów mine. Such a deal would have led to the withdrawal of a lawsuit concerning coal mine Turów located at Czech-Polish borders. Representatives of the two neighbouring countries will now meet  at the European Court of Justice for the first hearing. Read more on Euractiv, 9 November 2021.

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Bulgaria

EU lawmakers urge the Commission to tightens control over Bulgaria. The European Parliament’s civil liberties committee wants the European Commission to strengthen its monitoring and audit of EU funds for Bulgaria, including the Recovery and Resilience Facility. Read more here on Euractiv, 18 November 2021.

Bulgarian parlamentarian and presidential elections.  ‘Change continues’, a new political force in Bulgaria, is the surprise leader following the parliamentary and presidential elections in Bulgaria, while the country’s President Rumen Radev is well-placed for reelection, having won 48.5% in the first round. Read more on Euractiv, 15 November 2021.

Read more about the details of the Bulgarian elections and what it means for the rule of law in this article by Jakub Jaraczewski for Democracy Reporting International.

Bulgaria’s Justice minister Ivan Demerdjiev offered scathing criticism of Prosecutor-General Ivan Geshev, saying that unless he is removed, Bulgaria risks losing access to EU funding.  Read more on Euractiv, 12 November 2021.

The Bulgarian presidential candidate and self-declared Nationalist Socialist Boyan Rassate, was accused for allegedly attacking an LGBTIQ+ centre in Sofia. The attack was condemned by the other presidential candidates. Read more on Balkan Insight, 1 November 2021.

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Czech republic

Czech Prime Minister Andrej Babiš stepped down. Babiš appointed the head of the Together coalition, Petr Fiala, as the country’s next head of government. Read more on Politico, 5 November 2021.

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Hungary

Opposition leader Péter Márki-Zay has visited Brussels and spoke with leaders of the European Parliament and the European Commission. At his press conference, Márki-Zay vowed to tackle corruption in Hungary, if the opposition wins the election, and to roll back Fidesz regulations.Read more about Márki-Zay and his mission to lead Hungary to a new political future in this portrait by Balkan Insight, 22 November 2021.

The Hungarian Constitutional Court will discuss a motion by Orban’s government, in which it challenges an ECJ judgement on implementing EU law at the EU’s borders as “incompatible with the Hungarian constitution”. Read more on Reuters, 15 November 2021.

Commission refers Hungary to the CJEU over its failure to comply with Court judgment in case C-808/18 concernig Hungary’s legislation on the rules and practice in the transit zones situated at the Serbian-Hungarian border. Although those transit zones are closed by now, Hungary is restricting the right to asylum, according to the Commission. Another problem is the problem is that Prime Minister Viktor Orbán’s government has asked its own constitutional court whether the EU court’s ruling violates the Hungarian constitution. Read more here, 12 November.

Hungary will not receive any money for the construction of a border wall. Commission President Ursula von der Leyen has announced that she has no intention of contributing to the anti-migrant wall built by Prime Minister Orbán. The Commission is, however, prepared to finance information systems, technological infrastructures and other solutions used to control borders.

Fidesz MP Lajos Kósa admitted that the Hungarian government bought Pegasus spyware used to hack journalists. Kósa, the chairman of the Hungarian parliament’s defence and law enforcement committee, admitted that the interior ministry had bought the Israeli Pegasus spy software, which press investigations revealed last summer was used to spy on journalists, businessmen, and local politicians. Read more on Euractiv, 5 November 2021.

A newly-adopted amendment in Hungary legalises the establishment of fictitious addresses and could unleash ‘voter tourism’ in next year’s parliamentary elections, according to a statement of the Hungarian Civil Liberties Union (TASZ), and the Political Capital think tank. The requirement of actually having to live at an address would be reduced to a mere presumption in favour of a residence at a contact address. Read more on Euractiv, 16 November 2021.

Viktor Orbán was confirmed as the leader of Fidesz for another two years, read more on Euractiv, 15 November 2021.

Hungary is the only EU Member State that is not invited for the US Summit for Democracy in 2021, read more on Politico, 4 November 2021. Also interesting: Jakub Jaraczewski’s thread about why Poland and Taiwan have been invited while Hungary is not.

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Greece

Concerns about media freedom in Greece. Greece has recently passed a media law that allegedly should combat the spread of fake news. However, it effectively allows the Greek authorities to lock up journalists up three months for publishing fake news that may “cause anxiety or fear to citizens”. Experts fear that the new law will be used to intimidate critical journalists and suppress stories of public interest. Read more on Euractiv, 16 November 2021.

SLAPP lawsuit against small independent media outlet Alterthess by a Greek gold mining executive convicted of serious environmental crimes. Read more on IPI, 16 November 2021.

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Poland

Half of Polish citizens consider EU institutions ‘too weak’ over rule of law conflict, according to a recent poll by the Institute of Public Affairs (ISP).  “EU institutions react too late and too weak in response to the EU law violations by governments”, according to 48% of Polish citizens, only 22 % disagree with this statement. Read more on Euractiv, 25 November 2021. Furthermore, a. majority of Poles (52%) say that the country’s judiciary has worsened in the last three years, according to a recent poll.

The Human Rights Outlook 2021 (a report assessing the separation of powers in 198 countries) has found that Poland (along with China and Russia) has slipped most in its index due to its judicial system. You can read the whole report here.

The situation at the Polish-Belarussian is escalating dramatically. Warsaw has sent 12,000 troops to the border and is using tear gas and water canons against migrants to push them back into Belarus. Armed Belarusian authorities dressed in camouflage gear seem to escort hundreds of migrants, including children, towards Poland. Poland is resuing to request the help of the European Border and Coast Guard Agency, Frontex, nor is it allowing NGOs at the border. In this opinion piece on Politico, former Polish Ombudsman Adam Bodnar and Agnieszka Grzelak, the former deputy director of the Constitutional, European and International Law department in the Ombudsman office, write about what horrible things are happening on EU territorium without the EU (or its agencies such as Frontex) monitoring the situation and intervening.

K 7/21: the Prosecutor General and Minister of Justice Zbigniew Ziobro has applied for the Polish Constitutional Tribunal to review the conformity of the European Convention on Human Rights with the Polish constitution.

K 8/21: the Prosecutor General’s has applied to review whether Art. 279 TFEU and Art. 39 of CJEU statute (financial fines over non-compliance with CJEU interim orders) are compatible with Polish constitution. This case concerns both interim measures in the Túrow mine case and case C-204/21on the Polish Disciplinary Chamber.

6 Polish judges have been suspended for 30 days over applying EU law and disregarding the K 3/21 judgement from the Constitutional Tribunal. Read more on Rule of Law in Poland, 9 November 2021.

Three judges from the Civil Chamber of the Supreme Court have requested for the Constitutional Tribunal to review whether Art. 19(1) TEU, Art. 6 ECHR and several Polish laws are consistent with the Polish Constitution, read more about this in this Twitter-thread by Jakub Jaraczewski.

A Norwegian court suggests surrender to Poland under the EAW should be suspended in general, read more about this EAW case in an article by Norwegian law professor Eirik Holmøyvik on Verfassungsblog, 2 November 2021.

Demonstrations concerning strict abortion laws. Demonstrations have taken place in Poland following the death of a pregnant 30-year-old woman – the family’s lawyer say the doctors have waited too long to save the woman’s life. This incident has sparked new criticism about the country’s strict abortion laws which allow abortinos only in cases of rape or incest, or if the life of the mother is endangered. Read more on Politico, 2 November 2021.

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Slovenia

Slovenia’s delegated prosecutors for EPPO appointed on a ‘temporary’ basis. Slovenia’s government has  put forward Tanja Frank Eler and Matej Oštir as Slovenia’s two prosecutors delegated to the European Public Prosecutors’ Office (EPPO). However, their appointment is “temporary”, thus in force until the national appointment procedure is concluded. Read more on Euractiv, 19 November 2021.

LIBE Committee Mission to Slovenia – report published. Among the findings are an “urgent need for legislative reforms, proper implementation and more transparency in many areas.” You can read the full report here.

The Slovenian Press Agency (STA) signed an agreement with the government communication office, which will allow it to access state funding this year. The independence of the press in Slovenia has been questioned after prime minister Janša has repeatedly and openly attacked Slovenia‘s main public media outlets, calling the Slovenian Press Agency STA  “a national disgrace, unworthy of the name it bears”. The government has previously halted financing for STA and pushes to increase its influence on the agency. Read more on Politico, 8 November 2021.

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Articles, papers, Reports

Piotr Bogdanowicz, Legal opinion on the legal consequences of the Constitutional Tribunal ruling in case K 3/21 on the incompatibility of the provisions of the Treaty on European Union with the Constitution of the Republic of Poland in light of European Union law, you can read the legal opinion here.

Edit Zgut, Tilting the Playing Field in Hungary and Poland through Informal Power, read the article here.

Radosveta Vassileva, Yellow Light for Disciplining Inconvenient Judges? -The ECtHR’s Ambivalent Judgment in Todorova v Bulgaria, Verfassungsblog.

Dariusz Mazur for Themis, Attack on the Polish judiciary, or the anatomy of a creeping legal Polexit, you can read the report here.

Camino Mortera-Martinez, How to solve a problem like Poland, Centre for European Reform, available here.

Simona Guerra, The Polish people support the EU – it’s their government that continues to antagonise Brussels, The Conversation.

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Seminars/webinars

European Policy Centre: Poland’s challenge to EU law – how should the EU respond? (3 November 2021)

CEU Democracy Institute’s Review of Democracy, Roundtable: The Polish Constitutional Tribunal Judgment: European Integration in Question? (25 October 2021)