Category: Rule of Law Update

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)

General

Austria

Austrian Chancellor Kurz resigns over corruption allegations. Kurz announced his resignation after allegations of Kurz embezzling finance ministry funds to pay for polls that served his political agenda have been revealed. Read more on Euractiv and Politico, 11 October 2021.

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Bulgaria

Bulgarian mogul Delyan Peevski named in the Pandora Papers, the Bulgarian partner of the International Consortium of Investigative Journalists (ICIJ) revealed. Read more on Euractiv, 7 October 2021.

Bulgarian MEP Elena Yoncheva (S&D) files case against the Bulgarian government at the European Court of Human Rights. She accused them of launching a money laundering case against her to repress and discredit her work. Read more on Euractiv, 5 October 2021.

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CZECH REPUBLIC

Pandora Paper revelations: Czech billionaire-prime minister Andrej Babiš is facing questions after his purchase of a €20m castle in the south of France a few years ago using four obscure companies came to light in the latest financial data-leak. Babiš denies any wrongdoing and blames the “Czech mafia” for the offshore data leak. Read more on Politico, 8 October 2021.

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Greece

EU media watchdogs calls on Greece to protect press freedom. The Media Freedom Rapid Response (MFRR) urged the Greek government to withdraw proposed amendments that would introduce fines and jail sentences for journalists found guilty of publishing “false news”. Read more on Euractiv, 13 October 2021.

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Hungary

Conservative politician Péter Márki-Zay won the race to become the Hungarian opposition’s joint candidate for prime minister. Márki-Zay has been able to win the support of many liberal and left-wing opposition parties after a group of opposition parties came together to jointly defeat Viktor Orbán in the upcoming elections. Read more on Politico, 18 October 2021.

The Hungarian government wants to introduce bill that locks controversial prosecutor, Péter Polt, behind a two-thirds majority. The country’s chief prosecutor could then only be removed with a two-thirds parliamentary majority, a new bill submitted by Justice Minister Judit Varga proposed. Polt, a former Fidesz member, has been accused of pro-government bias. Read more on Euractiv, 14 October 2021.

Members of the European Parliament are worried that Hungary is siphoning EU funds through foundations. MEPs from the LIBE Committee have been on a three-day visit to Hungary to assess the rule of law situation. Read more on euobserver, 6 October 2021.

Prominent business figures with close ties to Viktor Orban’s government have had secret offshore businesses. Read more on Direkt36, 4 October 2021.

Hungary only EU state against bill to attract skilled migrants. With the ‘Blue Card’, the EU wants to attract more highly-skilled immigrants to come to Europe. Hungary attracted only six in 2019  but still opposes reforms to make it easier, citing labour protection rules. Read more on euobserver, 4 October 2021.

A group of NGOs (such as Transparency International EU, Open Society European Policy Institute) has written a letter to the European Commission calling for to withhold approval of Hungary’s recovery funds. The organizations express “concerns regarding Hungary’s inadequate anti-corruption framework” and requested that the Commission withholds Hungary’s recovery plan “until concrete measures are put in place.” The Commission has held back the recovery funds because of concerns about the recovery plan, including its anti-corruption measures. The Commission wants Hungary to join the so-called Arachne database, in which all projects involving European money are registered, so that it is easier to see whether there is any fraud. Hungary has so far refused to cooperate. After a 3-day-visit by MEPs, they voiced concern about Hungary’s possible misuse of EU funds in Hungary through a recently introduced system of foundations, read more about this on euobserver, 6 October 2021.

IPI condemns exclusion of journalists during Babiš-Orbán press conference: On Wednesday, September 29, journalists from various European and Czech media were denied admittance to an afternoon press briefing by Prime Minister Viktor Orbán of Hungary and Czech Prime Minister Andrej Babiš in the Czech city of Ústí nad Labemof, which focused on defence, migration and the coronavirus pandemic. Among those denied entry were journalists from Le Monde, Die Zeit, and journalists from the German regional public broadcaster MDR and the Czech news websites Seznam Zprávy and Investigace.cz. Other investigative and freelance journalists were also barred.

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Poland

The CJEU issued fine of 1 million euros per day for Poland’s failure to suspend its (sham) Disciplinary Chamber of the Supreme Court – a body the CJEU has ruled violates EU law and is being used to pressure judges over their rulings by lifting their judicial immunity and retroactively suspending all decisions already taken by judges. The fine is the highest-ever daily penalty the CJEU has imposed on an EU member nation. If Poland does not pay the fine, the Commission can deduct the fine from its payments to Poland.

Majority of Polish citizens want the Polish government to end dispute with EU. Some 73 percent of Poles said Warsaw should back down in its rule-of-law dispute with Brussels in a survey by IBRiS for the Rzeczpospolita newspaper, read more on euobserver, 27 October 2021.

Donal Tusk becomes the new leader of Poland’s main opposition party, Civic Platform (PO). He received 97,4 % votes in favour, he was the only candidate to participate in the vote. The party was criticized for as all regional candidates are men. Read more on Euractiv, 25 October 2021.

The Polish parliament is considering a new law called “Stop LGBT”, proposed by the Foundation for Life and Family. The bill would change the right to free assembly in Poland in such a way that public gatherings may not “question marriage as a relationship between a woman and a man” or “propagate the extension of marriage to persons of the same sex.” This will most likely spark a new conflict with the EU after Poland had to backtrack on its plans for anti-LGBTIQ free zones because the European Commission threatened to withdraw EU funds. Read more on Euractiv, 21 October 2021.

On 7 October 2021, the Polish Consitutional Court has come to a judgment in case K 3/21 concerning the primacy of EU law over Polish constitutional law. Poland has escalated its fight with the EU, after the country’s Constitutional Tribunal (a politically controlled puppet court) issued a ruling in case K 3/21 challenging the EU’s legal order. “The effort by the Court of Justice of the European Union to interfere in the Polish justice system violates the principle of the primacy of the Polish constitution,” the Constitutional Tribunal ruled on 7 October 2021. Jakub Jaraczewski from Democracy Reporting International perfectly sums up what is at stake for the EU as a union after the decision in K 3/21 in this article for Verfassungsblog. As many – most prominently the Polish government – equates the decision in K 3/21 to the one issued by the Constitutional Court in Karlsruhe concerning the ECB’s PSP programme, Alexander Thiele explains why these cases are intrinsically different for several reasons. Polish legal experts Stanisław Biernat and Ewa Łętowska also illustrate why K 3/21 is not just another ultra vires-ruling as the German Constitutional Court’s judgement in this article on Verfassungsblog.

Pro-European demonstrations on 10 October after Poland’s “Polexit” ruling in K 3/21: approximately 200,000 people in 126 towns and cities across Poland, the rest of Europe and the world demonstrated against last week’s decision of Poland’s Constitutional Tribunal that ruled EU basic treaties are partially illegal.

The Vice-President of the CJEU rejects Poland‘s request to revoke the order of 14 July 2021 requiring suspension, among other things, of the Supreme Court disciplinary chamber provisions, C–204/21 R–RAP (currently only available in French), 6 October 2021.

Fabrice Leggeri, the executive director of the EU’s border agency Frontex, visited the Poland-Belarus border on Monday to review Warsaw’s response to the increase in migrants arriving from Belarus. Leggeri was accompanied by Polish Deputy Minister of Interior Bartosz Grodecki. But there is still no sign of Warsaw requesting help from Frontex in patrolling the border, as it continues to defy the European Commission, which has pressed for greater transparency following the deaths of five migrants. Politico, 5 October 2021.

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Slovenia

Slovenian president Janez Janša attacks European Parliament ahead of visit of MEPs between 13 and 15 October to examine the state of the rule of law and media freedom in Slovenia. Janša posted a now-deleted tweet denouncing a number of MEPs as “Soros puppets in the EU parliament”. Read more on Politico, 14 October 2021.

Slovenia shamed on corruption by European watchdog (GRECO) as it has failed to implement Aany of GRECO’s 15 recommendations made in 2018, read more about this on euobserver 7 October 2021 and read the full report here.

Europe’s chief prosecutor Laura Kövesi warned that the EU budget might not be safe because Slovenia continues to delay naming delegated prosecutors to the EPPO, euobserver, 4 October 2021. However, the Administrative Court has sided with the two prosecutors picked to represent Slovenia in the European Public Prosecutor’s Office (Tanja Frank Eler and Matej Oštir) as it overturned a government decision to annul the selection procedure. The government has asked the justice ministry to publish another new call to fill the country’s two top EU prosecutor positions. Read more about this on Euractiv, 6 October 2021.

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Romania

Romania’s center-right governing coalition collapsed after lawmakers brought down Prime Minister Florin Cîțu’s administration in a non-confidence vote. Read more on Euractiv, 5 October 2021.

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Articles

When is a tribunal not a tribunal? Poland loses again as the European Court of Human Rights declares the Disciplinary Chamber not to be a tribunal established by law in Reczkowicz v. Poland, Article by Anna Mechlinska for Strasbourg Observers, 26 October 2021.

Babiš’s Media -The Erosion of Freedom of Press in Czechia, Terezie Boková for Verfassungsblog, 15 October 2021.

Why the rule of law matters – Recent events in Poland, Austria and the Czech Republic illustrate the importance of independent prosecutors and judges, Paul Taylor, Politico, 12 October 2021.

Gazing into the Abyss – The K 3/21 decision of the Polish Constitutional Tribunal, Jakub Jaraczewski, Verfassungsblog, 12 October 2021.

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

General

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

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

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Upcoming Events in October

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

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

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

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

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

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

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Bulgaria

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

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France

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

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Germany

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Hungary

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

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

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

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

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

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

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

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

T–517/19 (Homoki v. Commission): The EU General Court annuls OLAF’s decision not to grant partial access to the final report of its investigation relating to street-lighting projects implemented by the company Elios in Hungary with financial participation from the EU (these were the projects in which Orbán’s son-in-law has been involved). Read more here, 1 September 2021

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Slovakia

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

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Slovenia

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

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Poland

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

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

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

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

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

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

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

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Romania

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

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News articles, Podcasts, Etc.

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

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

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

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

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

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Papers, reports, Seminars

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

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

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

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

Our Rule of Law Festival

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

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

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

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

General

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

Hungary

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

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

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

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Poland

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Malta

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

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

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Romania

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

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Slovenia

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

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Czech republic

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

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Articles, papers, publications

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

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

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

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

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Events in september

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

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

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

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

At a glance: important dates in July

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

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

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General

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

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

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

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Poland

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Hungary

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

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

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

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

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

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

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

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

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

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

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

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Slovenia

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

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

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

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Czech Republic

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

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Romania

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

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

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Malta

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

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Events

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

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

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Articles, Publications, papers

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

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

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

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

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News from the Courts

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

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

General:

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

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

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

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

Poland:

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

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

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

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

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

Hungary:

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

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

C–650/18: the CJEU dismisses Hungary’s action against the Parliament resolution triggering the procedure for determining the existence of a clear risk of a serious breach, by a Member State, of the values on which the European Union is founded. Read more here.

Czech Republic:

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

Romania:

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

Events:

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

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

Important Upcoming dates:

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

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

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

Articles, publications, papers:

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

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

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

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

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

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

The Antidemocratic Turn, Zselyke Csaky for Freedom House.

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