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!
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).
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.
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
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).
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.
IPI and other organisations are warning about the increased spreading of disinformation surrounding the assassination of Daphne Caruana Galizia in 2017 and journalists critical of thee handling of Galizia’s assassination are afraid of hate campaign and other repercussions. Read more here on IPI and on euobserver, 31 August 2021.
Malta has published a report about the public inquire about the case around Daphne Caruana Galizia’s death. The inquiry is seen as a milestone in the fight for accountability, press freedom and justice but many organisations urge the government to implement the recommendations made in the report. Read more on IPI, 3 August.
Romania is hoping that the EU will return soon to the issue of accession to the Schengen area. Romania says that it has fulfilled all criteria for Schengen membership since 2011. However, Romania has struggled with the Cooperation and Verification Mechanism (CVM) which looks at the country’s progress in the areas of corruption and rule of law.
Slovenia 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.
The European Commission might halt subsidies for the Czech Republic if it does not solve the issue of conflict of interest due to Prime Minister Andrej Babis’ control of the Agrofert holding. Read more here on Euractiv, 31 August 2021.
Articles, papers, publications
6 reasons why the EU should use the approval of National Recovery and Resilience Plans to enforce the rule of law in Hungary and Poland, The Good Lobby Profs (John Morijn, Alberto Alemanno, Laurent Pech, Daniel Sarmiento), 30 August 2021, read here.
Threats to the Rule of Law: The Pitfalls of the Cooperation and Verification Mechanism, Radosveta Vassileva (Middlesex University), June 2021, read here.
Authority, legitimacy and the Rule of Law in EU migration policy, Julinda Beqiraj, Katri Gadd and Barbara Grabowska-Moroz, RECONNECT, August 2021, read here.
Inside the system Ziobro built, ESI Background Paper, 5 August 2021, read here.
Events in september
13 September: Freedom Lecture by Veronika Munk (deputy-in-chief index.hu, founder telex.hu) about Hungary’s continuing struggle for media freedom and plurality, panel guest include our member John Morijn, Pieter Klok (de Volkskrant), Yoeri Albrecht (de Balie, Amsterdam) and Emilie van Outeren (NRC). The event will take place in de Balie, Amsterdam, tickets are available here.
17 and 18 September: Our Rule of Law Festival at Groningen University. Students from the International and European Law programme at the Faculty of Law of the University of Groningen are organising the Our Rule of Law Festival on the rule of law in Poland. During the two-day festival, nine Polish representatives, including the Polish judge Igor Tuleya, who has been stripped of immunity, will come to Groningen to share their stories. The Meijers Committee has contributed to this festival and John Morijn (chair of the subgroup rule of law) will chair a panel on Saturday on what role academia should play in the rule of law discourse. Tickets for the events in Groningen are limited, some events can be followed online (buy your tickets here).
23 and 24 September: Conference “Tradition, Constitution and European Integration” organised by the French and Dutch Embassies in Hungary, programme and registration (the event will take place in Budapest but some parts of the conference can be followed online).