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.
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
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.
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
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.
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.
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.
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.
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.
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.
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)