Rule of Law Update – November

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.


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.


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.


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.


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.


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.


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.


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.


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.


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)

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