Rule of Law Update – October

General

The European Parliament’s legal affairs filed a lawsuit against the Commission for inaction on the dismantlement of the rule of law in Poland and Hungary on the basis of the Conditionality Regulation. However, it is not sure if such a legal action will be successful, as doubts remain about its admissibility and its chances to succeed. Read more on Politico, 29 October 2021.

LGBTQI+ rights: Hungary and Poland have vetoed the EU children right’s strategy and accuse other member states of putting the rights of LGBTQI+-activists above those of children, read more on euobserver, 8 October 2021.

Babiš and Orbán blacklist critical international journalists from a joint press conference held by the two leaders in the beginning of October. The blacklisted journalists included newspapers such as Die Zeit, Le Monde, ARD and Czech journalists writing for Seznam Zprávy and Investigace.cz. Read more on Euractiv, 1 October 2021.


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.


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.


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.


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.


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.


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, C204/21 RRAP (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.


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.


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.


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.

Resisting Membership Fatalism – Dissociation through enhanced cooperation or collective withdrawal, Merijn Chamon and Tom Theuns, Verfassungsblog, 11 October 2021.

The Rule of Law from Below – A Concept Under Development, Antoine Buyse, Katharine Fortin, Brianne McGonigle Leyh and Julie Fraser, Utrecht Law Review, October 2021.

The Role of Civil Society in Protecting Judicial Independence in Times of Rule of Law Backsliding in Poland, Barbara Grabowska-Moroz and Olga Śniadach, Utrecht Law Review, October 2021.


Other

Podcast, Rechtsstaatlichkeit, listen to it here.

Podcast What the hell just happened in Poland?, listen to it here.

Podcast by IPI about Media Capture in the EU, listen to it here.

#WolneSądy has published an informative overview of the judges lawfully and unlawfully nominated nominated of the Supreme Court:

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