Rule of law update – September 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.


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.


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.


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.


Germany

Wolfgang Schäuble (President of the German parliament) does not want to be too harsh on Poland and Hungary. He warned the EPP congress about the risks in causing too much row with Poland and Hungary concerning the rule of law and treaty infringements. Withholding EU funding is agreeable for a certain time, but going too far in this row might turn out to be counteproductive. Read more on Euractiv, 9 September 2021.


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.

T517/19 (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


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.


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.


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.


Romania

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


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.


Papers, reports, Seminars

Respect for the Rule of Law in the Case Law of the European Court of JusticeA 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:

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