|
Didn't the EU Commission demand that the disciplinary chamber at the Supreme Court be abolished? And isn't that what is happening now? I would presume it would be very convenient for the PiS government if the news were received in this way in Brussels. But firstly, this plan would be completely unsuitable to this end, as far as the disciplinary system as such remains untouched. And secondly, to take this as a signal of compromise seems hardly plausible at all, even if the content of the plan allowed it. This, like almost everything the PiS government does, is motivated by domestic politics. In the game of chicken that Justice Minister Żiobro and Prime Minister Morawiecki are playing for the succession of the aged PiS chairman Kaczyński, neither of them can afford to engage in any ultimate or conciliatory dialogue with Brussels.
For many months, Poland's rule of law has depended on the tenacity and endurance of a few dozen judges who, at immense legal, financial, and personal risk, uphold the claim that Poles are being tried according to the law – suffering hardships that we can hardly imagine. This becomes more difficult every day. The people who allow themselves to be appointed and promoted by Żiobro's body of minions are not necessarily bad people or bad judges. There are many capable, well-trained jurists who just want to do their work and pursue their careers under the government that is in power at the moment. The plaintiffs and defendants are also not too keen to dwell forever on the question of the correct composition of the bench, but want to have their cases decided. All this, in addition to the prospect of disciplinary trouble and even the loss of their jobs and livelihoods, weighs heavily on the shoulders of these judges, whom we should admire and support all the more as real heroes of our time. As long as they carry this burden, Poland is still a state under the rule of law – a badly damaged one, but still.
Thanks to Stanisław Biernat for valuable input.
The Week on Verfassungsblog
Meanwhile, Europe continues to wonder how to respond to the previous stage of escalation in the conflict between the EU and its member state Poland, the ruling of the Polish "Constitutional Tribunal" of 7 October 2021 on the alleged incompatibility of ECJ case law on the independence of the judiciary and its primacy over Polish law. MARTIN NETTESHEIM considers the strategy of the supranational institutions of the EU to force Poland back onto the path of virtue by legal means to be unpromising. In the end, it is up to the member states to decide whether they want to remain in a contractual relationship with Poland. If not, there are ways under international law to oust their fellow club member.
The historian MORTEN RASMUSSEN confirms the finding that the constitutionalisation and federalisation of the EU, postulated and promoted by the supranational institutions, has never really been accepted by the member states, contrary to what many EU law experts like to think. For them, the reproach of the rule of law is not so decisive, unlike the fear, felt particularly by the "frugal" Northern Europeans, of fattening up corrupt authoritarian regimes in a transfer union, and above all the fear that the European internal market will be endangered because Poland no longer abides by the rules.
The October European Council (EUCO) was the first opportunity to react to the declaration of the Polish "Constitutional Tribunal". However, there was not a word in the EUCO conclusions about the looming constitutional crisis. There may be various reasons for this reticence. CHRISTOPHE HILLION reminds us that the Council has no competence to call into question the fundamental obligations of the member states – which include securing effective legal remedies under Article 19 TEU.
One pillar of European integration that Poland is shaking is the principle of mutual recognition. Arrest warrants from one member state usually must be executed by the authorities of another without further scrutiny. With respect to Poland, the CJEU in 2018 insisted on a two-step test: before extradition can be refused, there must not only be structural concerns about the rule of law standards there, but also concrete reasons to believe that the extradited person will be mistreated. Now a district court in Norway has questioned this line, as EIRIK HOLMØYVIK reports: The problem is, the court argues referring to the case law of the ECtHR and ECJ since 2018, that in Poland, one can no longer rely on being brought before the lawful judge. If that is the case, the Norwegian court concluded, then no one can be extradited there.
It is not only in Poland that unpopular judges are subjected to disciplinary proceedings. In the case of the Bulgarian judge Miroslava Todorova, the ECtHR recently handed down its judgement. RADOSVETA VASSILEVA complains that the Strasbourg Court, while partially deciding in favour of the judge who as president of a judges' association had persistently pointed out abuses in the Bulgarian judiciary, had turned a blind eye to these abuses themselves.
Meanwhile, the Bulgarian Constitutional Court has ruled that the term "sex" in Bulgarian law is to be understood exclusively in biological terms. TEODORA PETROVA criticises the court for not arguing in legal terms, but for using concepts that are otherwise found in the realm of political populism and nationalism.
In 2014, the European Commission established a rule of law framework and the European Parliament has repeatedly proposed to extend this procedure to an annual monitoring cycle for democracy, rule of law and fundamental rights. A similar procedure has already existed for almost 30 years in the Council of Europe under the responsibility of the Parliamentary Assembly. MIHAELA ANCA AILINCAI examines the reasons and interests that led to such a competition between the two European organisations.
The child benefit scandal has shown that there are also deficits in the rule of law in the Netherlands with horrific consequences. The Venice Commission of the Council of Europe recently named a number of them: a lack of parliamentary control, a disturbed flow of information in the administration and the need for a constitutional review of laws. EMMA SCHULTE thinks the opinion is an important nudge, but too vague and hesitant.
In the UK, the succession of one of the most important political journalists at the BBC is being debated, and with it the question of whether the independence of journalism is sufficiently protected from the Tory government. RICHARD DANBURY thinks it is generally problematic that the government of the day decides who sits on the oversight board of the BBC.
The post-Brexit fishing dispute between London and Paris keeps dragging on: As recently as May this year, French and British warships confronted each other off the Channel Island of Jersey. After the arrest of a British fishing boat in Le Havre, the conflict threatened to escalate again last week. ROMY KLIMKE criticises the sabre-rattling on both sides. The dispute over access licences obscures the fact that it is ultimately a rather specific bureaucratic issue. |
