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11 November 2022

#DefendingTheDefenders – Episode 1: Poland

We Need to Talk About the Rule of Law is back for a second season that focuses on the impact of rule of law erosions on attorneys. In the first episode, we talk to MIKOŁAJ PIETRZAK. He is an attorney and the Dean of the Warsaw Bar Association, which is the oldest professional legal association in Poland and the administrative association of attorneys in Warsaw. Continue reading >>
12 Juli 2022

Hungary, Poland and the “Community of Fate”

In February 2022, the ECJ delivered a ruling in cases brought by Hungary and Poland against the European Parliament and Council. Not only did the ruling uphold the regime of conditionality for the protection of the EU budget; it also entered into the domain of European constitutional identity. Instead of undermining the European commitment to the rule of law, Poland and Hungary may have inadvertently consolidated the place of rule of law in the heart of EU identity. Continue reading >>
22 Juni 2022

Pregnancy Registry in Poland

In Poland and beyond, a media storm broke out in the beginning of June because of the so-called "pregnancy registry." The problem at the heart of the media storm is that if a woman decides to terminate her pregnancy, for example, abroad, it will be known because of the system's pregnancy data and prenatal test results. Nevertheless, it is difficult to judge this registry unequivocally, especially after hearing the arguments of both sides. Continue reading >>
06 Juni 2022

The European Commission Cedes its Crucial Leverage vis-à-vis the Rule of Law in Poland

The worst thing about the European Commission’s decision of 1 June 2022 to approve Poland’s EUR 36 billion national recovery plan, despite this country’s very meek (to put it mildly) assurances about improvements to its rule-of-law situation, is not even its substance, bad though that is. Worse still is the sequencing. Continue reading >>
20 April 2022

Can Putin Be Tried in Poland?

The Polish Minister of Justice decided to initiate proceedings against Russia for its military attack on Ukraine and possible war crimes and crimes against humanity. This may come as a surprise, especially after the prosecutor at the ICC has already started to act in this matter. But the initiation of proceedings in Poland is mainly symbolic and won't conflict with international investigations. An EU Member State investigating specific individuals for their involvement in a war crime would be a powerful signal. At the same time, the scale and specificity of the crimes in question go beyond the possibilities of a single country and require extensive condemnation and the participation of the international community. Continue reading >>
11 November 2021

(Il-)Legal Gymnastics by Poland and Hungary in EU Border Procedures

This week, Poland has made headlines yet again for dispatching 12,000 guards to the border between Poland and Belarus and the use of tear gas to prevent third country nationals (TCNs), including children, from crossing into Polish territory. It is acutely problematic that Poland has foregone any semblance of conformity with EU law at all in the adoption of its domestic legislation on border procedures. Continue reading >>
02 November 2021

No Surrender to Poland

Last week, a district court in Norway took a bold step and refused surrender to Poland due to the “significant greater danger and probability” that a Polish court would not be a lawful judge. In the European battle over the independence of Polish courts, surrender of wanted persons according to the European Arrest Warrant has been a minor but important front. The Vestfold district court's ruling should be welcomed and also invites the Norwegian Supreme Court and the CJEU to change their jurisprudence on surrender to Poland. Continue reading >>
16 August 2021

Poland and Europe at a Critical Juncture. What has happened? What is happening? What’s next?

The European institutions must be able to protect the European narrative in Poland because this is what most Poles expect of the EU. And with each passing day, the frustration and the discouragement set in because people see and read about the ECJ decisions and see nothing tangible happen. And then they ask the most dramatic of questions: What does Europe mean for us? This is a critical and dramatic juncture because Europe must not afford losing the support of Polish citizenry. Therefore, Brussels must stop considering the Polish case as a mere problem of bad governance of yet another recalcitrant member state. It would serve European leaders well to finally recognize the constitutional stakes involved and enforce all these in the name of Europe and its citizens. Continue reading >>
15 August 2021

The Lex TVN and the End of Free Media in Poland

Law & Justice, the ruling party in Poland, plans to reform the media by introducing restrictions on ownership of TV and radio broadcast companies. Entities from outside the European Economic Area (“EEA”) may not, under the proposed law, control more than 49% of shares in such companies. This pertains both to holding shares directly and indirectly, via companies established in the EEA. If the law will ultimately enter into force is still uncertain. If it does, though, it will deliver a serious blow to, already weakened, free media in Poland. Continue reading >>
28 Juli 2021

How Not to Deal with Poland’s Fake Judges’ Requests for a Preliminary Ruling

In his Opinion of 8 July 2021 in Case C-132/20 Getin Noble Bank, AG Bobek advised the Court of Justice to find admissible a national request for a preliminary ruling originating from an individual who was appointed to Poland’s Supreme Court on the back of manifest and grave irregularities. In this specific case, contrary to the position of AG Bobek, we submit that the ECJ must find the request inadmissible as the referring individual cannot be considered a tribunal established by law. Continue reading >>
24 März 2021

The New Normal? – Emergency Measures in Response to the Second COVID-19 Wave in Poland

This post will cover four core areas of legal concern regarding the Polish response to COVID-19 across the last few months. First of them is the continued issue of legality of the measures used. Second is the issue of transparency and clarity of the measures employed with a particular look at the issue of exiting the emergency. Third is the matter of judicial oversight and the role of Polish courts during the pandemic. Fourth issue pertains to the convergence between the challenges brought about by the pandemic and the continued backsliding of the rule of law and erosion of human rights in Poland. Continue reading >>
01 Februar 2021

In the EU, it’s the Rule of Law. In Poland, it’s Unconstitutional?

The Polish Minister of Justice Zbigniew Ziobro, in his capacity as Prosecutor General, wants to apply to the Polish Constitutional Tribunal to have the EU regulation connecting the rule of law with the suspension of EU funds declared inconsistent with the Polish constitution. Why is the member of a government that has recently consented to adopting the regulation, now going to fight it? And are there any grounds for doing so? Continue reading >>
18 Januar 2021
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1825 Days Later: The End of the Rule of Law in Poland (Part II)

On 13 January 2016, exactly five years ago today, the Commission activated the so-called rule of law framework for the very first time with respect to Poland. Ever since, the Polish authorities’ sustained and systematic attacks on the rule of law directly threaten the very functioning of the EU legal order. Part II of this series examines the key rulings of 2020 and urges EU authorities to act. Continue reading >>
13 Januar 2021
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1825 Days Later: The End of the Rule of Law in Poland (Part I)

On 13 January 2016, exactly five years ago today, the Commission activated the so-called rule of law framework for the very first time with respect to Poland. Ever since, the Polish authorities’ sustained and systematic attacks on the rule of law directly threaten the very functioning of the EU legal order. In what has become an annual series of dire warnings, this is an overview of the 2020 developments regarding the deterioration of the rule of law in Poland. Continue reading >>
03 Juni 2020

Repression of Freedom of Expression in Poland: Renewing support for Wojciech Sadurski

In pre-COVID19 times we drew attention (here and here) to the fact that our colleague, Professor Wojciech Sadurski, faces multiple civil and criminal cases in Poland resulting from his tweets which were critical of the ruling party. The cases were brought against him by the current government and its associates. Unfortunately, COVID19 has evidently not changed their priorities Continue reading >>
27 April 2020

Poland and Hungary are withdrawing from the EU

The latest developments in Poland and Hungary beg the question of what the EU may, or indeed shall do when a Member State no longer fulfils the prerequisites of membership. Can the Union force that state to meet its duties against its will? Or should it ultimately acknowledge that state’s choice, and proceed with its orderly retreat from the EU legal order? Continue reading >>
24 April 2020

An Emergency By Any Other Name? Measures Against the COVID-19 Pandemic in Poland

The measures introduced to prevent the spread of COVID-19 in Poland are among some of the most extensive and far-reaching, affecting many spheres of civil, political, economic, social and cultural rights. Few of these measures amount to recommendations and suggestions of specific behaviour, most of them are hard, legally enforceable orders and prohibitions and flouting them incurs the risk of severe financial punishment. Yet the legal framework for these measures causes a significant degree of controversy. This report aims to present a birds eye’s view on the measures in Poland and to highlight some issues legal scholars and experts have taken with both the substantive side of the measures and the means they were introduced. Continue reading >>
10 März 2020

Commission v Poland: What Happened, What it Means, What it Will Take

9 March 2020. It had been marked in many a Polish diary. Would the EU make steps to finally act to stop the backliding? The electronic board in front of the Grande Salle indicates Case C-791/19 R, Commission versus Poland. A report from Luxembourg. Continue reading >>
09 März 2020
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Open Letter to the President of the European Commission regarding Poland’s “Muzzle Law”

The current procrastination is akin to dereliction of duty: Waiting to bring infringement actions and to fail to simultaneously seek interim measures when the rule of law in a Member State is so obviously and blatantly deteriorating on an industrial scale only means that the Commission faces a far more serious and intractable problem to deal with later. Continue reading >>
29 Februar 2020

For Norway it’s Official: The Rule of Law is No More in Poland

The so-called “muzzle law”, adopted by the Polish parliament on January 23, was the last straw. On Thursday 27 February, the board of the Norwegian Court Administration decided to withdraw from its planned cooperation with Poland under the justice programme of the EEA and Norway Grants, due to concerns over the Polish justice reforms. Continue reading >>
15 Januar 2020

1460 Days Later: Rule of Law in Poland R.I.P. (Part II)

Writing a year ago, we warned that the situation in Poland “has deteriorated further to the point of threatening the functioning of the whole EU legal order and therefore, the future of the EU’s internal market itself.” This is no longer a mere threat but a clear and present danger. Stalling for time would be irresponsible. On current trajectory, it is only a matter of time before Poland’s rule of law default eventually triggers a knock-on process of legal disintegration. Continue reading >>
13 Januar 2020

1460 Days Later: Rule of Law in Poland R.I.P. (Part I)

On 13 January 2016, exactly four years ago today, the Commission activated its rule of law framework for the very first time with respect to Poland. This (two-part) post will highlight the main developments, primarily from the point of view of EU law, which took place in 2019. Continue reading >>
10 Dezember 2019

Should Round Table Negotiations Serve as a Strategic Device in Poland’s Politics Today?

Karolina Wigura discusses the idea of future round table talks in Poland between the populists and the other political powers, aiming at achieving a broader consensus to repair the judiciary and other state institutions. Continue reading >>
30 Mai 2019

Commission v. Poland – A Stepping Stone Towards a Strong “Union of Values”?

Commission v. Poland gives the Court not only the opportunity to put ASJP into practice but also to clarify the doctrinal framework for finally addressing the developments in “backsliding” Member States under EU law. This contribution will shed some light on these two uncertainties, suggest ways of how the Court could resolve them and explore the potential repercussions for the EU legal order. Continue reading >>
29 Mai 2019

The first judgment of the ECJ regarding a breach of the rule of law in Poland?

While the judgment in C-619/18 Commission v. Poland is unlikely to deliver a surprise as to the assessment of the Polish ‘reforms’, interesting issues are emerging in relation to the effects of the judgment for the Polish authorities. This piece starts from a brief discussion why the case seems lost for Poland, proceeding then to analysis whether and how the judgment should be implemented. Continue reading >>
28 Mai 2019

Age is the limit? Background of the CJEU case C-619/18 Commission v Poland

Next month the Court of Justice of the European Union will make a decision that is likely going to feature in the future textbooks on European Union law. In the case C-618/19 Commission v Poland, the Court will tackle the topic of judicial independence and the question of whether the standards of the rule of law were violated by the Polish government and parliament and thus address a critical element of European Union’s legal system. Continue reading >>
11 April 2019

Three Steps Ahead, One Step Aside: The AG’s Opinion in the Commission v. Poland Case

In the infringement case about forced retirement of Polish Supreme Court judges, the Advocate General has delivered his much-awaited opinion. The AG proposed that the Court should declare that Poland failed to fulfil its obligations under Article 19 TEU. I do agree with this conclusion. I do not share, however, the Advocate General's view that the complaint of the Commission should be rejected as inadmissible as far as it is based on the right to an independent judge under Article 49 of the Charter of Fundamental Rights. Continue reading >>
17 Januar 2019

1095 Days Later: From Bad to Worse Regarding the Rule of Law in Poland (Part II)

Part II of our stock-taking of the EU rule of law proceedings against Poland: what the Luxembourg Court, the Council and member states can do to prevent further decay of the rule of law. Continue reading >>
13 Januar 2019

1095 Days Later: From Bad to Worse Regarding the Rule of Law in Poland (Part I)

On 13 January 2016, exactly three years ago today, the Commission activated the so-called rule of law framework for the very first time with respect to Poland. As things stand today, Polish authorities’ sustained and systematic attacks on the rule of law now more than ever directly threaten the very functioning of the EU legal order. Continue reading >>
10 Dezember 2018

How to Abolish Democracy: Electoral System, Party Regulation and Opposition Rights in Hungary and Poland

When it comes to Poland and Hungary, everyone is talking about the judiciary, about the independence of the courts, about the rule of law. But hardly anyone talks about parliaments. Yet they are at the heart of our democracies. And they are no less at risk. This became clear in the third panel of our workshop, which dealt with the electoral system, party regulation and opposition rights in Hungary and Poland. What may sound technical at first glance are surprisingly effective instruments in the hands of autocrats. It is precisely with these instruments that the governments of both countries have set the course for a “democracy” that primarily benefits the ruling parties and undermines political plurality. Continue reading >>
09 Dezember 2018

“Constitutional Resilience – How Can a Democratic Constitution Survive an Autocratic Majority?”: Freedom of Speech, Media and Civil Society in Hungary and Poland

Freedom of speech, media freedom and the freedom of civil society are the lifeblood of democracy. As far as the threats to freedom of speech, media and civil society are concerned, from a normative perspective, the problems of Hungary and Poland are decidedly not external to western democracies. The question arises of how resilient constitutions are or can be made in this matter, whereby political viewpoint discrimination takes a center role in the conetxt of not only constitutional resilience but also our European values. Continue reading >>
25 Oktober 2018

On the Brink of Joining Poland and Hungary: The Night of Surprises in the Slovak Parliament

The relatively short political history of the Slovak parliament has already witnessed several dramatic sessions. The latest drama unfolded during the night of 23 October in a parliamentary session to discuss and vote on an amendment of the Constitution and a new Act on the Constitutional Court that could have put Slovakia on a direct path to follow Hungary and Poland. The night turned out to be full of surprises. Continue reading >>
18 Oktober 2018

Poland’s Supreme Administrative Court recognizes Same-sex Parents

Poland is one step closer to the full legal recognition of birth certificates that include same-sex parents. In a landmark court ruling of 10 October 2018, the Supreme Administrative Court in Warsaw (SAC) found that registry offices in Poland cannot refuse the registration of foreign birth certificates of children based on the sexual orientation of their parents. Continue reading >>
17 Oktober 2018

Will Poland, With Its Own Constitution Ablaze, Now Set Fire to EU Law?

The Polish justice minister and Prosecutor-General Zbigniew Ziobro has asked the Constitutional Court to declare Art. 267 TFEU unconstitutional "to the extent that it allows referring to the Court [of Justice] a preliminary question … in matters pertaining to the design, shape, and organisation of the judiciary as well as proceedings before the judicial organs of a member state". If the Court adopts Ziobro's arguments, that will have drastic implications for the integrity of EU law. Continue reading >>
08 August 2018

The Rule of Law Crisis in Poland: A New Chapter

The current controversies on the Polish Supreme Court resemble the conflict over the Constitutional Tribunal in 2015-216 to some extent. However, the Supreme Court took new steps on August 2, when it referred five questions to the Court of Justice of the EU and requested a preliminary ruling. All five questions relate (more or less directly) to the principles of (1) independence of the courts and (2) the judicial independence under the circumstances of the rule of law crisis in Poland and thus have a potential of becoming a key aspect in the Polish rule of law crisis. Continue reading >>
12 Juni 2018

Dusting off the Old Precedent – Why the Commission Must Stick to the Art. 7 Procedure Against Poland

Here we go again. The reports are resurfacing that the Commission is ready to back away from the Article 7 procedure that was initiated against Poland last December. Should we be surprised? For anybody who vaguely follows the Commission’s vanishing act, the answer must be a resounding „no”. Instead, the analysis that follows offers a journey back in time and argues that the past teaches us some important lessons and … rhymes. Continue reading >>
13 Mai 2018

10 Facts on Poland for the Consideration of the European Court of Justice

In June, the European Court of Justice is to decide whether, despite massive legislative changes, the Polish judiciary is still independent and therefore able to ensure a fair trial to people extradited to Poland on the basis of a European Arrest Warrant. Marcin Matczak, a Polish lawyer, uses the old tradition of the amicus curiae letter – a letter from a friend of the court – to depict the situation of the Polish judiciary in 2018. Continue reading >>
13 März 2018

CJEU Opens the Door for the Commission to Reconsider Charges against Poland

In the Associação Sindical dos Juízes Portugueses judgment the Court of Justice of the European Union (CJEU) deemed that on the basis of Article 19(1) TEU it is competent to evaluate the guarantee of independence of judges if only they sit in a national court that may apply and interpret EU law. In light of this ruling, the European Commission in the infringement proceedings against Poland does not have to restrict itself to the slightly modified “Hungarian scenario” (hitherto preferred by it). It may instead once again analyse the scope of charges with regard to the Common Courts System Act (the CCS Act), and may even lodge a new complaint concerning i.a. the Act on the Supreme Court. Continue reading >>
08 März 2018

The Court is dead, long live the courts? On judicial review in Poland in 2017 and „judicial space” beyond

How should Polish judges respond, now that the Constitutional Court is being used in the day-to-day politics, and keeps delivering goods for its political masters? We have to be unequivocal here. Any future decisions taken by the „fake Court” with the “fake” judges sitting on the cases will be marred by invalidity. The ordinary judges will have a valid claim not to follow these rulings. Should they decide to follow decisions made with the participation of, or made by, “fake” judges, their own proceedings will be vitiated by invalidity. Continue reading >>

Why Poland and not Hungary?

According to Frans Timmermans, speaking on 17 September 2017, “the situation in Hungary is not comparable to the situation in Poland” implying that Poland is far worse off than Hungary in the rule of law department. But is that true? Continue reading >>
07 März 2018

Was the Commission Right to Activate pre-Article 7 and Article 7(1) Procedures Against Poland?

Despite the Commission’s best and repeated efforts, the rule of law situation in Poland has indeed been going from bad to worse under the stewardship of Poland’s de facto leader and its “Law and Justice” governing party. Continue reading >>
01 März 2018

The Rule of Law in Poland: A Sorry Spectacle

With political appointments to its National Council of the Judiciary, Poland is now seeing the next step in the dismantling the rule of law. The change in the procedure for appointments to the Council was one of the reasons thousands of Poles took to the streets last summer to protest in the name of independent courts. Their fears have turned out to be well founded. Continue reading >>
26 Februar 2018

Who will Count the Votes in Poland?

In the shadow of an international outcry concerning a grotesque and speech-restrictive Polish law which would punish anyone attributing to Polish nation co-responsibility for crimes during the 2nd World War, a much more dangerous change has been quietly brought about, and just completed. A change which gives the ruling party Law and Justice (PiS) necessary mechanisms to “control” the election outcomes. To put it bluntly – a change of the electoral system which will make it possible for PiS to commit electoral fraud allowing it to stay in power, regardless of the voters’ preferences. Continue reading >>
01 Februar 2018

Calling Murders by Their Names as Criminal Offence – a Risk of Statutory Negationism in Poland

On the eve of the Holocaust Remembrance Day on 27th of January, the Polish Sejm approved a law on the defamation of the Polish State and Nation, causing extremely harsh reactions from Israel, Holocaust survivors and international organizations. While the attempt to ban the use of the word "Polish concentration camp" seems fully justified, the scope of the law goes way beyond that and is a threat to the freedom of speech and academic research. Continue reading >>
21 Dezember 2017

Cats, Constitutions and Crises: Dissemination of Research on the Rule of Law Crisis in Poland in a Social Media Age

On "Ceiling Sejm", the Cat, GIF Memes and other ways to fight for the rule of law in Poland in the age of social media and to reach millennials with legal academic expertise. Continue reading >>
18 Dezember 2017

Next Stop on the Way to Constitutional Disarray in Poland: Electoral Law Reform

Last Thursday, the Sejm has passed another hugely controversial law that might change the constitutional setup in Poland without changing a letter of the constitution itself. The law claims, according to its title, to „increase the participation of citizens in the process of electing, functioning and controlling certain public bodies“ (doc. 2001). In large parts, it consists of amendments to the Polish Electoral Code (E.C). Its adoption is opposed by the parliamentary opposition, by the electoral administration bodies and by many experts. The enactment of this law would violate the principle of a democratic state ruled by law in three ways. Continue reading >>
28 November 2017

Judicial „Reform“ in Poland: The President’s Bills are as Unconstitutional as the Ones he Vetoed

Five months ago, the Polish President Duda vetoed the PiS laws on the judiciary as unconstitutional. Currently, the President and the PiS are negotiating about a solution to this conflict. But make no mistake: The Presidential vetoes have not triggered any new proposals which would be qualitatively better in terms of consistency with the Constitution than the initial PiS bills that he vetoed. Both the PiS and the President’s proposals are glaringly unconstitutional, though in different ways. Continue reading >>
27 November 2017

Bialowieza Forest, the Spruce Bark Beetle and the EU Law Controversy in Poland

The battle about logging in the protected Bialowieza primeval forest in Poland puts the rule of law in the European Union in danger – in more than just one way. Continue reading >>
21 November 2017

Rule of Law in Poland: Memory Politics and Belarusian Minority

Memory politics and protection of ethnic minorities have not received enough attention in the discussion on the decline of the rule of law in Poland and Hungary. Poland has recently supplied a paradigmatic example. Continue reading >>
26 Juli 2017

Is Poland’s President Duda on the Road to Damascus?

Does President Duda’s recent vetoes signal a more permanent change in his fidelities to his political stable and to the Constitution? An opportunity to witness the depth of his conversion arises soon. The untimely death of Professor Morawski, one of the anti-judges appointed to the Constitutional Tribunal (CT) by Duda in December 2015, has created a vacancy in the CT which must be filled soon. The big question is with whom. Continue reading >>
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