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05 August 2022
A War By Any Other Name
How Russian Law Shapes Language and Instills Silence Continue reading >>
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The EU’s regulatory push against disinformation
Tech billionaire Elon Musk’s surprise bid to buy Twitter questions the wisdom of the current EU efforts to combat the spread of disinformation, which has relied to a large extend on platforms’ voluntary cooperation. Whether successful or not, it raises serious questions on EU disinformation policy’s reliance on platforms’ discretion to moderate this category of speech. It is likely to put pressure on the carefully constructed web of self- and co-regulatory measures and legislation the European Commission has spun to counter the spread of disinformation. Continue reading >>
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02 August 2022
Everything must remain the same for everything can change
The European Arrest Warrant mechanism has been one of the fiercest manifestations of the rule of law crisis in Poland. Four years have passed since the EU Court of Justice instructed executing courts to carry out a two-step test, to decide on the execution of EAWs issued by a Member State affected by systemic deficiencies to the independence of its judicial system. Four years later, the Polish government has only dug itself deeper into its authoritarian trench. With its recent rulings, the Court has significantly broadened the criteria and factors on which the executing courts can rely, when assessing the risk of a breach of Article 47(2) CFR in the issuing State. Continue reading >>
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29 Juli 2022
Wanting to Know the Facts
Emily Dische-Becker, the FAZ, the Hizbullah, and the truth Continue reading >>
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28 Juli 2022
Accessing Information about Abortion
The U.S. Supreme Court decision of 24 June 2022 overruled a half century of precedent supporting a constitutional right to abortion across the U.S. established in 1973 in Roe v. Wade. Essentially, Dobbs v. Jackson Women's Health Organization left the decision on abortion to individual states. The ruling, although astonishing, was not necessarily a surprise, after its draft had leaked a few weeks earlier. But to the surprise of many, almost immediately, Facebook and Instagram started removing posts informing about access to abortion pills, the Associated Press and Vice first reported. Continue reading >>
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26 Juli 2022
Beyond Constitutional Doctrine?
In a recent post on Verfassungsblog, Michał Stambulski and Karol Muszyński make a number of wide-ranging statements and stinging criticisms of what they believe to be the shortcomings of “doctrinal constitutionalism”, “legal constitutionalism” and “doctrinal legal constitutionalism.” What the authors fail to do at any point, however, is define what they mean by these terms. Furthermore, their attack on doctrinal constitutionalism - which includes ad hominem attacks while ironically calling for a more serious engagement and less ‘emotional’ or ‘easy moral evaluation’ - fails to offer any alternative solutions to a rule of law crisis that the authors themselves readily acknowledge to be a problem. Aside from a plea to pay closer attention to economic, social and political context, it is by no means clear what they would put in place of the doctrinal/legal constitutionalism that they appear to be so passionately opposed to. Continue reading >>
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18 Juli 2022
Holidays with smog
The Polish energy policy is seeing further controversies. The Minister of Climate and the Environment, Anna Moskwa, allowed poor quality coal to be sold for 60 days. This means that, up to 28 August, households are able to buy bituminous coal with a higher content of sulphur and mercury, as well as harmful mining waste, e.g. mining sludge. This decision is already causing considerable controversy not only among climate activists, but also among voivodship (local) authorities that are implementing so-called anti-smog resolutions. Continue reading >>
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The Poverty of Militant Doctrinal Constitutionalism in the European Union
The rule of law crisis discussion is transforming the entire academic field of comparative constitutional law. Success is measured not in volumes of empirically based analysis or critical examination of existing legal practices but more and more in op-eds in which Poland, Hungary or the Commission should be chastised like unruly children in the most imaginative and entertaining way possible. It is possible because of the ultimately fatal grip of constitutional law scholarship and constitutional design in the EU which blurs the distinction between theoretical and more practical uses of constitutional concepts. Continue reading >>12 Juli 2022
The Selective Nature of a pan-European Willkommenskultur
Four months into Russia’s war on Ukraine, there has been a tremendous show of support for Ukrainians fleeing violence and the atrocities of war – in Europe and elsewhere in the world. As is well-known, European states have hammered out pragmatic administrative solutions to accommodate large numbers of incoming person, going to great lengths to provide for beneficial welfare arrangements. Against this backdrop, it may not be unreasonable to present the crisis in Ukraine as a tipping point for humanitarian protection more generally. Continue reading >>
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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 >>
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11 Juli 2022
Will the Commission Throw the Rule of Law Away in Hungary?
The Hungarian government is publicly saying that it is nearing a deal with the European Commission to unlock the Recovery Funds that have been withheld because the Commission has not yet approved Hungary’s plan for spending those funds. Apparently, Hungary has agreed to four conditions that will allow the €7bn worth of grants and about €8bn in low-interest loans to be approved. But if those are any indication of the price that the European Commission will extract for comprehensive violation of the rule of law, the European Commission is making a colossal mistake. Continue reading >>
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10 Juli 2022
Is Finland Joining the Backsliding Trend in Europe?
New laws have just been adopted by the Finnish parliament that would be extremely dangerous tools in the hands of a cynical government with a right-wing-populist and/or kleptocratic agenda. As the composition of the current Government is left-green-centre, some people will dismiss my concerns. The plain facts, however, give rise to worries: parliamentary elections will be held in April 2023, both large opposition parties, the populist True Finns and the Conservatives, effectively took ownership of the parliamentary consideration of the Bills in question, and the prevailing political rhetoric now is full of slogans that echo Donald Trump rather than the voices of human rights. There is good reason to be on high alert. Continue reading >>05 Juli 2022
The Costs of Outsourcing
Last month the European Court of Human Rights (ECtHR) granted an urgent interim measure according to Rule 39 of the Rules of the Court in a case concerning an imminent removal of an asylum-seeker from the UK to Rwanda. The UK's policy of outsourcing sets another dangerous precedence when it comes to restricting territorial asylum and the basic rights of asylum seekers. It is expensive, contrary to international human rights obligations, has significant adverse effects on those affected, scratches the state´s reputation, and increases existing tensions with the ECtHR. Continue reading >>
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01 Juli 2022
Staatsgeheimnisse und effektiver Rechtsschutz nach 9/11
Staaten haben Geheimnisse, die sie nach ihren innerstaatlichen Rechtsvorschriften vor einer Veröffentlichung schützen. Besonders problematisch ist die Geheimhaltung, wenn sich das Verfahren um gravierende Menschenrechtsverletzungen dreht, die von staatlichen Stellen verübt worden sind. Hier kann die Geheimhaltung die justizielle Aufarbeitung staatlichen Unrechts beeinträchtigen oder gar ganz verhindern und den individuellen Anspruch auf effektiven Rechtsschutz leerlaufen lassen. Continue reading >>
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30 Juni 2022
The Core of the European Public Space
Increasing the visibility of the constitutional fundamentals of the Union takes on existential importance in times of constitutional reckoning or, as some call it in more ominous terms, in times of “capitulation”. It is for that reason that art. 19(1) TEU should be amended to reflect the case law of the Court of Justice and thus to codify the core that binds the Member States to the discipline of the legal order. Continue reading >>29 Juni 2022
Trumping International Investment Law
An Award rendered on 16 June 2022 by a Stockholm-seated Arbitral Tribunal unleashed a foreshadowed earthquake regarding intra-EU investment protection disputes. The Tribunal declined jurisdiction based on the intra-EU nature of the dispute, which arose after two Danish companies had invested in Spanish photovoltaic power plants. The Award rendered under the Energy Charter Treaty (ECT) and the arbitration rules of the Stockholm Chamber of Commerce (SCC) marks the first time an arbitral tribunal has denied its jurisdiction (ratione voluntatis) because of the intra-EU objection raised by the Respondent. Continue reading >>
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26 Juni 2022
Generation Action
Über Verzweiflung, Generationenversagen und Hoffnung. Continue reading >>
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23 Juni 2022
Governing the Memory of the Present
Putin’s Russia is a global champion of memory laws that fabricate the state’s perennial innocence and glory and make it a criminal offense to diverge from the state-sanctioned historical narratives. The state’s propaganda has also promoted symbols that convey support for or condoning of the Russia’s war, such as the “Z”, “V”, and St. George's ribbon. The emergence of these symbols in the public sphere has put militant democracy provisions existing in many European legal orders into the spotlight, but also propelled lawmakers in some states to adopt new provisions prohibiting the use of such symbols. We discuss the reaction mechanism in Lithuania, Germany, and Poland. Continue reading >>
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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 >>
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21 Juni 2022
Experimenting with European Democracy
The Conference on the Future of Europe came to an end on 9 May, with the presentation of a final report of 49 recommendations and 329 specific measures to the presidents of the three EU institutions. While it is unclear what the exact follow-up to the Conference will be, the upcoming Council Summit on 23-24 June will show whether a simple majority of Member States is open to starting the process for a Treaty change. Continue reading >>
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Covering Up and Rewarding the Destruction of the Rule of Law One Milestone at a Time
Once upon a time, when still a candidate for President of the European Commission, Ursula von der Leyen solemnly declared: “there can be no compromise when it comes to respecting the Rule of Law. There never will be.” As it is now clear, this was just Orwellian doublespeak. Continue reading >>17 Juni 2022
Pressure Drop
For years, we have been living in a toxic relationship with authoritarian populism. No wonder everyone's so exhausted. Continue reading >>
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13 Juni 2022
Serbia on Hold
Since 3 April 2022, when elections at all levels were held, Serbia has been on hold. Two months after the elections, only the President of Serbia has begun to serve his regular mandate, while the official results of the parliamentary elections are yet to be proclaimed, the new composition of the National Assembly is yet to be convened, and the new government is yet to be formed. Russia’s aggression against Ukraine, which occurred at the beginning of the election campaign, added to the already tense political situation. Continue reading >>
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10 Juni 2022
Folgt dem Geld
Warum wir aufhören sollten, von "Euroskeptikern" zu reden Continue reading >>
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08 Juni 2022
Censuring von der Leyen’s Capitulation on the Rule of Law
The spectre of a motion of censure is looming over the von der Leyen Commission. While this rather extraordinary, perhaps desperate, measure appears unlikely to attain the required number of signatures to be tabled – and even less likely to be adopted by the European Parliament –, this initiative deserves some scrutiny. Perhaps even some praise by those who still believe in the primacy of law over power. Continue reading >>
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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 >>
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02 Juni 2022
Competition and Conditionality
On 5 April 2022, just two days after the Hungarian national elections, the European Commission formally announced that it would apply the conditionality mechanism enshrined in Regulation 2020/2092 in relation to Hungary. In the past the Commission has frequently addressed issues related to “systemic irregularities, deficiencies and weaknesses in public procurement procedures”. In Hungary, however, it has not probed the enforcement of competition (cartel) law in public tender procedures. The Commission should seize the opportunity to act in this area. Continue reading >>01 Juni 2022
Just a Feint?
A running joke in the pro-democratic military analyst community is about ridiculing the messages of pro-Russian experts who are pretending that the Russian defeat in the battle of Kyiv was "just a feint". I am afraid that the European Commission just walked into a similar strategic blunder with its deal with the Polish government on the recovery fund and the Supreme Court. Continue reading >>
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26 Mai 2022
Illiberals of the World Unite in Budapest – Yet Again
Despite their strong localist and nativist inclinations, traditionalism does not turn illiberal democrats and autocrats against international cooperation, and their political ambitions do not halt at disrupting the operation of supranational organizations. Rather, they use both ad hoc opportunities and a regularly recurring annual events for networking. What marks these occasions is the careful selection of trusted participants based on strong personal connections, along shared values across different religions and continents. Continue reading >>
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19 Mai 2022
What Culture Wars Hide
The American Conservative Political Action Coalition (CPAC) is meeting in Budapest on 19-20 May. The meeting signals that US conservatives have chosen Hungary as proof of concept for the politics they want. Prime Minister Viktor Orbán is proudly illiberal and proudly politically incorrect. Having won his fourth consecutive election in April with his largest parliamentary majority yet, Orbán demonstrates to American conservatives that his brand of politics can triumph. Continue reading >>17 Mai 2022
The other legacy
The 9/11 attacks triggered a new practice of and renewed interest in emergency powers. Without doubt, the United States were at the forefront of the enhanced exercise of such powers, but France is a very interesting example of the many issues and challenges raised by states of emergencies' normalization. France has been governed under a state of emergency for more than half of the time that has elapsed since the attacks of 13 November 2015. Continue reading >>
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16 Mai 2022
Between Filters and Fundamental Rights
On 26 April 2022 the CJEU delivered its much-awaited judgement in Case C-401/19 – Poland v. Parliament and Council. The case concerns the validity of Article 17 of the Copyright in the Digital Single Market Directive in light of fundamental rights. The judgment marks the climax of a turbulent journey in the area of copyright law, with potential implications for the future of platform regulation and content moderation in EU law. Continue reading >>
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13 Mai 2022
Drifting Case-law on Judicial Independence
In a preliminary ruling of 29 March 2022, in case C-132/20 Getin Noble Bank, the CJEU answered questions on judicial independence of judges appointed under an undemocratic regime and of judges appointed before 2018 in an allegedly flawed process. Taking a highly formalistic approach, the Court seeks to preserve judicial dialogue between itself and the national judges – at the expense of the rule of law and judicial independence. Continue reading >>
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02 Mai 2022
Trapped in a Lawless Zone
The treatment of asylum-seekers – predominantly from the Middle East – crossing the Latvian border from Belarus is in sharp contrast with the recent decision of the Latvian government to support at least 23,000 people who have arrived in the country from war-torn Ukraine. Those who have paid the highest price for this policy are people who have been forced to remain in the forest for months under inhuman conditions just to be ultimately returned to their country of origin, an experience that has left most of them severely traumatised. Continue reading >>
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28 April 2022
Reviving the Promise of Schengen
The EU Treaties are not shy when it comes to making grand promises. Take Article 3 (2) TEU for instance, which stipulates that the EU proffers an area ‘without internal frontiers’. While, technically speaking, borders continue to exist within the EU, it is true that they have become largely intangible inside the Schengen area. This may reasonably be viewed one of the greatest achievements of European integration. Solemnities aside, however, this promise has been called into question in recent years. Continue reading >>
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26 April 2022
Keeping the Past and the Present Apart
The mere fact that a judge was appointed for the first time under undemocratic conditions does not automatically determine that the court in which that judge adjudicates lacks the necessary independence under EU law. The CJEU has answered to this effect a question of Mr. Kamil Zaradkiewicz, appointed to Poland's Supreme Court in 2018 on recommendation of the new government-controlled National Council of Judiciary and thus lacking independence himself. Importantly, the CJEU emphasized that the referring court did not submit any evidence that may rise legitimate and serious doubts, in the minds of individuals, over independence and impartiality of the particular judge. With this decision, the Court refused to be drawn into the inner-Polish dispute about decommunization, and reinforced its jurisprudence on judicial independence standards in the EU. Continue reading >>
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22 April 2022
Instead of an editorial
What has happened over the holidays on Verfassungsblog Continue reading >>
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Anstelle eines Editorials
Was über die Feiertage auf dem Verfassungsblog los war Continue reading >>
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21 April 2022
The legacy of the privacy versus security narrative in the ECtHR’s jurisprudence
The past two decades of counterterrorism strategy attest to the fact that the security/privacy trade-off approach is not only outdated, but that it also amounts to a gross oversimplification of the complexities involved in the modern culture of surveillance. Nevertheless, the ECtHR's acceptance of bulk interception regimes as measures that in principle fall within states’ discretion seems to be predicated on this outdated trade-off. Continue reading >>
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20 April 2022
Germany, Russia and the „In Between“
A new national security strategy, as proposed by Foreign Minister Annalena Baerbock and as is the focus of this symposium, must also upend the basic features of Germany’s Ostpolitik. A Bucha Genuflection is not enough to achieve this – but it could be a good place to start. This blog post outlines the possible benchmarks, challenges, and potentials of a regional perspective in the context of the Ukraine crisis. For German foreign policy, this specifically means a change of perspective: Ostpolitik has to be more than just a policy concerning Russia. Continue reading >>
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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 >>
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