On Rebuilding and … Keeping the Rule of Law
When I think about the challenge of rebuilding the rule of law in Poland after years filled with unimaginably lawless legal and factual acts and hateful words tearing the Polish Constitution to shreds and offering adequate recipes, the starting point is framing the discussion. A correct description of the starting point determines the route and provides the background against which one can evaluate more detailed legislative choices made along the way. The route must be determined by “fidelity to the Constitution”. Finally, our avowed destination must be framed in clear terms as restoring the meaning and respect to the basic elements of the Polish legal order. I argue that the latter must become the new narrative of lawyers, politicians and citizens alike if we are to succeed.
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The European Court of Human Rights’ April 9 Climate Rulings and the Future (Thereof)
By recognizing the responsibility they have toward future individuals who will be standing in their shoes, current decision-makers are encouraged to adopt long-term perspectives and consider the broader implications of their actions beyond the immediate. This responsibility is echoed in numerous statements by the ECtHR in its rulings about how it understands its own role in European society and the world, and about the deference it believes it owes to domestic decision-makers on the one hand, and to its own past and future work on the other hand. In this light, the ECtHR has struck a pragmatic yet slightly cynical balance between the great demands it was faced with and the great responsibilities it owes to European citizens, to other institutions, and to itself.
Continue reading >>The Ball is in the Game
In 2017 strategic lawsuits against public participation (SLAPPs) became an important topic on the EU level. As a result, the EU adopted the anti-SLAPP Directive, which shall protect journalists from abusive lawsuits that do not serve justice but only the sinister aim of silencing free press. However, there is important litigation as well. In 2024 the Real Madrid Club de Fútbol vs Le Monde case addressed the problem of exorbitant damages targeting press and introducing a deterrent effect on freedom of speech in transnational cases. From a rule of law and, especially, freedom of the press angle, the case is of paramount importance as it forwards a simple but groundbreaking argument: two of EU law’s most fundamental principles, mutual recognition and freedom of speech, are a strong basis to fight SLAPPs.
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From Urgenda to Klimaatzaak
On November 30, the Brussels Court of Appeal handed down its ruling in VZW Klimaatzaak v. Kingdom of Belgium & Others, commonly known as “the Belgian climate case.” The ruling is clear: Belgian authorities failed to participate adequately in the global effort to curb global warming, and they must imperatively reduce their emissions. Subscribing fully to Matthias Petel and Norman Vander Putten’s sharp analysis of how this litigation saga embodies tensions between climate justice and the separation of powers, we wish to highlight three remarkable aspects of the case. After quickly summarizing the first instance judgment and last week’s ruling, we begin by touching on the elephant in the (court)room: the articulation of the available scientific evidence with the limits of courts’ power of review and injunction. Then, we say a word about the Brussels Court of Appeal’s thorough application of European human rights law. We finish by deploring, as did the Court, Belgian federalism’s inefficiencies.
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The Mexican Standoff
In a historical march, tens of thousands of judicial staff, lawyers, and judges – including at least one justice of the Supreme Court – took to the streets of Mexico City on 22 October 2023. Chanting slogans such as ‘¡El Poder Judicial de la Federación no se toca!’ and ‘¡Somos los garantes de la Constitución!’ protesters rallied against the Mexican government’s plans to slash the federal judiciary’s (Poder Judicial de la Federación, PJF) funding. In this contribution, we analyse what this dispute is all about and explain why the government’s plans jeopardise the independence of the Mexican judiciary. In particular, we argue that the recent, seemingly innocent financial measures come at the cusp of an alarming authoritarian turn. Finally, we offer some tentative thoughts on what the endgame in this quickly escalating dispute might look like.
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Preserving Procedural Fairness in The AI Era
AI systems have been used and challenged by individuals affected by their output. In the absence of a regulatory framework, national courts in Europe have been called upon to address claimants’ demands for fairness and legal protection. While they have been activists in preserving individuals’ procedural rights by setting requirements for AI systems, the courts' role is, however, doomed to change when the AI Act enters into force.
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Towards a data-subject-friendly interpretation of Article 82 GDPR
Under the GDPR, Article 82 is the only instrument to claim compensation resulting from data protection infringements. So far, it has not been interpreted by the CJEU. To date, nine preliminary references on the interpretation of Article 82 have been made by national courts. On 6 October 2022, Advocate General Sánchez-Bordona delivered his Opinion in one of them. Since it will be the first CJEU judgment on this subject, it will have a profound impact on the further development of EU data protection law, in particular, its private enforcement.
Continue reading >>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 >>Never-Ending Exception
The planned 10th amendment to the Hungarian constitution aims to rewrite the current rules of Article 53, which allows the government to declare a state of danger (and rule by decree as it did during the last two years) in the event of a natural or industrial disaster endangering lives and property, or to mitigate the consequences thereof. According to the proposed new rules, the government will also be able to declare this kind of emergency ‘in the event of armed conflict, war or humanitarian catastrophe in a neighbouring country’. This is just the latest chapter in the story of the democratic and rule-of-law backsliding in Hungary.
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