27 September 2022

Defending the Judiciary

The strategies of judicial resistance employed by the Polish judiciary after 2015 are diverse and complementary. They respond to changing and intensifying the pressure of political power on the judiciary. They are a consequence of the judgments of the CJEU and the ECHR concerning the administration of justice in Poland. Continue reading >>
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12 September 2022

Pandering to peoples’ emotions is no solution

Poland’s next parliamentary elections will be held in autumn 2023. Polish academics are currently discussing how to repair the country's judiciary if the PiS government gets voted out of office. In this blogpost, Marcin Matczak offers a personal account of the on-going debate and advocates for a pragmatic rather than an emotional response. Continue reading >>
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09 September 2022

In einer Handvoll Staub

Ukraine, Frankreich, die EU und die Begrünung der Ödnis Continue reading >>
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In a Handful of Dust

Ukraine, France, the EU, and the Revegetation of the Wasteland Continue reading >>
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No Longer Feeling the Energy

On 25 August 2022, the government of Poland surprised all when it sent a previously approved (but unannounced) bill on the termination of the Energy Charter Treaty (ECT) to the State’s lower chamber. The ECT is the biggest multilateral investment treaty in the world and the only one to exclusively regulate cooperation in the energy sector. Continue reading >>
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08 September 2022

The “Year of Historical Memory” and Mnemonic Constitutionalism in Belarus

On 1st of September 2022, the academic year in all Belarusian schools started with an atypical lesson, on “historic memory” – led in Minsk by none other than the country’s “President” himself, Aliaksandr Łukašenka. There is a constitutional dimension to historical memory in Belarus, which is better grasped through the looking glass of mnemonic constitutionalism. Continue reading >>
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06 September 2022
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Sorge über den Fluss

Die Sorge geht über den Fluss. In einem Bändchen mit diesem Titel greift der Philosoph Hans Blumenberg die Fabel Cura des römischen Dichters Gaius Julius Hyginus auf, die vor ihm schon Herder, Goethe und Heidegger beschäftigt hatte. In der antiken Fabel formt die allegorische Figur der Sorge beim Überqueren eines Flusses aus vorgefundenem Lehm den Menschen und streitet dann mit Jupiter und Tellus über den Namen des von der Sorge erschaffenen Wesens. Continue reading >>
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02 September 2022

Klagen können

Sollte der Job der Hüterin der Verträge vergesellschaftet werden? Continue reading >>
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Standing

Should the job of being the keeper of the treaties be socialized? Continue reading >>
31 August 2022

Kein Geld ohne Reform

Polen stehen rund 35,4 Mrd. Euro aus dem im Dezember vom Europäischen Rat beschlossenen Nachcorona-Sonderbudget  („Next Generation“) zu. Bisher sind Zahlungen an Polen nicht geflossen.  Die EU-Kommission hatte am 1. Juni eine Reihe von Reformauflagen für das polnische Justizsystem als Bedingungen für die Freigabe des Aufbau- und Resilienzplans beschlossen. Zwar hat die polnische Regierung seitdem einige Reformen veranlasst, die europarechtlichen Voraussetzungen für die Auszahlung von Geldern an Polen aus dem Aufbaufonds der EU sind aber weiterhin nicht gegeben. Continue reading >>
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18 August 2022

Testing judicial independence

Despite the recent abolition of the Disciplinary Chamber, the crisis in the Polish judiciary is still far from resolved. The main reason for this is that the status of judges appointed at the request of the National Council of the Judiciary have not yet been addressed. As a result of the lack of a systemic solution, the problem of irregular judicial appointments must be dealt with by courts in concrete cases. For that purpose, the Supreme Court developed a test aimed at determination of the impact of irregularities in the appointment of judges on the legality of the composition of the court. The most recent amendment to the Act on the Supreme Court introduced a new test and raises serious concerns. Continue reading >>
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14 August 2022

Extinguishing the Court

The three quasi-judges in the Constitutional Tribunal and their participation in its adjudication are like a spoonful of tar in a barrel of honey: they contaminate the whole of the Tribunal. That is why the whole of the Constitutional Tribunal should be replaced in the event of a electoral victory of the democratic opposition in 2023. Continue reading >>
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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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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23 Juni 2022
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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

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 >>
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

Die Kapitulation

Im Ringen um die Einhaltung eingegangener Verpflichtungen und im Kampf für den Primat des Rechts vor der Macht ist die Entscheidung der Europäischen Kommission vom 1. Juni 2022 eine Niederlage. Dass hier etwas Problematisches passiert ist, indiziert der ungewöhnliche Vorgang, dass fünf Kommissare – und nicht die Unwichtigsten – sich im Kollegium gegen den Beschlussentwurf ausgesprochen haben. 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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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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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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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 >>
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12 April 2022

Elektronische Überwachung in Zeiten einer demokratischen Krise

Die polnische Erfahrung zeigt, wie eine entschlossene populistische Regierung mit denen in einer Demokratie zur Verfügung stehenden Mitteln in relativ kurzer Zeit die zur Kontrolle der staatlichen Überwachungstätigkeit geschaffenen rechtlichen Garantien aushöhlen kann. Die notwendige Geheimhaltung, die die Arbeit der Sicherheitsdienste umgibt, darf keine Gelegenheit zum Missbrauch von Befugnissen schaffen. Eine Überwachung ohne angemessene Kontrolle schwächt die Demokratie, führt zu einer Verzerrung ihrer Grundsätze und bedroht letztlich, wie der EGMR gewarnt hat, ihre Existenz selbst. Continue reading >>
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Electronic Surveillance in a Time of Democratic Crisis

The Polish experience demonstrates how a determined populist government, using the tools available in a democracy, can in a relatively short space of time erode legal safeguards established to control state surveillance activity. The understandable secrecy surrounding the work of the security services must not create an opportunity for the abuse of powers. Surveillance without adequate control weakens democracy, leads to a distortion of its principles, and ultimately, as the ECtHR has warned, threatens its very existence. Continue reading >>
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08 April 2022

We at War

It must remain our goal, says the Federal Chancellor, that Russia does not win this war. Continue reading >>
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25 März 2022

Der Blick auf uns

Deutsche Scham und ukrainische Rechnungen Continue reading >>

The Gaze Upon Us

German shame and Ukrainian claims Continue reading >>
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The Dangers of Freezing and Seizing

The Polish government argues that the only way to effectively seize the assets of Russian oligarchs is to amend the Polish Constitution, since it is currently impossible to do so without obtaining a final judgment of a court of law. Although the official goal may seem to coincide with the actions undertaken by the EU Council, the measures planned by the Polish governing powers should not be accepted without a second glance at their possible legal dangers.  Continue reading >>
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18 März 2022

Zwei plus zwei ist vier

Zeit, mal wieder Richter Igor Tuleya das Wort zu erteilen Continue reading >>

Two Plus Two Equals Four

Time to give once again the floor to judge Igor Tuleya Continue reading >>
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14 März 2022

Statement by Retired Judges of the Constitutional Tribunal on the the Constitutional Tribunal Judgment in case K 7/21

Retired judges of the Constitutional Tribunal state that the judgment in question is another scandalous example of jurisprudence violating the Constitution. Challenging Article 6 of the ECHR for the second time in a short period of time (previously in the judgment of 24.11.2021, K 6/21) is a drastic jurisprudential excess. Continue reading >>
10 März 2022

A Tale of Two Borders

Poland has an over 500 km long border with Ukraine and – right next to it – an over 400 km long border with Belarus. At the border with Ukraine, tens of thousands of persons are crossing each day, and the authorities are making a huge effort to make the crossing smooth. At the border with Ukraine, tens of thousands of persons are crossing each day, and the authorities are making a huge effort to make the crossing smooth. At the border with Belarus, people who are trying to cross into Poland are still forced to wander in minus temperatures through thick woods. Continue reading >>
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08 März 2022

“The Ever Closer Union among the Peoples of Europe” in Times of War

The war in Ukraine has brought a moment of the constitutional reckoning and the ultimate test of belonging for the Europeans. The ill-fated politics of appeasement and dialoguing with a criminal has come crushing down. Finally, Europe seems to take a more strategic and long-term view of its own politics at least when it comes to common foreign policy and defense. A true re-appraisal and reinvigoration of European ideals will however not be complete if the Union keeps looking the other way, dithering, procrastinating when its own axiological foundations are under attack by one of its own member states. Continue reading >>
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04 März 2022

The Rule of Law in a Time of Emotions

The aggression against Ukraine is brazen, ruthless and shameless. Images of women and children at border crossings, shelters and subway stations filled with civilians evoke very strong emotions, almost crowding out everything else. And yet the ongoing aggression is defined by another adjective: "lawless". There is a link between lawlessness and violence, between brutality and disrespect for the law as such. This is why, even in times like these, we must continue talk about the Polish rule of law crisis if Poland wants to be a credible international actor.  Continue reading >>
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22 Februar 2022

Not looking up

It now seems that after the ruling is before the ruling. The Commission is intent on continuing with its wait-and-see approach, a situation which Hungarian MEP Katalin Cseh compared to the Netflix movie “Don’t look up”, in which the President of the United States decides to ignore the huge comet approaching the earth. While in the movie the comet finally destroys the planet, the European Parliament, however, is determined not to let it come to that. It has made clear that it will not tolerate this policy of looking the other way and has taken up arms. Continue reading >>
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17 Februar 2022
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In Defense of Its Identity

The introduction of rule of law budgetary conditionality, as approved by the Court, is a first step in the right direction. But the Union must go further. Taking a page from fundamental rights and anti-discrimination law, we suggest the systematic, deliberate, and transparent incorporation of rule of law considerations into all Union policies and practices at all stages, from planning and legislation to execution and enforcement, with the aim of actively promoting, realizing, and sustaining the rule of law throughout the Union. Continue reading >>
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16 Februar 2022

No More Excuses

Sitting as a full court, due to the exceptional importance of the case, the Court of Justice has dismissed the annulment actions brought by the Hungarian and Polish governments against the Rule of Law Conditionality Regulation. A non-exhaustive account of the main substantive issues addressed by the Court. Continue reading >>
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Mutual (Dis)trust

Last week, the General Court of the European Union, in its judgment T-791/19 Sped-Pro, recognized for the first time the impact that systematic rule of law deficiencies have on national competition authorities. The judgement is seminal, in that it openly questions the ability of national authorities impacted by rule of law backsliding to effectively enforce EU law. The judgement also goes to the heart of explaining the pivotal constitutional role played by competition law within the EU legal order. Continue reading >>
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14 Februar 2022
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From Romania with Love

The CJEU judgment "Euro Box Promotion" explicitly extended the Union’s requirement of judicial independence to constitutional courts for the first time. The ‘Romanian’ ruling carries an important message for the Polish government on how the EU legal order might react to the recent rulings of the Polish Constitutional Tribunal, which negate the primacy of European Union law. As a consequence, the CJEU confirms the right and the obligation of national courts to disregard constitutional court rulings that violate EU law. Continue reading >>
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VerfassungsPod: EU v. Polen

Der Konflikt zwischen der EU und Polen ist bereits viel weiter eskaliert, als man bis vor kurzem für vorstellbar gehalten hätte. Und immer noch ist kein Ende in Sicht. Aus dem innerpolnischen Verfassungskonflikt um Rechtsstaat und unabhängige Justiz ist ein europäischer Verfassungskonflikt um den Vorrang des EU-Rechts geworden. Wie konnte das passieren? Was für Kräfte sind da am Werk? Und wie kommen wir da wieder heraus? Continue reading >>
11 Februar 2022

When Is a Court Still a Court?

On 3 February 2022, the European Court of Human Rights (ECtHR) issued a judgment in the case of Advance Pharma sp.z o.o. against Poland. This is another judgment on the irregularities in the appointments of judges to the Polish Supreme Court, in which the ECtHR confirmed its previous rulings. But it also touched on several implications of its conclusions for the Polish judiciary. It suggests that they may be relevant for ordinary courts in Poland as well and that Polish authorities should ensure the possibility to reopen proceedings in certain situations. Continue reading >>
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08 Februar 2022

The Duty to Exhaust Remedies with Systemic Deficiencies

On 3 February 2022, the European Court of Human Rights issued its judgment in Advance Pharma v Poland and addressed the question of whether an applicant is required to exhaust domestic remedies that suffer from systemic deficiencies for the first time. While the Court does not yet give a clear answer to this particularly sensitive issue, this case is another reminder of just how difficult it is for the Convention system to engage with countries that structurally impair their judicial system. Continue reading >>
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01 Dezember 2021

Das Damoklesschwert über der europäischen Rechtsordnung

Am 16. November fand vor der Großen Kammer des EuGH die mündliche Verhandlung im Verfahren C-562/21 PPU statt. Es ging um den europäischen Haftbefehl in Zusammenhang mit der Rechtsstaatlichkeit in Polen – einen europarechtlichen Dauerbrenner. Wie alle Fälle mit Bezug zur Rechtsstaatlichkeit in Polen hat auch dieser wieder einmal große politische Brisanz. Dennoch fand das Verfahren in der Öffentlichkeit relativ wenig Beachtung. Der EuGH könnte dabei wegen der langen Inaktivität der politischen Akteur:innen im Konflikt mit Polen und auch aufgrund seiner jüngsten Rechtsstaatsrechtsprechung eine tragische Rolle spielen, die sich aus der starken Verrechtlichung des Konflikts um die Rechtsstaatlichkeit ergibt. Continue reading >>
30 November 2021

A Blatant Attack on Free Media

In a recent and shocking judgment of the first instance, a criminal court in Warsaw has found the Polish journalist Ewa Siedlecka guilty of criminal libel (defamation) for commenting on the organized campaign  of hatred against independent Polish judges. This account deeply resonates with my own personal experience. Toutes proportions gardeés, I should add, since Ms Siedlecka has done immeasurably more for the rule of law in Poland than I did, and has run much higher risks – and incurred higher personal costs. Continue reading >>
29 November 2021

Military Actions on Dubious Legal Bases

For months, thousands of migrants from Middle Eastern countries attempted to enter Poland threatened by Belarusian troops. As a reaction, Poland has deployed substantial forces to counter the immigration influx, using the Border Guards along with police and military personnel. Thousands of Polish soldiers have been operating on the border with Belarus. There is, however, no published legal basis for these police-like interventions undertaken by military personnel. The spokesman of the Polish Territorial Defence Forces (WOT) cited an old act of the President on 28th of November, which is not in force anymore as it got repealed in June 2020. Continue reading >>
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The Honest (though Embarrassing) Coming-out of the Polish Constitutional Tribunal

The particular coming-out of the Tribunal, made in the judgment K 6/21 by admitting that the Constitutional Tribunal is not subject in general to the standards inherent in Article 6 EC, leads to the conclusion that the Polish Constitutional Tribunal and its judges need not be independent. Paradoxically, therefore, the judgment confirms (albeit by different reasoning) the disqualification of the Tribunal made in the Xero Flor judgment by ECtHR. And yet the Tribunal intended to remove the negative consequences for itself of the Xero Flor.  Continue reading >>
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23 November 2021
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On A Road to Nowhere

On Wednesday 24 November the Polish Constitutional Tribunal will, once again, review the extent to which existing international legal obligations, that were freely entered into by the Republic of Poland, are actually compatible with the Polish Constitution. Continue reading >>
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19 November 2021

Chronicle of a Death Foretold

The natural reaction of lawyers to even the most complex legal challenges is the readiness to submit realistic, lawful proposals for solutions. In the case of the Polish-Belarusian border  crisis however, lawyers being ignored, deprived of access to their clients (who have managed to hand over the powers of attorney certificates) or even intimidated, experience different feelings as well, those of helplessness and dread. Almost every element of the Polish government's actions towards the crisis on the border is frightening. At the same time, it demonstrates a complete lack of understanding of the situation of the dehumanized, compelled migrants who were drawn into this conflict not entirely of their own free will. Continue reading >>
17 November 2021

Towards Gilead

Just over one year ago, the Constitutional Court (CC) of Poland banned abortion in cases of fetal malformations. The implications of the ruling are much more far-reaching than the actual abortion ban itself since the ruling, by its reasoning, gave green light for further actions limiting abortion laws. While women all over Poland are afraid to get pregnant, the ruling party and fundamentalist organizations take further legislative action to increase punishment for abortion. Step by step Poland is beginning to resemble Gilead Republic, the infamous patriarchal theocracy from Margaret Atwood's novel "The Handmaid's Tale". Continue reading >>
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12 November 2021

Plaumann and the Rule of Law

Most recently, the CJEU sanctioned Poland with daily penalty payments for failing to suspend the operation of its Supreme Court’s disciplinary chamber. The disciplinary chamber’s interference with the independence of judges can have a profound impact on the preliminary reference mechanism as a means for individuals to seek the review of EU law. This must be addressed to safeguard the right to an effective legal remedy under Article 47 CFREU. One possible response may be to modify the Plaumann-test insofar as necessary to protect the functioning of the EU’s ‘complete system of legal remedies’. Continue reading >>
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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 >>
09 November 2021

Stating the Obvious

On September 16th, the ECtHR has ruled in the case X v. Poland that the denial of custody of a child must not be based on the sexual orientation of a parent. According to the Court, Poland has violated Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the European Convention of Human Rights when refusing the applicant full parental rights and custody of her youngest child. This ruling comes too late for the applicant, whose child has grown up, as the decision of the ECtHR took twelve years. Neverthelesess, in the current Polish context, the finding of the Court on this case sends an important message. Continue reading >>
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04 November 2021

A More Complex Union

Based on the new legal history of European integration that has come out over the last decade, I will offer a different interpretation of the role of law in the EU than the one typically offered by legal scholarship. The central conclusion is that there is an unresolved tension in the relationship between law and politics in the EU that will most likely shape the Union’s response to the Polish crisis. To conclude, I will offer several alternative scenarios of how the EU may react to the Polish crisis. Continue reading >>
03 November 2021

A(nother) lost opportunity?

The October meeting of the European Council (EUCO) was its first occasion to react to the declaration by the Polish “Constitutional Tribunal” that several provisions of the Treaty on European Union are incompatible with Poland’s Constitution and consequently inapplicable to the country. The express denunciation of fundamental provisions of EU primary law by one of its members (with the support of another), while insisting on his country remaining part of the Union, is a situation the EUCO could hardly overlook. And yet, not a word about the unfolding constitutional crisis was included in the EUCO Conclusions. Various elements may explain the restraint. However, the complete muteness from the EU crisis-manager-in-chief is more questionable and may carry a disquieting message. Continue reading >>
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Exclusion from the EU is Possible as a Last Resort

On 7 October 2021, the Polish Constitutional Tribunal issued a decision that can only be compared to setting off a bomb. Only integrationist dream-walkers could take the position that there is no legal possibility to withdraw the status of EU membership from an EU member state that permanently disregards the conditions of membership. Continue reading >>
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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 >>

Ein Ausschluss aus der EU ist als Ultima-Ratio-Maßnahme möglich

Am 7. Oktober 2021 hat das polnische Verfassungsgericht eine Entscheidung erlassen, die sich nur mit dem Zünden einer Bombe vergleichen lässt. Nur integrationspolitische Traumwandler könnten die Position zu vertreten, dass es keine rechtliche Möglichkeit gibt, einen EU-Mitgliedstaat, der die Mitgliedschaftsbedingungen dauerhaft missachtet, den Status zu entziehen. Continue reading >>
29 Oktober 2021

Warum das Zwangsgeld gegen Polen die Glaubwürdigkeit der EU stärken wird

Am 27. Oktober 2021 verhängte der EuGH ein Strafgeld in Höhe von 1 Million Euro pro Tag gegen Polen, weil sich der Staat bisher konsequent geweigert hatte, die einstweiligen Anordnungen im Rahmen des jüngsten Vertragsverletzungsverfahrens zu befolgen. Dass die EU zu diesem drastischen Mittel greift, verleiht ihr im zähen Ringen um wirksame Maßnahmen gegen Polen Glaubwürdigkeit und könnte langfristig eine Abkehr von politisch ausgehandelten Sanktionen einläuten. Continue reading >>
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The Deadly Woods

Since August 2021, hundreds of people have attempted, and many have succeeded, to irregularly cross the border from Belarus to Poland. In retaliation, they are pushed back to Belarus by Polish authorities and then forced to cross back to Poland by Belarusian authorities. Forced to repeatedly wander in minus temperatures through thick woods, many persons have been seriously injured and at least several have died. As of the end of October 2021, there are two parallel frameworks legalizing pushbacks in Poland. Continue reading >>
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28 Oktober 2021

Die andere Rechtsstaatlichkeitskrise

An der polnisch-belarussischen Grenze spielt sich ein Drama der Rechtsmissachtung ab,  inzwischen mit mehreren Toten. Es ist dies die andere, leisere Rechtsstaatlichkeitskrise: die des entgegen klarer Vorgaben des Unionsrechts verweigerten Zugangs zu einem Asylverfahren; die der wiederholten Missachtung von einstweiligen Anordnungen des Europäischen Gerichtshofs für Menschenrechte (EGMR). Continue reading >>
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27 Oktober 2021
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This Was Not Just Another Ultra Vires Judgment!

A few days ago, 27 retired judges of the Polish Constitutional Tribunal have issued a statement concerning the judgment K 3/21 of 7 October 2021. We are both among its signatories. With this article, we hope to contribute to the clarification of the false statements contained in that judgment, its oral explanations and statements of representatives of political authorities, regarding the difficult matters of coexistence of Polish law and European Union law. Continue reading >>
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15 Oktober 2021

Nach der Explosion

Die Fallout-Wolke verdunkelt den Himmel über uns, und wo sie sich entladen wird, weiß nur der Wind.   Continue reading >>
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After the Explosion

The fallout cloud darkens the sky above us, and only the wind knows where it will unload its noxious cargo.   Continue reading >>
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Resolution No. 04/2021

of the Committee of Legal Sciences of the Polish Academy of Sciences of October 12, 2021 in regard to the ruling of the Constitutional Tribunal of October 7, 2021 Continue reading >>
14 Oktober 2021

Historische Zäsur für den Rechtsstaat

Die zweitägige mündliche Verhandlung zu den Klagen von Ungarn und Polen gegen den sog. „Rechtsstaatsmechanismus“ war eine Zäsur für den europäischen Rechtsstaat und die Geschichte Europas: Die gesamte Verhandlung stand im Schatten des jüngsten „Urteils“ des „polnischen Verfassungsgerichts“, das sich weigert, Entscheidungen des Europäischen Gerichtshofs umzusetzen. Noch nie hat Polen die Geltung der Grundsätze der Rechtsstaatlichkeit mit solcher Vehemenz und solchem Eigensinn bestritten, wie es im Verlauf dieser Verhandlung sichtbar wurde. Man konnte der Europäischen Union bei ihrem Zerriss zuschauen. Continue reading >>

A Closing of Ranks

On 11 and 12 October the Court of Justice of the European Union sat in Full Court composition (a rarity) to hear Hungary’s and Poland’s challenge of the legality of the rule of law conditionality regulation. Its ruling will follow (hopefully shortly) the Advocate-General’s Opinion announced for 2 December 2021. It will most likely reconfirm that the Union legal order is based on clear and binding rule of law norms, and that these must, of legal necessity, apply across all EU policy fields, including the EU budget. It will be a judgment of great significance about the very nature and purpose of the EU. Continue reading >>
13 Oktober 2021

Sealed, Stamped and Delivered

By publishing the judgement K 3/21 of the Constitutional Tribunal of 7 October 2021 in Poland’s official journal, the Polish government has notified the European Council of the decision of the Republic of Poland to leave the Union. To avoid the serious consequences this entails for its citizens, Poland has two options. Continue reading >>
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12 Oktober 2021

Gazing into the Abyss

On Thursday 7th October 2021 the Polish Constitutional Tribunal issued its decision in the case K 3/21. Politically, this situation is likely a crucial point in the Polish rule of law saga. Legally, it is a decision taken by a not independent court that ignored both domestic provisions and EU law towards arriving at a politically motivated outcome tailored towards the interests of the ruling party. Continue reading >>
11 Oktober 2021

Statement of Retired Judges of the Polish Constitutional Tribunal

On 7 October 2021, the Constitutional Tribunal issued a judgment in case K 3/21 concerning the place of EU law in the Polish legal order. The judgment caused great public concern due to its foreseeable devastating consequences for the position of the Republic of Poland as a Member State of the European Union. The retired judges of the Constitutional Tribunal fully share this concern. In addition, however, they consider it their duty to correct the many false assertions contained in the judgment, its oral reasoning and the comments of representatives of political power. Continue reading >>
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Resisting Membership Fatalism

While we fully agree with the main thrust of the editorial ‘The Exit Door’ on Verfassungsblog last Friday, we would like to warn against its seemingly fatalistic mindset. Yes, a Polexit from the EU is not on the table until the Polish government itself pushes the Article 50 TEU button, but the other EU Member States do not have to idly wait ‘hoping’ for a resolution to the crisis. Continue reading >>
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10 Oktober 2021

Whoever equates Karlsruhe to Warsaw is wildly mistaken

In the Polish, and to some extent also in the German public discourse, the ruling of the Federal Constitutional Court of 5 May 2020 on the partial unconstitutionality of the ECB's PSP programme is considered to be qualitatively comparable to the ruling of the Polish Constitutional Tribunal of 7 October 2021. In this respect, the Polish judgement is merely seen as a continuation of the established case law of the Bundesverfassungsgericht. From a legal point of view, however, this is clearly false. Continue reading >>

Wer Karlsruhe mit Warschau gleichsetzt, irrt sich gewaltig

Im polnischen, partiell aber auch im deutschen Diskurs wird das Urteil des Bundesverfassungsgerichts vom 5.5.2020 zur partiellen Verfassungswidrigkeit des PSP-Programms der EZB als qualitativ vergleichbar mit dem Urteil des polnischen Verfassungsgerichts vom 7.10.2021 eingestuft. Das polnische Urteil knüpfe insoweit lediglich an die gefestigte Rechtsprechung des BVerfG an. Dem ist aus juristischer Sicht aus verschiedenen Gründen deutlich zu widersprechen. Continue reading >>
08 Oktober 2021

Die Tür nach draußen

Nur Polen kann Polen aus der EU werfen. Oder drinbehalten. Continue reading >>
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The Exit Door

Only Poland can take Poland out of the EU. Or keep it in. Continue reading >>
17 September 2021

How Much Money is a Lot of Money?

On 7 September 2021, the European Commission announced that it will ask the European Court of Justice (ECJ) to impose financial penalties on Poland for not complying with the Court’s order for interim measures of 14 July 2021 regarding its Disciplinary Chamber. The Commission must be able to threat the member state in question not only credibly, but also with amounts that are high enough to deter them from continuing on their rule-of-law-breaching-path. Continue reading >>
26 August 2021
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The EU’s Face in Łukašenka’s Mirror

On the Polish-Belarusian border thirty-two Afghan citizens have been sitting quite literally between the Belarusian border guards on the one side and Polish border guards, army and police on the other for two weeks now. They sit there without access to water, food or medical aid. They sit there claiming their rights under EU and International law. Yet, they are not allowed to ask for asylum or establish any contact with the outside world. The tragic situation of those thirty-two hostages exemplifies both how devastating the consequences of rule-of-law backsliding might be and how closely linked the rule of law breakdown in Poland and the general denigration of EU values in the field of migration are. Continue reading >>
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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 >>
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11 August 2021

The Disciplinary Chamber May Go – but the Rotten System will Stay

The notorious Disciplinary Chamber of the Polish Supreme Court, unlawful under EU standards according to the European Court of Justice, will be abolished. The Disciplinary Chamber is perhaps the most abhorrent part of the system, but it is not the entire system. Systemic and ongoing persecution and harassment of independent judges may easily continue, and most probably will. No one should be duped by such a pars-pro-toto solution because, unless and until a broader change is introduced, it will remain a purely PR exercise, meant to reassure Brussels that the Recovery money should now be disbursed to Poland. Continue reading >>
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29 Juli 2021

Hundreds of judges appointed in violation of the ECHR?

On 22 July 2021, the European Court of Human Rights issued its third judgment concerning the rule of law crisis in Poland. In Reczkowicz v. Poland the Court ruled that the Disciplinary Chamber which dismissed the cassation complaint of the applicant did not meet the standard of a “right to a court established by law” guaranteed under Article 6 § 1 the Convention. The judgment is important not only because the ECtHR reviewed the status of the Disciplinary Chamber – a controversial body that was also the subject of a recent CJEU judgment – but also because it seems that the reasoning of the Court can be applied to hundreds of other newly appointed judges. Continue reading >>
28 Juli 2021
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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 >>
20 Juli 2021

Protecting Polish Judges from Political Control

After many years of judicial “reforms”, Kaczyński’s Poland may soon become the EU’s second authoritarian Member State, even as the European Court of Justice increasingly attempted to deal with different aspects of Kaczyński’s multi-pronged attacks on judicial independence. In Case C-791/19, the found the new disciplinary regime for Polish judges to be incompatible with EU law while in Case C-204/21 R, the Vice-President of the ECJ ordered the immediate suspension of the application of the legislative provisions governing the jurisdiction of the infamous “Disciplinary Chamber”. Continue reading >>
19 Juli 2021

Polexit or judicial dialogue?

In the world of EU law, Poland and the rule of law, it was a wild third week of July. A series of events unfolded in Warsaw and Luxembourg, adding to the saga of Polish rule of law travails before courts. All levels of Polish government and bodies controlled by the ruling party have decried CJEU interim orders and judgments, indicating a complete lack of will to comply with EU law and CJEU rulings. Is a "Polexit" looming? Continue reading >>
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14 Juli 2021

An Appeal to Polish Authorities

On 23 June, Bartosz Kramek, a Polish activist and the Chair of the Supervisory Board of the Open Dialogue Foundation (ODF), a Poland-based international NGO on the frontlines of the fight for the rule of law in the country, was arrested by he Internal Security Agency. Mr Kramek is currently under unconditional pre-trial detention. The court approved placing him under detention with a bail of 300,000 PLN to be delivered by 8 July 2021. The prosecutor filed an objection, which means that, irrespective of the payment, Mr Kramek will not be released until the court’s decision becomes final, that is, until the second-instance court examines the prosecutor’s appeal. If the court agrees, a well-known government critic and civic activist will be put behind bars for at least 3 months, making him a political prisoner in an EU Member State. Continue reading >>
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29 Juni 2021

Too little, too late

A few weeks after the ECtHR first stepped into the ring for the fight against rule of law backsliding in Poland via its Xero Flor judgment, it has now dealt a new blow to the Polish judicial reforms. In its Broda and Bojara ruling, the issue at hand was not the composition of the Constitutional Court, but the termination of judges’ mandates as court (vice) president. In its judgment, the Court showed once more its commitment to the safeguarding of domestic judges and the procedural protection they should enjoy. Yet, one can wonder whether the judgment will really have an impact and if it is not too little too late. Continue reading >>
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18 Juni 2021

“Non-Existent”

Last Tuesday, the Polish Constitutional Tribunal delivered a ruling which makes the extent of the crisis of the rule of law in Poland unambiguously clear. And it shows how the gap with Europe is widening day by day. If the Committee of Ministers of the Council of Europe lets this pass, it will not only be a blow to the authority and effectiveness of the Strasbourg Court of Human Rights. Then the guardians of the rule of law will have surrendered even faster than we thought. Continue reading >>
30 Mai 2021

Good European Neighbours

On 21 May 2021 the Vice-President of the Court of Justice of the European Union (CJEU), Ms Rosario Silva de Lapuerta granted interim measures in the case of Czech Republic v Poland, ordering Poland to immediately cease lignite extraction activities in the Turów mine.  An action against a Member State which might have breached an EU directive – in this case by extending a lignite mining permit without carrying out an environmental impact assessment – may seem like an ordinary environmental case falling under the remit of EU law. The Czech Republic v Poland case, however, is anything but ordinary for at least two reasons. Continue reading >>
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28 Mai 2021

Borders

On Zittau, environmental impact and what we can get used to and what not Continue reading >>
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Grenzen

Über Zittau, Umweltverträglichkeitsprüfungen und woran wir uns gewöhnen können und woran nicht Continue reading >>
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21 Mai 2021

Dance of Courts

State, federal and EU constitutional law and the emergence of black holes on the legal map of Europe Continue reading >>
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Tanz der Gerichte

Länder-, Bundes- und EU-Verfassungsrecht und das Auftauchen von schwarzen Löchern auf der Landkarte Europas Continue reading >>
10 Mai 2021

The ECtHR Steps into the Ring

For the last two years, the fight for safeguarding the principle of the rule of law in Poland has been dominated by the ECJ’s case law. During this, the Strasbourg Court has mostly been sitting in the bleachers. Yet, with its Xero Flor judgment of 7 May, it strapped on its gloves and stepped into the ring. It concluded that the Polish Constitutional Tribunal, in its current composition, cannot be seen as a tribunal established by law. The decision will undoubtedly have major political and legal consequences. Continue reading >>
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09 Mai 2021

What Should and What Will Happen After Xero Flor

On 7 May 2021, the European Court of Human Rights issued a judgment in a case concerning irregularities in the personal composition of the Polish Constitutional Tribunal. The ECtHR found a violation of “the right to a tribunal established by law” due to fact that the decision on the discontinuation of the proceedings concerning a constitutional complaint filed by a Polish company was issued by the Constitutional Tribunal with the participation of a person who was unlawfully elected to the position of judge. The said judgment is the first ruling of an international body finding that the irregularities in the functioning of the Polish Constitutional Tribunal violate international law. Continue reading >>
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28 April 2021
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Solving the Copenhagen Dilemma

By proclaiming an entirely new ‘non-regression’ principle in EU law based on the connection between Articles 49 TEU (EU Enlargement) and 2 TEU (EU values, referred to from Art. 49), the Court of Justice achieved huge progress in addressing a well-known lacuna undermining the EU legal order. The ‘non-regression’ principle is a new important direction in the notable fight for the EU rule of law started with the discovery of EU competence in, in particular, the area of judicial independence and the organization of the judiciaries in the EU Member States. Continue reading >>
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How the EU is Becoming a Rule-of-Law-less Union of States

The most recent attempt by Poland's executive to undermine the very foundations of the Union legal order speaks volumes about how far the politics of resentment have come since 2015. With the Constitutional Tribunal about to hand the government its desired excuse to ignore interim measures of the Court of Justice of the European Union, a point of no return might have been reached. This new phase sees the dismantling of the rule of law on the domestic front being reinforced, aided and abetted now by the legitimizing inaction and/or spineless bargaining at … the supranational level. The EU through its institutions is playing the game according to the rules dictated by the smart autocrats. Continue reading >>
27 April 2021

Bad Tandem

With its ruling of 15 April 2021, the Polish Constitutional Tribunal willingly accepts the role of substitute lawmaker. The result is an inelegant, clumsy judgment that creates more problems than it solves. The Constitutional Court as the executor of the parliamentary majority destroys not only its reputation but also the purpose of the negative legislator. In the case of the Commissioner for Human Rights, the solution of a political problem is once again transferred to the Constitutional Court. Continue reading >>
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03 April 2021

From Captured State to Captive Mind

Finding two history professors guilty of allegedly defaming the good name of an individual by researching his alleged role in the Holocaust must not be treated as yet another run-of-the-mill litigation instigated by a relative concerned about a tarnished good name. Rather, Poland seems to be entering an unchartered territory of settling the score by way of the long arm of the law. The sacred dignity of the Polish nation hidden under the convenient argument from protecting the “good name” of individuals takes center stage and overshadows the need to have a robust historical discourse. Continue reading >>
29 März 2021

Intimidation through Litigation

Last week, legal proceedings were initiated against a Polish writer as well as a couple of high school students for allegedly insulting Polish President Andrzej Duda. These proceedings are just the latest examples of how Polish authorities or their allies attempt to intimidate and silence critics by means of litigation. Continue reading >>
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28 März 2021
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A Letter to the European Commission

Further to the letter of December 2020, endorsed by more than 5,000 judges and prosecutors of the Member States, we, the representatives of Polish civil society organisations and European scholars specialising in EU law and human rights, are writing to you once again in connection with the worsening rule of law crisis in Poland. We have now reached a stage where independent judges seeking to apply EU law and the Court of Justice’s judgments are threatened with abusive criminal charges and coercive measures. We urge you therefore to urgently adopt concrete legal measures to prevent the further destruction of the rule of law in Poland. Continue reading >>
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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 >>
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11 März 2021

Historians on Trial

On 9 February 2021, the District Court in Warsaw ruled that two prominent Holocaust researchers must publicly apologize for statements published in a book about the extermination of Jews in Nazi Germany-occupied Poland during the Second World War. The lawsuit is an example of strategic litigation aimed at intimidating researchers and exercising a chilling effect on the debate in Poland due to the involvement of an organization close to the government and framing of the case in pro-government public and private media. In March, courts in Poland handed judgments in two other important strategic lawsuits brought on criminal charges. Continue reading >>
03 März 2021
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Corona Constitutional #56: Wer gewinnt?

EU-Mitgliedstaaten, die ihre Justiz unterjochen, verletzen EU-Recht: das hat der EuGH in Luxemburg mit seinem gestrigen Urteil zum polnischen Nationalen Justizrat kraftvoll deutlich gemacht. Die PiS-Regierung in Polen darf nicht einfach den Rechtsbehelf gegen Entscheidungen des von ihr kontrollierten Justizrat mit einem gesetzgeberischen Federstrich abschaffen. Der Kanal zwischen unabhängigen polnischen Gerichten und dem EuGH muss offen bleiben – und gleichzeitig versucht die PiS verzweifelt, diesen Kanal zuzustopfen. Wer wird das Rennen gewinnen? Darüber diskutiert Max Steinbeis heute mit dem Verfassungsrechtsprofessor WOJCIECH SADURSKI von der Universität Sydney. Continue reading >>
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Misjudging Judges

5231 magistrates from all over the EU had signed a letter to call the EU Commission to urgent action regarding the rule of law situation in Poland, Hungary and other member states. Unbelievably, Commissioners Reynders and Jourová, in their reply to the judges’ letter that transpired on 1 March, managed to make matters considerably worse.  Continue reading >>
25 Februar 2021

The EU Parliament’s Abdication on the Rule of Law (Regulation)

To paraphrase a previous blog entry by Scheppele, Pech and Kelemen, if the The Decline and Fall of the European Union is ever written, historians will conclude that not only the EU’s two key intergovernmental institutions – the European Council and the Council – should bear the greatest responsibility for the EU’s demise, but also the EU Parliament. Indeed, by failing to challenge the legality of the EUCO’s December conclusions encroaching upon its own prerogatives, the EU Parliament might have just become an enabler of the ongoing erosion of the rule of law across the Union. Paradoxically, it did so after relying on incomplete and partial opinion of its own legal service advising the Parliament to trade the respect of the rule of law away for political convenience. Continue reading >>
09 Februar 2021

The Enemy Within

It is an oft-forgotten fact that Poland has a coalition government. And it is oft-forgotten for a good reason: the largest of the coalition partners, PiS, carries a plurality of votes in the Parliament as well as the strongest popular support. For most of the time this allows them to suppress or ignore any dissenting voices within the coalition. The coalition arrangement however causes constant tensions. Continue reading >>
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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 >>
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26 Januar 2021

Witch Hunt against 14 Cracow Judges

Judges who have examined cases related to the reinstatement of Prosecutor Mariusz Krasoń have been and are being persecuted for their purely judicial actions. Krasoń called attention to the politicization of the prosecutor’s office in a May 2019 resolution adopted by the Assembly of Prosecutors of the Regional Prosecutor’s Office in Cracow. As a result he was demoted, harassed, and his workplace was moved around 300 km from his residence. Over the last two months, the Internal Affairs Department of the National Public Prosecutor’s Office has summoned as witnesses 14 judges from five different benches of Cracow’s district, regional and appellate courts. The judges now face potential criminal charges of failure to fulfil obligations as public officials, punishable by up to three years of imprisonment (Art. 231(1) of the Penal Code). Their purported crime? Failing to persecute Prosecutor Krasoń.  Continue reading >>
25 Januar 2021

A Weapon the Government Can Control

In 2020 the degradation of the Polish Constitutional Tribunal’s position deepened. This stage of the crisis of the constitutional judiciary in Poland can be illustrated with two rulings from 2020 Continue reading >>
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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 >>
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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 >>
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14 Dezember 2020

Towards an EU Cast in the Hungarian and Polish Mould

It is a serious achievement on Hungary’s and Poland’s part to drive EU institutions so far into mocking the rule of law in the spirit of defending it. Then again, this is exactly what illiberal constitutional engineering is about: using familiar constitutional and legal techniques for ends that subvert constitutionalism and the rule of law. Continue reading >>
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Filling the Polish ECtHR judgeship – risking (another) empty seat?

The Polish judgeship at the ECtHR must be filled, as the term of Judge Krzysztof Wojtyczek is due to expire on 31 October 2021. The Polish Government has submitted a list of three candidates. Due to the lack of fairmess, inclusiveness and transparency of the procedure, it is likely that the seat of the Polish judge will remain vacant. Continue reading >>
13 Dezember 2020
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Compromising the Rule of Law while Compromising on the Rule of Law

Some EU leaders may assert that EU money will now be brought under the rule of law given that the Conditionality Regulation is now guaranteed to pass. But they are wrong. Continue reading >>
08 Dezember 2020

Disqualifying Instability

The so-called conditionality mechanism (in other words: "money for the rule of law") provides that breaches of the principle of the rule of law that threaten the EU’s financial interests may lead to suspension of funding. Poland and Hungary oppose this conditionality as they – with good reason – fear that they might be affected by it. What is required not to be subject to this mechanism, however, is quite straightforward and can be reasonably expected by an EU Member State. Continue reading >>
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04 Dezember 2020

Klagen und klagen lassen

Über Mitgliedstaaten, die Mitgliedstaaten verklagen, und andere aktuelle Rechtsstaatlichkeitsthemen Continue reading >>
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Sue and Let Sue

On member states taking member states to court, and other topical rule of law affairs Continue reading >>
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02 Dezember 2020

A New Nail in the Coffin for the 2017 Polish Judicial Reform

On 1 December the Grand Chamber of the ECtHR gave an important ruling that may have wide-reaching implications for the ongoing attempts to curb the rule of law backsliding in Poland and other countries. The case addresses the appointment of judges, and the way this affects the status of a court as a “tribunal established by law” in the meaning of Article 6 of the ECHR. Continue reading >>

A Momentous Day for the Rule of Law

Five Member States led by example by following the Commission’s lead in defending Union law. That is how the EU system was designed to function. Add a simultaneous important ruling of the Strasbourg Court and an unprecedented Dutch parliamentary motion, and this was an important day for rule of law protection in the EU. Continue reading >>
30 November 2020
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Time Is of the Essence

The announced veto of the Hungarian and Polish governments on the EU multi-annual budget and the European recovery fund has caused a major stir in recent days in Europe. The conditionality mechanism is designed to safeguard the Union’s financial interests and complements the existing political and judicial mechanisms. It is expedient to review the state of play of the procedures in place and, if necessary, to pose questions, whether they stand up to the challenges posed by developments in the respective countries, if they are carried out in a timely manner and focus on genuine effectiveness. Continue reading >>
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27 November 2020

From Warsaw with Love

Why the Polish government is wooing German jurists Continue reading >>
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23 November 2020

Die Rückkehr der Jedi-Ritter?

Könnte man die finanziellen Covid-Hilfsmaßnahmen außerhalb des rechtlich-institutionellen Rahmens der EU vereinbaren – ohne Polen und Ungarn? Die Geschichte der europäischen Integration ist immer wieder von intergouvernementaler Zusammenarbeit jenseits des bestehenden Primärrechts vorangetrieben worden. Für die vorliegende Problemlage erscheint eine intergouvernementale Lösung zwar rechtlich möglich, sie erweist sich indessen aus nicht-rechtlichen Gründen als unbefriedigend. Continue reading >>
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20 November 2020

Even in Prison

A message from Judge Igor Tuleya Continue reading >>

Auch im Gefängnis

Eine Nachricht von Richter Igor Tuleya Continue reading >>
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12 November 2020

A Tragic Constitutional Court Judgment on Abortion

Ewa Łętowska examines the Polish Constitutional Court's judgement on abortion and finds that it shows how far the country has moved towards religious and moral fundamentalism. The ruling creates a wobbly, unclear and hypocritical legal state. Continue reading >>
09 November 2020
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Divine Decision-Making

The most recent abortion decision of 22 October 2020 of Poland’s Constitutional Court (“the Court”) did not come as a surprise. It is not, as some commentators would like to see, an aberration, a departure from previous liberal and human rights-based standards by a group of judges linked to the Law and Justice party. Rather, it is a consequence of the right-wing constitutionalism that has dominated the Court for years. This discourse that introduced religious dogma as the basis for legal reasoning is undemocratic and exclusionary. It presents religious worldviews as textual consequences of the constitution without taking into account the voice of citizens. The persistence of this type of constitutionalism can be demonstrated on example of a number of cases important for the public sphere in Poland. Continue reading >>
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08 November 2020

Of Asymmetries, Aspirations and…Values, too

How are the transnational legal order (“TLO”) and transnational governance affected by the democratic backsliding, authoritarianism and populism? As painfully evidenced by the Polish and Hungarian cases, the system of governance and constitutional design of the European TLO have been in error of “normative asymmetry”: transnational authority to ensure that the states remain liberal democracies has not been effectively translated into the transnational law and remedies. In order to make the TLO more responsive to the democratic threats, however, it is crucial to take on the challenges that go beyond institutional and procedural tinkering. Continue reading >>
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04 November 2020

Der Trumpf wird zur Last

In Polen wird gerade sehr deutlich, dass es nicht im politischen Interesse liegt, Gerichte parteipolitisch auszurichten. Seit Jahren beobachtet die Öffentlichkeit entsetzt, wie die Parlamentsmehrheit unter PiS das Ansehen und die Legitimation des Verfassungsgerichts untergräbt. Zunächst, indem sie das Gericht verfassungswidrig besetzte und es, quasi gegen seine Natur, zum Verbündeten der Parlamentsmehrheit machte. Jetzt kommt noch das umstrittene Abtreibungsurteil vom 22. Oktober dazu. Das Kalkül der Regierungspartei scheint jedoch nicht aufgegangen zu sein und die Entscheidung wird für PiS zum politischen Problem. Ignoriert sie das Urteil, wird das „eigene“ Verfassungsgericht geschwächt, setzt sie es um, droht ihr der Machtverlust. Continue reading >>
03 November 2020

Populist but not Popular

After the judgment of the PiS-controlled Constitutional Tribunal, the sharp drop in support for PiS in the latest polls makes the ruling camp try panically to minimize the political losses it has suffered. One symptom of that panic is the fact that the judgment of the Constitutional Tribunal has not yet been published. Another is draft law submitted by the PiS-aligned President Duda slightly alleviating the effects of the judgment of the Constitutional Tribunal. All this proves how deep the crisis of the rule of law and how blurred the border between law and politics in Poland have become. Continue reading >>
30 Oktober 2020

Weißglut in Warschau

Warum der Protest gegen das "Abtreibungsurteil" weit mehr ist als nur das Continue reading >>

Livid in Warsaw

Why the protests against the "abortion judgment" are a lot more than just that Continue reading >>
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24 Oktober 2020

No more “Business as Usual”

The Polish Constitutional Court (“the Court”), once a proud institution and an effective check on the will of the majority, is now a shell of its former self. It has become a dangerous and unhinged institution that uses the judicial review both as a sword to punish the opponents and to promote the illiberal agenda of the ruling majority. Thursday’s abortion ruling is only the latest example. In these dark days we must always remember the old Constitutional Court and the liberal foundations it had laid for more than twenty years. More crucially, accepting the current constitutional oppression as “business as usual”, will carry the risk of losing the rule of law in Poland for good. Continue reading >>
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A Dubious Judgment by a Dubious Court

On 22 October 2020 Poland’s Constitutional Tribunal, dominated by judges appointed under the procedure introduced by the ruling right-wing populist PiS party, has determined that abortion due to foetal defects is unconstitutional, rejecting the most common of the few legal grounds for pregnancy termination. This ruling is very controversial and caused civil disquiet and protests. Continue reading >>
14 Oktober 2020

The Ombudsman before the Polish Constitutional Tribunal

On 9th September 2020, the 5-years term of the current Polish Ombudsman (Rzecznik Praw Obywatelskich, Commissioner for Human Rights) Adam Bodnar, has ended. The Parliament did not select a new person for this position yet. Thus, following the Article 3.6 of the Law on the Commissioner, Professor Bodnar stays in the office until the appointment of the new Commissioner for Human Rights. However a group of MPs demands the Constitutional Court to delete this legal basis, leaving the office without its head. The Court wants to decide on this case on 20th October. Continue reading >>
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12 Oktober 2020

Constitutional Borrowings, Not Hegemony

The question about the legal hegemony of Germany was raised by comments from lawyers, but also politicians, in connection with the - undoubtedly - controversial decision of the German Constitutional Tribunal in the PSPP case. Armin von Bogdandy’s introduction refers primarily to the problem of the Europeanization of Germany vs. the Germanization of Europe in the context of European integration and Sabino Cassese’s description of “some specific decisions of these more recent EU-specific decisions of the Second Senate of the German Federal Constitutional Court as an attempt to put a German dog leash on European institutions". But it also refers to the past of the countries of Central and Eastern Europe and the "imposition" of "an enlightened, soft neo-liberalism" on the countries of this region (Bogdan Iancu). In the case of Poland, because Kaczyński’s government seems to be a persecutor against the proceedings which the German jurisprudence provides, "the secret crypt in which the seeds of its spirit will be protected...". (Carl Schmitt). Continue reading >>
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06 Oktober 2020

The Plaintiff who turned into a Prosecutor

Readers of this blog are familiar with how the Polish government, led by the Law and Justice party (PiS) and the institutions it controls, is trying to silence Professor Wojciech Sadurski in a coordinated campaign of lawsuits (see here, here, here and here). On Friday 2 October 2020, he was again in court. This time for his third case: a criminal lawsuit brought by TVP, the public but de facto purely pro-government TV-station. Continue reading >>
01 Oktober 2020
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Today Tuleya, Tomorrow the EU

Igor Tuleya is someone you should know. He is your judge, wherever you live in the EU. More specifically, he is a judge at the District Court in Warsaw. Next Monday, on October 5th 2020, he may lose his judicial immunity as a result of a hearing before the “Disciplinary Chamber” of the Polish Supreme Court. If this happens, he will likely face subsequent criminal charges, and, as a consequence, a very real risk of imprisonment. If this happens, it will affect every independent and impartial judge in Poland. If this happens, it will affect every EU citizen too. Continue reading >>
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30 September 2020
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LawRules #2: We need to talk about Judicial Nominations

It's easy to agree that judicial independence is important – but who gets to be a part of the judiciary, who gets promoted to which court and who enters the highest ranks is a decision that has to be taken by someone, and a lot depends on who that someone is. Controlling judicial nominations is one of the key elements in all authoritarian takeover strategies which have been implemented in recent years in Poland, in Hungary and elsewhere. This is what we will discuss with the president of the European Network of Councils of the Judiciary, a member of the board of the Polish independent judges’ association IUSTITIA, and a German judge at the Bundesgerichtshof. Continue reading >>
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28 September 2020
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Before It’s Too Late

Dear President von der Leyen, in your recent State of the Union address, you rightly emphasized that “breaches of the rule of law cannot be tolerated.” We are sorry to say we are seeing ample evidence to the contrary. Continue reading >>
26 August 2020

Fencing Off the Difference

Public statements of high-ranking politicians expressing hostility towards and disdain of sexual minorities have become common in the recent years in Poland. But the problem of “LGBT-Free Zones” has given the topic a new constitutional quality. Continue reading >>
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03 August 2020

Polexit – Quo vadis, Polonia?

Unkenntnis und Unwille sind in Polen heute an der Tagesordnung: Unkenntnis darüber, wie das europäische Recht und die europäischen Institutionen funktionieren und Unwille, sich an die freiwillig eingegangenen europäischen Verpflichtungen zu halten. Wir sind Zeugen, wie in Polen die Grundprinzipien der EU untergraben werden. Wenn aber das Rechtssystem der EU in Polen nicht mehr wirksam ist, ist das: der Polexit. Die bedenkenlose Säuberung des Obersten Gerichts, schließlich die Aushebelung der Vorabentscheidung, die Einschüchterung der Richter durch Disziplinarverfahren, das alles ist leider bereits der Polexit. Richtig verstanden bedeutet der Polexit allerdings sehr viel mehr als die Nichtanerkennung des europäischen Rechts und die Angriffe auf die Gerichte. Continue reading >>
15 Juli 2020
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Corona Constitutional #44: Was jetzt auf Polen zukommt

Die Präsidentschaftswahl in Polen ist gelaufen, alle haben artig dem Amtsinhaber Andrzej Duda zur zweiten Amtszeit gratuliert, als sei das einfach nur eine demokratische Wahl wie jede andere. Dass sie das nicht war, sondern vielmehr die letzte, nunmehr verpasste Ausfahrt vor dem endgültigen Umbau Polens in eine Autokratie, erfährt man, wenn man mit Leuten wie WOJCIECH SADURSKI redet. Der ist seit vielen Jahren Professor für Rechtstheorie an der Universität Sydney und als solcher ein Gelehrter von Weltruf, aber auch in seinem Heimatland Polen wissenschaftlich und öffentlich sehr präsent – so sehr, dass ihn die Regierungspartei PiS und ihre Verbündeten mit mehreren Gerichtsverfahren überzogen haben. Mit ihm spricht Max Steinbeis in der heutigen Folge unseres Krisenpodcasts über die freie Bahn, die die PiS-Regierung jetzt hat für ihre autoritären Pläne. Continue reading >>
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11 Juli 2020
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Court-Packing, Judicial Independence, and Populism

Should the US Supreme Court be reformed? Many advocate for the introduction of term limits and/or other reforms. The new “court reform” movement is interesting no matter what its actual prospects are because it seems – but we think only seems – to fall within a broad category of challenges to constitutional courts brought by populists around the world. Continue reading >>
07 Juli 2020

Strasbourg Steps in

In recent months, the European Court of Human Rights has communicated to the Government of the Republic of Poland several important cases concerning changes in the judiciary. Potential Strasbourg judgements may be important in containing further undermining of the independence of the judiciary and may complement measures taken at the European Union level. Continue reading >>
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08 Juni 2020

To Shoot Down a Judge

Waldemar Żurek, a Polish Judge tirelessly campaigning to preserve the independence of Polish courts, has probably endured every kind of repression that those in power have in their arsenal, save for being suspended as a judge. He was transferred against his will to another division in his court, harassed with anonymous threats over the phone and in emails and is now facing Kafkaesque claims of criminal misconduct. Continue reading >>
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03 Juni 2020
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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 >>
26 Mai 2020
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Can an Unlawful Judge be the First President of the Supreme Court?

Yesterday, the President of Poland appointed Małgorzata Manowska as the First President of the Supreme Court. The Polish Supreme Court, with Manowska as its First President, may from now on have difficulty providing the appearance of independence as required from all national courts dealing with EU law. Continue reading >>
20 Mai 2020
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Corona Constitutional #27: Justiz-Iron Man in Polen

Seit Wochen streiten die Richterinnen und Richter des polnischen Obersten Gerichtshofs darüber, wer für den vakanten Präsidentenposten kandidieren soll. Am Freitag könnte die Entscheidung endlich fallen. Was genau dort vor sich geht, und was auf dem Spiel steht, erklärt ANNA WÓJCIK vom Osiatyński Archiv im Gespräch mit Max Steinbeis. Continue reading >>
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