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Poland’s Polarised Presidency
The first round of Poland’s presidential election has produced an inconclusive but politically charged outcome. With no candidate achieving an absolute majority, the second round will determine who succeeds Andrzej Duda in the Presidential Palace. This election marks yet another critical moment for Poland. In the short term, its outcome will be pivotal for the current government to deliver on promises concerning the rule of law, the judiciary, and more. In the longer term, winning the presidential race is a strategic stepping stone towards consolidating or reclaiming power.
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“Competitive Victimhood” in Poland
The introduction of a legal component into the already complex and emotionally charged mosaic of memory in Poland, instead of calming and ordering the disputes, seems only to reinforce antagonistic attitudes, whether on the Polish, Jewish or Ukrainian side. In such a situation, the law can become a weapon both for and against historians and politicians alike, but it can also harm the witnesses of history, the still living victims of past crimes, or their relatives.
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Protecting Poland’s Public Media
In contrast to the slower-paced reforms in the judiciary, the new Polish government opted for swift and radical action in reforming public media during its first year. Political considerations often overshadowed strict adherence to the law in public media changes. However, public media showed improvement compared to their propagandist role under the previous administration. The media reform will be tested through its approach to revising legislation and following a constitutional procedure to appoint public media boards.
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One Year After Wałęsa v. Poland
Despite some progress, the Polish government faces immense political and structural hurdles in implementing ECtHR judgments concenring the rule of law. Because November 2025 marks one year since the ECtHR issued the pilot judgment in Wałęsa v. Poland, it is a good moment to reflect on the progress made by the current authorities in implementing ECtHR judgments. This post delves into the steps taken, the obstacles ahead, and the question of whether a coherent plan exists to navigate this legal and constitutional crisis.
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Hercules or Sisyphus? On the legacy of statutory lawlessness in post-autocratic Poland
A constitutional responsibility.
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Why Poland Should Join the European Public Prosecutor
After the Polish parliamentary elections, the question of rebuilding the rule of law in Poland has been frequently raised in academic debate. The discourse is largely dominated by the status of the so-called neo-judges and the legal effects of rulings of the politically appropriated Constitutional Tribunal. We would like to highlight another problem that the new government will have to deal with – the functioning of the public prosecutor's office occupied by people associated with the Law and Justice party. There is a great risk that high-level prosecutors may effectively block or obstruct investigations into the irregularities committed under the PiS government. We believe that a partial solution to this problem might come from Poland's quick accession to the European Public Prosecutor’s Office planned by the democratic opposition.
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Restoring Poland’s Media Freedom
Over the last ten years, PiS has not only systematically dismantled Poland’s rule of law, but also strategically corroded the country’s media freedom. It has successfully politicized Poland’s media regulators, abused public service media for propaganda purposes, captured private media outlets and supported friendly private media, and created regulatory, legal and political obstacles for private media which criticized it. In this blogpost, I will detail three core steps that must be taken to restore media freedom in Poland in conformity with European standards. In particular, I argue for the restoration of the National Broadcasting Council (KRRiT), the constitutional media regulator, as an independent body; the dissolution of the „bonus” media regulator introduced by PiS, the National Media Council; and for reforming the status of Poland’s private media and the government’s approach to the media in general.
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Poland’s Sham ‘Migration’ Referendum
On June 15, 2023, Jarosław Kaczyński, leader of Poland's PiS party, announced a rare referendum, ostensibly to allow the public to weigh in on crucial elements of Polish immigration policy, alongside the general elections. Yet, in reality, the referendum had little to do with migration and the opposition parties largely ignored the referendum's questions to avoid its deployment as an electoral campaign tool. As such, whatever voters will decide on Election day, it will tell us little about the state of Polish migration politics.
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Poland’s Elections: Free, perhaps, but not Fair
Poland’s upcoming parliamentary elections will be the country’s most important vote since the historic elections of 1989. Indeed, the momentous character of the elections might be the only thing upon which the governing PiS (Law and Justice) party and the opposition might agree. If the elections in October were fair, PiS’ defeat might be plausible though by no means certain. Yet, the preceding sentence identifies a condition we already know will not occur. In this analysis, I map the multiple ways in which the system has been rigged in favour of the incumbents. While I will only describe the most striking aspects of this unfairness, they all form parts of a system and thus should not be looked at in isolation. Kaczyński is a shrewd politician. There’s a method to his (apparent) madness. For the opposition to win is thus a Herculean task. Herculeses do appear in politics – but not that often.
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Poland’s Extended Disciplinary System
The judgement of the European Court of Justice (ECJ) on June 5, 2023 (C-204/21) has added a new chapter to the rule of law crisis in Poland. The outcome was largely expected given the well-established jurisdiction of the ECJ on matters of the rule of law. However, a close reading of the judgment demonstrates that it recognizes the more insidious ways in which Poland has undermined judicial independence. Specifically, I argue that the ECJ's ruling paves the way for a legal response to the suppression of judicial independence through public intimidation and stigmatization of judges.
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How to Rebuild Poland’s Rule of Law
Ahead of the next parliamentary elections, a core question is whether and if so how we can restore Poland’s rule of law. While the current effort is understandably focused on resurrecting the Constitutional Court and rebuilding an independent judiciary and prosecution, a purely institutional approach won’t be enough. Instead, it is imperative to mobilize and build lasting defiance on the ground.
Continue reading >>Doing Justice to Poland’s Muzzle Law
On 5 June 2023, the Court of Justice issued its fourth infringement judgment in relation to yet another Polish piece of legislation – informally known as the muzzle law – which aimed to dissuade or punish Polish judges for applying and upholding EU rule of law requirements. As anyone with any basic understanding of EU law could have predicted, the law rushed into force by Poland’s ruling coalition in December 2019 did not survive judicial scrutiny in Luxembourg. As long as the Commission fails to demand full compliance with CJEU case law and decisively address the issue of judicial usurpers, however, just chipping away at the arbitrary disciplinary changes Polish authorities have made will always fail to solve Poland’s fundamental and systemic issues.
Continue reading >>7 Years Later: Poland as a Legal Black Hole
The EU is faced with a Member State where all of its top courts are now unlawfully composed; where every single judicial appointment procedure since 2018 is inherently defective due to the involvement of an unconstitutional body; and where core EU and ECHR requirements relating to effective judicial protection and the fundamental right to an independent court established by law have been held “unconstitutional” in 2021 and 2022 by the body masquerading as Poland’s Constitutional Tribunal.
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#DefendingTheDefenders – Episode 1: Poland
We Need to Talk About the Rule of Law is back for a second season that focuses on the impact of rule of law erosions on attorneys. In the first episode, we talk to MIKOŁAJ PIETRZAK. He is an attorney and the Dean of the Warsaw Bar Association, which is the oldest professional legal association in Poland and the administrative association of attorneys in Warsaw.
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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.
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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.
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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.
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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.
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(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 >>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 >>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 >>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.
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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 >>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.
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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?
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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.
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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.
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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 >>Poland and Hungary are withdrawing from the EU
The latest developments in Poland and Hungary beg the question of what the EU may, or indeed shall do when a Member State no longer fulfils the prerequisites of membership. Can the Union force that state to meet its duties against its will? Or should it ultimately acknowledge that state’s choice, and proceed with its orderly retreat from the EU legal order?
Continue reading >>An Emergency By Any Other Name? Measures Against the COVID-19 Pandemic in Poland
The measures introduced to prevent the spread of COVID-19 in Poland are among some of the most extensive and far-reaching, affecting many spheres of civil, political, economic, social and cultural rights. Few of these measures amount to recommendations and suggestions of specific behaviour, most of them are hard, legally enforceable orders and prohibitions and flouting them incurs the risk of severe financial punishment. Yet the legal framework for these measures causes a significant degree of controversy. This report aims to present a birds eye’s view on the measures in Poland and to highlight some issues legal scholars and experts have taken with both the substantive side of the measures and the means they were introduced.
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Commission v Poland: What Happened, What it Means, What it Will Take
9 March 2020. It had been marked in many a Polish diary. Would the EU make steps to finally act to stop the backliding? The electronic board in front of the Grande Salle indicates Case C-791/19 R, Commission versus Poland. A report from Luxembourg.
Continue reading >>Open Letter to the President of the European Commission regarding Poland’s “Muzzle Law”
The current procrastination is akin to dereliction of duty: Waiting to bring infringement actions and to fail to simultaneously seek interim measures when the rule of law in a Member State is so obviously and blatantly deteriorating on an industrial scale only means that the Commission faces a far more serious and intractable problem to deal with later.
Continue reading >>For Norway it’s Official: The Rule of Law is No More in Poland
The so-called “muzzle law”, adopted by the Polish parliament on January 23, was the last straw. On Thursday 27 February, the board of the Norwegian Court Administration decided to withdraw from its planned cooperation with Poland under the justice programme of the EEA and Norway Grants, due to concerns over the Polish justice reforms.
Continue reading >>1460 Days Later: Rule of Law in Poland R.I.P. (Part II)
Writing a year ago, we warned that the situation in Poland “has deteriorated further to the point of threatening the functioning of the whole EU legal order and therefore, the future of the EU’s internal market itself.” This is no longer a mere threat but a clear and present danger. Stalling for time would be irresponsible. On current trajectory, it is only a matter of time before Poland’s rule of law default eventually triggers a knock-on process of legal disintegration.
Continue reading >>1460 Days Later: Rule of Law in Poland R.I.P. (Part I)
On 13 January 2016, exactly four years ago today, the Commission activated its rule of law framework for the very first time with respect to Poland. This (two-part) post will highlight the main developments, primarily from the point of view of EU law, which took place in 2019.
Continue reading >>Should Round Table Negotiations Serve as a Strategic Device in Poland’s Politics Today?
Karolina Wigura discusses the idea of future round table talks in Poland between the populists and the other political powers, aiming at achieving a broader consensus to repair the judiciary and other state institutions.
Continue reading >>Commission v. Poland – A Stepping Stone Towards a Strong “Union of Values”?
Commission v. Poland gives the Court not only the opportunity to put ASJP into practice but also to clarify the doctrinal framework for finally addressing the developments in “backsliding” Member States under EU law. This contribution will shed some light on these two uncertainties, suggest ways of how the Court could resolve them and explore the potential repercussions for the EU legal order.
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The first judgment of the ECJ regarding a breach of the rule of law in Poland?
While the judgment in C-619/18 Commission v. Poland is unlikely to deliver a surprise as to the assessment of the Polish ‘reforms’, interesting issues are emerging in relation to the effects of the judgment for the Polish authorities. This piece starts from a brief discussion why the case seems lost for Poland, proceeding then to analysis whether and how the judgment should be implemented.
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Age is the limit? Background of the CJEU case C-619/18 Commission v Poland
Next month the Court of Justice of the European Union will make a decision that is likely going to feature in the future textbooks on European Union law. In the case C-618/19 Commission v Poland, the Court will tackle the topic of judicial independence and the question of whether the standards of the rule of law were violated by the Polish government and parliament and thus address a critical element of European Union’s legal system.
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Three Steps Ahead, One Step Aside: The AG’s Opinion in the Commission v. Poland Case
In the infringement case about forced retirement of Polish Supreme Court judges, the Advocate General has delivered his much-awaited opinion. The AG proposed that the Court should declare that Poland failed to fulfil its obligations under Article 19 TEU. I do agree with this conclusion. I do not share, however, the Advocate General's view that the complaint of the Commission should be rejected as inadmissible as far as it is based on the right to an independent judge under Article 49 of the Charter of Fundamental Rights.
Continue reading >>1095 Days Later: From Bad to Worse Regarding the Rule of Law in Poland (Part II)
Part II of our stock-taking of the EU rule of law proceedings against Poland: what the Luxembourg Court, the Council and member states can do to prevent further decay of the rule of law.
Continue reading >>1095 Days Later: From Bad to Worse Regarding the Rule of Law in Poland (Part I)
On 13 January 2016, exactly three years ago today, the Commission activated the so-called rule of law framework for the very first time with respect to Poland. As things stand today, Polish authorities’ sustained and systematic attacks on the rule of law now more than ever directly threaten the very functioning of the EU legal order.
Continue reading >>How to Abolish Democracy: Electoral System, Party Regulation and Opposition Rights in Hungary and Poland
When it comes to Poland and Hungary, everyone is talking about the judiciary, about the independence of the courts, about the rule of law. But hardly anyone talks about parliaments. Yet they are at the heart of our democracies. And they are no less at risk. This became clear in the third panel of our workshop, which dealt with the electoral system, party regulation and opposition rights in Hungary and Poland. What may sound technical at first glance are surprisingly effective instruments in the hands of autocrats. It is precisely with these instruments that the governments of both countries have set the course for a “democracy” that primarily benefits the ruling parties and undermines political plurality.
Continue reading >>“Constitutional Resilience – How Can a Democratic Constitution Survive an Autocratic Majority?”: Freedom of Speech, Media and Civil Society in Hungary and Poland
Freedom of speech, media freedom and the freedom of civil society are the lifeblood of democracy. As far as the threats to freedom of speech, media and civil society are concerned, from a normative perspective, the problems of Hungary and Poland are decidedly not external to western democracies. The question arises of how resilient constitutions are or can be made in this matter, whereby political viewpoint discrimination takes a center role in the conetxt of not only constitutional resilience but also our European values.
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On the Brink of Joining Poland and Hungary: The Night of Surprises in the Slovak Parliament
The relatively short political history of the Slovak parliament has already witnessed several dramatic sessions. The latest drama unfolded during the night of 23 October in a parliamentary session to discuss and vote on an amendment of the Constitution and a new Act on the Constitutional Court that could have put Slovakia on a direct path to follow Hungary and Poland. The night turned out to be full of surprises.
Continue reading >>Poland’s Supreme Administrative Court recognizes Same-sex Parents
Poland is one step closer to the full legal recognition of birth certificates that include same-sex parents. In a landmark court ruling of 10 October 2018, the Supreme Administrative Court in Warsaw (SAC) found that registry offices in Poland cannot refuse the registration of foreign birth certificates of children based on the sexual orientation of their parents.
Continue reading >>Will Poland, With Its Own Constitution Ablaze, Now Set Fire to EU Law?
The Polish justice minister and Prosecutor-General Zbigniew Ziobro has asked the Constitutional Court to declare Art. 267 TFEU unconstitutional "to the extent that it allows referring to the Court [of Justice] a preliminary question … in matters pertaining to the design, shape, and organisation of the judiciary as well as proceedings before the judicial organs of a member state". If the Court adopts Ziobro's arguments, that will have drastic implications for the integrity of EU law.
Continue reading >>The Rule of Law Crisis in Poland: A New Chapter
The current controversies on the Polish Supreme Court resemble the conflict over the Constitutional Tribunal in 2015-216 to some extent. However, the Supreme Court took new steps on August 2, when it referred five questions to the Court of Justice of the EU and requested a preliminary ruling. All five questions relate (more or less directly) to the principles of (1) independence of the courts and (2) the judicial independence under the circumstances of the rule of law crisis in Poland and thus have a potential of becoming a key aspect in the Polish rule of law crisis.
Continue reading >>Dusting off the Old Precedent – Why the Commission Must Stick to the Art. 7 Procedure Against Poland
Here we go again. The reports are resurfacing that the Commission is ready to back away from the Article 7 procedure that was initiated against Poland last December. Should we be surprised? For anybody who vaguely follows the Commission’s vanishing act, the answer must be a resounding „no”. Instead, the analysis that follows offers a journey back in time and argues that the past teaches us some important lessons and … rhymes.
Continue reading >>10 Facts on Poland for the Consideration of the European Court of Justice
In June, the European Court of Justice is to decide whether, despite massive legislative changes, the Polish judiciary is still independent and therefore able to ensure a fair trial to people extradited to Poland on the basis of a European Arrest Warrant. Marcin Matczak, a Polish lawyer, uses the old tradition of the amicus curiae letter – a letter from a friend of the court – to depict the situation of the Polish judiciary in 2018.
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