12 October 2023
Judicial Transitology
The rule of law crisis in Poland consists of several elements – undermining the independence of courts, politicization of disciplinary proceedings against judges, and lack of legal certainty. None of them, however, raises so many doubts and concerns as the status of judges appointed or promoted upon the request of the politically captured National Council of Judiciary (NCJ). In this blog post, we analyse the diverse composition of the group of judges appointed or promoted upon the motion of the NCJ from 2018. We also discuss the relevant jurisprudence of national and international courts and the current state of debate concerning this problem and possible solutions. Continue reading >>
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12 October 2023
The Election’s Aftermath
Reenergized by the former liberal prime minister and EUCO president Donald Tusk, Poland’s democratic forces are well positioned to deliver a stunning upset on Sunday. If this indeed materializes, we must resist the temptation to think of the critical post-election days and weeks as a regular democratic transfer of power. Instead, what will happen should be understood as an inherently perilous collapse of an authoritarian regime. Several legal and constitutional provisions are capable of being weaponized by the ruling PiS party to thwart the peaceful transfer of power. Continue reading >>
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11 October 2023
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. Continue reading >>
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11 October 2023
Europe’s Sick Success Child
Poland's rule of law crisis, spurred by the ruling coalition under Jarosław Kaczyński, has caused severe damage to its legal system and democratic foundations. The European Union has responded with infringement proceedings and withholding of funds, leading to some concessions from the Polish government. Yet, Poland's legal community and civil society have shown resilience, challenging these attacks in courts, advocating for democratic values, and maintaining a robust private media. As parliamentary elections loom, the question arises: can this resilience lead to a restoration of the rule of law? Continue reading >>
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21 September 2023
Migrant Instrumentalisation: Facts and Fictions
The last two years have seen recurring efforts to introduce the concept of instrumentalisation of migration into EU asylum law on a permanent basis. This post will demonstrate why the ‘instrumentalisation of migration’ is an overly simplified and generalised term that does not capture the complexities of the situation on the ground. Its adoption into EU asylum law thus threatens both to undermine legal certainty and bear far-reaching consequences for the Rule of Law in the EU. Continue reading >>20 September 2023
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. Continue reading >>
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01 September 2023
Direct Democracy and Indirect Electoral Campaign
In a last-minute attempt to grow voter presence at the booths on the 15th of October, Poland’s ruling party announced it would be combining the upcoming parliamentary elections with a referendum vote on not one, but four issues. This provides the governing powers with an additional electoral campaign just for them – misnamed as the referendum – to draw public attention to the questions asked. After all, they were drafted by those seeking reelection and focus on matters most used in their political agenda. Continue reading >>24 June 2023
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 >>14 June 2023
EMFA and its Uphill Battle for Media Freedom and Democracy in the EU
The European Media Freedom Act, primarily designed to safeguard the EU media market, can also serve as an important tool in preserving the rule of law in member states such as Hungary and Poland, that have experienced an alarming assault on media freedom and pluralism in the past decade. This contribution critically evaluates the potential of the proposed European Media Freedom Act (EMFA) for addressing the ongoing issues in media freedom in Poland and Hungary. Continue reading >>
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13 June 2023
Enforcing Democracy
On the 8th of June, the Commission announced the opening of an infringement procedure against Poland in relation to the so-called ‘Lex Tusk’ or ‘anti-Tusk’ law. The principle of democracy is the first alleged violation specified by the Commission, based on Articles 2 and 10 TEU. Although proposed back in 2020 by observers of the Rule of Law crisis (see here and here), using this combination of articles to protect democracy is an unprecedented step by the institution. In a way, this follows the successful actions brought against Poland based on Articles 2 and 19 TEU (with ‘successful’ referring to the Court upholding the Commission’s complaints). It also recalls similarities with the Commission’s decision to invoke Article 2 TEU as a stand-alone provision in the infringement proceedings against Hungary’s ‘anti-LGBTQ’ law. The Commission is now testing out the legal waters to see if Article 10 TEU can be the trigger for ‘democracy’ in the same way Article 19 TEU is the trigger for ‘rule of law’. Continue reading >>
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