24 September 2020
What’s in the Words
It is plain worrisome when judges need to end up at the European Court of Justice on the argument that what they have available at home is no longer a proper court. 22 September 2020 was such a day for two veritable Polish and therefore European judges: Judge Waldemar Żurek and Judge Monika Frąckowiak. More than a legal fight, it is a battle of and for ideas, playing out – literally – in open court. Continue reading >>
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08 June 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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15 May 2020
Between Constitutional Tragedy and Political Farce
One of the two basic genres of ancient drama is tragedy – fate thwarts all the intentions and actions of the main protagonist, leading him to his doom. In such terms does the governing coalition in Poland attempt to present what befell the presidential elections in Poland – just a few days before the elections, the leaders of the two coalition parties issued the decision that the elections would not take place on the planned and constitutional dates. Was it indeed the lack of cooperation from the opposition, despite the strenuous attempts and herculean efforts of the government, that made it necessary to postpone the elections? Continue reading >>
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04 May 2020
Being a Lawyer in Times of “Constitutional Pandemics”
Engaging in academic discussions aimed at better understanding the rampant anti-constitutional shenanigans and at finding adequate cures – while crucial conceptual work – is no longer sufficient. Much more is needed, no less a constitutional temperament and engagement on the ground that place us and our work in a more general context and explain what and how we respond on a behavioral level. Looking through the prism of temperament invites questions about the necessary virtues that go beyond academic excellence. This is clearly palpable in the evocative concept of constitutional fidelity. Continue reading >>02 May 2020
Economic Interests and the Rule of Law Crisis in the EU
Legal scholarship needs to be more open to the political reality in order to effectively tackle the rule of law crisis. To go one step further, I argue that without considering the economic interests of all the relevant individual and institutional actors (corporations and governments) we will never fully understand the failures of the EU responses to the rule of law backsliding. Continue reading >>24 April 2020
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. Continue reading >>
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19 April 2020
Domestic Courts Pushing for a Workable Test to Protect the Rule of Law in the EU
On 17 February 2020, the Oberlandesgericht Karlsruhe passed a decision in a surrender case that we expect to shape the future of the LM-test. Its decision can be seen not only as a result of Luxembourg’s unworkable LM test but also as an acknowledgement of the effect of Poland’s muzzle law on the independence of its judiciary. Shortly after, Rechtbank Amsterdam engaged with this decision, thus making it more likely that the CJEU will have to move forward and develop its test into a more meaningful one. Continue reading >>18 April 2020
Luxembourg’s Unworkable Test to Protect the Rule of Law in the EU
A key rule of law case illustrating the conversation taking place between national judges and the Court of Justice about the how-to of rule of law protection is the CJEU’s LM ruling dealing with the implementation of the European Arrest Warrant. In it the CJEU developed a test to balance mutual trust and individual rights, particularly the right to a fair trial. The Rechtbank Amsterdam and the Karlsruhe Oberlandesgericht applied Luxembourg’s LM test with respect to Polish suspects in a series of recent (interlocutory) rulings. This national case-law is interesting both for its immediate outcome (suspension of surrenders) and its implicit message to Luxembourg: “Sorry, we tried, but your test is unworkable.” Continue reading >>
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12 December 2019
History with a Future? The Relevance of the 1989 Round Table Experience for Today
The experience of the Central European round tables has no specific relevance today, but it may be significant in the future. Not in a direct way of copying them and it would be unwise to frame any future political consultation as a being inspired by the 1989 round tables. Yet, if we look at the round tables’ essence, negotiating a peaceful transition with an outgoing power, charting a course between legality and legitimacy, the round tables can tell us something of remaining relevance. Continue reading >>
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10 December 2019