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 >>
0 
12 June 2023
The Key to Ensure Media Pluralism in the EU? A Unified Framework
Media freedom is one of the necessary conditions for democracies to function. Yet media freedom is currently not guaranteed in all European Union countries. The European Media Freedom Act proposed by the European Commission in 2022 aims to protect and foster media pluralism across the EU block and, while some changes would need to be made to strengthen the proposal’s efficacy, monitoring on the ground shows that a common European framework is indeed needed. While there are already several harmonisation measures that revolve around media – such as the Audiovisual Media Services Directive (AVMSD) – this is the first text that clearly and specifically addresses the media market in and of itself, which marks a paradigm shift in EU media regulation. Continue reading >>
0
11 June 2023
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 >>07 June 2023
An Inconvenient Constraint
On 1 July 2024, Hungary is set to take over the Presidency of the Council of Ministers. The European Parliament and the Meijers Committee issued reports questioning whether Hungary should be blocked from doing that. These proposals raise questions of political feasibility, however, especially as one may doubt if a Hungarian Council Presidency can do much practical damage to the EU. In addition, they also raise questions of legal feasibility. A logical prerequisite for preventing Hungary from holding the Presidency as long as it breaches the rule of law is that doing so is consistent with the EU’s own rule of law. I doubt it is. Continue reading >>05 June 2023
Spotlight Interpretation and its Devastating Effects
After 1989 Poland struggled to build up a free state based on the rule of law. More recently, illiberal constitutionalism has been damaging these hard-won gains. This blogpost will argue that the systematic dismantling of Poland’s rule of law, without officially amending the Constitution, was possible due to a peculiar interpretative technique called spotlight interpretation. Its essence lies in the opportunistic interpretation of systemically important constitutional provisions to achieve the short-term political goals of the ruling majority, and it has arguably been central to the destruction of judicial independence in Poland’s constitutional order. Continue reading >>
0
03 June 2023
Institutional Corsets and the Question of Timing
There has been a lot of noise around whether Hungary should, and legally could, be blocked from taking over the Council presidency in the second half of 2024, considering the state of the rule of law in the country. On 1 June, the European Parliament adopted a resolution, questioning Hungary’s ability to “credibly fulfill” the tasks of a Council presidency and asking the Council to “find a proper solution as soon as possible”, else Parliament could take “appropriate measures”. Such concerns are legitimate, but another question seems to be sidelined in the debate: How much practical damage can the upcoming Council presidency under Hungary actually do in the EU? Continue reading >>01 June 2023
An Honest Broker?
A characteristic of the functioning of the EU is that the Presidency of the Council of Ministers rotates between Member States every six months according to a previously agreed order. The EU Presidency is responsible for driving forward the Council’s work on EU legislation. In the second half of 2024, Hungary will take over the Presidency, followed by Poland in the first half of 2025. Given their rule of law record, it is highly questionable whether they will act in the Council’s general interest. In order to avoid damage, there are three avenues available to the Council and the Member States. Continue reading >>
0
31 May 2023
The Law to Take Out Tusk
On 29 May, President Duda has peremptorily signed this law into force which sets up a new body: a commission to track Russian influence on Polish public officials and other public figures which may have resulted in the undermining of Polish security. This monster of a law has so many defects, pathological features and outright conflicts with the rule of law, even at its very basis, that it is hard to know where to start. Continue reading >>27 April 2023
The Ukrainian Grain Imports Saga
Poland and Hungary, later joined by Bulgaria, Slovakia and Romania, decided to unilaterally halt the imports of grain and other food products from Ukraine to protect their domestic farmers. The European Commission quickly announced that “trade policy is of EU exclusive competence and, therefore, unilateral actions are not acceptable”. At the same, however, the Commission’s spokesperson also considered that it was “too early” to comment on the legal implications of the Member States’ actions. Instead, the Commission adopted a pragmatic approach. It quickly announced a new support package for EU farmers affected by the increased supply of Ukrainian agricultural products and proposed additional measures to ensure the transit of Ukrainian grain exports to destinations outside of the Union. Significantly, it also added that this package “is subject to Member States lifting their unilateral measures”. This creates a very cynical situation, in the sense that an infringement of EU law may be instrumental to reach a better deal. Continue reading >>
0
12 April 2023
Wie die EU durch das Spitzenkandidatensystem ihre illiberalen Regime in Ungarn und Polen bekämpfen könnte
Die Europäische Union scheint unfähig zu sein, gegen die illiberalen Regime in Polen und Ungarn erfolgreich vorzugehen. Dabei hält sich der Irrglaube, dass die EU keine rechtlichen Mittel zur Verfügung habe, um gegen diese undemokratischen Staaten anzukämpfen. Dies ist nicht der Fall. Die EU hat und hatte schon immer die nötigen Mittel zur Hand, die jedoch auch tatsächlich genutzt werden müssten. Der notwendige Schritt, um dies zu garantieren, ist so einfach wie wirksam. Die EU muss das Spitzenkandidatensystem für die Europäische Kommission wiedereinsetzen. Continue reading >>
0