18 March 2022

Two Plus Two Equals Four

In November 2020, I ceded the Verfassungsblog editorial to judge Igor Tuleya, so that you could learn from him first-hand what the Polish PiS government’s judicial policy means in practice.

Now there is war in Ukraine, and I read that the EU Commission is looking for ways to get the conflict with the Polish government off the agenda. The blocked money for Poland from the COVID recovery fund, I’m told, is about to be released in the next few weeks under the condition that the government dismantles the so-called disciplinary chamber at the Supreme Court (and replaces it with some other functionally equivalent but differently named mechanism). The return of the disciplined judges to their posts – the actual ending of the rule of law violation, one would think – seems to be no longer indispensable to Berlaymont, nor do they see any reason at all for haste any longer, as far as they ever did, when it comes to finally setting the rule of law mechanism in motion.

There is war in Ukraine, and every day not only tens of thousands of refugees arrive at the Polish border, but the government continues to purge the judiciary of those who cross them. Two days after Russia attacked, Judge Anna Głowacka was suspended for applying EU law. All the time the captured “National Council of the Judiciary” keeps appointing or promoting new people to positions where they dispense justice without being a court “established by law“. A few days ago, the equally PiS-controlled “Constitutional Tribunal” declared that Poland is not bound by Article 6 of the ECHR. Judgements of the Luxembourg and Strasbourg Courts continue to be ignored as if they did not exist. On Tuesday, the next ECJ judgement is due. It is again about disciplinary proceedings and the question of whether the members of the disciplinary chamber came into office correctly. Of course, the answer is no. We know that, don’t we? What more can the ECJ do that it hasn’t done already?

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There is a war going on in Ukraine, and meanwhile all this is happening, too. And if we now say: oh please, not now, we don’t have the time and the nerve for that – then we have already accepted it. Then it becomes a fact. This is not something that we can come back to later, in calmer times. This will be settled then.

Are we ready for that? What would be the price? What would that do to us?

Time to give once again the floor to judge Igor Tuleya:


When Acquiescence Turns into Crime

By Igor Tuleya

Is it appropriate to talk about the judiciary in Poland today? I will answer with another question: if Russia had independent courts and respected rule of law, would it be ruled by a criminal and attacked Ukraine?

One should not discuss basic principles and values. They should simply be observed, respected and fought for. Common values ​​make us think, feel and act alike. The universality of these principles, their obviousness builds our community, and thus, we become strong. Only together can we effectively resist Evil. I am aware of the fact that this sounds like a truism. But principles and values – because they are simple, obvious and often even banal – do not cease to be the most important indicators for our behavior and the choices we make.

Winston Smith, the character in Georg Orwell’s „Nineteen Eighty-Four”, says: Freedom is the right to say that two plus two equals four. The rest follows from it. Today, paraphrasing his words, we can say that the rule of law equals peace and freedom. The rest comes out of it. The rule of law and an independent judiciary are the foundations on which the United Europe is based.

In July 2021, the European Commission suspended the approval of the National Recovery Plan for Poland. The reason was the political attack on the Polish judiciary: the destruction of the Constitutional Tribunal, the politization of the National Council ofJudiciary, the activities of the so-called Disciplinary Chamber of the Supreme Court and the entire system of disciplinary liability for judges, which is used to prosecute judges for issuing „inconvenient” rulings, including questions referred to the Court of Justice of the EU for a preliminary ruling. In addition, PiS government no longer respects the judgments of European courts. As of today, the penalties imposed on Poland for failure to comply with the CJEU’s decision on interim measures in case (C-204/21) concerning the disciplinary system of judges in Poland amount to EUR 135,000,000.

Almost six months ago, IUSTITIA, the largest judicial association in Poland, presented a package of proposed legislative changes in order to restore the rule of law in Poland. These proposals were supported by the Polish civil society, legal community, and the majority of the democratic opposition. The presented solutions not only meet the standards defined by the judgments of the CJEU and the European Court of Human Rights, but simply refer to the basic rules functioning in every civilized state.

Unfortunately, these proposals were not received with interest. On the contrary, policymakers have shared their own ideas that have nothing to do with real reform of the judiciary. The changes proposed by these in power are only illusory.

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Conference announcement: Follow the Money? – European Integration in Light of EU Budgetary Law

The DFG Research Training Group DynamInt is hosting a conference at the Humboldt University of Berlin titled “Follow the Money? – European Integration in Light of EU Budgetary Law” (9th and 10th June 2022). 13 international researchers will discuss the European Monetary Union, budgetary policy-making, economic crises and integration through EU budgetary law. See more information on the programme and registration here.

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A telling example is the idea of ​​the President of the Republic of Poland. Andrzej Duda, “referring” to the judgments of the CJEU, agreed to abolish the so-called Disciplinary Chamber, while proposing to create a Chamber of Professional Responsibility. It is a typical facade change. From the point of view of the rule of law, it doesn’t matter whether something is called the Ministry of Truth, the Ministry of Peace, or the Ministry of Charity. The only question is whether we are really dealing with an independent court and independent judges.

The true intentions of those in power are demonstrated above all by their actions. In the shadow of aggression against Ukraine, the destruction of the Polish judicial system continues. More and more Polish judges are suspended for respecting European law, politicians are casting the neo-Judicial Council again, and the so-called Disciplinary Chamber is working full steam. The latest „ruling” of the Constitutional Tribunal headed by Julia Przyłębska has become a symbol of the “putinization” of the Polish judiciary.

On March 10th, the Constitutional Tribunal, on behest of Public Prosecutor General Zbigniew Ziobro, stated that Art. 6 sec. 1 of the European Convention on Human Rights is inconsistent with the Polish Constitution. Just as reminder: Article 6 of the European Convention deals with the right to a fair trial. It guarantees everyone the right to a fair hearing before an independent and impartial court established by law. The motion of the Public Prosecutor General was a reaction to judgments recently issued by the European Court of Human Rights where the destruction of the rule of law and independent judiciary in Poland has been exposed. The decision on the unconstitutionality of the provision was issued by a five-person panel of the Constitutional Tribunal, chaired by the former PiS MP and prosecutor of the communist times, Stanisław Piotrowicz. Only individuals elected to the Constitutional Tribunal by PiS sat in the panel, including the so-called „doubler judge” Mariusz Muszyński. The hearing took place several days after Russia’s attack on Ukraine. As a result, Poland has become the second country in the Council of Europe – along with Russia (now already beyond the Strasbourg human rights protection system) – where the binding force of the European Convention and validity of the judgments of the European Court of Human Rights have been officially questioned. The Tribunal acted the way the Constitutional Court of the Russian Federation behaved before.

A cruel war against Ukraine continues. I want to believe that because of this, it is facts whichcount for the European Commission: not empty words and deceptive declarations. Fighting for principles and values ​​is not a shame. It is a disgrace to trade them, make false compromises and choose illusory peace. It is always worth remembering that tolerating Evil always turns into crime.

The week on Verfassungsblog

The above-mentioned ruling of the Polish “Constitutional Tribunal” on article 6 of the ECHR is being protested by 27 former judges of the same tribunal, during whose term of office no one would have thought of placing this institution between quotation marks. And the HELSINKI RULE OF LAW FORUM, which gathers some towering figures in global jurisprudence, urges leaders in the member states and the EU institutions to defend the rule of law with everything they have.

In Hungary, elections will be held in a few weeks, and it could happen that Viktor Orbán will lose. But then the new government will find itself walled in by laws that can only be changed by a two-thirds majority – a dilemma on which we recently held a very fruitful blog debate. Now ARMIN VON BOGDANDY and LUKE DIMITRIOS SPIEKER have come up with an idea on how a non-Orbán government could extricate itself from this dilemma by means of European law.

In Bulgaria, former Prime Minister Boyko Borisov has been arrested. This has been made possible by the institution of the European Public Prosecutor’s Office, which can act independently of the Bulgarian Prosecutor General, probably the biggest obstacle to the rule of law in the EU member state Bulgaria. RADOSVETA VASSILEVA shows how the Supreme Judicial Council in Bulgaria is helping to ensure that the Prosecutor General can continue to abuse his office with impunity.

In Germany, Federal Foreign Minister Annalena Baerbock has announced a new German security strategy. We provide input for this debate together with ALEXANDRA KEMMERER and ISABELLE LEY from the Max Planck Institute for Comparative Public Law and International Law in Heidelberg: Today we start a new blog debate with an essay by ISABELLE LEY, further texts on parliamentary participation, arms exports and the Europeanisation of defence will follow in the next few days.

On the war in Ukraine: The fact that Russia is obliged under international law to immediately cease it has now been established in the clearest possible terms by the International Court of Justice. CHRISTIAN JOHANN explains what makes the decision a legal sensation.

Could Russia’s war of aggression on Ukraine be a European constitutional moment? JENNY ORLANDO-SALLING believes it could.

The so-called “golden passports“, which offer citizenship or residence rights in EU member states in return for investments, have always been eyed sceptically – even more so since Russia’s war of aggression. Can the EU do anything about it? GARETH DAVIES has several ideas. For LORIN WAGNER, Russian oligarchs with EU passports raise the question whether the belief that nationality is a sovereign state decision and nothing more is still satisfactory: perhaps the good old “genuine link” concept is not so bad after all?

Austria’s concept of neutrality no longer looks quite so rosy in the light of the Russian invasion. At the same time, it is completely unclear whether one can be genuinely neutral at all as a member of the UN and the EU. It is time to face some uncomfortable questions, says PETER HILPOLD. ESTER HERLIN-KARNELL looks at how the issue of neutrality is dealt with from Sweden’s point of view.

SUÉ GONZÁLEZ HAUCK writes about structural racism, which is once again particularly visible in the treatment of refugees, and what the law has to do with it.

MARKUS KRAJEWSKI analyses the long-awaited decision of the Federal Constitutional Court on the investment protection agreement CETA and believes that the last word in this matter may not yet have been spoken.

DANIEL HOLZNAGEL worries about the draft article 18 DSA, which aims to introduce new dispute settlement procedures for platform decisions.

In India, Hindu nationalism is starting to ban Muslim girls from wearing a hijab to school, and the judiciary is going along with it. According to MEDHA SRIVASTAVA, the hijab ban is unconstitutional and has nothing to do with secularism.

WILLIAM E. SCHEUERMAN takes a closer look at the legal ideology behind Trumpism and its thought leader John C. Eastman.

In the world’s poorest countries, barely 15% of people have received even a first dose of vaccination. Many see patents and other intellectual property rights as a major obstacle. As early as October 2020, South Africa and India had proposed a “waiver” within the World Trade Organisation that would temporarily suspend large parts of these rights. So far, no agreement has been reached. Now a compromise on the issue has been reported and a draft text has become public. HYO YOON KANG is unconvinced.

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Call for applications – Masterclass “The Fate of International Courts”

We would like to invite applications for the 9th Max Planck Masterclass, which will take place between 16 – 19 May 2022, at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. The Masterclass will be taught by Professor Hélène Ruiz Fabri (Director of the Max Planck Institute Luxembourg for Procedural Law). This year’s workshop will address the topic “The Fate of International Courts”. In the four sessions, we will discuss the nature of international courts, critical perspectives on international adjudicators, the potential for dialogue and cross-fertilization, as well as ethical issues of international dispute settlement. Moreover, Professor Ruiz Fabri will also give a keynote on “Feminism and International Law”. More Information here.

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STÉPHANE BRABANT, CLAIRE BRIGHT, NOAH NEITZEL and DANIEL SCHÖNFELDER take a detailed look at the draft EU directive on due diligence in the supply chain: In the first part, they examine the obligations, also in comparison to their German and French counterparts, and consider it likely that the regulations will create not only European, but global standards. The second part is about the enforcement of the obligations, in which the authors particularly emphasise the new obligations for corporate governance. In their opinion, this could be a real step away from an economy that only focuses on profit maximisation.

The founding moment of the Open Access movement, the Budapest Open Access Initiative (BOAI), is celebrating its 20th anniversary these days. What is the state of the “Open Access revolution”? RAFFAELA KUNZ looks at the rampant practice of large and powerful publishers to track scholars. In her view, this threat to academic freedom must be countered on several levels.

Our blog debate on party conferences in times of digitalisation and COVID has unfolded beautifully this week with contributions from THOMAS POGUNTKE, SOPHIE SCHÖNBERGER, BERND GRZESZICK, FABIAN MICHL, NIKO SWITEK, MARTIN MORLOK and ISABELLE BORUCKI.

And the blog debate on 20 years of 9/11 from the perspective of human dignity and fundamental liberal values has concluded with contributions by JOAN BARATA, EMANUEL V. TOWFIGH and SOFIA GALANI.

Our next blog debate will start on 21.03.2022. The topic will be “Comparative Climate Litigation in North-South Perspective”. Together with Völkerrechtsblog, WCL and with the support of EcoLogic and the Mercator Foundation, we are asking what role courts and the law play in the fight against the climate crisis – and what we can learn from the Global South. As part of the debate, there will be a lunch talk by Sam Bookman on “The Constitutional Dimension of Climate Litigation” on Thursday 24 February, 2pm (CET). Don’t miss it!

We are very pleased to be able to offer you such a wealth of relevant and topical texts on the big issues of our time. If you read us regularly, I suppose it’s fair to ask you to contribute to the upkeep of Verfassungsblog. Here you will find varied options depending on your wallet. Thank you very much!

All the best and see you next week,

Max Steinbeis